Allahabad High Court
Kallu Alias Gurdayal vs State Of U.P. on 20 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1953, 2020 (1) ALJ 495
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 27.05.2019 Delivered on 20.09.2019 Criminal Appeal No. 7168 of 2010 Kallu Alias Gurdayal ---- Appellant Vs State Of U.P. ---- Respondent For Appellant : Sri Ashok Kumar Nigam, Advocate For Respondent/State : Sri Amit Sinha, A.G.A. With Criminal Appeal No. 6194 of 2010 Pintu ---- Appellant Vs State Of U.P. ---- Respondent For Appellant : Sri A. B. Singhal, Amicus Curiae For Respondent/State : Sri Amit Sinha, A.G.A. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J
1. These two appeals have been preferred against impugned common judgment dated 30.08.2010 and order dated 31.08.2010 passed by Special Judge, (Dacoity Affected Area Act), Etawah in Special Case No. 22/2008, arising out of Case Crime No. 382/2007, under Sections 364-A and 368 of IPC, P.S. Bakewar, district Etawah, whereby accused-appellants Kallu alias Gurdayal and Pintu have been convicted under Section 364-A of Indian Penal Code (hereinafter referred to as 'IPC') and have been sentenced to imprisonment for life along with fine of Rs. 10,000/- each and in default of payment of fine, they have to undergo three months additional imprisonment. However, they were acquitted of the charge under Section 368 of IPC.
2. As per prosecution version, on 26.11.2007 at about 11:00 AM, while complainant's brother Arvind Kumar and his son Dilip Singh were watching Television, co-accused Shailendra Singh came and took Dilip Singh with him on the pretext that they would play cricket at Ekdil. When Dilip Singh did not return back till evening, uncle of Shailendra Singh, namely, Amar Singh told that Shailendra Singh has informed on phone that they were in some trouble and therefore, unable to come back. While making search for Dilip Singh, complainant Surendra Kumar received a call on his phone number 9410488335 from phone number 9758947328 and the caller told that son of the complainant was in his custody and he asked for ransom of Rs. 10 lacs for his release. The said caller arranged a talk of kidnapped child Dilip Singh with the complainant on phone and thereby complainant also came to know that one more boy, namely, Arun Kumar was also in their captivity. On 29.11.2007, complainant reported the matter to police by filing tehrir Ex. Ka-1 and on that basis, the case was registered under Section 364-A of IPC against unknown persons, vide FIR Ex. Ka-2 on 29.11.07 at 13:45 hours.
3. During investigation, on 24.12.2017 a police team comprising Investigating Officer (PW-6) Zameel Mohd. Rawat and other police officials conducted raid at a hut in the jungle of village Pariyar and Swarooppur. There some persons, having illegal weapons, were confronted by the police but they opened fire at the police party. However, all police officials escaped unhurt. In retaliation, police party has also fired at them. Four of the miscreants, namely, Ranjeet, Gurudayal alias Kallu, Mukut and Ajant Singh were apprehended by the police party at the spot, while seven of their companions succeeded in fleeing away. Hearing some cries, police went inside the hut and found that two boys, tied with strings, were lying there and one of them disclosed his identity as Dilip Singh (PW 2) while another told his name as Akash alias Puttu. Both boys were freed from there and were taken to police station. The alleged string was taken into possession and the illicit weapons recovered from the miscreants, who were apprehended from the spot, were also taken into possession vide recovery memo Ex. Ka-10. Later on, Dilip Singh was handed over to complainant Surendra Kumar.
4. During course of investigation, the Investigating Officer recorded statements of the witnesses, prepared site-plan of the spot and after completion of the investigation, accused-appellants as well as co-accused persons, namely, Shailendra Singh, Vishram Singh, Smt. Babli and Smt. Munni Devi were charge sheeted for the offences under Sections 364-A and 368 of IPC vide charge-sheet Ex. Ka-4.
5. Learned trial court framed charge under Sections 364-A and 368 of IPC against the accused-appellants as well as co-accused persons. The accused-appellants pleaded not guilty and claimed trial.
