Allahabad High Court
Pohpee @ Pohap Singh vs State Of U.P. on 5 September, 2022
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- JAIL APPEAL No. - 1262 of 2012 Appellant :- Pohpee @ Pohap Singh Respondent :- State of U.P. Counsel for Appellant :- From Jail,Arun Kumar Vishwakarma,Manoj Kumar Pandey,Uttar Kumar Goswami Counsel for Respondent :- A.G.A. Connected With Case :- CRIMINAL APPEAL No. - 1684 of 2011 Appellant :- Pooran Singh Respondent :- State of U.P. Counsel for Appellant :- S.S. Rajput Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 1741 of 2011 Appellant :- Ramesh @ Chote Respondent :- State of U.P. Counsel for Appellant :- Rajeev Goswami,B.P. Verma,V.M. Zaidi Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 1945 of 2011 Appellant :- Padam Singh Respondent :- State of U.P. Counsel for Appellant :- Vivek Dubey,Subhash Chandra Raghav Counsel for Respondent :- Govt. Advocate,B.P.Verma And Case :- CRIMINAL APPEAL No. - 2636 of 2011 Appellant :- Raees Respondent :- State of U.P. Counsel for Appellant :- Dr. G.S.D. Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Per: Hon'ble Ashwani Kumar Mishra, J.)
1. These five appeals are directed against the judgment and orders dated 26.2.2011, 28.2.2011 and 1.4.2011, passed by Additional Sessions Judge (Court No.6), Mathura in Sessions Trial No. 115 of 2007 (State Vs. Pooran Singh, Padam Singh and Rahees) and Sessions Trial No.286 of 2007 (State Vs. Ramesh @ Chhote and Pohpee). All the five accused have been held guilty of kidnapping for ransom under Section 364-A IPC and have been sentenced to life imprisonment alongwith fine of Rs.10,000/- each, and to undergo further rigorous imprisonment of two years in the event of default of payment of fine.
2. Facts, as emerge from record of these connected appeals are that a written report was made by the first informant Mohar Singh (Ext. Ka-1) on 10.11.2016 stating that he is an original resident of Village Chaumuha, Police Station Vrindavan, District Mathura. The brother-in-law of his sister namely Pohpee, son of Mahaur Singh, wanted informant's land to be sold. Upon the informant's refusal to sell his land accused Pohpee threatened him that he would kidnap his son and murder him. On 21.10.2006 the informant's son Satish had gone to Chaumuha Bazar but did not return till late in the evening which made the informant suspicious. The informant (PW-1) made attempts to trace out his son. He is alleged to have been informed by Ashok Kumar (PW-3) that from the vicinity of tea shop of Govind, Pohpee alongwith another person took his son on motorcycle towards Chhata. On enquiry the informant came to know that Pohpee and Narayan Singh had taken his son to Naugaon, Police Station Chhata and have handed over his son to Rahees son of Yaseen, resident of Police Station Narsena, District Bulandshahar; Pooran Singh son of Karan Singh, resident of Garhi Parsoti, Police Station Surir, District Mathura and Padam son of Kunwar Pal, who may kill his son. The informant disclosed that he was trying to locate his son so far, and after coming to know of the true facts he has come to police station for lodging his report. Same be registered and legal action be taken in the matter.
3. On the basis of aforesaid written report Police Constable Peetam Singh (PW-4) entered the substance of written report in the general diary. He thereafter prepared the Check FIR, which was registered as Case Crime No.493 of 2006, under Section 364 IPC, at police outpost Jait, Police Station Vrindavan, District Mathura (Ext. Ka-2). Perusal of same will show that it was registered at 15.25 pm on 10.11.2006.
4. Incidentally, just five minutes after the lodging of aforesaid FIR, the police of Police Station Narsena, District Bulandshahar carried out a search/encounter at Unchagaon within the limits of P.S. Narsena in which the victim Satish (PW-2) was recovered, allegedly from four accused namely Padam Singh son of Kunwar Pal; Rahees son of Yaseen; Pooran Singh son of Karan Singh and Narayan Singh son of Udal Singh. 4 country-made pistols of 315 bore were recovered from this person. 12 live cartridges and four empties of aforesaid bore.
5. A memo of recovery of four country-made pistols of 315 bore (Tamanchas); 12 live cartridges and four empty cartridges and recovery of victim Satish came to be drawn by Harish Chandra Joshi (PW-6), the then SHO of Police Station Narsena. The recovery memo records that on 10.11.2006 the Station House Officer of Police Station Narsena, District Bulandshahar received information that some criminals were hiding in the house of one Sabuddin alongwith an kidnapped boy of 12-13 years of Mathura in Village Unchagaon. This information was recorded in the GD of Police Station Narsena at 2.00 pm, whereafter the police party raided the house of Sabuddin at around 2.30 pm on 10.11.2006. The police party on the pointing out of police informer reached the house of Sabuddin and warned all four criminals to surrender, since they were surrounded by police or else they would be killed. The four criminals are alleged to have started firing from inside the house on the police party, but ultimately they were over powered and arrested at 3.30 pm on 10.11.2006. From the custody of these criminals a child of 12 years was recovered, who disclosed his identity as Satish, resident of Village Chaumuha, Police Station Vrindavan, District Mathura. The kidnapped child informed that he had been kidnapped for ransom from Chaumuha Bazar at Mathura. The arrested accused persons disclosed their names as Padam Singh son of Kunwar Pal, resident of Garhi Parsoti, Police Station Surir, District Mathura, who had a 315 bore Tamancha and on opening the barrel it transpired that a fresh shot had been fired from it, as smell of gunpowder was present. Three live cartridges of 315 bore were also recovered. The second criminal arrested disclosed his name as Rahees son of Yaseen, resident of Jigni, Police Station Narsena, District Bulandshahar from whom also a country-made pistol of 315 bore was recovered and a shot had also been fired from it since there was smell of gunpowder. Three live cartridges were also recovered from him. Similarly, from accused Pooran Singh and Narayan Singh also country-made pistols of 315 bore each were recovered alongwith three live cartridges each and on opening of barrel it transpired that a shot had been fired from both the guns as smell of gunpowder was present. It is recorded in the recovery memo that all four accused disclosed that they had kidnapped the 12 year old child alongwith co-accused Pohpee and Chhote, resident of Police Station Farah, District Mathura for ransom of Rs.10 lacs on 21.10.2006 at about 5.00 pm and they were in constant touch on phone with Govind for receiving the ransom in a day or so.
6. During the course of investigation of Case Crime No.493 of 2006, statement of informant was recorded by Investigating Officer wherein he disclosed about ransom. Consequently the offence complained of was altered to Section 364-A IPC from Section 364 IPC. Upon conclusion of investigation two chargesheets were submitted in the matter i.e. Ext. Ka-6 on 18.12.2006 against Narayan, Rahees, Pooran Singh and Padam Singh, whereafter a subsequent chargesheet was submitted on 23.2.2007 against Chhote @ Pooran and Pohap Singh. In the chargesheet 19 witnesses were proposed to be adduced by the prosecution to prove the charge levelled under Section 364-A IPC against aforesaid accused.
7. After submission of chargesheets, the concerned Magistrate took cognizance upon same. Since the case was triable by the court of sessions, the concerned Magistrate, accordingly, committed the case to the court of Sessions. On the basis of aforementioned two chargesheets, two separate sessions trial came to be registered i.e. Sessions Trial No.115 of 2007 (State Vs. Narayan and others) and Sessions Trial No.286 of 2007 (State Vs. Chhote and another). The Sessions Judge framed separate charges under Section 364-A IPC against each of the accused, who claimed the same and pleaded innocence. Resultantly trial procedure commenced.
