Mohd. Inam @ Haji vs The State Of Madhya Pradesh on 10 September, 2025

[Cites 49, Cited by 0]

Madhya Pradesh High Court

Mohd. Inam @ Haji vs The State Of Madhya Pradesh on 10 September, 2025

Bench: Vivek Agarwal

Cr.A No.2279/2015 & Connect Matters
NEUTRAL CITATION NO. 2025:MPHC-JBP:43575

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA

CRIMINAL APPEAL No. 2279/2015

Pradip @ Rajeev Shrivastava
versus
State of Madhya Pradesh

APPEARANCE

Shri Vishal Vincent Rajendra Daniel, Amicus Curiae for appellant.
Shri Manas Mani Verma, Government Advocate for the State.

CRIMINAL APPEAL No. 2537/2015

Sudhir @ Rajsingh Bhadoria & Another
versus
State of Madhya Pradesh

APPEARANCE

Shri Surendra Singh, Senior Advocate assisted by Shri Kapil Pathak,
Advocate for appellants.
Shri Manas Mani Verma, Government Advocate for the State.

CRIMINAL APPEAL No. 2799/2015

Ripusudan @ Rajesh Goutam

Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 10-09-2025
18:35:36
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NEUTRAL CITATION NO. 2025:MPHC-JBP:43575

versus
State of Madhya Pradesh

APPEARANCE

Shri Vishal Vincent Rajendra Daniel, Amicus Curiae for appellant.
Shri Manas Mani Verma, Government Advocate for the State.

CRIMINAL APPEAL No. 6959/2019

Dhananjay @ Dinesh Singh @ Arun
versus
State of Madhya Pradesh

APPEARANCE

Appellant Arun Tiwari is present in person.
Shri Manas Mani Verma, Government Advocate for the State.

CRIMINAL APPEAL No. 3410/2023

Mohammad Inam @ Haji
versus
State of Madhya Pradesh

APPEARANCE

Shri Rishabh Kumar Kaurav, Advocate for appellant.
Shri Manas Mani Verma, Government Advocate for the State.

Judgment Reserved On : 25.7.2025
Judgment Pronounced On : 10.9.2025

Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 10-09-2025
18:35:36
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NEUTRAL CITATION NO. 2025:MPHC-JBP:43575

Criminal Appeal No.2279/2015, Criminal Appeal No.2537/2015 and

Criminal Appeal No.2799/2015 under Section 374(2) of the Code of Criminal

Procedure, 1973 (for short "Cr.P.C") are filed being aggrieved of judgment dated

29.7.2015 passed by learned 1st Additional Sessions Judge, Khandwa in Sessions

Trial No.199/2013 (First Supplementary) convicting & sentencing the appellants,

namely, Sudhir @ Rajsingh Bhadoria, Onkarsingh @ Setthi, Pradip @ Rajeev

Shrivastava and Ripusudan @ Rajesh Goutam as mentioned in the table below:-

For Appellant No.1 Sudhir @ Rajsingh Bhadoria in Criminal Appeal No.
2537/2015:-
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment in lieu
deposited of fine
420 IPC RI for 5 years Rs.10,000/- RI for 3 months
364-A IPC RI for life Rs.50,000/- RI for 1 year
120B IPC RI for life Rs.50,000/- RI for 1 year
328 IPC RI for 7 years Rs.15,000/- RI for 6 months
473 IPC RI for 5 years Rs.10,000/- RI for 3 months
171 IPC RI for 2 months Rs.100/- RI for 10 days
5 Explosive RI for 7 years Rs.15,000/- RI for 6 months
Substances
Act, 1908
25(1-B)(a) Indian RI for 3 years Rs.5000/- RI for 1 month
Arms Act,
1959

For Appellant No.2 Onkarsingh @ Setthi in Criminal Appeal
No.2537/2015:-
Conviction Sentence

Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 10-09-2025
18:35:36
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Section Act Imprisonment Fine if Imprisonment in lieu
deposited of fine
420 IPC RI for 5 years Rs.10,000/- RI for 3 months
364-A IPC RI for life Rs.50,000/- RI for 1 year
120B IPC RI for life Rs.50,000/- RI for 1 year
328 IPC RI for 7 years Rs.15,000/- RI for 6 months
473 IPC RI for 5 years Rs.10,000/- RI for 3 months
5 Explosive RI for 7 years Rs.15,000/- RI for 6 months
Substances
Act, 1908
25(1-B)(a) Indian RI for 3 years Rs.5000/- RI for 1 month
Arms Act,
1959

For Appellant Pradip @ Rajeev Shrivastava in Criminal Appeal
No.2279/2015:-
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment in lieu
deposited of fine
420 IPC RI for 5 years Rs.10,000/- RI for 3 months
364-A IPC RI for life Rs.50,000/- RI for 1 year
120-B IPC RI for life Rs.50,000/- RI for 1 year
328 IPC RI for 7 years Rs.15,000/- RI for 6 months

For Appellant Ripusudan @ Rajesh Goutam in Criminal Appeal
No.2799/2015:-
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment in lieu
deposited of fine
364-A read IPC RI for life Rs.50,000/- RI for 1 year
with
Section
120-B
25(1-B)(a) Indian RI for 2 years Rs.5000/- RI for 1 month

Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 10-09-2025
18:35:36
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Arms
Act,
1959

2. Criminal Appeal No.3410/2023 & Criminal Appeal No.6959/2019

under Section 374(2) of the Cr.P.C are filed being aggrieved of judgment dated

27.6.2019 passed by learned 5th Additional Sessions Judge, Khandwa in

Sessions Trial No.199/2013 convicting & sentencing the appellants, namely,

Mohammad Inam @ Haji and Dhananjay @ Dinesh Singh @ Arun as

mentioned in the table below:-

For Appellant Dhananjay @ Dinesh Singh @ Arun in Criminal Appeal
No.6959/2019:-
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment in lieu
deposited of fine
420 IPC R.I. for 5 years Rs.10,000/- R.I. for 3 months
364-A/149 IPC R.I. for life Rs.50,000/- R.I. for 1 year
120-B IPC R.I. for life Rs.50,000/- R.I. for 1 year
328/149 IPC R.I. for 7 years Rs.10,000/- R.I. for 6 months

For appellant Mohammad Inam @ Haji in Criminal Appeal No.3410/2023:-
Conviction Sentence
Section Act Imprisonment Fine if Imprisonment in lieu
deposited of fine
364-A IPC R.I. for life Rs.50,000/- R.I. for 1 year
420 IPC R.I. for 5 years Rs.10,000/- R.I. for 3 months
120-B IPC R.I. for life Rs.50,000/- R.I. for 1 year

Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 10-09-2025
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328 IPC R.I. for 7 years Rs.15,000/- R.I. for 6 months
473 IPC R.I. for 5 years Rs.10,000/- R.I. for 3 months
5 Explosive R.I. for 7 years Rs.15,000/- R.I. for 6 months
Substances
Act, 1908
25(1-B)(a) Indian R.I. for 3 years Rs.5000/- R.I. for 1 month.
Arms Act,
1959

3. Accused Sajan Singh Chouhan has been convicted for the offence

under Section 25(1-B)(b) of the Arms Act, 1959 and sentenced to undergo

rigorous imprisonment for one year with fine of Rs.2,000/- and in default of

payment of fine to undergo additional rigorous imprisonment for fifteen days but

he has not filed any appeal before this Court. Accused Pankaj Kharat @ Fauzi

has been acquitted by the learned Trial Court from the charges of Sections 420,

364A, 120B, 328 of the I.P.C. Similarly, learned Trial Court noted that as the

prosecution has failed to prove its case against the accused Guddu @ Iliyas,

therefore, recorded the finding of acquittal in his favour from the charges under

Sections 420, 364A, 120B and 328 of the I.P.C.

4. The appellant Arun Tiwari in person and learned counsels for the

appellants submit that the prosecution case in short is that on 24.8.2013 at about

5:00 PM, Rajesh Jain (PW-1) was abducted by the accused persons, namely,

Sudhir @ Rajsingh Bhadoria, Pradip @ Rajeev Shrivastava, Mohammad Inam @
Signature Not Verified
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Haji and Onkarsingh @ Setthi in a white car from the bypass near Radisson

Hotel at Indore. Once in the car, ransom was demanded from Rajesh Jain (PW-1)

and thereafter on telephone from Shyam Soni (PW-4) and Rajeev Jain (PW-2)

respectively. Rajesh Jain (PW-1) was rendered unconscious by administering

some drug to him. He remained unconscious throughout his captivity. Shyam

Soni (PW-4) was at Indore when he received the demand for ransom over the

phone. He alongwith Santosh Jain (PW-3) went to the Police Station Vijay

Nagar, Indore and informed the police. The police accompanied by these two

witnesses made a search for Rajesh Jain (PW-1) though unsuccessfully. Shyam

Soni (PW-4) though spent night at Police Station Vijay Nagar, Indore but no FIR

was lodged regarding abduction for ransom. No police officer from police station

at Indore is examined at the trial to corroborate the testimony of Santosh Jain

(PW-3) and Shyam Soni (PW.4).

5. Rajeev Jain (PW-2) reported the matter at Police Station Kotwali,

District Khandwa and lodged the FIR vide Exhibit P/4C. There is no mention of

the demand of any ransom being made from Rajeev Jain (PW-2) in this FIR

Exhibit P/4C. In the FIR lodged by Rajeev Jain (PW-2) on 24.8.2013 at about

6:30 PM for the offence under Section 364A of the IPC pertaining to Crime

No.464/2013, it is mentioned that some unknown persons had abducted his

Signature Not Verified
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KHAN
Signing time: 10-09-2025
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brother. It is mentioned in the FIR (Exhibit P/4C) that they are in jewelry

business. They are three brothers living in a joint family. The author of FIR

Rajeev Jain (PW-2) was at his shop when at about 6:30 PM, a phone call was

received on this landline number 2225927 and an unknown person informed him

that his brother Rajesh Jain (PW-1) was kidnapped and asked him to not to

telephone police. The unknown caller asked him to wait for another call. Before

Rajeev Jain (PW-2) could ask anything, the caller had disconnected the call. His

elder brother Rajesh Jain (PW-1) had gone to Indore in his Swift Car MP09-CC-

3501 alongwith Santosh Prem Chand Jain, Shyam Soni, Rajesh Parikh. Rajeev

Jain (PW.2) called Rajesh Jain (PW-1) on his mobile number 9826047721 but

that phone was switched off. Rajeev Jain (PW-2) had informed Rajneesh Jain,

who in turn called Santosh Jain and Santosh Jain informed them that he too had

received intimation of kidnapping of Rajesh Jain (PW.1). Rajeev Jain (PW.2)

contacted Dhananjay @ Dinesh Singh @ Arun, who had approached him at

Khandwa in connection with a land deal and he too informed him about the

kidnapping of Rajesh Jain (PW.1) and asked him to keep a sum of

Rs.5,00,00,000/- ready as ransom otherwise serious consequences will be

required to be faced. He had given intimation to his brothers and relatives at

Indore but could not trace his brother Rajesh Jain (PW.1).

Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 10-09-2025
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6. Firstly, there is no evidence of Rajeev Jain (PW-2) contacting

Dhananjay @ Dinesh Singh @ Arun and Dhananjay @ Dinesh Singh @ Arun

demanding any ransom from him. Secondly, the whole prosecution case has

several weak links pointing out towards the innocence of the appellants but their

conviction is recorded only on the basis of surmises and conjectures. As per the

prosecution case, Rajesh Jain (PW-1) after abduction was taken to Flat No.1106,

Sector-3, at Faridabad (Haryana). A team headed by ACP Rajesh Kumar Chawra

(PW.26), Inspector Narenda Pal (PW.23) both from the Crime Branch at

Faridabad, Vijay Singh Paraste (PW.30), ASI Kotwali, Khandwa and about 12

other police personnel reached Flat No.1106 at about 4:00 AM on 28.8.2013. A

white Innova Car was parked outside the building. The team noticed that at about

6:30 AM on 28.8.2013, the accused Sudhir Bhadoria was seen coming from the

building towards the car. He was apprehended by the police. Subsequently, the

police entered Flat No.1106 and found Rajesh Jain (PW.1) in an unconscious

state in the custody of Pradip @ Rajeev Shrivastava, Mohammad Inam @ Haji

and Onkarsingh @ Setthi.

7. The accused Sudhir Bhadoria was arrested. His memorandum

Exhibit P/28 was drawn and vide Exhibits P/44 to P/60, the seizure of arms,

ammunition and other articles were made. The accused Pradip @ Rajeev

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Shrivastava gave his memorandum vide Exhibit P/29 and certain articles were

seized vide Exhibits P/62 to P/71. The accused Onkarsingh @ Setthi gave his

memorandum vide Exhibit P/30 and certain articles were seized vide Exhibits

P/81 to P/87. Mohammad Inam @ Haji gave his memorandum vide Exhibit P/31.

8. On 28.8.2013, transit remand was obtained from the Court of learned

Judicial Magistrate First Class, Faridabad and the arrested accused persons were

brought to Khandwa where they were incarcerated at Police Station Kotwali,

District Khandwa. Rajesh Jain (PW-1) and other witnesses were summoned to

the Police Station Kotwali, District Khandwa where their case diary statements

were recorded. The accused persons were produced before the Court of learned

Chief Judicial Magistrate, Khandwa on 31.8.2013 and remanded to the judicial

custody. On 18.9.2013, a Test Identification Parade vide Exhibit P/2 was

conducted by the Naib Tahsildar Ms.Mala Ahirwar (PW-13) in which the

accused persons were identified by Rajesh Jain (PW-1).

