Allahabad High Court
Pankaj Mohan Srivastava And Another vs State Of U.P. on 7 July, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved On:- 24.05.2022 Delivered On:- 07.07.2022 Court No.-2 Case :- CRIMINAL APPEAL No. - 2585 of 2007 Appellant :- Pankaj Mohan Srivastava And Another Respondent :- State of U.P. Counsel for Appellant :- Anand Kumar Srivastava,Alakshyendra Goel,Ankit Kumar,Arun Kumar,Durga Prasad Verma,Manoj Kumar Srivastava,Ram Kushal Tiwari,S.K. Upadhyay,S.M.Nasir,Shiv Nath Goshwami,Shobhit Mohan Shukla,Vivek Srivastava Counsel for Respondent :- Govt. Advocate AND Case :- CRIMINAL APPEAL No. - 2809 of 2007 Appellant :- Rajit Ram Verma Respondent :- State of U.P. Counsel for Appellant :- Ram Kushal Tiwari Counsel for Respondent :- Govt. Advocate AND Case :- CRIMINAL APPEAL No. - 2366 of 2007 Appellant :- Rajesh Respondent :- State of U.P. Counsel for Appellant :- Ravi Dingar,Ram Kushal Tiwari,Ravi Shanker Singh,Ravindra Kr. Dwivedi,Rishad Murtaza Counsel for Respondent :- Govt.Advocate Hon'ble Devendra Kumar Upadhyaya, J.
Hon'ble Ajai Kumar Srivastava-I, J.
(Per :- Hon'ble Ajai Kumar Srivastava-I, J.)
1. By means of the instant appeals, the appellants have assailed the judgment and order dated 27.09.2007 passed by the learned Additional Sessions Judge (Fast Track Court), Court No.4, Lucknow in Sessions Trial No.319 of 1999 arising out of Case Crime No.205 of 1997, under Sections 363, 368 and 364A of the Indian Penal Code (hereinafter referred to as "I.P.C."), Police Station Aminabad, District Lucknow whereby the appellants, namely, Pankaj Mohan Srivastava and Neeraj Mohan Srivastava (in Criminal Appeal No.2585 of 2007) have been convicted and sentenced for five years' rigorous imprisonment with a fine of Rs.4,000/- each for the offene under Section 363 I.P.C. and in default of payment of fine, they have further been directed to undergo for a period of six months' additional rigorous imprisonment. They have also been convicted and sentenced for life imprisonment with a fine of Rs.10,000/- each for the offence under Sections 364A & 368 I.P.C. and in default of payment of fine, a separate recovery proceeding has been directed to be initiated against them. All the sentences were directed to run concurrently except the recovery of fine.
The appellant- Rajit Ram Verma (in Criminal Appeal No.2809 of 2007) has been convicted and sentenced for five years' rigorous imprisonment with a fine of Rs.4,000/- for the offene under Section 363 I.P.C. and in default of payment of fine, he has further been directed to undergo for a period of six months' additional rigorous imprisonment. He has also been convicted and sentenced for life imprisonment with a fine of Rs.10,000/- for the offence under Sections 364A and 368 I.P.C. and in default of payment of fine, a separate recovery proceeding has been directed to be initiated against him. All the sentences were directed to run concurrently except the recovery of fine.
The appellant, namely, Rajesh (in Criminal Appeal No.2366 of 2007) has been convicted and sentenced for five years' rigorous imprisonment with a fine of Rs.4,000/- each for the offence under Section 363 I.P.C. and in default of payment of fine, he has further been directed to undergo for a period of six months' additional rigorous imprisonment. He has also been convicted and sentenced for life imprisonment with a fine of Rs.10,000/- for the offence under Sections 364A and 368 I.P.C. and in default of payment of fine, a separate recovery proceeding has been directed to be initiated against them. All the sentences were directed to run concurrently except the recovery of fine.
2. Since the aforesaid criminal appeals have been preferred against the impugned judgment and order dated 27.09.2007 passed in Sessions Trial No.319 of 1999 arising out of Case Crime No.205 of 1997, under Sections 363, 368 and 364A I.P.C., Police Station Aminabad, District Lucknow, therefore, they have been heard together and are being decided by a common judgment.