8. The prosecution in order to establish the charge framed under Section 364-A IPC adduced PW-1 Mohar Singh (informant); PW-2 Satish (victim); PW-3 Ashok Kumar (witness of last scene); PW-4 Head Constable Peetam Singh; PW-5 S.I. Harendra Kumar Gautam, who had investigated Case Crime No.493 of 2006; PW-6 Harish Chandra Joshi, Station House Officer, Police Station Narsena, District Bulandshahar, who supervised the alleged encounter leading to the recovery of victim as well as arrest of the four accused.
9. On behalf of the defence, DW-1 Mohan Lal (brother of PW-1); DW-2 Smt. Anjum wife of Sabuddin and DW-3 Sabir (neighbour of Sabuddin) were adduced in proof of the innocence of accused.
10. PW-1 Mohar Singh (first informant) in his sworn testimony has stated that on 21.10.2006 his son Satish aged about 12 years had gone to purchase Crackers on the eve of Diwali but did not return home. He came to the market and made inquiries and was informed by Ashok Kumar (PW-3) that he had seen Satish purchasing Crackers with Pohpee whereafter he was taken on a motorcycle towards Chhata. Another unknown person with Pohpee was also present who was driving the motorcycle. The informant claims to have made all efforts to trace out his son but in vein. After some days PW-1 claims to have received a call on the STD Booth of Nanak, allegedly of his kidnapped son but while speaking to him PW-1 could gather that it is not the voice of his son and insead somebody else was on call. PW-1 was asked on phone to arrange a sum of Rs.10 lacs within four days or else his son would not return. PW-1 also stated that Pohpee is the Devar of his sister and has been coming to his house often. PW-1 disclosed that he owns certain land within 500 metres of the highway, in respect of which there was a proposal from Pohpee to have the land purchased at Rs.25 lacs per bigha. Pohpee, however, later offered rate of Rs.20 lacs per bigha only on which PW-1 refused to sell his land. Pohpee is alleged to have threatened PW-1 that if he does not sell his land his son would be kidnapped and murdered. It is asserted by PW-1 in his statement that precisely for this reason his son has been kidnapped.
11. PW-1 has also disclosed that his son has been recovered from the possession of Rahees, Pooran, Padam and Narayan. However, PW-1 after seeing the accused persons in the court failed to recognize/identify them. PW-1 also stated that he had lodged a report at police outpost Jait of Police Station Vrindavan a day prior to his son being recovered. It is also stated that the said report was got lodged through a resident of different village, who is not known to him. The report was written on his instructions. After seeing the written report (Ext. Ka-1) PW-1 stated that it is the same report. He has also stated that after his son was recovered he was given in his Supurdagi by the police personnels of Police Station Narsena, District Bulandshahar.
12. PW-1 was also cross-examined. This witness in his cross-examination has stated that he has seen Pohpee on the date of incident at about 1.00 pm but had not spoken to him. He returned from his field at about 4.00 pm and by 6.00 pm he came to know that his son is missing. According to this witness he immediately did not go to the police station but only after a week. He claims to have lodged a report on the 8th day of his son's disappearance. He also claims to have been informed by Ashok Kumar (PW-3) that Pohpee was accompanied by Chhote. He has also stated that he had gone a day before Diwali for lodging a report, which was duly registered, and it is on the second day of his report that he came to know about recovery of his son. He also claims to have received information about the recovery of his son from a person close to Pohpee but he does not remember his name.
13. PW-1 in his cross-examination has also asserted that he was informed by the aforesaid person that his son was with a gang and that he may contact them. He claims to have received a phone from the gang at Nanak's PCO. However, he feigned ignorance about the name of Nanak's father. The telephone call received was for arranging Rs. 10 lacs as ransom if he wanted his son back. This phone call is stated to have been received four days after lodging the report. PW-1 in his cross-examination has admitted that there was no subsequent call received by him for ransom. He claims to have gathered knowledge about 9-10 days after lodging of his report that his son has been recovered. PW-1 claims to have gone to Police Station Narsena with his brother. He also claims to have informed the police about involvement of Chhote and does not know the reason for exclusion of his name in the FIR. He has also claimed ignorance about any dispute between Pooran, father of Chhote, and his brother-in-law Hari Singh. He has also denied the allegation that he has enmity with the accused persons and that is why he has falsely implicated the accused persons.
14. PW-1 was cross-examined by the counsel for other accused namely Padam, Pooran and Rahees. In his cross-examination he claims to have returned with his son after three days of his recovery. He has further stated that only one police report was made by him after about 20 days of the incident of kidnapping. The only written report by him is alleged to have been written by some police personnel at Police Outpost Jait. In the report he claims to have implicated Pohpee and Chhote and has specifically asserted of having not disclosed the names of other accused. In his subsequent cross-examination PW-1 has stated of having received a telephone call after 20 days of his son's disappearance for ransom and to have informed about it to the SHO concerned. He alleged that a boy came from the STD Booth situate just after two houses from his house. On reaching the PCO PW-1 claims to have again got a call and he spoke to his son. He claimed ignorance about the identity of other persons present with his son. He has categorically stated that after 20 days of his son's disappearance he has lodged the report and prior to it no report was made to SSP, Police Chowki or the area Police Station.
15. PW-1 was again recalled for cross-examination and has stated that a person from Pohpee came at around 12 noon and he had gone to the police station at 7 pm. He claims to have come to know about Padam Singh and Rahees only after he reached Narsena. He has also denied the suggestion that false statement is being given by him and that the accused persons met him at the Police Station Narsena.
16. The victim Satish was also adduced as PW-2, who claims to be aged about 13 years. The trial court has clearly noticed in its order that the witness understands the concept of statement on oath and fully understands what is good or bad for him. PW-2 has thus been found fully mature to testify before the court.
17. PW-2 was stated that he had gone to get fire crackers at Ramleela ground, where Pohpee met him. He has identified Pohpee in court, who lured into accompanying him for buying fire crackers. PW-2 claims that he was then taken to a liquor shop where he met Chhote. These two persons then took the victim on a motorcycle. His eyes were covered. The victim claims to have been taken to Naugaon where four other persons met him and were calling each other with the names of Narayan Singh, Rahees, Pooran and Padam. PW-2 was then taken to Bulandshahar on a motorcycle where they stayed for 12 days, and thereafter he was taken to Unchagaon. PW-2 has stated that these four accused persons got a call made from him to his father on STD booth. PW-2 has also identified Rahees and Pohpee in the court.
18. PW-2 was firstly cross-examined on behalf of Chhote and Pohpee. In his cross-examination he has stated that he was taken to the liquor shop and then at about 5.00 pm he was taken on a motorcycle by Pohpee and another person with his eyes covered. He claims to have gone on bike to an undisclosed place. PW-2 then claims to have met the other four accused namely Raess, Narayan, Pooran and Padam and these persons got a phone call made from Unchagaon on the 13th day of his kidnapping. PW-2 has also admitted about existence of a dispute between his father and accused Pohpee.
19. On behalf of remaining accused also PW-2 was cross-examined on behalf of other accused also. In his first cross-examination this witness had disclosed that he stayed in the same house for 12 days, whereafter he was taken to Unchagaon. The accused stayed in the same room and PW-2 was taken out also by these four persons. PW-2 claims to have spoken to his father on phone once. PW-2 has also stated that he was sleeping on the roof top when police found him. The time of such event was stated to be 12.00-1.00 pm. The four accused persons are stated to have fled on seeing the police and were arrested on the ground floor. He has also stated that neither any shot was fired by the police nor these four accused persons had fired any shot at police and that all the four accused persons were unarmed. He claims to have met his father 13 days after the telephone call was made. He also stated that his eyes were not kept covered in the Village Unchagaon and he used to freely move in the village. He has, however, stated that he was initially beaten by these four persons but not thereafter.