9. The appellant Arun Tiwari, one of the convicted accused persons,

submits that as per prosecution case, Rajesh Jain (PW-1) was called to Radisson

Hotel, Indore at about 5:00 PM to finalize draft sale deed. According to the

prosecution, he met Dhananjay and Pradip @ Rajeev Shrivastava. Thereafter, he

was taken to the bypass road to meet the boss. It was informed that the boss is

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sitting in the car. They reached bypass where two persons were standing outside

the car. Rajesh Jain (PW-1) went inside the car. Dhananjay took keys of the car

of Rajesh Jain (PW-1) and it is alleged that he fled with the car. Rajeev Jain (PW-

2) picked up landline phone and from him ransom was demanded. Rajeev Jain

(PW-2) states in the FIR that he had only received a call with regard to abduction

of Rajesh Jain (PW-1) but no ransom was demanded. Thus, there is contradiction

in the prosecution story. Thereafter, it is mentioned in the FIR that Santosh Jain

(PW-3) called his brother Rajesh Jain (PW-1). Santosh Jain (PW-3) gave his

phone to Shyam Soni (PW-4) and then the demand was made for ransom. It is

submitted that Rajeev Jain (PW-2) lodged FIR at Police Station Kotwali, District

Khandwa. Sudhir @ Rajsingh Bhadoria, Pradip @ Rajeev Shrivastava,

Onkarsingh @ Setthi, Mohammad Inam @ Haji were subjected to the Test

Identification Parade and they were rightly identified by the concerned

witnesses. As far as Dhananjay @ Dinesh Singh @ Arun is concerned, his Test

Identification Parade is Exhibit P/1, which was carried out on 4.7.2016 at 4:00

PM in District Jail Khandwa in presence of the Naib Tahsildar Ms.Mala Ahirwar

where Rajesh Jain (PW-1), Santosh Jain (PW-3), Manoj Jain, Rajesh Parikh,

Rajendra S/o.Ganpat Rao and Pramod S/o.Jogendra Puri identified him correctly.

Signature Not Verified
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Similarly, he was also identified by Hukum S/o.Diggilala, Sandeep S/o.Santosh,

Shyam S/o.Chhogalal and Pappu @ Pankaj S/o.Prahlad.

10. Rajesh Jain (PW-1) was recovered from the second floor of the house

at Faridabad. Shri Krishan (PW-7) owns the building. Shri Krishan (PW-7)

admitted knowing Ripusudan @ Rajesh Goutam as he had taken his Flat

No.1106 at Sector-3, Huda Colony, Ballabhgarh, Faridabad since 2013 and stated

that the house was rented out for a sum of Rs.5,000/- per month and Ripusudan

@ Rajesh Goutam was residing with his wife Sonia and daughter Nitika. On the

lower floor of the house, the landlord Shri Krishan was residing with his family

and on the third floor, Muniraj Nagar was residing with his family.

11. The appellant Arun Tiwari submits that he was not present at

Faridabad. He was not arrested at Sector-3, Faridabad. Sudhir Bhadoria was

shown to the witnesses. There was no demand for ransom and at most the

offence will be one under Section 365 of the I.P.C.

12. Appellant-Arun Tiwari submits that learned Additional Sessions

Judge convicted the appellant without appreciating the evidentiary value of the

testimony of various witnesses available on record. Decision is "Sub-silentio"

i.e. without considering the relevant arguments and the relevant facts in issue.

Signature Not Verified
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13. It is submitted that prosecution allegation in the case in hand is that

appellant being main accused had lured Rajesh Jain in a fictitious act of land

dealing so to call him to Indore and thereafter acting as a member of the Larger

Gang, he handed over Rajesh Jain to the gang of the co-accused so to facilitate

abduction and ransom.

14. It is submitted that allegation on co-accused is of demanding ransom

after abduction, but Arun Tiwari remained absconding since beginning in the

case.

15. It is submitted that police personnel framed a story that the appellant

Arun Tiwari was absconding and, therefore, constituted a team to visit his home

town. He was declared to be absconding and a Farari Panchnama was prepared.

Proceedings under Sections 82 and 83 of the Cr.P.C were sought to be initiated

against the appellant. When the appellant was arrested in another case in the year

2016, then he was served with the warrant at District Jail, Varanasi. On 30th June,

2016, he was formerly arrested and charge-sheet was filed.

16. It is submitted that this theory developed by the police that the

appellant was absconding and was not known to them, is not correct. The

appellant Arun Tiwari submits that in fact his identity was known to the police

since 2013 and in fact he was working as a police agent. He had all the

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knowledge of the facts of the case. It is submitted that Rajesh Jain was neither

abducted nor any ransom was demanded. A fake story of ransom demand and

abduction was put forth to frame the accused persons. It is argued that the

appellant was never absconding and on this aspect, attention is drawn towards

the cross-examination of Nathuram Dubey (PW-10), Deepak Nagle (PW-20) &

Vijay Singh Paraste (PW-22).

17. It is pointed out that Nathuram Dubey (PW-10), ASI, when cross-

examined, admitted that he cannot state as to on which date and at what time,

they had left Indore for Faridabad. This witness admitted that whenever they

leave for another district, they take written orders from the senior police officials.

He stated that originally the police team was directed to proceed to Uttar

Pradesh, but, on way, they got instructions to proceed towards Faridabad. This

witness further stated that when they had reached Faridabad between the night of

27-28th August, then whether there is any documentary evidence of reporting

their arrival at Faridabad Police Station or not, cannot be said by him. This

witness stated that they had reached the place of the incident i.e. house at Sector

No.3 at Faridabad at about 08:45 a.m. and had made their entry in the house after

10-15 minutes from where they recovered Rajesh. This witness further stated that

Rajesh Jain was identified by the local police of Khandwa. It is pointed out that

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this witness admitted that Rajesh was not taken by them to the hospital. He

further stated that the team, which had gone to Banaras, was led by him. At

Banaras Cantt. Police Station, the SHO had given intimation about Arun Tiwari.

18. Deepak Nagle, S.I. (PW-20) admitted that when he received the case

diary in 2015 at the time of filing of the supplementary charge-sheet in relation

to accused Ramesh @ Chini, at that time, the name of Arun Tiwari was recorded

under "Farari". There was no photograph or video footage of Arun Tiwari.

Ramesh @ Chini had not given the name and address of Arun Tiwari. This

witness further admitted that after receiving intimation from the informant that

the appellant Arun Tiwari was at Banaras, they had not gone to Banaras but had

sent ASI Baria to Banaras. ASI Baria had prepared Farari Panchnama and had

collected information in regard to Arun Tiwari. This witness admitted that no

statement of this witness was obtained prior to his formal arrest.

19. In paragraph 10 of his cross-examination, Shri Deepak Nagle (PW-

20) admitted that prior to filing of the charge-sheet, no information was collected

in regard to the business transaction. He further admitted that during

interrogation post arrest, no new fact was discovered, which was not already

mentioned in the case diary. This witness denied a suggestion that the appellant

Arun Tiwari was planted to crush Hazi Imam and Bhadoria Gang six months

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prior to the incident and this fact was known to the whole of the Crime Branch.

Thus, it is submitted that complete Crime Branch was knowing this fact that the

appellant was planted by the police to crush Bhadoriya and Hazi Imam Gang.

20. In paragraph 31 of his cross-examination, Vijay Singh Paraste (PW-

22) admitted that he does not remember as to when the house at Faridabad was

raided, whether ASI Nathuram Dubey was with him or not. He also admitted that

Rajesh Jain was not taken to a Government Hospital though he was unconscious

because his relatives arrived and had asked to take him to Sarvodaya Hospital.

This witness admitted that on Ex.P-14C, which is a paper showing emergency

consultation dated 28.08.2013, the time is mentioned as 11:30, whereas in police

information for MLC, the time is mentioned as 12:14. This witness admitted

overwriting and correction on Ex.P-3C, Ex.P-21C, Ex.P-22C, Ex.P-23C, Ex.P-

26C, Ex.P-31C and Ex.P-32C as well as on Ex.P-34C. This witness admitted that

he cannot give reason for such overwriting. This witness also admitted that in

seizure memo Ex.P-30C, the time is mentioned as 01:40 and there is no

overwriting. This witness further admitted that he is unable to say as to where he

had gone from the place of the incident. This witness also admitted that despite

statement of Aashu Bakshi as contained in Ex.D-17 in which he has mentioned

that he had received phone from some T.I. and the statements of Manoj Pareek as

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contained in Ex.D-18, which states that they were going to Vijay Nagar Police

Station Indore so also the statements of Pramod Kori as contained in Ex.D-19

when Rajesh Pareek had informed him that they were going to Vijay Nagar

Police Station for lodging a report, this witness had not collected any information

as to whether any FIR was registered at Indore or not. This witness also admitted

that he had neither mentioned Rojnamacha Sanha Number in FIR Ex.P-4 nor

produced it before the Court. This witness further admitted that he cannot say as

to why Rojnamacha Sanha was not enclosed along with the charge-sheet. In

paragraph 86, this witness stated that everybody was having knowledge that

abduction had taken place from Indore and when relatives of the abductee had

approached the Police Station Kotwali, District Khandwa to lodge the FIR, then

they had stated that abduction had taken place from Indore saying that they had

received a call from an unknown person on their landline number informing

them about abduction.

21. This witness further admitted in Paragraph 87 that he had recorded

statements of the ASI Bharat Singh under Section 161 Cr.P.C. in his own

handwriting. That statement is Ex.D-21 in which it is mentioned that abduction

had taken place from Khandwa district on 24.08.2013. This witness admitted that

witness ASI Nathuram Dubey (PW-10), in his police statements Ex.D-22,

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mentioned that abduction had taken place from Khandwa. Similar statements

were given by Sub Inspector Narendra Kumar vide Ex.D-23 and Inspector

Rajesh Chawda vide Ex.D-24. This witness also admitted that in the case and

discharge summary of Sarvodaya Hospital Ex.P-14C on 'A' to 'A' part, it is

mentioned that abduction had taken place at Khandwa. Even in the MLC sent to

Sarvodaya Hospital, it is mentioned that abduction had taken place on

24.08.2013.

22. In paragraph 96, Vijay Singh Paraste (PW-22) admitted that he had

not prepared any spot map on the identification of the abductee. It is pointed out

that Vijay Singh Paraste (PW-22) admitted that no enquiry was made to ascertain

that the land in regard to which so called deal was to be made for which Rajesh

Jain was called to Indore, was belonging to Rajesh Jain. This witness only stated

that relatives of Rajesh Jain had informed him that Rajesh Jain was a partner.

When this witness was confronted, he stated that he had not collected electronic

evidence like CDR etc. so to suppress his misdeeds. This witness after saying

that he is not a specialist admitted that while filing the supplementary charge-

sheet, he had collected the CDR details.

23. Vijay Singh Paraste (PW-22) further admitted that while making

seizure memo of a mobile Titanium Carbon S5 vide Ex.P-33-C, seizure of which

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was prepared by this witness, he had not mentioned as to mobile belongs to

whom. After having said that he had never visited Banaras, this witness admitted

that he had produced a NHA Card at Banaras on 30.08.2013 in front of a

Journalist. Thus, it is pointed out that neither the Farari Panchnama is properly

prepared because the police personnel never visited the village of this accused

nor seizure memo was properly prepared. Thus, it is submitted that he has been

made an accused in an arbitrary and illegal manner and there is plethora of

evidence to show that no offence under Section 364-A of IPC is made out.

24. It is submitted that learned Additional Sessions Judge committed

grave mistake in evaluating the evidence available on record and correlate it with

the demand of ransom.

25. It is pointed out that first story of ransom demand is introduced to the

FIR. This story is though supported by informant Rajeev Jain (PW-2), Rajneesh

Jain (PW-4) and R.C. Bhakhar, Special officer (PW-17) but it is contradicted by

Santosh Kumar Jain (PW-3), inasmuch as, in the FIR Ex.P-4 it is mentioned that

author of the FIR Rajeev Jain was at the shop when at about 06:30 he received a

phone call on his landline number then an unknown person informed him that his

brother was kidnapped and he should not call the police personnel but wait for

the next call. It is mentioned in the FIR that thereafter, the phone call was

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disconnected. He called his brother Santosh Jain, who informed that he too had

received a call in regard to kidnapping of Rajesh and then Rajeev contacted

Dhananjay Solanki, who informed them that Rajesh was kidnapped and they

should keep a sum of Rs.5 crores ready as ransom otherwise they will have to

face consequences.

26. It is pointed out that Santosh Kumar Jain (PW-3) in paragraph 8

stated that after reaching Sayaji Hotel, Shyam Soni had called on the number of

the accused when the person on the other side stated that wait for 10 minutes he

is coming. When he did not reach within 10 minutes then Shyam Soni had again

called him, then accused stated that he is coming but did not reach there for 20-

25 minutes. Then Santosh Kumar Jain (PW-3) had called Rajesh Jain, who was

very upset and stated that he has been surrounded and asked them to come soon.

Thereafter, again when they had called Rajesh Jain then somebody else took the

call and the voice was that of accused Arun Tiwari but whatever he said, could

not be understood by Santosh Kumar Jain (PW-3), therefore, he had given his

phone to Shyam Soni. Shyam Soni after attending the call stated that Rajesh was

abducted and a demand of Rs.5 crores was being made.

