Partly allowed

Shailesh Shukla ampOTHERS v. State of Chhattisgarh

Chhattisgarh HC18 Jul 2024CRA/1044/2018

Case brief

AI extract

What is this about?

Appeal against conviction for kidnapping two minor boys from school and demanding ransom. The High Court set aside conviction under Sections 364A and 120B IPC for want of proof of ransom demand and threats, affirmed convictions under Sections 363, 365 and 368 IPC, and ordered release on completion of sentence.

What did the court decide?

Conviction under Sections 364A and 120B IPC set aside; acquittal on benefit of doubt; sentences under Sections 363 and 365 IPC affirmed; appellants released forthwith having completed seven years.

Shailesh Shukla ampOTHERS Vs State of Chhattisgarh — Quashing and FIR | Chhattisgarh HC (2024)

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(Cr. A. No. 1044 of 2018)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 1044 OF 2018

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(Arising out of judgment dated 27.06.2018 passed in Sessions Trial No.108/2017 by learned 1^st Additional Sessions Judge, Bilaspur, District Bilaspur, CG)

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1. Shailesh Shukla S/o Kamlesh Shukla, Aged About 37 Years R/o Village Pandarbhattha, Police Station Mungeli, District Mungeli Chhattisgarh,

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2. Rammilan @ Ravi S/o Chandrika Prasad Tiwari, R/o Barela, Police Station Jarhagaon, District Mungeli Chhattisgarh

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3. Anil Kumar S/o Ramsunder Pathe Aged About 25 Years R/o Village Karhi, Police Station Mungeli, District Mungeli Chhattisgarh

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4. Aakash Singh Yadav S/o Rajkumar Yadav, Aged About 21 Years R/o Choubey Colony, Atal Awas Sarkanda, Police Station Sarkanda, District Bilaspur Chhattisgarh

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---- Appellants

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Sarkanda, District Bilaspur, Chhattisgarh

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... Respondent

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For Appellant No.1 :- Mr. J. A. Lohani, Advocate. For Appellant No.2 :- Mr. Rajeev Kumar Shrivastava, Advocate For Appellant No.3 :- Mr. Rajeev Kumar Dubey, Advocate. For Appellant No.4 :- Mr. Siddhant Tiwari, Advocate. For Respondent/State :- Mr. Arvind Dubey, Govt. Advocate & Mr. HAPS Bhatia, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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(Cr. A. No. 1044 of 2018)

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Judgment on Board (19.07.2024)

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Sanjay K. Agrawal, J.

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1. The present Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ('CrPC') has been preferred by these four appellants calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 27.06.2018 passed by 1^st Additional Sessions Judge, Bilaspur in Sessions Trial No.108/2017, by which the appellants have been convicted under Sections 363, 364A, 365 & 368 read with Section120B of the Indian Penal Code, 1860 ('IPC') and each of them has been sentenced in the following manner:-

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Conviction		Sentence
u/S. 363 of IPC		R.I. for 7 years and fine of Rs.500/- and in default of payment of fine, to undergo additional R.I. for 1 month.
u/S. 364A r/w S.1 of IPC.	20B	Life Imprisonment and fine of Rs.500/- and in default of payment of fine, to undergo additional R.I. for 1 month.
u/S. 365 of IPC (Since 365 is for crime than 368 appellants have sentenced only u/s. IPC	gravest , the been 365 of	R.I. for 7 years and fine of Rs.500/- and in default of payment of fine, to undergo additional R.I. for 1 month.

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Prosecution case, in brief:-

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2. For sake of convenience, all the accused persons will hereinafter be referred to as under:

Wakil Ansari – A1

Rammilan – A5

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(Cr. A. No. 1044 of 2018)

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Alok @ Chhotu- A2 Anil Kumar – A6 Ajmer Singh - A3 Akash Singh Yadav – A7 Shailesh Shukla – A4

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3. On 24.02.2017 between 11:30 to 12 noon, these 4 appellants along with 3 acquitted accused persons kidnapped two minor boys Harsh Kesharwani (PW-3) and Vicky Kesharwani (PW-4) from their school and kept them in their wrongful confinement. Subsequently, Vinod Kesharwani (PW-1), father of the victims, received a call on his mobile from mobile number 8085221038, demanding a ransom of rupees 2 crore, failing which he would have to face dire consequences. Then complainant Vinod Kesharwani reported the matter to Police Station Sarkanda, Bilaspur pursuant to which, FIR (Exhibit P-1) was lodged. On 25.04.2017 at about 6-7 a.m., the appellants dropped the victims at Mungeli bus stand and asked them to go to Bilaspur by bus. Both the victims came to Bilaspur by bus at about 9.30 p.m. and were handed over to their father Vinod Kesharwani (PW-1). The memorandum statements of the appellants were recorded vide Exhibits P-7 & P-15, pursuant which, one Honda Shine Motorcycle bearing Registration No.CG28P-1911 from accused Anil Kumar, one mobile of Micromax company with SIM No.7748941086 from accused Rammilan and one Mobile with SIM No.8913931601 from accused Akash Yadav were seized vide Exhibits P-8 to P-10. Test Identification Parade (‘TIP’) was conducted by PW-10 Dev Singh Uikey, Tahsildar, Bilaspur, in which these four appellants were identified by the Victims. After completion of the investigation, the appellants were charge-sheeted for the aforesaid offences and the matter was put to trial before the Court below in which the