20. PW-2 was again re-examined in which he has re-affirmed that none of four accused persons had fired on the police on the date he was recovered by the police. He has also stated that written report was scribed at the Police Station Narsena. He claims that his father narrated facts which were scribed by the Police Inspector. PW-2 has denied the suggestion that he was not kidnapped and that FIR has been falsely lodged.
21. PW-3 Ashok Kumar claims to have seen Pohap Singh taking Satish (PW-2) on a motorcycle. He also claims to have disclosed PW-1 about this fact at around 8.00 pm on 21.10.2006. In his cross-examination he has stated that he did not recognize the other person, who was driving the motorcycle. He has denied the suggestion that he did not know Narayan or that he was making a false deposition.
22. PW-4 Head Constable Peetam Singh claims to have made endorsement of written report in the GD and scribed the check FIR in his own handwriting. In his cross-examination he has clearly stated that police report was lodged after 20 days of the alleged disappearance of victim i.e. PW-2. The informant (PW-1) is stated to have intimated PW-4 that after gathering information about his son's disappearance the written report came to be lodged. PW-4 has clearly stated that no report was lodged with the local police prior to 10.11.2006 regarding kidnapping of PW-2. It is admitted that at the time when PW-1 came for lodging the report his brother was also with him. He has denied the suggestion that FIR is ante-timed.
23. S.I. Harendra Kumar Gautam, who deposed as PW-5, has stated that the written report was given by PW-1 at Police Station Chowki whereafter investigation was carried out by him. He also stated that after PW-1 informed him about demand of ransom of Rs.10 lacs the investigation was altered to Section 364-A IPC in place of Section 364 IPC. He has admitted that Satish was recovered from the accused persons during encounter within the limits of Police Station Narsena. PW-5 also claims to have gone to Narsena, where the statement of informant and PW-2 were recorded alongwith others. All the accused persons were present at the police station and the victim was also medically examined. He claims to have submitted a chargesheet after concluding the investigation, which has been proved by him.
24. In the cross-examination PW-5 has disclosed that check FIR was received by him for investigation. He claims to have received information on mobile that the victim alongwith accused persons have been apprehended and are at Police Station Narsena. He claims to have gone to Police Station Narsena on 11.11.2006 and returned thereafter on 13.11.2006. He has clearly stated that apart from the written report received on 10.11.2006 no prior intimation was received either at Jait or Vrindavan and no missing report was recorded either. He has stated that the name of person who demanded ransom of Rs.10 lacs has not been disclosed by PW-1 to him, nor during the course of investigation he could ascertain as to which of the accused had demanded ransom of Rs.10 lacs. He, however, admitted that disclosure about demand of ransom was made by PW-1. He has stated that during investigation a site plan has been drawn of the place from-where the accused persons were arrested and victim was recovered. However, he has not seen any mark of firing at the site of the encounter. He has denied the suggestion that FIR has been lodged after recovery of the victim. He has also stated that there was no independent witness to the recovery of victim.
25. Statement has also been recorded of Sri Harish Chandra Joshi (PW-6), who was the SHO of Police Station Narsena and lead the police party which recovered the victim and arrested the four accused. He has proved the memo of recovery of four country-made pistols; 12 live cartridges and four empties as also the recovery of victim. He has disclosed that none of the independent witness came forward to testify the aforesaid recovery. He has supported the prosecution version about the criminals' firing on the police party and the criminals being arrested thereafter on valiant act of bravery by the police party. In his cross-examination PW-6 has stated that after arresting all the accused he returned at the police station at 6.10 pm and the arrested persons were produced before the Magistrate on the next day. The kidnapped child was alleged to be given in the Supurdagi of Investigating Officer from Police Station Vrindavan, but the Supurdagi memo has not been produced in court. PW-6 has further stated in the cross-examination that the victim was kidnapped from Mathura and he was not aware about the time of lodging of the FIR. While supporting the prosecution story PW-6 has admitted that he had not arrayed Sabuddin or his family members as an accused. PW-6 has further stated that PW-2 had informed him about his kidnapping for ransom but had not informed about demand of Rs.10 lacs, which was accordingly not mentioned in the recovery memo. He has also admitted that there was no independent witness to the recovery nor he was made aware about which of the criminals had demanded the ransom. A suggestion has also made to PW-6 that the accused persons have been falsely implicated on the instigation of Devi Charan, which was denied by him.
26. After the prosecution evidence was over, statements of accused were recorded under Section 313 Cr.P.C. All the adverse circumstances were disclosed to the accused. They, however, denied the same. They have pleaded innocence. Accused Pooran Singh stated that he had gone alongwith Padam Singh to search for the groom for his daughter and was falsely implicated due to enmity by Devi Charan. Similar stand has also been taken by Padam Singh.
27. On behalf of accused defence witnesses have also been produced. DW-1 is the brother of PW-1 Mohan Lal, who has stated that about a year back there was a dispute between PW-1 and Pohap Singh on account of which Pohap Singh has been implicated. He has denied the fact that PW-2 was kidnapped by Pohap Singh or Ramesh. He claims to be living with his brother Mohar Singh. He has further admitted in the cross-examination that differences between Pohap Singh and Mohar Singh had developed in respect of sale of agricultural land and after the transaction failed, the accused Pohap Singh alongwith others tried to recover ransom by kidnapping PW-2. He has also stated that kidnapping of PW-2 was made only for ransom.
28. DW-2 is Smt. Anjum wife of Sabuddin, who has denied recovery of PW-2 from her house. She also denied that any firing took place between the police and the alleged kidnapper. She has stated that she has only one house and none of the criminals ever stayed with the victim in her house nor were arrested from there. She has completely and categorically denied the prosecution story about kidnapping and recovery of victim from her house.
29. DW-3 Sabir is the neighbour of Sabuddin, who too has denied any incident in which four accused persons were apprehended in an encounter as also the recovery of the victim.
30. The trial court on the basis of above evidence came to the conclusion that PW-2 was kidnapped for ransom by Pohap Singh alongwith other four co-conspirators but convicted all the five accused and sentenced them for life imprisonment under Section 364-A IPC alongwith fine.
31. On behalf of appellants it has been urged that the prosecution case is full of inconsistency and the witnesses are wholly unreliable. It is submitted that the charge of kidnapping for ransom has not been proved beyond reasonable doubt, in view of the following facts:-
(i). That the alleged kidnapping of PW-2 took place on 21st October, 2006 while written report was submitted after 20 days. It is urged that the conduct of PW-1 in not lodging any missing report or non-lodging of an FIR for 20 days is against the natural conduct of a father whose son has been kidnapped and the prosecution has failed to explain such conduct/inaction of the father. The aforesaid creates a doubt much less a reasonable doubt in the prosecution case.
(ii). It is argued that apart from Pohpee and Chhote none of the other accused had previously met or known PW-1 and it is difficult to explain as to how name of Rahees, Pooran and Padam could be disclosed in the FIR alongwith their parentage and address, when the victim himself had not been recovered nor these persons had been apprehended before the lodging of the FIR. It is then sought to be urged that the entire prosecution case is fallacious, inasmuch as the FIR itself has been lodged after the victim was recovered. The FIR is ante-timed and for such reason the entire prosecution story is rendered unreliable.