27. The appellant Arun Tiwari submits that as per prosecution's own

case, he was not in the car. Prosecution's case, in itself, is that after taking Rajesh

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Jain to the main road and introducing him to the other persons, Rajesh Jain was

taken inside the car of other accused persons then Dhananjay had taken keys of

the car of Rajesh Jain and the allegation is that he had fled away. Thus, there

was no occasion for these witnesses to say that when they received the call from

Rajesh Jain or when they had a talk with Rajesh Jain, he was very upset and

asked them to reach home and then when mobile was handed over to Shyam

Soni, the appellant Dhananjay @ Dinesh Singh @ Arun demanded any ransom.

28. It is pointed out that there is no voice test nor collection of CDR etc.

to support aforesaid contention. It is submitted that even theory of Dhananjay @

Arun Tiwari abducting is absurd, inasmuch as, the FIR is against unknown

persons, whereas Dhananjay @ Dinesh Singh @ Arun was allegedly known to

the complainant party.

29. The appellant Arun Tiwari submits that prosecution has no benefit of

Section 6 of the Evidence Act which is exception to hearsay evidence. It is

pointed out that when first story of ransom demand could not be substantiated in

the initial investigation, then after two days of recovery of Rajesh Jain, another

story of demand of ransom was introduced. It is pointed out that Rajeev Jain

(PW-2), author of FIR, improvised his story. It is, thus, submitted that the

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prosecution allowed Rajeev Jain (PW-2) and Rajneesh Jain (PW-4) to make

contradictory statements and demolish its own story.

30. Reliance is placed on the judgment of Padmati Venkata Sundara

Rao Vs. State of Andhra Pradesh, 2006 Cr.L.J 2168, wherein it is held that in

the case the informant contradicted the contents of Ex.P-1 and it was not

challenged by prosecution. Therefore, FIR has no value and the prosecution

cannot rely on the contents of FIR, so also on the evidence of PW-2.

31. It is pointed out that Rajeev Jain (PW-2) in para-17 of his cross

examination admitted his police case diary statement to be true. Thus, he

contradicted the story of Rajesh Kumar Jain (PW-1) that "Guddu-Guddu was

heard on the landline number and ransom was demanded on the same phone

call." In fact, author of the FIR, himself, admitted that no demand of ransom

was made to him and after receiving intimation in regard to abduction, the phone

call was disconnected.

32. Thus, it is submitted that theory of demand of ransom is not

established. It is pointed out that a third story was introduced at the instance of

Santosh Kumar Jain (PW-3) saying that he had made two phone calls on the

mobile of Rajesh Jain (PW-1) and the first phone call was received by Rajesh

Jain (PW-1) when Rajesh Jain had informed Santosh Kumar Jain (PW-3) that he

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was stuck in a grave situation and asked him to come soon. Then it is submitted

that second call was made by Santosh Kumar Jain (PW-3), which got connected

and somebody else had spoken from the other side and the voice, being vague,

Santosh Kumar Jain (PW-3) could not understand it and, therefore, gave the

phone to Shyam Soni (PW-5), who heard the demand for ransom along with

information of abduction. It is pointed out that victim Rajesh Jain (PW-1) in his

examination, is silent about second phone call of Santosh Kumar Jain. When the

appellant in cross-examination confronted Rajesh Jain (PW-1) regarding second

phone call of Santosh Kumar Jain (PW-3), then Rajesh Jain (PW-1) admitted

that it is true that neither Santosh Kumar Jain (PW-3) called him nor his second

call was received despite his information given to Santosh Kumar Jain that he is

stuck in grave situation. Thus, it is pointed out that Rajesh Kumar Jain (PW-1)

contradicted Santosh Kumar Jain (PW-3) and confirmed that no second call was

received by any co-accused in case, nor it was made to the mobile phone of

Rajesh Jain (PW-1).

33. Thereafter, it is pointed out that fourth story of ransom was

introduced by the prosecution through testimony of Shyam Soni (PW-5), who

deposed that he had heard the ransom demand on the first call, which was made

by Rajesh Jain (PW-1) to Santosh Kumar Jain (PW-3), but Rajesh Jain (PW-1)

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and Santosh Kumar Jain (PW-3) contradicted him saying that in the first call

Rajesh Jain (PW-1) had only spoken that he is stuck and asked Santosh Kumar

Jain (PW-3) to come soon when the call got disconnected. Prosecution has not

confronted its witness Shyam Soni (PW-5) as to when and how he heard about

the demand of ransom in the very first call, which was neither received by him

nor was attended by him.

34. The appellant Dhananjay @ Dinesh Singh @ Arun submits that in

paragraph 22 of cross-examination, Shyam Soni (PW-5) was confronted with his

prior depositions, thus, contradictions point out that even through Shyam Soni

(PW-5), the prosecution failed to establish that any ransom was demanded.

35. It is pointed out that there is intentional suppression of evidence by

the prosecution. The call details record of the mobile numbers, which are alleged

to be used in the case for making demand of ransom and giving information of

abduction, Vijay Singh Paraste (PW-22) stated that he is not an expert and cannot

be blamed for not retrieving the electronic evidence and submitting it before the

Court but then admitted that at the time of filing of the supplementary charge-

sheet, he had produced the CDR detail, which puts a question marks on his

earlier statement showing his inability to retrieve CDR.

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36. It is submitted that, in the case of Tomaso Bruno & another Vs.

State of Uttar Pradesh, (2015)7 SCC 178, in para 28 it is held that

notwithstanding the fact that the burden lies upon the accused to establish the

defence plea of alibi in the facts and circumstances of the case, in our view,

prosecution in possession of the best evidence, CCTV footage ought to have

produced the same. In our considered view, it is a fit case to draw an adverse

inference against the prosecution under Section 114(g) of the Evidence Act that

the prosecution withheld the same as it would be unfavourable to them had it

been produced.

37. It is submitted that Dr.B.N.Singh (PW-12), Specialist in Internal

Medicine, who had examined abductee Rajesh Jain on 28.08.2013 at Sarvodaya

Hospital, Sector 8 Faridabad, deposed that at 11:30, the police had admitted him,

he had general weakness, vomiting, alter sensorium, his BP was 140/90. In para-

9 this witness deposed that Rajesh Jain (PW-1) had informed him that he was

abducted on 24.08.2013 from Khandwa and this was narrated by Dr.B.N.Singh

(PW-12) in his court statements. This witness also admitted that no test was

performed to show as to whether patient was administered any depressant or

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intoxicant. Thus, it is pointed out that as per the testimony of independent

witness Dr.B.N.Singh (PW-12), the abductee

himself stated that he was abducted from Khandwa and not from Indore, which

falsifies the statement of Rajesh Jain (PW-1) that he was abducted from Indore. .

38. Reliance is placed on the judgment of Hon'ble Supreme Court in

case of M. Ammini &ors Vs. State of Kerala, (1998) 2 SCC 301 wherein it is

held that a statement made by a doctor is a reliable piece of information. In

paragraph 17, Hon'ble Supreme Court has held that if a statement is given by the

injured at the time of medical examination, then this statement of the accused

amounted to an admission and therefore admissible in evidence.

39. It is submitted that as per the definition of abduction given under

Section 362 of the IPC, allegation on the appellant is that he had lured Rajesh

Jain in the name of a land deal. However, the trial Court has observed that

prosecution had not investigated the fact of the land deal and there is no

document available on record about the fact of land dealing in the case.

Therefore, learned trial Court did not allow the appellant to put questions related

to this fact. Thus, it is submitted that when aspect of land dealing is not proved,

abduction is said to have been made at Khandwa, then no role can be ascribed to

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the present appellant. It is pointed out that land dealing being a "fact in issue"

and that being not substantiated will be hit by Section 102 of the Indian Evidence

Act, 1872.

40. It is pointed out that story of abduction is even not proved through

medical evidence. Dr. S.S.Rathore (PW-23) deposed that if any diabetic patient

is not given proper food and water, then he will display symptom of acidosis and

his blood glucose in the examination report will be low. However, Ex. P-14C,

medical report of Rajesh Jain depicted high blood glucose. Dr.B.N.Singh (PW-

12), who had examined the patient, deposed that all the vitals were normal. There

is admission of doctors that at the time of admission in the hospital, no

identification mark of the patient was mentioned in MLC report. Dr.B.N.Singh

(PW-12) also deposed that there were no marks of injury or any other mark to

show that Rajesh Jain (PW-1) was tied down by any string or rope. There is no

medical report to suggest that any drug or stupefying substance was administered

to Rajesh Jain (PW-1). Thus, there is no medical evidence to connect the chain of

the circumstantial evidence that Rajesh Jain was either abducted or was ill-

treated or was unconscious consequent upon the so called abduction nor there is

any evidence of demand of ransom.

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41. Another contradiction in the story of abduction and demand of

ransom is that when the facts of the case are compared with proximity of time

and continuity of action viz a viz different witnesses, then the whole story

becomes very inconsistence and improbable.

42. Reliance is placed on the judgment of Supreme Court in the case of

Lalita Kumari Vs. State of Uttar Pradesh and others, (2014) 2 SCC 1 to submit

that in paragraphs 54 & 55 of the said judgment, Hon'ble Supreme Court has

dealt with the word "shall" which appears in Section 154(1) of Cr.P.C.

mentioning that it is mandatory in character and provisions of Section 154(1) of

the Code, read in the light of the statutory scheme, do not admit of conferring

any discretion on the officer-in-charge of the police station for embarking upon a

preliminary enquiry prior to the registration of an FIR. It is settled position of

law that if the provision is unambiguous and the legislative intent is clear, the

Court need not call into it any other rule of construction. Thus, it is pointed out

that no cause of action having taken place at Khandwa, but it being fabricated to

have taken place at Khandwa, FIR was lodged at Khandwa and not at Indore, yet

prosecution did not produce the general case diary entry before the Magistrate in

time.

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43. Placing reliance on the judgment of Jharkhand High Court in the case

of Sarju Ghorel & Ors. Vs. State of Bihar (now Jharkhand), 2006 SCC

OnLine Jharkhand 49, it is pointed out that not producing general diary entry in

relation to registration of FIR, when challenge in a case is adverse for

prosecution.

44. Reliance is also placed on the judgment of Supreme Court in the case

of Susanta Das and others Vs. State of Orisa, AIR 2016 SC 589, wherein it is

held that if there is evidence to show that FIR was tampered or fabricated and

there is delay in procedures of Section 157 Cr.P.C, then the case of prosecution

becomes doubtful.

45. It is pointed out that no offence under Section 120-B of IPC is

sustainable as Section 120B, IPC does not deal with any independent offence.

Once offence under Section 364A, IPC is not sustainable, then no offence under

Section 120-B, IPC alone can be made out. Again relying on the judgment of

Hon'ble Supreme Court in the case of Tomaso Bruno & another (supra), it is

submitted that burden of proof can never be shifted from prosecution. Vijay

Singh Paraste (PW-22) admitted that he had not recorded any statement of the

appellant prior to admission nor he had prepared any confessional memorandum

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of the appellant in the case under Section 27 of Indian Evidence Act, therefore,

there being no material against the appellant, his conviction cannot be upheld. It

is pointed out that none of the co-appellants alleged involvement of the

appellant- Dhananjay @ Dinesh Singh @ Arun in criminal conspiracy, therefore,

no indulgence of the appellant could be proved nor any prior meeting of mind

could be substantiated. Thus, there being no evidence under Section 10 and

Section 30 of the Indian Evidence Act, allegation on the appellant cannot be

substantiated.

46. It is pointed out that Section 120A of the IPC in Sub-para-2 reads

that "provided that no agreement except an agreement to commit an offence shall

amounts to a criminal conspiracy unless some act besides the agreement is done

by one or other parties to such agreement in pursuance thereof." Thus, it is

pointed out that there being no such agreement and no evidence of such

agreement, guilt of the appellant could not be proved. Sanichar Sahni Vs State

of Bihar (2009)7 SCC 198 wherein it is held that under Section 120-B of the

IPC, charge of conspiracy against single person cannot be sustained because one

person cannot conspire with himself.

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47. It is further submitted that in fact the appellant was acting as a

planted informer of the Police in regard to which evidence of Inspector of Police

was produced in defence, yet, instead of taking the appellant to be informer to

burst the Gangs of Bhadoriya and Imam, he has been falsely implicated. It is

pointed out that the appellant was in contact with the police before and after the

incident as is deposed by Bhullan Yadav (DW-4), therefore, the involvement of

appellant cannot be said to be proved.

48. It is also pointed out that conviction of the appellant under Section

149 IPC is also unsustainable inasmuch as Rajesh Jain (PW-1), in para-115 of

his deposition, deposed that only four persons abducted him and they

administered some stupefying substance to him in car. In para-4 of the

examination in chief, Rajesh Jain (PW-1) admitted that the appellant Dhananjay

@ Dinesh Singh @ Arun was not present in car and had in fact taken the keys

and went away. He was not present in car when the call was made by Rajesh Jain

(PW-1) for conveying demand for ransom. Thus, the appellant cannot be said to

be a member of unlawful assembly, which even otherwise in terms of Section

141 of IPC, requires five or more persons to designate an assembly as unlawful.

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49. Reliance is placed on the judgment of Hon'ble Supreme Court in the

case of Musa Khan and others. Vs. State of Maharashtra, (1977) 1 SCC 733,

wherein it is held that culpable liability does not arise from mere presence in the

assembly nor does participation in one incident lead to liability for consequences

of all the incidents that the unlawful assembly may consequently indulge in.

Liability of each individual accused is to be adjudged on facts.