6. In order to substantiate the charge, prosecution has examined seven witnesses. Accused-appellants were also examined under Section 313 Cr.P.C. wherein they have denied the prosecution evidence and claimed false implication.
7. After hearing and analysing the evidence on record, both the accused/appellants were convicted u/s 364-A IPC by learned trial court vide impugned judgment and order and were sentenced as stated above.
8. Being aggrieved by the impugned judgment and order, the accused-appellants have preferred present appeals.
9. Heard Sri Ashok Kumar Nigam, learned counsel for accused-appellant Kallu alias Gurdayal, Sri A.B. Singhal, learned Amicus Curiae for accused-appellant Pintu and Sri Amit Sinha, learned A.G.A. for the State-respondent.
10. Learned counsel for the accused-appellants has raised the following points:
(i) that there is long and undue delay in lodging the FIR. The alleged incident was shown of 26.11.2007 at 11:00 AM but the FIR was lodged on 29.11.2007 at 13:45 hours. Further, the accused-appellants were not named in the FIR while they were known to the complainant since before the incident.
(ii) that the statement of victim (PW-2) Dilip Singh has been recorded under Section 161 Cr.P.C. after a period of about one month of the incident. The delay in recording his statement makes the prosecution case doubtful.
(iii) that so far as the alleged recovery of victim is concerned, as per prosecution version, the victim was recovered after an encounter by the police with the accused persons, wherein both sides have fired shots on each other and regarding that incident, a case was also registered against the accused persons under Section 307 of IPC but they have been acquitted in the said case. Thus, the alleged recovery of victim child from custody of accused-appellants is doubtful.
(iv) that there are serious contradictions and inconsistencies in the statements of the witnesses, which make the prosecution version highly doubtful.
(v) that the statements of the accused persons under Section 313 Cr.P.C. were not recorded properly as the whole evidence and each circumstance was not put to them and thus, prejudice has been caused to the accused persons on that account.
In support of his contentions, learned counsel for the accused-appellants has placed reliance upon the judgements rendered in the cases of Suman Sood Alias Kamal Jeet Kaur vs. State of Rajasthan reported in 2007 (5) SCC 634, Rajesh Dalal vs. State (Govt. Of N.C.T. Of Delhi) passed in Criminal Appeal No. 800 of 2003 decided on 04.10.2007, Shyam Babu & Ors. vs. State of Haryana passed in Criminal Appeal No. 308 of 2006 decided on 11.11.2008, Akram Khan vs. State of West Bengal passed in Criminal Appeal No. 2248 of 2011 decided on 05.12.2011, Mohammad Murtuza Mohammed Mosin Shaikh vs. State of Maharashtra passed in Criminal Appeal No. 266 of 2004 decided on 07.06.2011 and Netra Pal vs. The State (NCT of Delhi) passed in Criminal Appeal No. 106 of 2000 decided on 09.03.2001.
11. Per contra, learned A.G.A. for the State has supported the impugned judgment and argued that the conviction of the accused-appellants is based on evidence and in such type of cases, delay of three days in lodging the FIR, cannot be termed fatal. In such cases of kidnapping, the family members of the victim hesitate to lodge prompt FIR due to the reason that in such an eventuality, victim may be harmed by his kidnappers. It was argued that statement of the victim (PW-2) Dilip Singh is clear and cogent and it is supported by other evidence on record. There are no reasons to disbelieve the version of PW-2. The conviction of the accused-appellants is based on evidence and there is no illegality or infirmity in the impugned judgment and order of conviction passed by the trial court.