(iii). It is then contented that demand of ransom has not been proved, inasmuch as neither the exact date and time of telephone call has been specified nor any call detail record (CDR) produced to support the alleged demand of ransom. It is also urged that even the telephone number on which the call for ransom was received has been specified nor the telephone number of the caller has been disclosed. As such the entire prosecution story regarding demand of ransom is unreliable.
(iv). Questioning the case of prosecution regarding demand of ransom, it is urged by counsel for appellants that the PCO owner Nanak has not been produced in evidence nor even his identity has been established.
(v). There are material contradictions in the statement of PW-1 vis-a-vis PW-2 regarding the date and time of demand of ransom, which renders the prosecution story wholly unreliable.
(vi). It is also highlighted that as per prosecution story only one call was made for arranging funds without specifying the date, time or place for the ransom to be delivered, which exposes the falsity in the prosecution case.
(vii). The prosecution case of encounter at Sabuddin's house or firing etc. is not supported by any independent witness and PW-2, the victim himself, which renders the prosecution story highly improbable.
(viii). The FIR has been sent to Magistrate after four days for which no explanation has come forward, which clearly supports the appellants' contention that FIR itself is ante-timed.
(ix). The house of Sabuddin is in the midst of market and the fact that no independent witness adduced to prove the alleged encounter and the statement of PW-2 being at variance with the prosecution story, the entire prosecution case is rendered wholly doubtful, particularly as neither anyone had sustained any injury nor any signs of gunshot were found on the spot from where the victim is alleged to have been recovered.
(x). It is submitted then that the story set up by PW-1 that he lodged the police report earlier is contrary to the evidence on record and is otherwise self-contradictory, which renders the entire prosecution version of the alleged occurrence unworthy of trust.
32. To the contrary, it is alleged on behalf of the respondents that the first information report was registered initially under section 364 IPC at Police Station Vrindavan, District Mathura. Thereafter it was converted under section 364-A IPC on the basis of the statement of the victim. The ocular testimony of PW-1 and PW-2 were recorded by the trial court and kidnapping for ransom has been proved. PW-3 is the witness of last scene and has stated that victim was taken away by accused Pohpee on his motorcycle. The GD entry of the first information report has been proved by PW-4. PW-6 is the Station House Officer of P.S. Narsena, District Bulandshahar, who conducted the raid at the house of Sabuddin and recovered the victim (PW-2) and arrested the accused persons from the spot. Case under Section 307 IPC and Section 25 of the Arms Act was also registered and the trial against them is pending. The offence under Section 364-A IPC is clearly made out against accused on the basis of evidence available on record as there was demand of ransom made through telephone. The ingredients of Section 364-A IPC are clearly established against the accused. DW-1 Mohan Lal has himself stated that victim was kidnapped by the accused for ransom.
33. It is further submitted on behalf of respondents that PW-1 has given the explanation for lodging the first information report at the belated stage. PW-3 is not a tutored witness. Non-recording of the statement of the owner of the PCO and non-collection of the Call Detail may be deficiency in investigation but deficiency in investigation is by itself insufficient to dislodge the conviction awarded by court below. The alleged deficiency does not demolish the case of the prosecution, since there is ocular testimony available on record regarding ransom. The Supurdaginama in writing is not necessary component and not the requirement of law, since the victim was handed over to his father, who is natural guardian. Non-production of the victim before the Magistrate concerned for recording his statement under Section 164 Cr.P.C., after his recovery can be said to be an irregularity but certainly not an illegality. The recovery cannot be said to doubtful just because evidence of independent witness has not been recorded, who was present at the spot.
34. In alternate, it is also submitted on behalf of respondents that If the Court finds that the case of prosecution under Section 364-A IPC is not made out as per the testimonies of the witnesses and in absence of any other material available on record, in such a situation, the prosecution has successfully made out a case against the appellants under Section 365 IPC. The charge against the appellants can be altered in the appeal by the appellate court, irrespective of the fact that the trial court failed to make any alternate charge against them under Section 365 IPC. From the contents of the framing of charge order dated 08.06.2007 it is evident that it is in two parts, one relates to the kidnapping of the victim by the appellants and the another is demand of ransom. Thus, the charge under Section 365 IPC is inherent in the order dated 8.6.2007. Reliance placed upon Section 464 Cr.P.C. by the appellants, which deals with the effect of omission to frame or absence or error in charge is misconceived. The case of prosecution shall not fall on this ground. Lastly, it is submitted that this Court in exercise of appellate jurisdiction can sentence the accused appellants, accordingly.
35. It is in the above factual scenario and the rival contentions advanced that this Court has to determine whether the offence of kidnapping for ransom has been proved against the accused appellants or not? The Court is also required to consider the alternate submission of learned AGA that in case the charge under Section 364-A is not established against accused appellants they can certainly be convicted for an offence under Section 365 IPC i.e. for kidnapping simplicitor.
36. We have heard Sri Rajeev Lochan Shukla alongwith Sri Subhash Chandra Raghav for appellants Padam Singh and Rahees ( Criminal Appeal No. 1945 & 2636 of 2011); Sri Uttar Kumar Goswami, learned Amicus Curiae for the appellant Pohpee (Jail Appeal No. 1262 of 2012); Sri S.S. Rajput for the appellant Pooran Singh (Criminal Appeal No. 1648 of 2011), Sri Rajeev Goswami for appellant Ramesh @ Chhote (Criminal Appeal No. 1741 of 2011) and Sri S. A. Murtaza & Sri Arunendra Singh, the learned AGA for the State.
Analysis on Facts
37. The only charge framed against all the five accused appellants is of kidnapping for ransom i.e. under Section 364-A IPC. Section 364-A IPC, as it exists after its amendment, is reproduced hereinafter:-
"364-A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
38. Learned counsel for the parties are at ad idem on the necessary ingredients required to be proved for an offence under Section 364-A IPC as has been expressly held by the Supreme Court in the case of Shaik Ahmed Vs. State of Telangana, (2021) 9 SCC 59. After referring to Section 364-A IPC the Court observed as under in paragraphs 12 to 14 of the judgment in Shaik Ahmed (supra):-
"12. We may now look into section 364A to find out as to what ingredients the Section itself contemplate for the offence. When we paraphrase Section 364A following is deciphered:-
(i) "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction"
(ii) "and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt,
(iii) or causes hurt or death to such person in order to compel the Government or any foreign State or international inter- governmental organisation or any other person to do or abstain from doing any act or to pay a ransom"
(iv) "shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
The first essential condition as incorporated in Section 364-A is "whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction". The second condition begins with conjunction "and". The second condition has also two parts i.e. (a) threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt. Either part of above condition, if fulfilled, shall fulfill the second condition for offence. The third condition begins with the word "or" i.e. or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom. Third condition begins with the word "or causes hurt or death to such person in order to compel the Government or any foreign state to do or abstain from doing any act or to pay a ransom". Section 364-A contains a heading "kidnapping for ransom, etc." The kidnapping by a person to demand ransom is fully covered by Section 364-A.
13. We have noticed that after the first condition the second condition is joined by conjunction "and", thus, whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person.
14. The use of conjunction "and" has its purpose and object. Section 364A uses the word "or" nine times and the whole section contains only one conjunction "and", which joins the first and second condition. Thus, for covering an offence under Section 364A, apart from fulfillment of first condition, the second condition i.e. "and threatens to cause death or hurt to such person" also needs to be proved in case the case is not covered by subsequent clauses joined by "or"."