50. Reliance is also placed on the judgment of Hon'ble Supreme Court in

the case of Darbara Singh Vs. State of Punjab, (2012) 10 SCC 476, wherein it

is held that once the unlawful assembly is reduced to assembly of four persons,

by acquittal of some of the other co-accused in the case, then the other accused

cannot be convicted with the aid of Section 149 IPC but can be convicted under

Section 34 IPC.

51. It is also pointed out that no offence under Section 420 of the IPC is

made out inasmuch as it is admitted by Rajesh Jain (PW-1) that the appellant had

not affected any of his properties nor had acquired, destroyed, transferred any

valuable things of the said victim in case. In fact, the keys of the car, which were

alleged to be taken by the appellant, were also admitted to be with Rajesh Jain

(PW-1). The burden was on Rajesh Jain (PW-1) to establish that how it reached

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him and when it was the appellant and the appellant was absconding and never

met Rajesh Jain (PW-1) again.

52. Reliance is placed on judgment of Allahabad High Court in the case

of K.K. Chopra and etc. etc. Vs. State of UP, 1991 (1) CRCJ 316 wherein it is

held that any cheating by personification is different offence under different

section of IPC.

53. The appellant Arun Tiwari submits that in fact it's a case of no

demand and Rajesh Jain staged his own abduction so to seek partition of his

father's property. It is submitted that Rajesh Jain admitted, in his cross-

examination, that his income tax return was to the tune of 3 to 3 ½ lakhs which

will render him to be a person belonging to the lower middle class, who are

meeting their ends. Therefore, there was no occasion for staging such a big plot

of kidnapping with difficulty and ransom to deal with a person whose family

wealth is admittedly less than 1 crore. Thus, it is submitted that the appellant

Arun Tiwari is innocent. He be acquitted of the charges and the appeal be

allowed.

54. It is submitted by Shri Surendra Singh, learned Senior counsel for the

appellants that four witnesses who have deposed regarding demand of ransom

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namely Rajesh Jain (PW-1), Rajeev Jain (PW-2), Santosh Jain (PW-3) and

Shyam Soni (PW-4), their evidence is contradictory rendering it false.

55. It is submitted that though it is alleged that demand for ransom was

allegedly made over the telephone but police has not led any evidence in regard

to number of those telephones to corroborate the oral testimony. This raises an

adverse inference against the prosecution rendering the story of demand for

ransom totally false.

56. Reliance is placed on the judgment of Tomaso Bruno and Another

Vs. State of Uttar Pradesh, (2015) 7 SCC 178), wherein in paragraphs 26 and

27, it is noted that -

26. "The trial Court in its judgment held that non-

collection of CCTV footage, incomplete site plan, non-

inclusion of all records and sim details of mobile phones

seized from the accused are instances of faulty investigation

and the same would not affect the prosecution case. Non-

production of CCTV footage, non-collection of call records

(details) and sim details of mobile phones seized from the

accused cannot be said to be mere instances of faulty

investigation but amount to withholding of best evidence. It

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is not the case of the prosecution that CCTV footage could

not be lifted or a CD copy could not be made.

27. As per Section 114 Illustration (g) of the Evidence

Act, if a party in possession of best evidence which will

throw light in controversy withholds it, the court can draw an

adverse inference against him notwithstanding that the onus

of proving does not lie on him. The presumption under

Section 114 Illustration (g) of the Evidence Act is only a

permissible inference and not a necessary inference. Unlike

presumption under Section 139 of Negotiable Instruments

Act, where the court has no option but to draw a statutory

presumption, under Section 114 of the Evidence Act, the

Court has the option; the court may or may not raise

presumption on the proof of certain facts. Drawing of

presumption under Section 114 Illustration (g) of Evidence

Act depends upon the nature of fact required to be proved

and it's importance in the controversy, the usual mode of

proving it; the nature, quality and cogency of the evidence

which has not been produced and its accessibility to the party

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concerned, all of which have to be taken into account. It is

only when all these matters are duly considered that an

adverse inference can be drawn against the party."

57. It is pointed out that evidence of Rajesh Jain (PW-1) is liable to be

rejected for the reasons that he stated that one of the kidnappers had demanded

ransom from Rajeev Jain (PW-2), a fact which has been denied by Rajeev Jain

(PW-2). Therefore, Rajesh Jain (PW-1) has been falsified on a most material

point, no credence or reliability can be placed on this deposition that ransom was

demanded from him.

58. In paragraph 54 of cross-examination, this witness Rajesh Jain (PW-

1) admitted that he had informed Santosh Kumar Jain that he was trapped and

asked him to come but neither Santosh Kumar Jain came nor his phone as he had

not given his location. He stated that thereafter accused had snatched his phone

and he cannot say as to whether Santosh Kumar Jain had called again or not. He

does not remember as to whether accused had talked to Santosh Kumar Jain or

not.

59. Thus, it is pointed out that Rajesh Jain (PW-1) has contradicted

himself in regard to demand of ransom. Though, he has stated that who had

given identity of the person, who demanded ransom from Rajeev Jain, but there

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is contradiction in regard to this evidence. It is pointed out that Rajesh Jain had

gained consciousness on 28.08.2013 and was inconstant company of the police

but did not disclose demand for ransom prior to recording of his statement on

30.08.2013.

60. It is submitted by Shri Surendra Singh, learned Senior Counsel that

evidence of Rajeev Jain (PW-2) is liable to be rejected because he stated in his

examination-in-chief that ransom was demanded from him by a kidnapper, but in

paragraph 8 of his cross-examination, this witness Rajeev Jain (PW-2) admitted

that there was no Caller Line Identification Presentation (C.L.I.P.) installed on

his landline phone on which he had received a call and that he had identified the

voice of his brother.

61. In paragraph 9, this witness admitted that it was Santosh, who had

informed him to keep arrangement of Rs.5 crores otherwise to face

consequences. Then, this witness further admitted that when he had received a

phone call in regard to kidnapping of his brother, then it was only dictated that

police be not informed. In regard to arrangement of Rs.5 crores and wait for

another call was informed by him whereas Santosh admitted that as he could not

understand the call, the phone was taken by Shyam Soni (PW-4). Thus, it is

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evident that submission of Rajeev Jain (PW-2) that any demand of ransom was

made from him is not proved.

62. It is further submitted that in the FIR, Ex.P-4, there is omission of

demand of ransom, inasmuch as, in the FIR, it is mentioned that when he had

called Santosh Kumar Jain, then Santosh Kumar Jain had informed him that he

too had received a call in regard to kidnapping of Rajesh Jain and then when

Santosh Kumar Jain contacted Dhananjay Solanki, then he stated that Rajesh Jain

was kidnapped and Rs.5 crores ransom should be kept ready. However, Rajeev

Jain (PW-2) admitted that he had not given name of any person, who had

demanded ransom from him.

63. There is omission in the case diary statements of Rajeev Jain (Ex.D-

4) in regard to any demand being put forth to this witness in regard to ransom. It

is only stated that when he had contacted Santosh Jain, then Santosh Jain

informed that ransom was demanded from him.

64. Reliance is placed on the judgment of Hon'ble Supreme Court in the

case of B.N. John Vs. State of U.P and Another, (2025 SCC OnLine (SC) 7

(paragraph-35) and Sampath Kumar Vs. Inspector of Police Krishnagiri,

AIR 2012 SC 1249 (Paragraph-9); (2012) 4 SCC 124.

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65. It is pointed that in FIR, which is authored by Rajeev Jain (PW-2), it

is mentioned that Santosh had informed him that demand for ransom was made

by Dhananjay. However, Santosh Jain (PW-3) has not stated that a demand for

ransom was made by Dhananjay or that he stated this fact to Rajeev Jain (PW-2).

As Santosh Jain (PW-3) does not depose about ransom being demanded by

Dhananjay, the evidence of Rajeev Jain (PW-2) is hit by the rule of hearsay

evidence and is, therefore, inadmissible.

66. Reliance is also placed on the judgments of Vijendra Vs. State of

Delhi, (1997) 6 SCC 171 (Paragraph 10 and 11), Labhuji Amratji Thakor

and Others Vs. State of Gujarat and Another, AIR 2019 SC 734

(paragraph-12) and Neeraj Dutta Vs. State (Government of NCT of Delhi),

AIR 2023 SC 330 (Paragraph-34).

67. It is pointed out that in fact Rajesh Jain (PW-1) admitted that

Dhananjay had not made any demand for ransom. He has also admitted that no

loss was caused to the physical property of Rajesh and it is further admitted that

his car keys were with him. This witness also admitted that Dhananjay had not

travelled with them in the car when phone call was received from Rajesh.

68. In paragraph 15, this witness admitted that when he was recovered,

there was not a single mark of scratch on his body and he had not informed in his

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statements as to on which parts of his body, the tape was fixed, which may have

resulted in uprooting of hair follicle.

69. As far as, Shyam Soni (PW-4) is concerned, his evidence too in

regard to demand of ransom is liable to be rejected, inasmuch as, Rajesh Jain

(PW-1) has stated that from the car only one demand for ransom was made and

that too from his brother Rajeev Jain. He does not say that any further demand

was made by anybody else. This renders the evidence of Shyam Soni totally false

and unreliable.

70. It is also submitted that Shyam Soni (PW-4) was with Santosh Jain

(PW-3) and both had visited Police Station, Vijay Nagar. They had allegedly

informed Police Station, Vijay Nagar about the incident. Thereafter, search was

made by the police and subsequent to this Shyam Soni (PW-4) spent entire night

at Police Station, Vijay Nagar. Despite this, no report was lodged at Police

Station, Vijay Nagar. This causes dent to the testimony of Shyam Soni (PW-4).

71. It is also submitted that not a single police officer from police station

Vijay Nagar has been examined to corroborate the version of Shyam Soni (PW-

4) that he had gone to the Police Station, Vijay Nagar, informed them regarding

the incident, or that there was any search for the kidnapped person. This raises an

adverse inference against the prosecution.

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72. It is pointed out that there is another omission that if demand for

ransom would have been made from car, then it would not have been recorded in

the FIR.

73. Shri Surendra Singh, learned Senior Advocate submits that as far as

apprehension/arrest of Sudhir Bhadoria is concerned, there are three witnesses on

the point, namely, ASI Narendra (PW-23), ACP Rajesh Kumar Chawda (PW-26)

and ASI Vijay Singh Paraste (PW-30), but their evidence is so contradictory, that

it renders the prosecution story wholly unreliable, that Sudhir Bharodiya was

arrested outside the building.

74. Inspector Narendra (PW-23), in his examination-in-chief, stated that

Sudhir Bhadoria came down from the building on his own and when he

approached the white Innova Car, then he was apprehended.

75. However, in paragraph 30 of his deposition, he has stated that he

went up to the flat, rang the bell and that the appellant Sudhir Bhadoria came out

of the room. Then he asked the appellant to remove the Innova Car that was

parked outside the building. Thereafter, Inspector Narendra (PW-23) came down

from the building and that the appellant Sudhir Bhadoria followed him. He was

apprehended. On the other hand, ASI Vijay Singh Paraste (PW-30) stated that he

was a member of raiding party had entered Flat No.1106 and apprehended

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Sudhir Bhadoria from inside the flat. Thus, there is evident contradiction in the

statements of these two witnesses.

76. Shri Krishna (PW-11), landlord of the building, stated that only three

accused were apprehended by the police, which indicates that Sudhir Bhadoria

was not present when the police raided the flat. Late arrest of the appellant also

corroborates the fact that he was not present when the police party raided the

building at Faridabad.

77. As far discovery under Section 27 of the Evidence Act and seizure is

concerned, it is submitted that all articles were seized from inside Flat No.1106.

The police party entered this flat at about 06.30 AM. The party consisted of

about 15 persons. Since, police party was aware of the fact that arms,

ammunition and other articles were in the flat, there can be no discovery as

contemplated by Section 27, Evidence Act. Reference is made to the judgment of

Hon'ble Supreme Court in the case of Vijendra Vs. State of Delhi, (1997) 6

SCC 171.

78. It is also submitted that police party having seized these articles on a

simple search of the flat renders the discovery as farce. Reliance is placed on the

judgment of Supreme Court in the case of State of Madhya Pradesh Vs. Nisar,

AIR 2007 SC 2316.

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79. It is pointed out that identification is also liable to be rejected.

Inasmuch as, Inspector R.C. Bhakar (PW-29), in paragraphs 9 to 16 of his

deposition, admitted that Rajesh Jain (PW-1) was summoned to Police Station,

Kotwali, Khandwa on 30.08.2013 and when he had come to Police Station,

Kotwali, the accused were present, therefore, as the witness had an opportunity

to see the accused, such identification is valueless. Reliance is placed on the

judgment of Hon'ble Supreme Court in the case of Gireesan Nair and Others

Vs. State of Kerala, 2023 (1) SCC 180.

80. It is further pointed out that Rajesh Jain (PW-1) admitted that he had

not given description of the kidnappers in his statement recorded under Section

161 of Cr.P.C.. This is again another circumstance to render identification

valueless as held by Supreme Court in the case of Amrik Singh Vs. State of

Punjab (2022) 9 SCC 402 (Paragraph-15).

81. Santosh Kumar Jain (PW-3) and Shyam Soni (PW-4) admitted that

photographs of the accused were published in the newspapers. This again renders

identification valueless as held in the case of State of Madhya Pradesh Vs.

Chamru Alias Bhagwandas and Others, AIR 2007 SC 2400; (2007) 12 SCC

423.

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82. It is submitted that accused were remanded to judicial custody on

31.08.2013, but Test Identification Parade was held 18 days later. This delay

further renders the identification valueless as held in the case of Gireesan Nair

and others Vs. State of Kerala, (2023) 1 SCC 180.