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(Cr. A. No. 1044 of 2018)

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appellants abjured their guilt, took a plea of false implication and entreated for trial.

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4. During the course of the trial, in order to bring home the offence, the prosecution has examined as many as 19 witnesses and exhibited 40 documents. Statements of the accused/appellants were recorded under Section 313 of CrPC, in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, in their defence, they have not examined any witness but exhibited two documents as D-1 & D-2.

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5. After conclusion of the trial, the Trial Court, vide impugned judgment and order dated 27.06.2018, on appreciation of the oral and documentary evidence available on record has acquitted accused Wakil Ansari – A1, Alok @ Chhotu- A2 & Ajmer Singh – A3 of all the charges levelled against them but convicted and sentenced accused Shailesh Shukla – A4, Rammilan – A5, Anil Kumar – A6 & Akash Singh Yadav – A7 in the manner as mentioned in the opening paragraph of this judgment, which led to the filing of the present criminal appeal by the four appellants herein.

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Submissions of learned Counsels for parties:-

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6. Learned counsel appearing for the appellants would submit that the conviction of the appellants under Section 364A read with section 120B of IPC is not sustainable because the prosecution evidence particularly that of the two kidnapped children does not prove that any threat to cause death or hurt was given to the children, nor there is any evidence to prove that the appellants did something which give rise to reasonable apprehension and that the two children may be put to death or hurt, much less no case is made out. He

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(Cr. A. No. 1044 of 2018)

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submits that the demand of ransom is one of the essential ingredient of Section 364A of IPC and which has not been satisfied in the instant case. The SIM No.8085221038 from which the ransom call is said to have been made to PW-1 Vinod Kesharwani, has not been seized from the appellants. Therefore, demand of ransom by the appellants has not been proved. Similarly, SIM No.7748941086 and SIM No.8913931601 are said to have been seized from accused Rammilan & Akash Yadav respectively but no calls have been made using the said SIM numbers also. As such, the appellants are entitled for acquittal from the offences in question.

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7. Mr. Arvind Dubey, learned Government Advocate, per contra, would submit that the prosecution has been able to prove its case beyond reasonable doubt. The four appellants had kidnapped the victims from their school and thereafter demanded rupees two crores from their father, PW-1 Vinod Kesharwani. As such, the appellants do not deserve for acquittal and their appeal is liable to be dismissed.

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8. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

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9. All the four appellants herein, have been convicted for the offences punishable under Sections 363, 364A, 365 & 368 read with Section 120B of IPC.

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10. The Supreme Court in the matter of Neeraj Sharma v. State of Chhattisgargh with Ashwani Kumar Yadav v. State of Chhattisgarh¹ has considered the conditions which must to be met for invoking Section 364A of IPC and held in paragraphs 34 to 37 as under:-

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(2024) SCC OnLine SC 13

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(Cr. A. No. 1044 of 2018)

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“34. This court in the case of Shaik Ahmed v. State of Telangana , (2021) 9 SCC 59 has held that in order to make out an offence under Section 364 A, three conditions must be met:

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A) There should be a kidnapping or abduction of a person or a person is to be kept in detention after such kidnapping or abduction;

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B) There is a threat to cause death or hurt to such a person or the accused by their conduct give rise to a reasonable apprehension that such person may be put to death or hurt

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C) Or cause death or hurt to such a person in order to compel the Government or any foreign state or intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom.

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The necessary ingredients which the prosecution must prove, beyond a reasonable doubt, before the Court are not only an act of kidnapping or abduction but thereafter the demand of ransom, coupled with the threat to life of a person who has been kidnapped or abducted, must be there. It was reiterated by this Court in the case of Ravi Dhingra v. State of Haryana , (2023) 6 SCC 76.

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In the present case, what the prosecution has miserably failed to establish is the demand of ransom. As per the prosecution, the complainant’s father i.e., Praneet Sharma (PW-5) received a phone call from which a demand of ransom was made. The phone call was allegedly traced as being of one Ravi Kumar Dwivedi but no evidence was placed on record to establish the demand of ransom before the Court which was absolutely necessary in view of the law laid done by this Court in Rajesh v. State of Madhya Pradesh , 2023 SCC OnLine SC 1202.