39. After noticing the previous judgments on the issue the Court delineated it's views as under in paragraph 20 of the report in Shaik Ahmed (supra):-
"20. Thus, applying the above principle of interpretation on Conditions (i) and (ii) of Section 364-A which is added with conjunction "and", we are of the view that Condition (ii) has also to be fulfilled before ingredients of Section 364-A are found to be established. Section 364-A also indicates that in case the condition "and threatens to cause death or hurt to such person" is not proved, there are other classes which begins with word "or", those conditions, if proved, the offence will be established. The second condition, thus, as noted above is divided in two parts- (a) and threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt."
40. Having noticed the earlier judgments operating in the field the Supreme Court authoritatively crystallized the necessary ingredients, which are required to be proved by the prosecution for bringing home a charge under Section 364-A IPC, in Shaik Ahmed (supra), in following words:-
"33. After noticing the statutory provision of Section 364-A and the law laid down by this Court in the above noted cases, we conclude that the essential ingredients to convict an accused under Section 364-A which are required to be proved by prosecution are as follows:
(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and
(ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or;
(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom.
Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section 364-A cannot be sustained.
34. The second condition which is "and threatens to cause a death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt" is relevant for consideration in this case since appellant has confined his submission only regarding non- fulfillment of this condition. We may also notice that the appellant has filed grounds of appeal before the High Court in which following was stated in Grounds 6 and 7:
"6. The learned Judge failed to see that PW-2 stated that he was treated well and as such there was no threat to cause death or hurt.
7. The learned Judge should have seen that PW-1 did not state that the accused threatened to cause death or hurt to his son.""
41. It is in the above legal backdrop that the facts of the present case needs to be analyzed in order to answer the question:- as to whether the charge of kidnapping for ransom has been proved by the prosecution beyond reasonable doubt against the appellants in the facts of the present case?
42. On behalf of prosecution the charge of kidnapping for ransom has been attempted to be proved essentially by relying upon the oral testimony of informant (PW-1), the victim (PW-2) and Ashok Kumar (PW-3), who has seen the victim being taken on a motorcycle by accused Pohpee alongwith another. As per the FIR allegation the victim was kidnapped for ransom by Pohpee, since the informant had refused to sell his land on his suggestion. According to PW-1 the price of land was initially agreed upon at Rs.25 lacs per bigha but he was only offered Rs.20 lacs per bigha, and when he refused to sell his land he received threat from Pohpee about his son being kidnapped and killed.
43. In the aforesaid backdrop the first issue that requires examination in the facts of the present case is the credibility and reliability of PW-1 about the incident so as to determine the culpability of accused appellants in the commission of the alleged offence.
44. The FIR clearly states that the son of PW-1 was kidnapped by Pohpee at around 5.00 pm on 21.10.2006. PW-1 in his statement has also admitted that he received information from PW-3 on the same day i.e. 21.10.2006 about the fact that his son has been kidnapped by Pohpee together with another person.
45. In the event of PW-2 having been kidnapped on 21.10.2006 and it was made known to PW-1 that his son has been kidnapped by Pohpee, who is the brother-in-law of his real sister, the first and foremost conduct expected of the father of a kidnapped son would be to report the disappearance of the son to the police, particularly when he is aware as to who has taken his son. It may also be noticed that there was no demand for ransom received by PW-1 and, therefore, intimation to police otherwise would not have harmed his son. The fact that police is not informed by PW-1 about the kidnapping of his son for 20 days from the date of incident despite being aware of the person who had kidnapped him raises a serious doubt regarding the conduct of PW-1.
46. The Statement of PW-1 is found to be inconsistent on the point relating to the lodging of police report in the matter. PW-1 in his examination-in-chief has stated that he lodged a report of the incident at Police Chowki Jait a day prior to the recovery of his son. This report is alleged to have been made through a person of another village who was not known to him. Upon being shown the written report (Ext. Ka-1), PW-1 has stated it to be that report only.
47. The written report (Ext. Ka-1) is dated 10.11.2006 which incidentally is the date of recovery of victim. The statement of PW-1 that written report of the incident was made a day prior to recovery of his son is thus found to be false. His statement that report was lodged through a person of another village, was not known to him, otherwise creates genuine and strong suspicion. It would be difficult to accept the statement of father of a kidnapped son to have made a police report through a person not even known to him.
48. In his cross-examination, PW-1 has stated that he had gone to police station a week after kidnapping of his son and had lodged a report at the police station. No such report exists on record. PW-4 and PW-5, who are the police officials connected with the investigation of the case have specifically stated that apart from the written report dated 10.11.2006 no prior report/missing report/FIR was lodged in respect of the incident by PW-1 or anyone else on his instructions. Resultantly, the statement of PW-1 about making a police report on the 8th day of kidnapping of his son is thus found to be incorrect.
49. PW-1 in his cross-examination has also stated that he again went to police station a day prior to Diwali and he came to know about recovery of his son the day next of making the (second) report. This stand is again contrary to the evidence available on record. This stand is otherwise self-contradictory, inasmuch as, PW-1 has admitted in his cross-examination that only one report was lodged in respect of the incident and that to after 20 days. The report was written at Police Chowki Jait in the presence of Sub Inspector and he had only disclosed the name of Pohpee and Chhote whereas in the FIR name of Chhote is not shown as an accused and the names of other accused namely Narayan Singh, Rahees, Pooran, Padam are recorded.
50. Statement of PW-1 with regard to the time and contents of police report is neither consistent nor tallies with the evidence available on record.
51. There is absolutely no explanation furnished by the prosecution for the delay of 20 days in lodging the FIR itself. Such conduct of PW-1 otherwise is questionable, since it would be expected that a prompt report would be lodged by a father with regard to kidnapping of his 12 year old son.
52. The only explanation given in the FIR for the delay is that PW-1 was trying to search out his son and only when he gathered the true facts that the FIR was lodged. This explanation cannot by any stretch of imagination be said to be satisfactory so as to explain the inordinate delay in lodging of FIR.
53. The Sessions Court while considering the issue of delayed lodging of FIR has accepted the version of PW-1 that he and his family members were trying to search the victim. It has also been observed that in view of the ransom call received the welfare of victim was uppermost in the minds of PW-1. This conclusion does not appear to be sound in view of the evidence available on record, inasmuch as, PW-1 was informed on the date of disappearance of his son itself that he was taken by Pohpee @ Pohap Singh. The receiving of ransom call is of a week later. There is no reason why the FIR was not lodged promptly when the identity of accused was known to the first informant and threat of ransom was also not received, by then. The trial court therefore has not appreciated the argument with regard to delayed lodging of FIR in correct perspective.
54. It is worth reiterating that the prosecution has failed to explain the inconsistencies in the statement of PW-1 when he stated that he firstly wanted to lodge a report in the matter, a day prior to Diwali, and such report was lodged. This statement of PW-1 is not substantiated from the evidence on record, inasmuch as no report prior to 10.11.2006 has been brought on record. Rather it is the specific case of prosecution witnesses i.e. PW-4 Peetam Singh and PW-5 Harendra Kumar Gautam that no report prior to 10.11.2006 was received at the police station about kidnapping of PW-2 nor even a missing report was lodged in that regard. PW-1 has also stated in his cross-examination that he had lodged a police report at Police Chowki Jait of Police Station Vrindavan, a day prior to recovery of his son. This statement is again not substantiated as the only written report is dated 10.11.2006. It is also stated that he does not remember the name of person through whom he got the report registered at Police Chowki Jait. As per him the only written report is Ext. Ka-1, which is dated 10.11.2006, whereas the witness claims it having been submitted a day prior to recovery, which is 9.11.2006. These inconsistencies have been plainly overlooked by the trial court.