83. It is thus submitted that whole trial is vitiated and cannot be allowed

to stand the scrutiny of legal parameters, therefore, it is a case of no evidence,

where acquittal should be recorded.

84. In the alternative, it is argued that, at best, it is a case under Section

365 of IPC and since there is no demand for ransom conviction under Section

364-A IPC cannot be maintained and it be altered to one under Section 365 of

IPC.

85. Learned Government Advocate supports impugned judgment passed

by the learned trial Court and submits that appellant are members of a dreaded

gang, thus no indulgence is called for.

86. After hearing learned counsel for the parties and going through the

record, it reveals that the main thrust of arguments put forth by learned counsel

for the parties and a party appearing in person are that firstly, Rajesh Jain (PW-1)

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stage managed his own abduction so do derive partition in property of his father

for his own benefit and for the benefit of his family.

87. Second argument is that place of incident has been conveniently

manipulated. Inasmuch as, whole investigation took place at Khandwa, whereas

according to the story of the prosecution itself Rajesh Jain (PW-1) along with

three other members had visited Indore with a view to strike a land deal in

relation to which there were series of meeting and then Rajesh Jain was taken to

a bypass road in the name of meeting with the so-called boss. But despite the fact

that Rajesh Jain was reported to be missing from Indore and it is an admitted fact

that two of his family members/friends visited Vijay Nagar, Police Station

informing about abduction but FIR was lodged at Khandwa and not at Indore.

88. Thus, it is submitted that prosecution has failed to prove the actual

place of the incident and benefit of doubt will accrue in favour of the accused.

89. It is also submitted that as far as Sudhir Bhadoria is concerned, his

arrest has been shown in a most dramatic manner from Faridabad, saying that he

had come down and was walking towards his white colour Innova Car parked in

front of the residential area where Rajesh Jain was kept, when he was arrested.

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90. It is pointed out that the story of police arresting Sudhir Bhadoria

from Faridabad is not made out from the documents and is again a concoction in

the hands of the prosecution which causes dent to the prosecution story.

91. It is also submitted that there is ambiguity in the number of persons

who were present. Arun Tiwari, admittedly, after introducing Rajesh Jain to the

so-called boss, who was sitting in a car, had not travelled to Faridabad. It is

alleged that he had taken keys of the car of Santosh Jain for parking it, but

Santosh Jain himself admitted that keys of the car were recovered from him

while Arun Tiwari was reported to be absconding. Thus, it is submitted that there

are inconsistent pieces of evidence, which prosecution has tried to connect to

weave a net to take into its phone the appellants, though there is no case.

92. It is also pointed out that to constitute an offence under Section 364-

A, there are two ingredients, namely, kidnapping or abduction of any person or

keeping a person in detention after such kidnapping or abduction, and second

element is 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 other person to do or

abstain from doing any act or to pay a ransom, shall be punishable with death, or

life imprisonment and shall also be liable to fine.

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93. It is submitted that essential ingredients of Section 364-A of the IPC

are not made out, therefore, in absence of the element of demand of ransom or

there have been any element of threat to Rajesh Jain either of death or hurt,

charge under Section 364-A is not sustainable.

94. In the alternative, it is submitted that firstly appellants are entitled to

be acquitted from all the charges under Sections 420, 364-A/149, 120-B,

328/149 of IPC as none of these charges are made out.

95. As far as, other appellant Ripusudan @ Rajesh Goutam is concerned,

he be acquitted from charges under Section 364-A read with Section 120-B of

IPC and Section 25(1-B)(a) of Arms Act, 1959.

96. Conviction of appellant Sudhir @ Rajsingh Bhadoria under Sections

420, 364-A, 120-B, 328, 473, 171 of IPC, Section 5 of Explosive Substances

Act, 1908 and Section 25(1-B)(a) of the Arms Act, 1959. And conviction of

Pradip @ Rajeev Shrivastava, Mohammad Inam @ Haji and Onkarsingh @

Setthi under Sections 420, 364-A, 120-B, 328, 473 of IPC, Section 5 of

Explosive Substances Act, 1908 and Section 25(1-B)(a) of the Arms Act, 1959,

be set aside.

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97. In the alternative, it is submitted that at best it's a case under Section

365 of IPC, and in the alternate, it is prayed that conviction of the appellants be

modified from one under Section 364-A of IPC to Section 365 of IPC.

98. It is submitted that no valuable security was obtained, therefore,

conviction under Section 420 of IPC will not be made out.

99. Similarly, conviction under Section 328 of IPC, which deals with

administration of poison or any stupefying, intoxicating or unwholesome drug,

or other thing with intent to cause hurt to such person, or with intent to commit

or to facilitate the commission of an offence or knowing it to be likely that he

will thereby cause hurt, is also not proved.

100. Even ingredients of Section 473 of IPC, which deals with making or

possessing counterfeit seal etc., with intent to commit forgery punishable

otherwise, is not made out. Therefore, even conviction under Section 473 of IPC

is uncalled for.

101. As far as, Section 171 of IPC is concerned, which deals with the

aspect of a person not belonging to a certain class of public servants, if wears any

garb or carries any token resembling any garb or token used by that class of

public servants, with the intention that it may be believed, or with the knowledge

that it is likely to be believed, that he belongs to that class of public servants,

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shall be punished with imprisonment as provided under this section is not made

out, as there is no such attempt on the part of any of the accused persons. Thus, it

is submitted that conviction needs to be set aside.

102. It is admitted fact that informant Rajeev Jain (PW-2) on 24.08.2013

at about 23:55 hours, presented himself at Police Station Kotwali, Khandwa and

reported that he is involved in the business of gold and silver jewelry. They are

three brothers, namely, Rajesh Jain (PW-1), Rajeev Jain (PW-2) and Santosh

Kumar Jain (PW-3), who reside as a joint family. On 24.08.2013 at about 06:30

PM on his landline number 2225927, he had received an intimation that

unknown person had abducted his brother and he was asked to not to call the

police but wait for another call. Thereafter, complainant Rajeev Jain (PW-2) had

called his elder brother Rajesh on his mobile number 9826047721, which was

found to be switched off. Then, he called his another brother Rajneesh Jain and

younger brother Santosh Kumar Jain (PW-3). Santosh Jain informed him that

one Dhananjay Solanki had come to enter into a contract for land deal and he too

had received intimation in regard to kidnapping of Rajesh Jain on this mobile

phone. Thereafter, it is informed that Rajeev Jain (PW-2) had contacted

Dhananjay Solanki, who informed that Rajesh Jain was abducted and demanded

ransom of Rs.5 crores, failing which threatened with serious consequences. This

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information was shared by Rajeev Jain with his other brothers and relatives at

Indore.

103. On such oral intimation, Shri R.C. Bhakar, Incharge SHO, Police

Station Kotwali (PW-29) recorded the FIR, registering case Crime No.464/13

dated 24.08.2013 under Section 364-A of IPC. Copy of FIR is Ex.P-4. On

25.08.2013, Shri R.C. Bhakar had visited hotel Ranjeet at Khandwa and got

room No.117, opened. He prepared a Talashi Panchnama, Ex.P-11 and then

seizure memo Ex.P-12 to P-16. Spot map, Ex.P-5 at the instance of Rajeev Jain

was prepared. It has come on record that the then SHO, Police Station, Lathuriya

Indore, namely, Shri Basant Kumar Mishra (PW-28) vide seizure memo dated

25.08.2013 (Ex.P-21) had handed over motor vehicle No. MP09 CC 3501 to Shri

Rajeev Jain. Thereafter, Shri R.C. Bhakar (PW-29) had recorded statements of

ten persons under Section 161, namely, Rajeev Jain (PW-2), Rajneesh Jain (PW-

7), Sandeep Jain (PW-8), Manoj Pareek (PW-25), Pankaj Parambe (PW-21),

Rajesh Pareek (PW-27), Shyam Soni (PW-4), Rajendra (PW-9), Pramod Kori

(PW-19) and Hukum Verma (PW-10).

104. Further proceedings were drawn by Shri Vijay Singh Paraste (PW-

30), who had prepared a Talashi Panchnama after obtaining consent of the

landlord Shri Krishna Verma's (PW-11) son Manish Verma, who has not been

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examined before the trial Court and made seizure vide Ex.P-41 on 28.08.2013.

He also prepared recovery Panchnama Ex.P-42 and freed abducted Rajesh Jain

(PW-1) from said House No.1106, Sector 3, District Faridabad, Haryana. Seizure

was made on 28.08.2013 vide Ex.P-32 to P-35 and the seized goods are from

article 1 to article 67 and thereafter the accused persons were arrested.

105. On 28.08.2013, as per Ex.P-1, Rajesh Jain (PW-1) was handed over

to his brother Rajneesh Jain (PW-7) and Rajesh was subjected to medical

examination at Sarvodaya Hospital, Section 8, Faridabad vide Ex.D-1 and

thereafter he was relieved from the hospital.

106. Apart from this, general defence, one Pankaj Kharat, who was

acquitted by the learned trial Court, took a defence that he was working as a

CT/GD Sipahi in CRPF. At present, he is under termination. On 24.03.2011,

when he had come on leave from Mijoram, then he was made an accused in the

case of murder of his grandmother.

107. Learned trial Court framed as many as 12 issues, including whether

on 24.08.2013 at about 6:30 PM at Khandwa with a view to demand ransom, the

accused had entered into an illegal agreement with victim Rajesh Jain (PW-1) for

demand of ransom of Rs.5 crores. Another issue, which was framed, was

whether accused made victim Rajesh Jain to travel to Indore with a view to enter

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into an agreement to purchase some land at village Ichchhapur at a rate of Rs.

28,50,000/- per acre, so to dupe him. Whether, Rajesh Jain (PW-1) was abducted

in terms of the provisions contained in Section 362 of IPC and was kept in an

illegal confinement under a threat of death/grievous injury. Another issue was

whether Rajesh Jain was threatened and compelled while under abduction to pay

a sum of Rs.5 crores as ransom. Learned trial Court also framed an issue as to

whether Rajesh Jain was administered some poisonous/stupefying/narcotic/

unhealthy medicine and whether accused had kept overall six fabricated number

plates to travel from Madhya Pradesh, Uttar Pradesh and Delhi.

108. Whether accused No.1 Sudhir @ Rajsingh Bhadoria used a uniform

which is used by the members of the Uttar Pradesh Police including the token,

ribbon, belt etc. Also whether in the House No.1106, Sector 3, accused No.1 to 4

had kept certain explosive substances as mentioned under Section 2-A of the

Explosive Substances Act, 1908 and they kept certain substances, like, gola

barood and other fire arms in violation of the provisions contained in Section

2(d) and 2(e) of the Arms Act, 1959.

109. After examining the evidence, aforesaid separate judgments of

conviction have been passed.

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110. Since, one of the issues relating to use of police uniform as worn by

members of the Uttar Pradesh State Police is only in regard to appellant No.1

Sudhir Bhadoria whereas other issues are common for all other accused persons,

it will be proper to first deal with the issue of uniform as discussed by learned

trial Court.

111. As per the order-sheet dated 23.03.2015, when examination-in-chief

of Vijay Singh Paraste was carried out, on that date order-sheet as was drawn by

learned First Additional Session Judge makes a mention that State through Shri

Vinod Patel, ADPO. Accused Sudhir Bhadoria was not presented from Ujjain

Jail, only warrant was presented. All other accused were present from Central

Jail, Indore along with Shri Sanjay Sharma, Advocate.

112. Examination-in-chief of Vijay Singh Paraste was carried out but on

account of completion of Court timings, the case was fixed for his cross-

examination on 17.04.2015. On 17.04.2015, the order-sheet reads that Sudhir

Bhadoria was not presented from the Ujjain Jail nor any warrant was presented.

The other accused persons were not present from Central Jail, Indore nor their

warrant was produced, one Rupesh Panchariya, Advocate was present. Shri

Rohit Tomar appeared for Pankaj. It is also mentioned that fax was received

from Central Jail, Indore and Ujjain that due to non-availability of police force at

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DRP lines, the accused persons could not be presented and the time was sought

to present the accused. An application was filed by Shri Rupesh Panchariya

stating that Shri Sanjay Sharma appearing for other accused persons is not

present because of ill health and prayed for time. In support, he had produced

prescription of Shri Sanjay Sharma but that request was rejected by the learned

trial Court.

113. In the case of Baigan Singh Vs. Emperor, (1927) 6 Pat 691, it is

held that a trial is vitiated by failure to examine the witnesses in the presence of

the accused. Mere cross-examination in the presence of the accused is not

sufficient.

114. Thus, finding of the learned trial Court, in paragraphs 56 to 58, that

the appellant Sudhir Bhadoria was putting on uniform of Uttar Pradesh State

Police including token like, ribbon, belt, whistle, rope etc. is contrary to the

record, inasmuch as Ex.P-28 doesn't reveal that Sudhir Bhadoria was wearing

those articles but only says that they were seized, but Ex.P-28, memorandum,

only says that Sudhir @ Rajsingh Bhadoria had only kept these articles and,

therefore, finding being perverse to the recovery memo, Ex.P36, as well as

memorandum, Ex.P-28, which clearly makes a mention that recovery was made

from House No.1106, Sector 3, house of Ripusudhan and nowhere makes a

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mention that when Sudhir Bhadoria was arrested vide arrest memo, Ex.P-20, he

was wearing any uniform of Uttar Pradesh State Police.