12. We have considered the rival submissions of learned counsel for the parties and perused the record.
13. In evidence, (PW-1), Surendra Kumar stated that on 26.11.2007 at about 11 AM while his brother Arvind Kumar and son Dilip Singh, aged 16 years, were seeing television at their home, accused Shailendra Singh came there and took Dilip Singh with him by stating that they would play cricket at Ekdil and would return by the evening. When Dilip Singh did not return back till evening, they tried to search him. Meanwhile, uncle of Shailendra Singh told that Shailendra has informed on phone that they were in some trouble and thus, unable to return. Thereafter, complainant tried to search his son but in vain. On 27.11.2007, he received a call on his mobile phone no. 9410488335 and the caller told that Dilip Singh was in his custody and he asked for ransom of Rs. 10 lacs for his release and that he also arranged a talk of PW-1 with Dilip Singh on mobile phone. PW-1 further stated that on 24.12.2007, he received information that his son has been recovered by police of police station Khungar, district Firozabad after an encounter and thereafter, on the next day, PW-1 went to the said police station and brought back his son. PW-1 has also proved his tehrir Ex.Ka-1.
14. (PW-2), Dilip Singh is the victim child, who was kidnapped in the alleged incident. He stated that on 26.11.2007 at about 11:00 AM, while he was seeing television at his home, his neighbour Shailendra Singh came there and took him stating that they would play cricket at Ekdil. While PW-2 was going with him, there was a marshal vehicle near his house, in which accused Arun, Kallu alias Gurdayal and Pintu were already sitting. PW-2 also boarded in the said vehicle but thereafter, he was made unconscious by smelling something. When PW-2 got consciousness, he found himself in the jungle (beehad) in the custody of some miscreants and the alleged miscreants took him inside the jungle and they also arranged his talk with his father on phone and they demanded ransom of Rs. 10 lacs for his release. Alleged miscreants used to keep him in tied condition. On 24.12.2007, an encounter took place between the alleged miscreants and police and at that time, one another abductee boy Alok was also with him and they both were lying in tied condition. On their cries, police came in the hut and got them freed. PW-2 was taken by the police to police station Khungar, district Firozabad and he was medically examined and that thereafter, he came back with his father.
15. (PW-3), Constable Suresh Yadav has recorded FIR Ex.Ka-2 and G.D. entry Ex. Ka-3.
16. (PW-4), Arvind Kumar stated that on 26.11.2007 at 11:00 AM, when he and his nephew Dilip Singh were seeing television at their home, accused Shailendra Singh came there and took Dilip Singh with him on the pretext that they would play cricket at Ekdil. When Dilip Singh did not return back by evening, they tried to search him, but without success. Uncle of Shailendra Singh told that Shailendra Singh has informed him on phone that they were in some trouble and thus, unable to return. PW-4 further stated that on 27.11.2007 his brother has received a call on his mobile phone no. 9410488335 and the caller has asked for ransom of Rs. 10 lacs for release of Dilip Singh. After about one month of kidnapping, Dilip Singh was recovered by police of police station Khungar, district Firozabad after an encounter.
17. (PW-5), S.I. Harish Singh has conducted further investigation of the case and has filed charge-sheet while PW-6, S.I. Jameel Mohd. Rawat has conducted initial investigation. On 24.12.2007, he was also part of the police party, which after an encounter with the alleged miscreants, recovered PW-2, Dilip Singh as well as one other abductee Akash. He has, inter alia, stated that accused-appellant Kallu alias Gurudayal and accused Ranjeet, Mukut and Ajant Singh were apprehended at the spot.
18. (PW-7), S.I. Rajveer Singh has proved recovery memo Ex.Ka-11.
19. So far as the question of delay in lodging the FIR is concerned, it is well settled that if delay in lodging FIR has been explained from the evidence on record, no adverse inference can be drawn against prosecution merely on the ground that the FIR was lodged with delay. There is no hard and fast rule that any length of delay in lodging FIR would automatically render the prosecution case doubtful. In "Ravinder Kumar & Anr. Vs. State of Punjab", (2001) 7SCC 690, has held;
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident."
In Amar Singh Vs. Balwinder Singh & Ors. (2003) 2 SCC 518, the Hon'ble Apex Court held that :
"In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR."
In this connection, it will also be useful to take note of the following observation made in Tara Singh V. State of Punjab AIR (1991) SC 63.
"The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case."
In Sahebrao & Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Court has held:
"The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."..