55. The statement of PW-1 is also relevant in order to substantiate the allegation with regard to demand of ransom. He has stated in his examination-in-chief that few days after kidnapping of his son he was informed by Nanak that a call for him was received on his PCO and he was asked to arrange ransom amount of Rs. 10 lacs or else he would not get his son.
56. It is worth noticing that in spite of receiving a ransom call by PW-1 only few days after kidnapping of his son the disclosure in this regard is clearly missing in the written report which forms the basis of the FIR. In the event a ransom call was already received, the reasonable conduct of PW-1 was to mention it in the FIR. The FIR is not the encyclopedia of the prosecution case but it must disclose the basic prosecution case. This aspect of the matter has been overlooked by the court of Sessions.
57. PW-1 also claims to have come to know about kidnapping of his son from a person close to Pohpee who asked him to contact the gang having custody of his son. This person is neither produced in evidence nor he is identified by PW-1.
58. PW-1 has stated that phone call for ransom was received four days after lodging the first report with the police. There is no earlier report of PW-1 on record, as is alleged by him, and his statement about getting a call four days thereafter renders the time of receiving alleged ransom call absolutely vague and indefinite.
59. In view of the discussions made above we have no doubt to hold that PW-1 Mohar Singh is neither a credible nor a reliable witness. Resultantly, his testimony is not worthy of reliance. The court below has not examined the issue of reliability of PW-1 in light of the inconsistencies noticed on his part and has taken his testimony on its face value without subjecting it to proper scrutiny, which renders the judgment of court below open to challenge on the ground of non-application of mind.
60. In order to bring home the charge under Section 364-A IPC, it must be established that the accused have kidnapped or abducted any person and have kept such person in detention and threat to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or cause hurt or death to such person in order to compel any person or abstain him from doing any act or to pay a ransom.
61. In Shaik Ahmed (supra), the Supreme Court has clearly held that all the ingredients constituting an offence of kidnapping for ransom must be satisfied by the prosecution by leading cogent evidence before the charge under Section 364A IPC could be established against an accused.
62. One of the ingredients to establish the offence under Section 364-A IPC is the demand for ransom. On this aspect, we find that the statement of witnesses is not consistent for the following reasons:-
(i) First and foremost, it is to be noticed that when the FIR was lodged on 10.11.2006 at 3.25 pm, there was no disclosure by the informant to the police that his son had been kidnapped for ransom. As per statement of PW-1, the demand for ransom had already been made from him, but this fact was not disclosed in the FIR.
(ii) In the statement of PW-1 and PW-2, there is neither any specific date or time disclosed about the making or receiving of ransom call. At one stage, PW-1 has stated that after few days of the disappearance of his son he received a call at Nanak's STD booth alleging it to be his son, but PW-1 was sure that the voice on the phone was not of his son. PW-1 claims to have been instructed on phone call to arrange Rs. 10 Lacs within four days or else he would not seen his son. In this part of the statement PW-1 has neither specified the date of receipt of the phone call, nor has he given the telephone number on which such call was received. The prosecution has also not produced any call detail report in that regard.
63. In his cross-examination, PW-1 has stated that a telephone call was received at Nanak's PCO situate close to his house. However, PW-1 has shown ignorance about the name of the father of PCO owner. Even the telephone number on which such ransom call was received is not disclosed. Thus there is material contradiction in the statement of PW-1 about the time of receiving of ransom call.
64. Interestingly, no date, time or place is alleged to have been disclosed to PW-1 for ransom to be delivered. No subsequent call was otherwise received for delivering the ransom. It is difficult to conceive that demand for ransom would be made without specifying the manner in which such ransom is to be delivered. In view of the entire and coupled with the fact that no call detail record was produced nor such disclosure was made in the FIR the prosecution has failed to establish the demand of ransom for release of victim.
65. We may hasten to add that the statement of PW-1 with regard to demand of ransom is otherwise inconsistent as he has given two distinct details in his statement about receipt of ransom call which renders his testimony otherwise unworthy of trust.
66. So far as the statement of PW-2 is concerned, he has stated that the accused persons got a call made to his father but he has not referred to any demand of ransom. The telephonic talk referring to demand for ransom by PW-2 was allegedly made seven days after his kidnapping while he claims to have met his father 13 days after making of the ransom call which is not the time disclosed by PW-1 for receiving the ransom call. PW-3, who is the other witness of fact, has stated nothing about the demand of ransom.
67. The statement of DW-1 that the victim was kidnapped for ransom is not based upon any personal knowledge on part of DW-1 but is at best an inference based upon the information received from PW-1 by him. Such statement being barred upon hearsay, therefore, cannot be treated as evidence to establish the demand of ransom.
68. We have already observed while analysing the statement of PW-1 that his testimony about lodging of police report is contradictory and is otherwise not as per the record. The only report lodged by PW-1 is on 10.11.2006 and his statement that ransom call was received four days after lodging of report is wholly unbelievable.
69. The victim was recovered on the date of lodging of the report itself and it cannot be conceived as to why and how a call for ransom would be made four days after the recovery of the victim.
70. Statement of PW-1 that he received information about recovery of his son nearly 9-10 days after lodgement of report is also contrary to records. PW-1 in later part of his cross-examination has disclosed that the ransom call was received after 20 days of disappearance of his son. It is alleged that the ransom call was received the day next to the lodging of the report. Both the statements are inconsistent with the available record, inasmuch as PW-2 he was recovered 20 days after his kidnapping and after his recovery making a call for ransom does not make any sense.
71. From the above discussion it is apparent that neither the call for ransom was disclosed to the police at the time of lodging of FIR, nor the allegation of receipt of ransom call has been substantiated by furnishing details with regard to receiving of such demand of ransom. Statement of PW-1 is not consistent on this score so as to render his testimony reliable. In such circumstances, we find that the prosecution has failed to establish the demand for ransom. It may be reiterated that neither any call detail report has been furnished, nor any specific date and time of receiving of telephone call for ransom has been specified. Moreover, even the phone number on which such call is said to have been received has not been disclosed.
72. In view of the discussions made above, we have no hesitation in discarding the prosecution case that demand of ransom was the motive behind kidnapping of PW-2. The court below has erred in taking a contrary opinion, on facts, since the evidence regarding demand of ransom have not been correctly evaluated and renders the conviction open to challenge on such grounds.
73. Since all the ingredients constituting an offence of kidnapping for ransom are required to be established, which includes first and foremost the demand of ransom, the failure on part of prosecution to prove the demand of ransom leads to an inescapable conclusion that the charge of kidnapping for ransom could not be established by the prosecution beyond reasonable doubt against any of the accused appellants. Thus the conviction and sentence of accused appellants under Section 364-A IPC is rendered illegal.
74. At this juncture, it would be worthwhile to refer to the alternate submission advanced by learned AGA that charge under Section 365 IPC is made out against the accused appellants.
75. Record reveals that the solitary charge levelled against the accused appellants is of kidnapping for ransom. No alternate charge for kidnapping has been specifically framed against the accused. In such circumstances, first and foremost, it has to be seen as to whether the charge of kidnapping, in the alternate, pressed against the accused appellants could be considered when such a charge has otherwise not been specifically framed against them. Based upon the discussion on this aspect we have to determine as to whether such alternate charge is made out against any or all of the accused appellants in the matter or not.