115. Even Raju Sharma (PW-22), who was examined on 25.09.2014,

stated that he does not recognize any of the accused persons, they were not

arrested in front of him, police had not questioned these accused in front of him

nor any recovery was made or any statements were recorded, no material was

seized by the police in front of him. This witness in cross-examination admitted

that he is under fear of police and had signed all the documents under the fear of

police. He further admitted that neither accused were arrested in front of him nor

their statements were recorded or any seizure was made in front of him,

therefore, contention of the learned trial Judge that Raju Sharma (PW-22)

admitted his signatures is not a sufficient circumstance.

116. Police Inspector Narendra (PW-23) admitted in paragraph 29, that

they had reached near Innova Car at about 04:00 AM, they had not found any

number of any of the vehicle to be false or fabricated.

117. He contradicted the statements of Shri Paraste by saying that when

they had received information from the informant, then they kept waiting for the

accused persons to come down but none of the accused persons came down

when between 06:30 to 7:00 AM, this witness had gone to the second floor of the

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house and had rang the bell, prior to that he had rang the bell of first floor and he

was informed that bell of second floor is different. He had not caused any inquiry

from the person who had opened the gate on ringing the bell door of first floor.

The person who had answered the ring bell of the second floor was asked to

come down to remove his vehicle, as it was a Janmashtami day. The person who

had come down to move the vehicle was caught when Mr. Paraste and his team

had caught hold of other persons.

118. In paragraph 31, this witness stated that all the accused were sitting

with arms in their hands but without giving them any opportunity they caught

hold of them. They had snatched the arms from the accused persons. This

witness stated that he had first entered in the room and caught hold of

Mohammad Inam @ Haji when other police personnel caught hold of other co-

accused persons. This witness also stated that Sudhir was also brought to the

room and other persons of the team were holding him.

119. He further admitted in paragraph 32 that none of the accused

attacked them and stated that they had taken all the arms of the accused persons.

They had taken custody of all the arms and had kept them at one place, size of

the room was 10x10, about 8 to 10 persons of police team went inside and some

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persons waited outside. Chawda Ji had left the place after giving instructions. All

the proceeding were drawn by Vijay Singh Paraste.

120. He admitted that Raju (PW-22) is a property dealer and is a resident

of Sector 15 Ajronda, Faridabad which is 6 to 7 kms away from the place of the

incident.

121. Thus, it is evident that arms were sized prior to recording of

memorandums and, therefore, there is no corroboration between the seizure of

arms and preparation of memorandum under Section 27 of the Evidence Act. In

paragraph 41, it is mentioned that after preparation of the memorandum under

Section 27, Paraste had called Sudhir when he had given a bag to Paraste Ji, that

bag contained police uniform etc. besides documents in regard to Rajesh Jain,

who was kidnapped. This witness admitted that he does not remember whether

these articles were seized or not.

122. In paragraph 45, this witness stated that after catching hold of the

accused, they were informed that Rajesh Jain was in another room. He had gone

to another room and found Rajesh Jain to be unconscious. He tried to wake him

up but when did not succeed, then 2-3 members of the team had taken him to

Sarvodaya Hospital, Sector 7. He admitted that he does not remember names of

the person who had taken him to Sarvodaya Hospital, Sector 7. This witness

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thus admitted that relatives of Rajesh Jain were not present when he was taken to

Sarvodaya Hospital and thus the justification given by the I.O. that Rajesh was

taken to Sarvodaya Hospital at the instance of his brother PW-7 is not made out.

123. In paragraph 48, several suggestions have been given to this witness

which have been denied but one important factor is that Shri Paraste was not

examined in front of accused Sudhir Bhadoria, therefore, in the light of the

judgment of Madhya Pradesh High Court in Budhram (supra), charge under

Section 171 of IPC as regards possession of any garb, or any token resembling

any garb or token used by that class of public servants is not made out.

Therefore, Sudhir Bhadoria deserves to be and is hereby acquitted from charges

under Section 171 of IPC.

124. As far as charge under Section 420 of IPC is concerned, learned trial

Court in paragraph 44 of its judgment has noted that Santosh Jain (PW-3),

Shyam Soni (PW-4) and Rajesh Pareek (PW-27) were examined, and that Rajesh

Jain (PW-1) was not owning the said land at the relevant point of time and was

not competent to enter into any contract in relation to said land. It is also noted

that Rajesh Jain (PW-1) admitted that from 18.08.2013 to 4.09.2013, he was not

the land owner of the said land but stated that he was orally authorized to enter

into a contract for which he received a sum of Rs.5001/- from Dhananjay

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Solanki. When Rajesh Jain (PW-1) is examined and cross-examined on behalf of

Dhananjay Solanki, then in paragraph 31, Rajesh Jain admits that there was no

finality of the contract, accused used to tell him that deal will be finalized with

his bosses at Indore. This witness admitted that he is a graduate and understands

the meaning of finality. He also admitted in paragraph 32 that he understands as

to what all formalities are required to be completed in a transaction of land. He

was also aware of the fact that if any deal was being made with NHAI, which is

an authority of central government, then such deals are made as per the

government rules and payment is made through bank.

125. In paragraph 33, this witness admitted that even if a small plot is

purchased than verification of documents is carried out, boundaries are verified

and deals are made with the original owner. This witness further admitted that

both accused Dhananjay and this witness had met for the first time. This witness

also admitted that Dhananjay had not asked him to come alone to Indore and had

refrained him from bringing other persons to Indore. He further admitted that to

enter into an agreement authorized person is must, then improvise his statement

and stated that since there was an assurance to carry out direct registry, therefore,

agreement was not required.

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126. Rajesh Jain (PW-1) further admits that all the brokers had

information about the proposed deal and he had no doubt on the brokers being

involved in any conspiracy. He also admitted that brokers had not given him any

incorrect information.

127. When these facts are examined, then to constitute an offence under

Section 420 of IPC, it is necessary that property must be delivered in pursuance

of the deception, then only the offence is punishable under Section 420 of IPC

and if in pursuance of the deception no property passes, the offence is one of

cheating punishable under Section 417 of IPC. Hon'ble Guwahati High Court in

the case of Anilesh Chandra Vs. State of Assam, AIR 1951 Ass 122 held the

difference between Section 417 and Section 420 of IPC is that where in

pursuance of the deception, no property passes, the offence is one of cheating

punishable under Section 417, but where, in pursuance of the deception, property

is delivered, the offence is punishable under Section 420 of IPC.

128. In the present case, since admittedly no property was delivered, at

best, the offence put be under Section 417 and not under Section 420 of IPC

because element of delivery of property is missing in the present case, therefore,

on that ground charge under Section 420 of IPC too is not substantiated and is

liable to be set aside and is set aside.

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129. As far as charge under Section 473 of IPC is concerned, allegation is

that six forged number plates of vehicle were recovered from House No.1106

Sector 3, Faridabad so to constitute a charge under Section 473 of IPC. Learned

trial Court has mentioned that though Raju Sharma (PW-22) has not supported

seizure memo dated 28.08.2013 (Ex.P-41), though he has admitted his signatures

but Narendra (PW-23), a police personnel admitted these documents in

paragraph 20 of his examination, he admitted his signatures on Ex.P-41. He has

proved recovery of 6 numbers of number plates, therefore, ingredients of Section

473 of IPC have been proved beyond reasonable doubt and, therefore, conviction

of appellants, Sudhir @ Rajsingh Bhadoria, Pradip @ Rajeev Shrivastava,

Mohaammad Inam @ Haji and Onkarsingh @ Setthi under Section 473 of IPC

does not call for any interference and, therefore, that conviction being in

confirmation of the evidence available on record is upheld.

130. As far as charge under Section 328 of IPC is concerned, it requires

that it is for the prosecution to prove that Rajesh Jain was hurt by means of

poison or any stupefying, intoxicating or unwholesome drug, or other thing with

intent to cause hurt to such person or with intent to commit or to facilitate the

commission of an offence.

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131. This charge needs to be dealt with in two parts i.e. in relation to

accused Sudhir @ Rajsingh Bhadoria, Pradip @ Rajeev Shrivastava, Mohammad

Inam @ Haji and Onkarsingh @ Setthi on one hand and Dhananjay @ Dinesh

Singh @ Arun on the other hand, inasmuch as, first four have been convicted

under Section 328 of IPC simplicitor, whereas Dhananjay has been convicted

under Section 328 with the aid of Section 149 of IPC.

132. Evidence of Rajesh Jain (PW-1) and Dr. B.N. Singh (PW-17) is

material on this aspect. In paragraph 45 of his cross-examination, Rajesh Jain

(PW-1) stated that after shaking hands he entered in the car, parked on the

highway. He was not knowing the name of the person, who was sitting inside the

car. Two persons were standing outside and one person was sitting on the rear

seat of the car. Other person had gone and sit on the front seat of the car by the

side of the driver. On the driver seat Rajeev Shrivastava was sitting. Dhananjay

Solanki had asked for his car keys saying that he will park it on the side, when he

had given his car keys to him. Allegation is that after closing the doors as soon as

he had given the car keys, pistol was pointed on him. This witness clearly stated

that he does not remember as to who had asked for ransom. He admitted that no

ransom was paid by he himself or his family. He was not beaten. He was not

unconscious during these 20 minutes. In the meanwhile, he was receiving calls

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on his mobile from his brother Santosh Jain. In the meanwhile, some medicine

was administered to him. He admitted that who had administered that medicine

to him is not known to him. He further admitted that his hands were tied with a

tape, his nose was closed and though he tried to close his mouth but one person

had pressed it and another had administered medicine. In paragraph 45 itself, this

witness admitted that when he was unconscious than car was standing. This

witness admitted that after sitting in the car and till becoming unconscious, he

could not see as to where Dhananjay Solanki was?

133. In paragraph 46, Rajesh Jain (PW-1) admitted that Santosh Jain

called him on his mobile, he had received that call. He had stated that he is

trapped and asked him to come soon. His mobile was thereafter snatched and

closed. He was not beaten during this period. These persons had taken his

mobile, then they asked him to dial his home number and then he had dialed his

home number which was picked by Rajeev Jain. When he addressed Rajeev Jain

as Guddu Guddu...., then they had snatched the mobile. Who had snatched that

mobile is not known, they had informed Rajeev that they have kidnapped his

brother and demanded Rs.5 crores. This witness admitted that he cannot say as to

who asked for the ransom. This witness admitted that he does not know the name

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of the person who demanded ransom. After that he had become unconscious and

gained consciousness at Faridabad.

134. In paragraph 47, this witness admitted that he was not hurt, while

tape was put to tie him.

135. In paragraph 48, this witness stated that he gained consciousness at

Faridabad hospital, name of which is not known to him at about 8:00 - 9:00 PM.

He admitted that he does not know as to what happened with him during his state

of unconsciousness. After gaining consciousness he remained in hospital for

about 2 hours, when police had handed him over to his brother Rajneesh Jain.

136. In paragraph 50, this witness states that he does not remember as to

where and when he gained consciousness. Then it was stated that when he gained

consciousness he had gone to Delhi along with his brother-in-law Ashok Jain.

From Delhi he had travelled to Indore in a aeroplane. One police personnel had

accompanied him. Police personnel was in civil dress. He had no conversation

with the police personnel during his journey. After getting down at Indore

airport, they had gone to Khandwa from Indore airport. Rajneesh, Rajeev,

Santosh Jain and Sandeep Jain had come to pick him up at Indore and with them

he had gone to Khnadwa. He was fully conscious when he travelled from Delhi

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to Indore. They had stayed at Delhi for one night. He had stayed with his

brother-in-law Ashok at Delhi in his house.

137. Thus, there is contradiction in his evidence given in paragraph 48

when he says that police personnel had handed him over to Rajneesh at

Faridabad hospital whereas in paragraph 50, this witness states that his brother

Rajneesh along with others had come to Indore airport to pick him up.

138. In paragraph 51, this witness admits that later on he was informed

that he had gained consciousness in some hospital at Faridabad. He further stated

that he does not remember as to whether any doctor had interrogated him at

Faridabad or not. He further admitted that his condition in hospital was fine and,

therefore, he was relieved from the hospital and thereafter he did not sought

admission in a hospital. He had taken treatment for a day or two at Khandwa

because he was feeling very weak. He further admits that no medical

examination was conducted as to which intoxicant was administered to him to

make him unconscious.

139. This evidence when read in the light of evidence of Doctor B.N.

Singh (PW-17) was examined on 11.04.2014, then he stated that Rajesh Jain was

admitted in the ICU along with MLC paper on 28.08.2013. Doctor had examined

him at 12:10 PM. On examination, he was found to be semiconscious. During

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investigation he was found to be normal. It was found that he was under

intoxication of some medicine. Patient had obtained discharge on his own and at

that time he was alright.

140. In cross-examination, this witness admitted that during examination,

Rajesh Jain was though semiconscious but was in a condition to reply to the

queries. There were no marks of any injury of tying him with a rope or any other

items. Rajesh had informed him that he was abducted from Khandwa on

24.08.2013. He also stated that he was given something forcefully through

injection orally. Doctor admitted that in the discharge summary Ex.D-3, it is

mentioned that patient was drowsy but following command. His blood pressure

and heart beat was normal. In the discharge summary it is not mentioned that

Rajesh Jain was semiconscious.

141. In paragraph 4, this witness admitted that in Ex.D-3 date of admission and

date of discharge are blank. This witness also admitted that if physical and

mental status of Rajesh would have been poor, then it would have been recorded

in Ex.D-3. He further admitted that it is not mentioned in Ex.D-3 that Rajesh was

administered any injection of poisonous substance.