From the above discussed exposition of law, it is manifest that prosecution version cannot be rejected solely on the ground of delay in lodging FIR. Court has to examine the explanation furnished by prosecution for explaining delay. There may be various circumstances particularly number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If prosecution explains the delay, Court should not reject prosecution story solely on this ground. Therefore, the entire incident as narrated by witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay, court has to take into consideration whether it can be termed as abnormal. Recently in Palani V State of Tamilnadu, Criminal Appeal No. 1100 of 2009, decided on 27.11.2018, it was observed by Supreme Court that in some cases delay in registration of FIR is inevitable. Even a long delay can be condoned if witness has no motive for falsely implicating the accused.
In the present case, it is correct that alleged incident of kidnapping took place on 26.11.2007 at 11:00 AM, while the FIR was lodged on 29.11.2007 at 13:45 hours but from the facts of the matter, it is apparent that on 26.11.2007 at 11:00 AM, victim (PW-2) Dilip Singh was taken away by Shailendra Singh by saying that they would play cricket at Ekdil and thus, at that time, there was no suspicion that the victim has been kidnapped and thus, there was no occasion to lodge any FIR. Till the evening hours, when victim did not return, uncle of co-accused Shailendra Singh, namely, Amar Singh has told that Shailendra Singh has made a telephonic call and stated that they were in trouble and unable to come on that day. Thereafter, complainant made effort to search his son at Ekdil and on 27.11.2007, while searching his son, he came at Etawah and there he received a call on his mobile phone wherein the caller has demanded ransom of Rs. 10 lacs for release of his son. It is correct that the FIR was lodged on 29.11.2007, but in incidents of such nature, family members of victim-child generally hesitate to lodge prompt FIR, as they have an apprehension that if the FIR is lodged, victim may be harmed by the kidnappers. In view of all these facts, it appears that there are satisfactory and sustainable reasons for delay in lodging the FIR and, therefore, no adverse inference can be drawn on account of delay in lodging the FIR.
20. The testimony of (PW-2) Dilip Singh was assailed mainly on the ground that his statement under Section 161 Cr.P.C. was recorded after about one month of the incident. Perusal of the evidence goes to show that PW-2 was recovered by the police on 24.12.2007. It is correct that as per case diary, his statement was recorded on 26.01.2008, however, the Investigating Officer was not questioned in the cross-examination as to why he did not record the statement of the victim without any delay. Once the victim has been recovered, it was duty of the Investigating Officer to record his statement as soon as possible and if the Investigating Officer has committed any delay or latches in that regard, it cannot be a ground to doubt the testimony of PW-2, who remained in the captivity of the alleged kidnappers for about 29 days and after his recovery, was available for his statement. It is well settled that testimony of a witness, which otherwise inspires confidence cannot be disbelieved merely on the ground of delay in recording the statement under Section 161 Cr.P.C. The Court may rely on such testimony if the same is cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal v. State of Maharashtra (1992) 3 SCC 106; Mohd. Khalid v. State of W.B. (2002) 7 SCC 334; Prithvi (Minor) v. Mam Raj and Ors. (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1].
21. So far as the alleged recovery of victim/ PW 2 is concerned, as per prosecution version, the victim was recovered after an encounter by the police with the accused persons, wherein both sides have fired shots on each-other and regarding that incident, a case was also registered against the accused persons under Section 307 of IPC. The contention that as the accused persons were acquitted u/s 307 PCC and thus, the alleged recovery of victim/PW-2 from custody of accused-appellants is doubtful, has no force. In this regard, it may be seen that the alleged case under Section 307 of IPC and under Section 25 Arms Act (S.T.No. 640 of 2008) pertains to the incident of firing on the police officials which allegedly took place before recovery of the victim and in that incident, no police officials has sustained any injury. If the Court has not believed the prosecution version that the accused persons have made any attempt to kill the police officials by firing before the recovery of the victim of the present case, it cannot be said that it would affect the recovery of victim/ PW 2 from custody of accused-appellants. It is clear that the acquittal under Section 307 of IPC pertains to the incident of making an attempt to kill the police party and thus, the acquittal of the accused-appellants in that case, would not be sufficient for making the present case doubtful. The trial court of that case has not given any such finding that any incident of recovery of victim has not taken place, rather the findings of that court is to the effect that it could not be proved that the accused-appellants have attempted to kill the police officials. In view of above, the contention of learned counsel for the accused-appellants has no force.