76. The charge levelled against all the accused appellants is as under:-
";g fd fnukad 21-10-06 dks le; djhc 5 cts 'kke oknh eqdnek Jh ekSgj flag fuoklh pkSeqgk Fkkuk c`Unkou ftyk eFkqjk ds yM+dss lrh'k ftldh mez 12 o"kZ Fkh] dks tc og pkSeqgk cktkj x;k gqvk Fkk rks rqe yksxksa us vU; vfHk;qDr NksVs rFkk iksgih ds lkFk feydj vig`r djds mldks voS/k :i ls fu:) j[ks jgs rFkk bu yksxksa }kjk nl yk[k :i;s fQjkSrh dh jde ekaxk x;k vkSj mls tku ls ekjus dh /kedh nhA blizdkj rqe yksxksa }kjk ,slk vijk/k fd;k x;k tks /kkjk 364, Hkk0n0ala0 ds vUrxZr naMuh; vijk/k gS vkSj bl U;k;ky; ds izlaKku esa gSA"
77. The above charge is in two parts. The first part is with regard to kidnapping of PW-2 on 21.10.2006 at 5.00 pm and illegal confining him. The second part of the charge is with regard to demand of ransom of Rs. 10 lacs and threat to life extended to the victim. Even if the second part of the charge with regard to demand of ransom is excluded, yet the charge with regard to abduction and kidnapping of the victim on 21.10.2006 at 5.00 pm from Chaumuha Bazar and detaining him unlawfully survives. On the basis of above the charge of kidnapping in terms of Section 365 IPC is implicit in the charge framed against accused and therefore there exists no impediment in examining the guilt of the accused under Section 365 IPC.
78. Law on the alteration of charge otherwise is specific and what needs to be examined is as to whether the accused was confronted with the charge levelled against him, so that he may put up his defence, and that no prejudice is caused to the accused on account of non-framing of such charge and his right of defence is not infringed in any manner.
79. The charge under Section 364A IPC implicitly includes the charge of kidnapping in addition to demand of ransom and threat to life. Even if the charge of ransom is not established, yet the charge of kidnapping can be tried.
80. In Shaik Ahmed (supra) also the Supreme Court proceeded to convict the appellant under Section 363 IPC after holding that the offence under Section 364-A IPC is not made out. Para 42 of the judgment, which is relevant for the controversy in hand, is reproduced herein under:-
"42. The Second condition having not been proved to be established, we find substance in the submission of the learned Counsel for the appellant that conviction of the appellant is unsustainable under Section 364A IPC. We, thus, set aside the conviction of the appellant under Section 364A. However, from the evidence on record regarding kidnapping, it is proved that accused had kidnapped the victim for ransom, demand of ransom was also proved. Even though offence under Section 364A has not been proved beyond reasonable doubt but the offence of kidnapping has been fully established to which effect the learned Sessions Judge has recorded a categorical finding in paragraphs 19 and 20. The offence of kidnapping having been proved, the appellant deserves to be convicted under Section 363. Section 363 provides for punishment which is imprisonment of either description for a term which may extend to seven years and shall also be liable to fine."
81. In Deshraj Vs. State of U.P., 2019 (107) ACC 176 also a Division Bench of this Court was confronted with a similar factual scenario where charge under Section 364-A IPC was not established yet the charge under Section 365 IPC was made out. The Division Bench proceeded to convict the appellants under Section 365 IPC by holding as under in para 27 to 30 of the report, which are extracted hereinafter:-
"27. The next question, which arises for consideration, is that whether the conviction of the accused-appellants can be altered to u/s 365 of IPC. It is clear from the record that the incident in question, has taken place in the year 1987. Record shows that at the commencement of the trial on 29.07.2004, accused persons were charged under Sections 365 and 368 of IPC and thereafter the prosecution has led its entire evidence and the accused persons were examined under Section 313 of Cr.P.C. It was only thereafter that the charges were amended and in place of Sections 365 and 368 of IPC, the accused persons were charged under Sections 364-A and 368 of IPC by the trial court vide order dated 09.06.2009. The record further depicts that when the amended charges under Sections 364-A and 368 of IPC were framed, it was submitted on behalf of the accused persons that they do not want to cross-examine the witnesses and an endorsement to this effect was made on the order sheet dated 09.06.2009 of the record of trial court. So far as this pure question of law is concerned whether the conviction of an accused can be altered from Section 364-A of IPC to one u/s 365 IPC, there are certain decisions of this Court wherein it has been held that such conversion in conviction is permissible under law. In Mahesh V State of UP Criminal Appeal No. 3647 of 2005 decided on 16.08.2016, this Court found that there was no evidence of ransom and the prosecution has failed to establish the essential ingredients of such demand as required under Section 364A of IPC. On the other hand, the offence alleged and proved against the appellants squarely falls within the ambit and purview of Section 365 of IPC. Accordingly, the conviction of appellants recorded by the trial court u/s 364A of IPC was altered and modified to one under Section 365 of IPC only. Similarly, in the case of Ashwani Dubey V State of UP Criminal APPEAL No. 7740 of 2006 decided on 10.08.2016, on the facts of similar nature, this Court taking similar view, has altered the conviction from Section 364-A of IPC to one u/s 365 of IPC. Thus, it is clear that if the ingredient of ransom is not proved but the evidence establishes the ingredients of sec 365 IPC, the conviction can be altered from Section 364-A of IPC to one u/s 365 IPC. Though, in those cases the issue of "ex-post facto laws" was not involved, but in view of the peculiar facts of the present case particularly, considering that the appellants have faced trial for the offence u/s 365/368 IPC and the charge was altered only after the evidence was led, the appellants cannot be given benefit of the alleged error in charge and if the evidence on record establishs charge u/s 365 IPC, they can still be convicted for the same.
28. Now it is to be considered whether the evidence on record satisfies the ingredients of Section 365 of IPC. The provisions of Section 365 of IPC reads as under:
''Kidnapping or abducting with intent secretly and wrongfully to confine person.
365. Kidnapping or abducting with intent secretly and wrongfully to confine person.--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine''.
29. In the present case, there is a clear and categorical evidence of the kidnappee Aadeep Kumar that on 15.11.1987 when he was going to his sister's house, he was kidnapped by Anand Kumar alias Chhote, Ravendra Singh, Anand Kumar alias Chhote and thereafter, rest of the appellants also joined them and participated in his kidnapping and confinement. The kidnappee was taken to the house of accused-appellant Kalyan and was confined there for about two months. He was also made to write a letter to his father for ransom of Rs. 1,50,000/-. The version of PW 1, Aadeep Kumar is supported by other witnesses. All the witnesses have been subjected to cross-examination, but there is no major contradiction or infirmity in the evidence of the witnesses. After his release, PW 1 has even pointed out the alleged house, where he was kept in confinement. There is overwhelming evidence on record, which unmistakeably establishes that on 15.11.87, PW 1 Aadeep Kumar was kidnapped by the accused-appellants and was kept in confinement for two months. The evidence on record fulfills all the ingredients of Section 365 of IPC. In view of peculiar facts and circumstances of the case, there does not appear any hurdle in alteration of conviction of the appellants from Section 364-A of IPC to one u/s 365 IPC. A perusal of the provisions of Sections 364-A and 365 of IPC indicates that the mischief punishable u/s 365 IPC is a less aggravated form of the offence punishable u/s 364-A IPC. As stated earlier, the offence punishable under Section 365 of IPC is of same nature and specie and it prescribed less punishment than that of Section 364-A of IPC. As the entire prosecution evidence was led on the charges under Sections 365 and 368 of IPC, thus, no prejudice would be caused to the accused-appellants if their conviction is altered to under Section 365 of IPC. In view of all these facts and evidence on record, the alteration of conviction of the appellants from Section 364-A of IPC to Section 365 of IPC would not result into any prejudice to the accused-appellants. Learned counsel for the accused-appellants could also not dispute the above stated position of law. The evidence on record clearly makes out a case of kidnapping as punishable u/s 365 of IPC. Accordingly, we are of the firm opinion that the conviction of appellants recorded by the trial court under Section 364-A of IPC should be altered and modified to one under Section 365 of IPC only.