142. This Doctor B.N. Singh was again examined in case of Dhananjay as

PW-12 on 17.05.2018. This time he admitted that Rajesh was admitted by the

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police at 11.30 AM. He was complaining of general weakness, vomiting, altered

sensorium. His B.P. was 140/90, oxygen saturation 96%, blood sugar was 154,

pulse 94 and other systems were normal. He complained of anxiety and gave

history of kidnapping four days back. His all the vital organs were working

normally but stated that some narcotic drug was given to him as he was under

influence of that narcotic drug.

143. In cross-examination, Dr. B.N. Singh admitted that Rajesh Jain is not

known to him personally, no identification mark is mentioned in the admission

sheet, he was brought at 11.30 AM. This witness admitted that whether Rajesh

Jain was under influence of any intoxicating substance was not tested. Doctor

further admitted, in paragraph 9, that Rajesh had informed him that whenever he

used to gain consciousness, he was administered a tablet, but this is contrary to

the statement of Rajesh Jain (PW-1). Rajesh had informed the Doctor that he was

suffering from diabetes, mellitus type-II. Doctor B.N. Singh admitted in

paragraph 9 that he is stating for the first time in regard to administration of

tablet.

144. In paragraph 11, this Doctor admitted that one tablet will not keep a

person unconscious for four days. Doctor B.N. Singh also admitted that as to

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whether a patient is fully conscious or not is an opinion of a specialist, but actual

status can be given only after investigation.

145. In the present case, there is no material available on record to show

that any investigation was carried out in this behalf. In Ex.D-1 time of arrival of

the patient is mentioned as 10:50 AM on 28.08.2013 and time of examination is

mentioned as 11:00 AM. This patient was accompanied by Nandram, Head

Constable, DRP Line, Khandwa. It is mentioned that patient was brought in by

police in a drowsy state. There are no visible external injuries. His breathing was

found to be spontaneous, airway was patent. Patient was reported to be in a

drowsy state and not unconscious. There is a difference between drowsiness and

unconsciousness state.

146. There is contradiction in the police information for MLC, Ex.D-2, in

which time of arrival is mentioned as 12:14 PM whereas in Ex.D-1 which is

consent of medico legal examination, time is mentioned as 10:50 AM.

Admittedly, there are no identifying marks mentioned on Ex.D-1. Provisional

diagnoses is mentioned as altered sensorium. In Ex.D-3, which is the discharge

card, neither any date of discharge is mentioned nor date of admission is

mentioned. Even time of admission and discharge is not mentioned. However, it

is mentioned that patient was admitted in ICU, investigated and managed

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conservatively. Patient gradually improved and now hemodynamically stable.

Police and patient want discharge on request and patient is being discharged on

request. Condition at discharge is mentioned as conscious/oriented.

147. Therefore, it is evident that there being a difference between

drowsiness and unconscious especially in view of use of terminology, drowsy in

the admission card Ex.D-1 and not as unconscious, besides use of terminology

altered sensorium which is a medical condition where a person ability to think

clearly, concentrate or be aware of their surrounding is reduced and its signifies a

disturbance in consciousness appearing as confusion. Causes are diverse and can

include infections, drug over dose, withdrawal, metabolic disorders like, low

blood sugar, head trauma, dehydration and various other illnesses or deficiencies.

It is necessary that a medical evaluation is made to treat the underline cause, it

cannot be said that Rajesh Jain was administered some poisonous or stupefying

substance. There is contradiction in his evidence. After having stated that he was

administered something orally through mouth at the time of his abduction in a

car at Indore, he gained consciousness after four days, whereas Dr. B.N. Singh in

his cross-examination, stated that patient informed him that he was administered

tablets as and when he used to gain consciousness, a fact which is not mentioned

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either in Ex.D-1 or D-3, there is no corroboration for prove the charge under

Section 328 of IPC.

148. Section 324 of IPC is an essential element of intent to cause hurt, to

commit or facilitate committing offence or knowledge that hurt would be caused.

Firstly, there is no report of administration of any poison. There is no material to

say that any drug was administered. There is no recovery of any medicine from

the car in which Rajesh was abducted or from the house at Faridabad from where

Rajesh was recovered and there were no injuries on the body of the Rajesh. Dr.

B.N. Singh admitted that drug once administered could not have kept him

unconscious for four days. Rajesh himself admitted that he was administered

drug only once in the car. There is no evidence of Rajesh Jain (PW-1) saying that

he was administered drugs repeatedly as and when he gain consciousness. Rajesh

Jain admitted that he cannot say as to who had administered drug or stupefying

or intoxicating substance or unwholesome drug, and then intention to cause hurt

is also not proved. A diabetic patient after administration of a substance to render

unconscious for four days would not have shown blood sugar level of 154 as

mentioned by the treating doctor. Then, when prosecution has failed to establish

that the accused administered or cause the victim to take a substance and that

substance was a poison, or any stupefying or intoxicating or unwholesome drug

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and that the accused administered or cause the victim to take it with the intent to

cause hurt or with the knowledge that thereby hurt would be caused or that the

accused intended to commit or facilitate the commission of an offence being not

proved, charge under Section 328 or 328/149 of IPC cannot be sustained in the

eyes of law and, therefore, conviction under Section 328 or 328/149 of IPC is

also required to be set aside and is hereby set aside.

149. As far as conviction of the accused, namely, Sudhir @ Rajusingh

Bhadoria, Onkarsingh @ Setthi, Mohammad Inam @ Haji and Ripusudan

@ Rajesh Goutam under Section 5 of the Explosive Substances Act and Section

25(1-B)(a) of Arms Act is concerned, prosecution has been able to establish that

charge beyond reasonable doubt, therefore, that does not call for any

interference.

150. As far as charge under Section 364-A or 364-A/149 read with

Section 120-B of IPC is concerned, Section 120-B of IPC deals with punishment

for criminal conspiracy. The principle of sentencing under Section 120-B is that

when offence abated is shown to have been committed as a result of the

abatement, the abator should be punished with the imprisonment provided for the

principle offence and no separate sentence need be recorded under Section 120-B

of IPC, as held by Madras High Court in State Vs. Savitri, 1976 Cri LJ 37.

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Therefore, it is to be first examined that whether charge under Section 364-A is

made out or not. The necessary ingredients to establish a charge under Section

364-A of IPC are that the accused kidnapped or abducted a person; or that the

accused kept such person under his detention; that the accused threatens to cause

death or hurt to such person or causes death or hurt to him; that the accused did

commit so to compel that person to do or abstain from doing any act or to pay a

ransom. It is settled law that prosecution is required to prove all the essential

ingredients.

151. Whereas to establish an offence under Section 365 of IPC

prosecution is required to bring home that the accused kidnapped or abducted

any person; and that he did so with the intent to cause that person to be confined

secretly and wrongfully. Prosecution is required to bring home the ingredients of

Section 364 of IPC by deceitful means to induce the victim to go from one place

to another. In the present case, aspect of ransom as argued by learned counsel for

the appellants and one of the appellant himself is a grey area.

152. Rajeev Jain (PW-2), who lodged FIR stated that on 24.08.2013, had

received a call on his landline number when he had heard his brother's voice

calling him Guddu, when phone was taken by somebody else and he informed

him that his brother was kidnapped and asked him to keep a sum of Rs.5 crores

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ready. Before he could say anything phone was disconnected, then when he

dialed phone of Rajesh, it was switched off, then he had called his elder brother

Rajneesh and had given intimation in regard to his kidnapping and demand of

ransom. Thereafter, he had called Santosh Jain, who had accompanied Rajesh to

Indore when Santosh informed that he too received information in regard to

abduction of Rajesh. It is informed that Dhananjay Solanki asked them to keep a

sum of Rs.5 crores ready as a ransom.

153. Rajeev Jain (PW-2) admitted that incident took place at Indore and

his brother was not abducted at Khandwa.

154. Rajesh Jain (PW-1) admitted that after meeting bosses of Dinesh

Sonlanki on a bypass road who were waiting in a white colour car near hotel

Raddisson. Dinesh Solanki @ Arun Tiwari had taken car keys to park his car by

side. He stated that persons sitting in the car had put revolvers around him and

demanded Rs.5 crores. There is inconsistency in his statements as pointed by

learned counsel for the appellants and the appellant appearing in person.

Inasmuch as, this witness admitted in paragraph 37 that Rajeev Shrivastava and

Dhananjay Solanki had not accompanied him and his brothers, Santosh Jain,

Shyam Soni and Rajesh Pareek while travelling to Indore. He admitted that after

reaching Indore at about 10:30-11:00 he had not met Dhananjay Solanki and

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Rajeev Shrivastava. Between 12.30 and 1:00, they had met Rajeev Shrivastava

and Dhananjay Solanki near hotel Radisson. They had met one counsel Shri

Vinay Jhalawat who had examined the papers.

155. In paragraph 40, he admits that no incident took place at Khandwa

though he improvised and on his own stated that planning was started at

Khandwa.

156. In paragraph 45, this witness admits that he does not remember as to

who had sought ransom from him. On his own he stated that he was nervous but

conscious.

157. In paragraph 46, he admits that when Santosh Jain had called him

then Rajesh was having his own mobile and he had received the call and had

informed Santosh that he has been trapped and asked him to come soon. This

witness admitted that when he had called Rajeev and called him as Guddu when

his mobile was snatched. He admitted that he cannot say as to which of the

person demanded ransom. This witness stated that when he had called Rajeev

Jain (PW-2), then ransom of Rs.5 crores was sought, whereas in the FIR, Ex.P-4,

which is authored by Rajeev Jain, it is mentioned that when he was at shop then

at 6:30 PM he had received a call on his landline number when an unknown

person stated that his brother has been kidnapped and do not call the police, wait

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for another call, before he could ask anything phone was cut. He had tried to

contact on mobile number of Rajesh bearing number 9826047721 but that

mobile was switched off, then he had called his elder brother Rajneesh and

Santosh. When Santosh informed that he too had received intimation of

kidnapping of Rajesh. Santosh informed that when he had called Dhananjay

Solanki then he had informed Santosh that Rajesh was kidnapped and demanded

ransom of Rs.5 crores. Date of this FIR is 24.08.2013. This is contrary to the

prosecution story as developed on behalf of Rajesh Jain (PW-1).

158. Santosh (PW-3), in paragraph 8, of his cross-examination stated that

when he called Rajesh Jain then from other side he heard voice of the accused

Dhananjay @ Dinesh Singh. It is admitted fact that Dhananjay was not in the car

in which Rajesh was kidnapped. It is also stated by Santosh that he could not

understand as to what was being said, therefore, he had given phone to Shyam

Soni and Shyam Soni was informed that Rajesh was abducted and ransom of

Rs.5 crores was sought. But this fact of Shyam Soni informing Santosh (PW-3)

is missing in his evidence.

159. In paragraph 15 of cross-examination, Santosh admits that Shyam

Soni had not informed him that ransom was sought by Dhananjay but he had

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only stated that a sum of Rs.5 crores was being sought and they asked not to

report the matter to the police.

160. Shyam Soni (PW-5) in paragraph 8, stated that he, Rajesh Pareek and

Santosh Jain had reached Sayaji hotel when he tried to contact Dhananjay @

Dinesh Singh@ Arun on his phone on two-three occasions but when phone was

switched off, then they had a doubt when Santosh Jain had called Rajesh Jain.

Phone of Rajesh Jain was switched off. Thereafter Rajesh Pareek dialed phone of

the accused which was switched off. After sometime, Santosh Jain had called

Rajesh Jain when phone got connected and Rajesh Jain stated that he was

trapped. When Santosh could not understand what was being said, then he had

given phone to Shyam, when Shyam was informed in somebody's voice that

Rajesh was kidnapped and demand of Rs.5 crores was made.

161. When this evidence is examined in the light of the evidence of

Rajesh, then there are several contradictions in the story of prosecution. Rajesh

Jain (PW-1) stated in paragraph 4 that when phone rang then he had picked up

the phone, phone was from Santosh Jain. He asked Santosh to come soon saying

that he has been trapped. Then person sitting in the car had snatched his phone

and dialed number of his residence at Khandwa, then phone was picked by

Rajeev Jain. Rajesh called Guddu Guddu twice, in the meanwhile, his phone was

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snatched by somebody sitting in the car informed Rajeev Jain that his brother

was kidnapped and demanded ransom of Rs.5 crores. Thus, as per the statement

of Rajesh Jain, there was no demand of ransom from Santosh, who stated that he

had given his phone to Shyam Soni, who had heard demand of ransom. Rajeev

Jain (PW-2) admits that no demand of ransom was made from him, as is evident

from the FIR Ex.P-4/C but demand was made from Shyam when Santosh had

called Rajesh.

162. Thus, in the light of the aforesaid contradictions, prosecution has

failed to prove demand of ransom beyond reasonable doubt.

163. When these facts are examined, then in the light of the judgment of

Hon'ble Supreme Court in Neeraj Sharma Vs. State of Chhattisgarh with

Ashwani Kumar Yadav Vs. State of Chhattisgarh, (2024) 3 SCC 125,

absence of proof of demand of ransom it cannot be said that ingredients of

Section 364-A are satisfied. Therefore, Hon'ble Supreme Court convicted the

accused under Section 364 of IPC rather than 364-A of IPC.