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(Cr. A. No. 1044 of 2018)

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For making out a case under Section 364A, the first condition i.e., kidnapping or abduction must be coupled with either the second or the third condition as held by this Court in Shaik Ahmed (supra). Under the said provision, the accused is liable to be punished either by death or imprisonment for life and is also liable to be fined considering the gravity of the offence. In the present case, even if it is presumed for the sake of argument that an offence under Section 364 is made out, we do not find that the offence would come under the ambit of Section 364A. ”

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11. Reverting to the facts of the case, it is quite vivid that in para-33 of the impugned judgment, the trial Court has recorded the finding that Akash Singh Yadav-A7 had kidnapped the two minor children Harsh Kesharwani (PW-3) & Vicky Kesharwani (PW-4) from their school and taken them to the water tank of Ashoknagar in his Scorpio vehicle where other three accused/appellants Shailesh Shukla – A4, Rammilan – A5, Anil Kumar – A6 were present. All the four appellants took both the kidnapped children to village Dhapai and kept them there for the night. As per Exhibits D1 & D2, the next day of the incident, A5 & A6 took the two kidnapped children from the confined place and sent them to the safe place/Mungeli from where they were brought to Bilaspur and handed over to the Police.

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12. However, the trial Court in para-41 has recorded the finding that the four appellants kidnapped the two minor children and kept them in wrongful confinement outside the village in a secrete place in village Dhapai and demanded ransom which is proved from the statement of Vinod Kesharwani (PW-1), therefore, they are guilty of offence under Section 364A of IPC.

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(Cr. A. No. 1044 of 2018)

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13. Careful perusal of the finding of the Trial Court would show that the trial Court has found the offence under Sections 363, 364A, 365 & 368 of IPC proved against the appellants but the trial Court has failed to notice the basic ingredients of Section 364A of IPC i.e. kidnapping for ransom. Apart from kidnapping, there must be a threat to cause death or hurt to such a person or the accused by their conduct give rise to a reasonable apprehension that such person may be put to death or hurt. Further, there must be demand of ransom coupled with threat of life of the person must be established as has been held by the Hon’ble Supreme Court in the case of Neeraj Sharma (supra) and Ashwani Kumar (supra). But in the instant case, from the finding of the trial Court, the aforesaid facts are absolutely missing. The amount of Rs.2 crores is said to have been demanded by the appellants from mobile number 8085221038 from Vinod Kesharwani (PW-1) but neither the said SIM has been seized nor has brought on record to hold that this SIM number was used by the four appellants for demanding ransom nor it has been established that it was owned by any of the four appellants. Therefore, it has not been proved from the evidence that the ransom of Rs.2 crores was made by any of the appellants. Furthermore, the call details to demonstrate that the call was made from mobile No.8085221038 to mobile No.9827199698 are not supported by certificate under Sections 63 & 65 of the Indian Evidence Act. Therefore, the call details are not acceptable and even the same has not been relied upon by the Trial Court. As such, the prosecution has miserably failed to prove that the appellants are guilty of offence punishable under Section 364A read with Section 120B of IPC and therefore, the trial

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(Cr. A. No. 1044 of 2018)

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Court is absolutely unjustified in convicting the appellants for the said offence.

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14. Thus, in view of the aforesaid discussion and in light of the decisions of the Supreme Court rendered in the matters of Neeraj Sharma & Ashwani Kumar Yadav (supra) and Rajesh & Anr. (supra), we are of the opinion that the conviction of the four appellants for the offence punishable under Section 364A of IPC is not based on the evidence available on record. Accordingly, the conviction of the four appellants for the offences punishable under Sections 364A and consequently under Section 120B of IPC deserves to be and is hereby set-aside and they are acquitted of the said charges on the basis of benefit of doubt. However, the conviction of these appellants for the offence punishable under Sections 363, 365 & 368 of IPC and the sentence imposed under Sections 363 & 365 of IPC including the fine part and its default clause are affirmed.

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15. The appellants are reported to be in jail since 27.04.2017 & 01.05.2017 thereby they have already completed 7 years of imprisonment awarded under Sections 363 & 365 of IPC. We therefore direct that they be released from jail forthwith, if their detention is not required in connection with any other offence.

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16. In the result, the appeal is partly allowed to the extent indicated herein-above.

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17. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and also to the concerned Jail Superintendent for information and necessary action at the earliest.

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Sd/- Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Khatai

Shailesh Shukla ampOTHERS v. State of Chhattisgarh

Case brief

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Shailesh Shukla ampOTHERS v. State of Chhattisgarh

Case brief

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