22. Statements of (PW-1) Surendra Kumar, (PW-2) Dilip Singh, (PW-4) Arvind Kumar and of recovery witness are clear and cogent. No major contradiction or infirmity could be pointed out in the statements of witnesses. The version of victim child/PW-2 finds ample support from the evidence of other witnesses. It may be pointed out that minor contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars, i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: Mahender Pratap Singh V State of UP (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. V. State of Maharashtra, JT 2010 (12) SC 287].
In the present case, the contradictions and inconsistencies, cited by the learned counsel for the accused-appellants, are of normal nature and the same do not erode the substance of the testimony of the witness. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction creates a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. In the present case, in view of entire facts and circumstances and the nature of the alleged inconsistencies, the testimony of the witnesses is not affected on account of the alleged inconsistencies.
23. It was next argued that the statements of the accused persons under Section 313 Cr.P.C. were not recorded properly as the whole evidence and each circumstance emerged in evidence was not put to them and prejudice has been caused to the accused persons on that account. Perusal of the record shows that all incriminating evidence came against the accused persons was put to them in question No. 1. It is correct that the accused persons must have been examined regarding each circumstance by asking separate questions but the fact remains that whole evidence has been put to the accused persons under Section 313 Cr.P.C. and thus it cannot be said that prejudice has been caused to the accused persons. Mere defective/improper examination under section 313, Cr.P.C. is no ground for setting aside the conviction of the accused, unless it has resulted in prejudice to the accused. Unless the examination under section 313, Cr.P.C. is done in a perverse way, there cannot be any prejudice to the accused. (vide SC Bahri v. State of Bihar; AIR 1994 SC 2420) and Shobhit Chamar v. State of Bihar; AIR 1998 SC 1693).
24. In Nar Singh v. State of Haryana; AIR 2015 SC 310, the Supreme Court laid down:-
"...Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. In so far as non-compliance of mandatory provisions of S. 313, it is an error essentially committed by the Trial Court, the same has to be corrected or rectified in the appeal."
The Apex Court further observed:-
"The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of S. 313 has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under S. 313 it cannot be inferred that any prejudice had been caused to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice..."
Keeping in view above stated position of law, in the present case, though in examination u/s 313 CrPC, in question No. 4, accused persons were asked about their version regarding statements of all the witnesses by asking a single question but as the substance of the statements of these witnesses was already put to the accused persons in question No. 2, therefore, it cannot be said that any prejudice has been caused to the accused persons by asking a composite question regarding statements of all the witnesses. In view of the above, learned counsel for the accused-appellants has no force.
25. Close scrutiny of evidence clearly reveals that (PW-2) Dilip Singh was taken away by co-accused Shailendra Singh on 26.11.2007 from his home on the pretext of playing cricket at Ekdil. In this regard, statement of PW-2 is cogent and trustworthy and it has further been corroborated by PW-4 Arvind Kumar, who was present at that time. Statement of PW-2 further reveals that when he along with Shailendra Singh boarded in a Marshal vehicle, in that vehicle accused-appellants and co-accused Arun were already sitting. As per PW-2, he was made unconscious by smelling something and was taken into jungle and he was handed over to other miscreants. PW-2 also stated that those miscreants have also made a telephonic call to his father and he was also asked to talk on phone with his father and that miscreants have demanded ransom of Rs. 10 lacs from his father. The alleged miscreants used to keep PW-2 in tied condition. As per PW-2, on 24.12.2007 he was recovered by the police after an encounter by the police with the alleged miscreants and accused-appellant Kallu alias Gurdayal were apprehended at the spot. The version of PW-2 that the miscreants have demanded ransom of Rs. 10 lacs from his father and they have also asked him to talk with his father on phone, is amply corroborated by (PW-1) Surendra Kumar, who has stated that on 27.11.2007, he has received a telephonic call at his mobile phone no. 9410488335 from mobile phone no. 9758947328, demanding ransom of Rs. 10 lacs for release of his son and he was also made to talk with his son on phone. Similarly, the fact that PW 2 was recovered on 24.12.2007 by the police and accused-appellant Kallu alias Gurdayal was apprehended at the spot, is corroborated by PW-6 S.I. Zameel Mohd. Rawat, who has deposed that on 24.12.2007, (PW-2) Dilip Singh and one other kidnappee Akash alias Puttu were recovered from the captivity of the accused persons and accused-appellant Kallu alias Gurdayal was apprehended at the spot.