164. Hon'ble Supreme Court in the case of Ravi Dhingra Vs. State of

Haryana, (2023) 6 SCC 76 held in paragraphs 23 to 26 which read as under:-

23. This Court, notably in Anil v. Admn. of Daman & Diu, Daman [Anil v. Admn. of Daman

& Diu, Daman, (2006) 13 SCC 36 : (2008) 1 SCC (Cri) 72] ("Anil"), Vishwanath Gupta v. State of

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Uttaranchal [Vishwanath Gupta v. State of Uttaranchal, (2007) 11 SCC 633 : (2008) 2 SCC (Cri)

62] ("Vishwanath Gupta") and Vikram Singh v. Union of India [Vikram Singh v. Union of India,

(2015) 9 SCC 502 : (2015) 4 SCC (Cri) 213] ("Vikram Singh") has clarified the essential ingredients

to order a conviction for the commission of an offence under Section 364-A IPC in the following

manner:

23.1. In Anil [Anil v. Admn. of Daman & Diu, Daman, (2006) 13 SCC 36 : (2008) 1 SCC

(Cri) 72] , the pertinent observations were made as regards those cases where the accused is

convicted for the offence in respect of which no charge is framed. In the said case, the

question was whether appellant therein could have been convicted under Section 364-AIPC

when the charge framed was under Section 364 read with Section 34IPC. The relevant

passages which can be culled out from the said judgment of the Supreme Court are as under :

(SCC pp. 53-54, paras 55-56)

55. The ingredients for commission of offence under Sections 364 and 364-A are different.

Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as

to be put in danger as murder satisfies the requirements of Section 364 of the Penal Code, for

obtaining a conviction for commission of an offence under Section 364-A thereof it is

necessary to prove that not only such kidnapping or abetment has taken place but thereafter

the accused threatened 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.

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56. It was, thus, obligatory on the part of the learned Sessions Judge, Daman to frame a

charge which would answer the description of the offence envisaged under Section 364-A of

the Penal Code. It may be true that the kidnapping was done with a view to get ransom but the

same should have been put to the appellant while framing a charge. The prejudice to the

appellant is apparent as the ingredients of a higher offence had not been put to him while

framing any charge."

23.2. In Vishwanath Gupta [Vishwanath Gupta v. State of Uttaranchal, (2007) 11 SCC 633 :

(2008) 2 SCC (Cri) 62] , it was observed as under : (SCC pp. 636-37, paras 8-9)

"8. According to Section 364-A, whoever kidnaps or abducts any person and keeps him in

detention and threatens to cause death or hurt to such person and by his conduct gives rise to a

reasonable apprehension that such person may be put to death or hurt, and claims a ransom

and if death is caused then in that case the accused can be punished with death or

imprisonment for life and also liable to pay fine.

9. The important ingredient of Section 364-A is the abduction or kidnapping, as the case

may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not

met then the victim is likely to be put to death and in the event death is caused, the offence of

Section 364-A is complete. There are three stages in this section, one is the kidnapping or

abduction, second is threat of death coupled with the demand of money and lastly when the

demand is not met, then causing death. If the three ingredients are available, that will

constitute the offence under Section 364-A of the Penal Code. Any of the three ingredients

can take place at one place or at different places."

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23.3. In Vikram Singh [Vikram Singh v. Union of India, (2015) 9 SCC 502 : (2015) 4 SCC

(Cri) 213] , it was observed as under : (SCC pp. 522-23, para 25)

"25. ... Section 364-AIPC has three distinct components viz. (i) the person concerned

kidnaps or abducts or keeps the victim in detention after kidnapping or abduction; (ii)

threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or

causes death; and (iii) the kidnapping, abduction or detention and the threats of death or hurt,

apprehension for such death or hurt or actual death or hurt is caused to coerce the person

concerned or someone else to do something or to forbear from doing something or to pay

ransom. These ingredients are, in our opinion, distinctly different from the offence of

extortion under Section 383 IPC. The deficiency in the existing legal framework was noticed

by the Law Commission and a separate provision in the form of Section 364-AIPC proposed

for incorporation to cover the ransom situations embodying the ingredients mentioned above."

It is necessary to prove not only that such kidnapping or abetment has taken place but that

thereafter, the accused threatened to cause death or hurt to such person or by his conduct gave

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 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.

24. Most recently, this Court in Sk. Ahmed [Sk. Ahmed v. State of Telangana, (2021) 9 SCC

59 : (2021) 3 SCC (Cri) 394] has emphasised that Section 364-AIPC has three stages or components,

namely,

(i) kidnapping or abduction of a person and keeping them in detention;

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(ii) threat to cause death or hurt, and the use of kidnapping, abduction, or detention with a

demand to pay the ransom; and

(iii) when the demand is not met, then causing death.

25. The relevant portions of the said judgment are extracted as under : (SK Ahmed case [Sk.

Ahmed v. State of Telangana, (2021) 9 SCC 59 : (2021) 3 SCC (Cri) 394] , SCC pp. 67-68 & 75-76,

paras 12-15 & 33)

"12. We may now look into Section 364-A to find out as to what ingredients the section

itself contemplate for the offence. When we paraphrase Section 364-A 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

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fulfilled, shall fulfil 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 words '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 364-A 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 364-A, apart from

fulfilment 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".

15. The word "and" is used as conjunction. The use of word "or" is clearly distinctive. Both

the words have been used for different purpose and object. Crawford on Interpretation of

Law while dealing with the subject "disjunctive" and "conjunctive" words with regard to

criminal statute made following statement:

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'... The court should be extremely reluctant in a criminal statute to substitute

disjunctive words for conjunctive words, and vice versa, if such action adversely

affects the accused.'

***

33. After noticing the statutory provision of Section 364-A and the law laid down by this Court in the abovenoted cases, we conclude that the essential ingredients to convict an accused under Section 364-A which are required to be proved by the 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 organisation 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."

26. Thus, this Court in Sk. Ahmed [Sk. Ahmed v. State of Telangana, (2021) 9 SCC 59 : (2021) 3 SCC (Cri) 394] set aside the conviction under Section 364-AIPC and modified the same to conviction under Section 363, for the reason that the additional conditions were not met by observing as follows : (SCC p. 78, para 42) Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10-09-2025 18:35:36 Cr.A No.2279/2015 & Connect Matters NEUTRAL CITATION NO. 2025:MPHC-JBP:43575 84 "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 364-AIPC. We, thus, set aside the conviction of the appellant under Section 364-A. However, from the evidence on record regarding kidnapping, it is proved that the accused had kidnapped the victim for ransom, demand of ransom was also proved. Even though offence under Section 364-A 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 paras 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."

165. Hon'ble Supreme Court in the case of Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 has held that "motive alone cannot be a ground for conviction. In absence of any other circumstantial evidence, motive would not be sufficient to convict accused. On materials on record, there may arise some suspicion against appellant-accused, but suspicion, howsoever, strong cannot take the place of proof."

166. Hon'ble Supreme Court in the case of Musa Khan and Others Vs. State of Maharashtra, (1997) 1 SCC 733 has held that under Section 149 culpable liability does not arise from mere presence in the assembly. Nor does Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10-09-2025 18:35:36 Cr.A No.2279/2015 & Connect Matters NEUTRAL CITATION NO. 2025:MPHC-JBP:43575 85 participation in one incident lead to liability for consequences of all the incidents that the unlawful assembly may consequently indulge in. Liability of each individual accused is to be adjudged on facts.

167. Hon'ble Supreme Court in the case of Sanichar Sahni Vs. State of Bihar, (2009) 7 SCC 198 has held that "charge of conspiracy cannot be sustained only against single person. It is held that if co-accused had been acquitted of charges of conspiracy cannot be sustained as one person alone could not be guilty of conspiracy because one cannot conspire with himself."

168. Hon'ble Supreme Court in Topandas Vs. State of Bombay, AIR 1956 SC 33 has held that "if the prosecution case is that a criminal conspiracy was hatched between certain specified persons, and all of them having been charged under Section 120-B at a joint trial all except one are acquitted, conviction of the remaining one accused on that charge is illegal" and, in Fakhruddin Vs. State of M.P., AIR 1967 SC 1326 has held that "the Offence of conspiracy cannot survive if all the other co-accused are acquitted unless there be proof that the accused had conspired with person or persons other than his co- accused."

169. It is evident that though charge under Section 364-A is not proved but chain of events starting from the fact that Dhananjay @ Dinesh Solanki @ Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10-09-2025 18:35:36 Cr.A No.2279/2015 & Connect Matters NEUTRAL CITATION NO. 2025:MPHC-JBP:43575 86 Arun Tiwari had met Rajesh at Khandwa representing himself to be a representative of NHAI to strike a deal, Pradip @ Rajeev Shrivastava representing himself to be a official valuer, and then Dhananjay taking Rajesh to Indore though they travelled separately in the name of meeting his boss and thereafter taking him to a road near hotel Radisson to introduce his boss to Rajesh and then Rajesh being taken in car and thereafter taken to Faridabad from where he was recovered in the company of four persons namely, Sudhir Bhadoria, Onkarsingh @ Setthi, Mohammad Inam @ Haji and Ripusudan @ Rajesh Goutam which was freed by a team of police personnel under the leadership of Shri Vijay Singh Paraste points out towards two things -

(i) there was an unlawful assembly of five or more persons.

(ii) all the five accused were connected with each other and were acting for a common goal i.e. kidnapping of Rajesh.

170. Though prosecution has not been able to prove aspect of demand of ransom but ratio of law laid down in case of Musa Khan and others (supra) will not be applicable because submission made by Shri Arun Tiwari that participation in one incident is not sufficient to hold him culpably liable for the acts of the members of the unlawful assembly, when tested being in furtherance of the common object of the assembly to abduct Rajesh will not absolve Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10-09-2025 18:35:36 Cr.A No.2279/2015 & Connect Matters NEUTRAL CITATION NO. 2025:MPHC-JBP:43575 87 Dhananjay of his liability under Section 149 of IPC because it is not the case of Dhananjay that he had not introduced Rajesh to his boss.

171. Even the ratio of law laid down in the case of Sampath Kumar (supra) will not be applicable because motive of kidnapping is circumscribed with other evidences like, asking Rajesh to come to Indore to meet Sudhir Bhadoria and others to strike a land deal, then introducing Rajesh to the so called boss in front of Radisson hotel, then that boss making Rajesh to sit in the car and thereafter fleeing away to Faridabad from where Rajesh was recovered are sufficient circumstances to point out that ingredients of Section 365 of IPC are made out.

172. However, in terms of the law laid down by Supreme Court in Ravi Dhingra (supra), we are of the opinion that as noted by Hon'ble Supreme Court that to cover the ingredients of Section 364-A, three stages or components, namely, (i) kidnapping or abduction of a person and keeping them in detention;

(ii) threat to cause death of hurt and the use of kidnapping, abduction, or detention with a demand to pay the ransom; and (iii) when the demand is not met, then causing death, are not complete in the present case. Inasmuch as, Rajesh himself has admitted that he was never extended any threat to cause death or hurt and in fact he was not hurt and then there was no attempt to cause his Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10-09-2025 18:35:36 Cr.A No.2279/2015 & Connect Matters NEUTRAL CITATION NO. 2025:MPHC-JBP:43575 88 death and as has been noted by Hon'ble Supreme Court that after the first condition 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, then use of conjunction "and" has its purpose and object and Section 364-A 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 364-A, 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'.

173. This Court has no hesitation to hold that since condition of conjunction are not fulfilled, there is no evidence to show that Rajesh Jain was either hurt or there was any threat of death or hurt, there was demand of any ransom, we are of the opinion that charge under Section 364-A will not be sustainable but charge under Section 365 of IPC has been proved by the prosecution beyond reasonable doubt, therefore, conviction and sentence of the appellants is altered from one under Section 364-A to Section 365 read with Section 120-B of IPC and they are sentenced to 7 years Rigorous Imprisonment Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10-09-2025 18:35:36 Cr.A No.2279/2015 & Connect Matters NEUTRAL CITATION NO. 2025:MPHC-JBP:43575 89 with Fine of Rs.10,000/- with default stipulation of 6 months Rigorous Imprisonment.

174. Accordingly, all the above appeals are partly allowed and the impugned judgments of learned trial Court is modified to the extent that -

(i) appellants, namely, Sudhir @ Rajsingh Bhadoria, Pradip @ Rajeev Shrivastava, Mohammad Inam @ Haji and Onkarsingh @ Setthi and Ripusudan @ Rajesh Goutam are acquitted from the charges under Sections 420, 328, 171 of IPC. However, their conviction and sentence under Section 473, 120-B of IPC, Section 5 of Explosive Substances Act and Section 25(1-B)(a) of Indian Arms Act is hereby maintained. They are convicted under Section 365 of IPC. Since, conviction and sentence of above appellants is altered from Section 364-A to Section 365 read with Section 120-B of IPC, therefore, they are sentenced to undergo 7 years Rigorous Imprisonment alongwith Fine of Rs.10,000/- with default stipulation of 6 months Rigorous Imprisonment each.

(ii) appellant Dhananjay @ Dinesh Singh @ Arun is acquitted from the charges under section 420, 328/149 of IPC. He is convicted under Section 365 read with Section 120-B of IPC. Since conviction and sentence of appellant Dhananjay @ Dinesh Singh @ Arun under Section 364-A/149 of IPC is altered to Section 365 read with Section 120-B of IPC, therefore, he is sentenced to Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10-09-2025 18:35:36 Cr.A No.2279/2015 & Connect Matters NEUTRAL CITATION NO. 2025:MPHC-JBP:43575 90 undergo 7 years Rigorous Imprisonment alongwith Fine of Rs.10,000/- with default stipulation of 6 months Rigorous Imprisonment.

175. Case property be disposed off as per the orders of the learned trial Court. Record of the trial Court be sent back immediately.

                           (VIVEK AGARWAL)                                    (DEVNARAYAN MISHRA)
                                JUDGE                                                JUDGE




                           MTK




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