3. The prosecution case, in brief, is that a written report, Ext.-Ka-1 came to be lodged at Police Station Kotwali Qaiserbagh by the first informant, Rajendra Kumar Gupta stating therein that his son, Udit alias Vasu, aged about 4 years, a student of Class-Nursery, had gone to his school, Saint Teressa Day School, Naya Gaon, Lucknow. When the first informant went to bring his son back to home, he came to know that someone else had taken his child away from the school.
4. On the basis of aforesaid written report, Ex. Ka-1, Case Crime No.NIL/1997 came to be registered under Section 363 I.P.C. at Police Station Qaiserbagh against unknown persons. However, since the matter pertained to territorial jurisdiction of Police Station Aminabad, therefore, original written report and F.I.R. which were initially registered at Police Station Qaiserbagh were sent to Police Station Aminabad where it came to be registered as Case Crime No.205 of 1997 under Section 363 I.P.C.
5. According to the recovery/arrest memo, Ex. Ka-2, the victim, Udit alias Vasu was recovered on 26.12.1997 from the house of co-accused, Daya Ram Verma situated at Village Changupur, Police Station Jaisinghpur, District Sultanpur where the appellants, Pankaj Mohan Srivastava, Rajit Ram Verma and Neeraj Mohan Srivastava were arrested and recovery/arrest memo, Ex. Ka-2 was also prepared on the spot.
6. Upon conclusion of investigation, charge sheet, Ex. Ka-7 came to be submitted against the appellants. The appellants, Pankaj Mohan Srivastava, Neeraj Mohan Srivastava, Rajit Ram Verma and Rajesh were charged under Sections 363, 368 and 364 I.P.C. vide order dated 03.05.1999 whereas the co-accused, Daya Ram Verma was charged under Section 368 I.P.C. only vide order dated 17.04.2003. However, co-accused, Daya Ram verma has been acquitted by the learned trial court.
7. In order to bring home guilt of appellants, the prosecution has examined following witnesses :-
(i) P.W.-1, Rajendra Kumar Gupta, the first informant, who is the father of victim, Udit alias Vasu.
(ii) P.W.-2, Asad Raja, who had accompanied the first informant, P.W.-1, Rajendra Kumar Gupta on 26.12.1997 when the victim was recovered. He is also a witness to the recovery/arrest memo, Ex. Ka-2.
(iii) P.W.-3, Paridin Rawat, who was posted as Head Moharrir at Police Station Kotwali Kaiserbagh on 18.11.1997 who registered Crime No.NIL/1997, under Section 363 I.P.C. against unknown persons and also entered the same in G. D. No.30 at 13: 20 hrs. He has also proved Chik F.I.R. as Ex. Ka-3 and G.D. as Ex. Ka-4.
(iv) P.W.-4 S. I., Rama Kant Tiwari, who headed the Special Task Force constituted by the then S.S.P., Lucknow for effecting the recovery of victim, Udit alias Vasu has proved the recovery/arrest memo, Ex. Ka-2.
(v) P.W.-5 Ram Dev Diwedi, Investigating Officer had prepared site plan of place of occurrence as Ex. Ka-5 and also prepared site plan of place of recovery of victim, Ex. Ka-6. Upon conclusion of investigation, he has submitted the charge sheet, Ex. Ka-7.
8. The statements of appellants were recorded under Section 313 Cr.P.C. In their detailed statements, the appellants have denied the allegations levelled against them. They have stated to have been falsely implicated.
9. The appellant, Rajesh has stated that on 26.12.1997 at about 8:30 P.M. he was distributing ''Prasad' after conclusion of evening prayer. The appellant, Pankaj Mohan Srivastava and his father were also present in the temple. Meanwhile, many persons appeared on the spot who wanted to know about appellant, Pankaj Mohan Srivastava. They hurled abuses. When objected, Constable R. P. Kanaujia kicked the father of appellant, Pankaj Mohan Srivastava and asked him to accompany them for being a witness.