30. The conviction and sentence awarded by the learned trial court stands modified accordingly. As per the dictum contained in Section 365 IPC, the offence is punishable with imprisonment of either description for a term which may extend to seven years, coupled with fine."
82. The evidence available on record in the form of statement of PW-1, PW-2 and PW-3 fully supports the prosecution case that the victim was kidnapped on 21.10.2006 at 5.00 pm by Pohpee, who is said to have taken the victim on a motorcycle with co-accused Ramesh @ Chhote.
83. As already noticed above, Pohpee is known to PW-1, PW-2 and PW-3 from before and has been specifically named as being the person who had kidnapped the victim. The statement of PW-1, PW-2 and PW-3 are inconsistent on that score. Specific reason has also been assigned for kidnapping the victim by Pohpee Singh. PW-2 who is the victim and whose testimony is clear, categorical and consistent on material aspects has stated that he was kidnapped by Pohpee alongwith another person.
84. So far as the other person alongwith Pohpee is concerned, his identity has not been disclosed in the FIR. The FIR mentions the name of Narayan as being the person kidnapping PW-2 with Pohpee but PW-1 in his statement has taken the name of Chhote instead of Narayan.
85. The identity of Chhote has not been established, inasmuch as he has not been identified by any of the prosecution witnesses during the course of trial. Pohpee, however, is known to the prosecution witnesses from before being a close relative and has been identified as being the kidnapper of PW-2. In such circumstances, the charge under Section 365 IPC for kidnapping the minor victim can only be said to be made out against Pohpee and no one else.
86. The prosecution case refers to the kidnapping of PW-2 on 21.10.2006 at 5.00 pm from Chaumuha Bazar and although the prosecution case is that custody of victim was transferred to other accused appellants (except Pohpee and Chhote) but such charge has not been specifically framed against the other accused vide framing of charge order. No specific detail is disclosed about the date, time and place regarding transfer of custody of PW-2 in the charge framed against other accused, specifically when it is the admitted case of the prosecution that PW-2 was kidnapped on 21.10.2006 only by Pohpee and Chhote.
87. There is another aspect with regard to complicity of other accused which needs to be noticed at this stage. This is with regard to the identity of Rahees, Narayan Singh, Pooran and Padam. None of the aforesaid accused were known to the prosecution witnesses from before. None of them have been identified by the prosecution during the course of trial, except Rahees who has been identified by PW-2 in the witness box.
88. PW-5 Harendra Kumar Guatam, who is the Investigating Officer has clearly admitted in his cross-examination that identity of accused persons was not protected and no process for identification of accused persons was ensured. No identification parade was carried out. In such circumstances, identity of accused persons (except Pohpee) in commissioning of the alleged offence has also to be ascertained.
89. So far as Chhote @ Ramesh is concerned, his name has not been mentioned in the first information report. The allegation in the FIR is that Pohpee Singh alongwith Narayan Singh S/o Udal have taken away the victim on a motorcycle. The trial of Narayan Singh has already been segregated and he is not one of the accused appellant in the present case.
90. PW-1 in his statement has stated that he did not know Pooran from before and has seen him for the first time at Police Station Narsena after he was arrested and the victim was recovered. Pooran has not been identified in the witness box by PW-1. PW-2 in his statement has stated that the other person alongwith Pohpee, who had kidnapped him was named Chhote as he was so called by Pohpee. However, in the witness box PW-2 only identified Rahees and Pohpee. PW-2 has, therefore, not recognized Ramesh @ Chhote as being the victim. PW-3 has also not identified Ramesh @ Chhote as being the person driving the motorcycle on which the victim was taken by Pohpee Singh. In such circumstances, although Chhote has been implicated as the person who had kidnapped PW-2 alongwith Pohpee Singh, but neither Chhote has been identified by any of the witnesses, nor his role in kidnapping the victim is established.
91. So far as the other accused persons namely; Rahees S/o Yaseen, Pooran Singh s/o Karan Singh and Padam S/o Kunwar Pal are concerned, their names have figured for the first time in the recovery memo and the first information report. PW-1 in his cross-examination has stated that he had disclosed the names of Pohpee and Chhote alone at the time of lodging of FIR and not the names of other persons namely; Rahees, Pooran and Padam. These persons have also not been identified, inasmuch as, neither their identity was protected nor any test identification parade was done to ascertain their identity. PW-2 in his statement although has identified Rahees in Court but not much reliance can be placed on it since the trial had continued for long and the accused persons were regularly produced in Court without their identity being protected. The possibility of PW-2 having come to know of the identity of Rahees during the trial cannot be ruled out. In such circumstances, none of the other accused persons can be held liable for the offence under Section 365 IPC, inasmuch as their implication is not established by the prosecution beyond reasonable doubt. No specific charge has been framed as to on what date the victim was transferred in their custody, either. In the absence of any specific charge levelled against these persons, it would not be safe to hold them liable for kidnapping PW-2.
92. On the conspectus of the facts as noted above, we have no hesitation to conclude that the charge of kidnapping of the victim i.e. PW-2 Satish for ransom is not made out against any of the accused. Conclusion drawn by Court below against the accused regarding commission of an offence of kidnapping for ransom therefore cannot be sustained and is, therefore, liable to be set aside by this Court.
93. However, from the discussion made above the charge of kidnapping under Section 365 IPC is clearly made out against accused Pohpee @ Pohap Singh. Consequently, the conviction and sentence awarded by court below to accused Pohpee @ Pohap Singh is liable to be modified by this Court.
94. Resultantly the appeals filed by Pooran Singh, Ramesh @ Chhote, Padam Singh and Rahees succeed. They are liable to be allowed. Accordingly, the impugned judgment and orders dated 26.2.2011/28.2.2011 and 1.4.2011; passed by Additional Sessions Judge, Court No. 6 Mathura in Sessions Trial No. 115 of 2007 (State Vs. Pooran Singh, Padam Singh and Rahees) and Sessions Trial No. 286 of 2007 (State Vs. Ramesh @ Chhote and Pohpee) whereby they have been convicted for the offence of kidnapping for ransom and awarding them life imprisonment alongwith fine is set aside, except for accused Pohpee @ Pohap Singh.
95. Since the charge of kidnapping punishable under Section 365 IPC is made out against Pohpee @ Pohap Singh, the impugned judgment and order dated 26.2.2011 and 28.2.2011 passed by court below, in so far as it relates to accused Pohpee @ Pohap Singh, is liable to be modified. Accordingly, the same is modified. Accused Pohpee @ Pohap Singh shall stand convicted under Section 365 IPC. He shall accordingly undergo simple imprisonment of seven years alongwith fine of Rs. 10,000/-. In case of default he shall undergo simple imprisonment for a period of three months. However, in case accused Pohpee @ Pohap Singh has already undergone the sentence and has also deposited the fine, he shall be released forthwith, unless he is wanted in any other case.
96. All the other accused i.e. Pooran Singh, Ramesh @ Chhote, Padam Singh and Rahees, however, shall be set at liberty forthwith, unless, they are wanted in any other case, subject to their executing a bond in terms of Section 437-A Cr.P.C.
97. Criminal Appeal Nos. 1684 of 2011, 1741 of 2011, 1945 of 2011 and 2636 of 2011 are allowed; whereas Jail Appeal No. 1262 of 2012 is partly allowed.
Order Date :- 5.9.2022 Anil (Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)