26. The evidence on record clearly establishes that (PW-2) Dilip Singh was kidnapped by accused- appellant Kallu @ Gurdayal and that co-accused Shailendra Singh has taken PW-2 from his home on the pretext that they would play cricket at Ekdil and thereafter on the way, they boarded in a Marshal vehicle in which accused-appellants and one more accused were already present and thereafter PW-2 was handed over to other miscreants while Shailendra Singh has returned back. It also establishes that on 24.12.2007, PW-2 was recovered by the police from the captivity of the kidnappers and that accused-appellant Kallu alias Gurdayal was apprehended at the spot. In this regard, there is cogent and reliable evidence on record and no major contradiction or inconsistency could be pointed out. So far as involvement of appellant Kallu @ Gurdayal is concerned, there is ample evidence against him. Learned counsel for the appellant has referred case of Rajesh Dalal vs. State (Govt. Of N.C.T. Of Delhi) passed in Criminal Appeal No. 800 of 2003 decided on 04.10.2007 but perusal of the same shows that the facts of that case were on different footing. In that matter entire prosecution story of kidnapping was found unreal and did not inspire confidence and there was grave doubts as to the veracity of the prosecution case. In case of Shyam Babu & Ors. vs. State of Haryana passed in Criminal Appeal No. 308 of 2006, relied by counsel for the appellant, no such proposition has been laid down, which may help the case of appellant in the instant matter. In that case, it was held that the wording of Section 364-A IPC itself suggests that when kidnapping is done with the threat to cause death or hurt to the kidnapped person or gives a reasonable apprehension that some person may be done to death or hurt or compels any Government, any foreign State or international inter-governmental organization or any person to pay a ransom, the offence is complete. Learned counsel has further relied case of Akram Khan vs. State of West Bengal passed in Criminal Appeal No. 2248 of 2011 decided on 05.12.2011. However, in that case conviction of the appellant u/s 364A IPC was upheld and thus, this case does not provide any help to the case of appellant in the present case.
27. So far as accused-appellant Pintu is concerned, as per statement of (PW-2) Dilip Singh, he was sitting in the alleged Marshal vehicle, in which he (PW-2) was taken away into jungle. Except that, PW-2 has not attributed any specific role to Pintu. PW-2 has also not made any categorical statement regarding the role of accused-appellant Pintu in the entire incident covering the period, during which PW-2 remained in the captivity of the kidnappers. One of the important aspect of the matter is that accused-appellant Pintu was not arrested at the spot from where victim/PW-2 was recovered. It is also not the case of the prosecution that alleged accused-appellant Pintu has demanded any ransom or made a call to the complainant. Considering whole evidence on record, there does not appear any cogent and categorical evidence to fix the liability of accused-appellant Pintu. In fact, his role is similar to the co-accused persons, who have been acquitted by the trial court. In view of all these facts, so far as accused-appellant Pintu is concerned, he is entitled for benefit of doubt.