10. The appellant, Rajit Ram Verma has, in his statements under Section 313 Cr.P.C., stated that the victim, Udit alias Vasu was shown to him at S.S.P. Office.
11. Triveni Prasad Verma was examined from the side of defence as D.W.-1, who has stated that the appellants-Rajesh and Pankaj Mohan Srivastava were present in the temple, who were taken away by the police personnel from the temple.
12. Upon conclusion of trial, learned trial Court convicted and sentenced the appellants as above by the impugned judgment and order dated 27.09.2007.
13. Aggrieved by the aforesaid impugned judgment and order dated 27.09.2007, the appellants have preferred these appeals.
14. We have heard Sri Ram Kushal Tiwari and Sri Ankit Kumar, learned counsel for the appellants and Sri Dhananjay Kumar Singh, learned Additional Government Advocate appearing for the State-respondents and have perused the entire record available before us.
15. Learned counsel for the appellants has submitted that the appellants are innocent and have been falsely implicated in this case. The finding of guilt of appellants recorded by the learned trial Court is against the weight of evidence which is illegal and, therefore, the same deserves to be set aside.
16. Learned counsel for the appellants has also argued that the prosecution has miserably failed to establish that there was any demand of ransom and any threat to the life of victim was extended by the appellants. Therefore, the conviction of appellants dehors the necessary ingredients which constitute offence under Section 364A I.P.C. is not sustainable. They have also submitted that the victim, who was an important witness, was not examined by the prosecution, therefore, the entire prosecution story becomes doubtful and the appellants deserve to be given benefit of doubt.
17. To buttress their aforesaid arguments, reliance has been placed on the judgment of Hon'ble Supreme Court rendered in Criminal Appeal No.533 of 2021 @ Special Leave Petition (Crl.) No.308 of 2021, Shaik Ahmed vs. State of Telangana.
18. Per contra, learned A.G.A. has opposed the submissions made by learned counsel for the appellants. He submits that the child of first informant, Udit alias Vasu was kidnapped in a planned manner by the appellants, some of whom were employees of the first informant, to procure ransom. The victim was recovered from the Village Changupur on 26.12.1997 from where the appellants, namely, Pankaj Mohan Srivastava, Neeraj Mohan Srivastava and Rajit Ram Verma were arrested on the spot. He further submits that a letter demanding ransom was recovered from the possession of the appellant-Rajit Ram Verma, which was sent to Forensic Science Laboratory (hereinafter referred to as FSL) for comparison of hand writing. According to FSL report, the same was found to be in the handwriting of the appellant, Rajit Ram Verma, vide FSL Report, paper No.A17/2 and A17/1.
19. It is also contended by the learned A.G.A. that the prosecution, in exercise of its right under Section 231 Cr.P.C., has examined four witnesses of facts and has thus, successfully proved its case beyond reasonable doubt. The prosecution cannot be compelled to produce all or any particular witness mentioned in the charge sheet in order to bring home guilt of appellants. Learned A.G.A. has concluded his arguments by submitting that the impugned judgment and order is well discussed and reasoned wherein no interference in exercise of power under Section 386 Cr.P.C. by this Court is required and the appeals deserve to be dismissed.
20. Upon a close scrutiny of testimony of first informant, P.W.-1, Rajendra Kumar Gupta, we find that he is father of victim, Udit alias Vasu, aged about 4 years, a student of Class Nursery of Saint Teressa Day School situated at Naya Gaon, Lucknow. On 18.11.1997 when this witness went to receive his child back from Saint Teressa Day School, he did not find his child in the school and he came to know that his child has been taken away by some unknown persons from the school. A prompt written report in respect of aforesaid incident came to be lodged on the date of incident itself i.e. on 18.11.1997 as Ex. Ka-3. He has also stated on oath that on 26.12.1997 at about 9:30 A.M., he received a telephonic call in Hotel Vaishali, Aminabad whereby he was directed to bring Rs.5,00,000/-, failing which, he was threatened that his child, victim will be done to death.