28. So far accused-appellant Kallu alias Gurdayal is concerned, the statement of (PW-2) Dilip Singh is clear and categorical against him. As per PW-2, appellant Kallu alias Gurudayal was not only in the Marshal vehicle, in which he was taken away into jungle, but during his captivity in the jungle, accused-appellant Kallu alias Gurdayal used to remain present there and as stated above, when PW-2 was recovered, accused-appellant Kallu alias Gurdayal was apprehended from there. However, the question arises for consideration is that whether the evidence on record fulfils the ingredients of Section 364-A of IPC. The provisions of Section 364-A of IPC reads as under:
''[364A. 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 2[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.]"
In case of Suman Sood alias Kamal Jeet Kaur Vs. State of Rajasthan,(2007) 5 SCC 634, the Apex Court has laid down as under:- "57.Before the above section is attracted and a person is convicted, the prosecution must prove the following ingredients : (1)The accused must have kidnapped, abducted or detained any person;
(2) He must have kept such person under custody or detention; and (3) Kidnapping, abduction or detention must have been for ransom."
In the case of Netra Pal vs. The State (NCT of Delhi) Criminal Appeal No. 106 of 2000 decided on 09.03.2001, it has been held that a bare reading of Section 364-A IPC, indicates that kidnapping for ransom would be attracted when the kidnapper makes a demand to pay a ransom. The court held:
''7. Therefore, the question for consideration is what does the words "to pay a ransom" stands for? Does it mean that kidnap or abduction with the intention to demand ransom is sufficient to cover the prosecution case under Section 364-A or such a demand has to be translated into action by communicating the demand either by post or by contact.
8. As already pointed out above to attract the provisions of Section 364-A IPC, prosecution has to prove that the accused kidnapped or abducted the child, kept him under detention after such kidnapping and that the kidnapping was for ransom. So far as kidnapping and detention is concerned those have been established in the facts of this case. But by mere recovery of letter Ex.P-1 purported to have been written by the accused indicating a demand of Rs.50,000/- by itself, to our mind, would not be covered under the expression "to pay a ransom". For the purpose of getting paid a ransom a demand has to be made and communicated. Unless the price of retrieval or rescue is made the question to pay a ransom would not arise. Therefore, the essential ingredient to attract the provisions of Section 364-A is that there has to be a demand by the kidnapper on the complainant or any of his relations asking for the payment of ransom. "To pay" means to set in motion the demand for payment. Demand cannot be by keeping the letter in one's pocket. It has to be communicated to the person from whom the demand to pay is made. Unless that is done prosecution cannot succeed in covering its case under Section 364-A. In the case in hand neither the demand was raised on the family of the kidnapped boy nor communicated. Therefore, mere writing a letter and keeping it in his pocket would not tantamount to be a demand to pay a ransom."
From the above quoted provisions and case laws, it is clear that to attract the provisions of Section 364-A of IPC, the kidnapping or abduction must have been done to extract ransom. It is one of the necessary ingredient to convict a person under Section 364-A IPC. In other words, there must have been some demand or payment of ransom to show that the kidnapping was done to extract ransom. In the present case, there is no evidence that it was the accused-appellant who has demanded any ransom. PW-1/complainant has stated that on 27.11.2007, he has received a call on his mobile phone no. 9410488335 from phone number 9758947328 and the caller told that son of the complainant was in his captivity and he asked for ransom of Rs. 10 lacs for his release, but it is not the case of PW-1 that it was accused-appellant Kallu alias Gurdayal, who has made that call. In fact, it is not clear as to who had made the alleged telephonic call to the complainant. Further, PW-1 has also stated that the alleged caller has also made him to talk with his son and thus, this inference clearly emerges that the victim/PW-2 was in the captivity of the person, who has made the telephonic call. PW-2 has not specified that which of the accused has made the said telephonic call to PW-1. Perusal of the record does not show any evidence as to who was the consumer of the said mobile phone No. 9758947328, from which the call for ransom was made to PW-1. Even the Investigating Officer did not try to collect any detail pertaining to this mobile number. It was the duty of the Investigating Officer that he must have collected all necessary details regarding this mobile phone number, but there is no such evidence on record that in whose name this mobile phone number was registered or that who was the actual user of that mobile phone number. Thus, it is clear that so far as accused Kallu alias Gurudayal is concerned, one of the necessary ingredient of Section 364-A of IPC is missing and therefore, the offence punishable under Section 364-A of IPC is not established.
29. Now, next question arises 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''.
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 any such demand as required under Section 364-A 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 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 a 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 Section 365 of IPC, the conviction can be altered from Section 364-A of IPC to u/s 365 of IPC.
In the instant case, it is clear from the evidence, that the victim/PW-2 was kidnapped and kept in wrongful confinement for about 29 days in the captivity of abductors. As stated earlier, in appropriate cases, conviction can be altered from Section 364-A of IPC to Section 365 of IPC. The evidence on record established that (PW-2) Dilip Singh was taken away from his home by co-accused Shailendra Singh on the pretext that they would play cricket at Ekdil and thereafter on the way, they boarded in a Marshal vehicle, in which accused-appellant Kallu alias Gurudayal and some other accused were already present and thereafter PW-2 was handed over to other miscreants while Shailendra Singh has returned back. Appellant Kallu alias Gurudayal was also with miscreants, who kept him in their captivity. It is also established that on 24.12.2007, PW-2 was recovered by the police from the captivity of the alleged kidnappers and that accused-appellant Kallu alias Gurdayal was apprehended at the spot. Thus, it is clear that the evidence fulfils all the necessary ingredients of the offence punishable under section 365 of IPC.
30. Considering the entire facts, it is clear that evidence on record fulfils and satisfies 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 accused-appellant Kallu alias Gurdayal from Section 364-A of IPC to under Section 365 of IPC. A perusal of the provisions of Sections 364-A and 365 of IPC indicates that the mischief punishable under Section 365 IPC, is a less aggravated from the offence punishable under Section 364-A of IPC and 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. In view of all these facts and evidence on record, the alteration of conviction of accused-appellant Kallu alias Gurdayal from Section 364-A of IPC to Section 365 of IPC would not result into any prejudice to the accused-appellant. The evidence on record clearly makes out a case of kidnapping as punishable under Section 365 of IPC. Accordingly, we are of the firm opinion that the conviction of accused-appellant Kallu alias Gurdayal recorded by the trial court under Section 364-A of IPC should be altered and modified to one under Section 365 of IPC only.
31. In view of above, conviction of the accused-appellant Kallu @ Gurdayal stands modified accordingly. As per the dictum contained in Section 365 of IPC, the offence is punishable with imprisonment of either description for a term which may extend to seven years, coupled with fine. In this view of the matter, conviction and sentence of appellant Kallu alias Gurudayal under Section 364-A of IPC stand set aside and accused-appellant Kallu alias Gurdayal is convicted under Section 365 of IPC and is sentenced to the imprisonment of seven years and a fine of Rs 20,000/- and in case of default in payment of fine, the appellant shall undergo additional imprisonment for six months. The appellant is stated to be in jail since 31.08.2007 and thus, the appellant has already spent more than seven years of incarceration. Therefore, the respective period of imprisonment has already been undergone by the appellant. The appellant is granted one month time to deposit the fine before the trial court after being released from jail. Appellant Kallu @ Gurdayal be released forthwith, if he is not wanted in connection with any other case.
32. Criminal Appeal No. 6194/2010 filed on behalf of accused-appellant Pintu is allowed. His conviction and sentence u/s 364-A IPC in Special Case No. 22/2008 (Case Crime No. 382/2007), P.S. Bakewar, district Etawah is hereby set aside. Accused-appellant Pintu is acquitted of the charge under Section 364-A of IPC. He is stated to be on bail, thus, no further order is required in his respect.
33. Criminal appeal No. 7168/2010 filed on behalf of accused-appellant Kallu @ Gurdayal is partly allowed in above terms.
34. Sri A. B. Singhal, learned Amicus Curiae, shall get an amount of Rs 10,000/- as his remuneration.
35. A copy of this order be transmitted to the court concerned forthwith for compliance.
Dated: 20.09.2019
Anand
(Raj Beer Singh, J) (Pritinker Diwaker, J)