21. P.W.-2, Asad Raja happens to be manager of the first informant. This witness, in his testimony, has stated that he accompanied the first informant, P.W.-1, Rajendra Kumar Gupta and police personnels to the place from where the victim, Udit alias Vasu was recovered.
22. P.W.-3, Paridin Rawat, Head Constable, in his testimony, has stated that the then S.S.P., Lucknow had constituted a Special Task Force for effecting recovery of victim. This Special Task Force was headed by P.W.-3. He has stated on oath that on 26.12.1997, the first informant informed him about receiving a telephonic call demanding ransom. This witness has proved recovery/arrest memo, Ex. Ka-2 which, according to this witness, was prepared at the place of recovery by him in his own handwriting.
23. S.I., Rama Kant Tiwari has been examined as P.W.-4, who, in his testimony, has stated that on 26.12.1997, he was informed by the first informant that someone has telephonicaly demanded from him Rs.5,00,000/- as ransom for releasing his child. He has been asked to reach at platform no.1, Sultanpur Railway Station. Thereafter, this witness accompanied by the first informant, Ajay Bhatnagar, P.W.2-Asad Raja and other police personnels reached Sultanpur Railway Station where the appellant-Rajesh was arrested by the police personnels, who told that the victim, Udit alias Vasu is kept in the Village-Changupur by the appellants-Pankaj Mohan Srivastava, Neeraj Mohan Srivastava and Rajit Ram Verma. Thereafter, the police party and the appellant-Rajesh went to Village Changupur where the victim was recovered and the appellants- Pankaj Mohan Srivastava, Neeraj Mohan Srivastava and Rajit Ram Verma were arrested. This witness has proved the recovery/arrest memo, Ex. Ka-2.
24. Investigating Officer, Ram Dev Diwedi has been examined as PW-5, who, in his testimony, has stated that he prepared site plan of place of occurrence, Ex. Ka-5 and after recovery of victim from Village Changupur, he also visited and prepared the site plan of place of recovery of victim as Ex. Ka-6. Upon conclusion of investigation, he submitted charge sheet against the appellants, Ex. Ka-7.
25. We have undertaken a survey of prosecution evidence in the light of rival submissions advanced by learned counsel for the parties and we find that the appellants, namely, Pankaj Mohan Srivastava and Neeraj Mohan Srivastava were employees of the first informant. In spite of this fact, the first informant had given an innocent written report without naming them in the written report, Ex. Ka-1 when his son, victim, Udit alias Vasu had gone missing on 18.11.1997. We also find that the victim was recovered on 26.12.1997 after about 38 days from the date of incident from Village Changupur.
26. Had there been any intention of the first informant to falsely rope in appellants, namely, Pankaj Mohan Srivastava and Neeraj Mohan Srivastava, who were employees of the first informant, he would have very easily named these appellants in the first information report itself. However, he did not do so. As mentioned above, the victim was recovered on 26.12.1997 after about 38 days from the date of incident. Thus, we do not see any reason as to why the first informant would risk his son's life for false implication of the appellants, namely, Pankaj Mohan Srivastava and Neeraj Mohan Srivastava or other appellants for getting rid of appellants, namely, Pankaj Mohan Srivastava and Neeraj Mohan Srivastava from his private employment. We, thus, do not find any substance in the contention of learned counsel for the appellants that the appellants, namely, Pankaj Mohan Srivastava and Neeraj Mohan Srivastava were falsely implicated by the first informant because they were his employees.
27. For considering the submission made on behalf of the appellants that the victim, Udit alias Vasu was not examined by the prosecution, we may refer to the judgment of Hon'ble Supreme Court in the case of Bhagwan Jagannath Markad and others vs. State of Maharashtra reported in (2016) 10 SCC 537 and in Nand Kumar vs. State of Chhattisgarh reported in (2015) 1 SCC 776 wherein their Lordships of Hon'ble Supreme Court while explaining the provisions of Sections 231 and 311 Cr.P.C. and Sections 114 and 131 of Indian Evidence Act, have held that the prosecution need not examine all its witnesses and that discretion lies with the prosecution whether to tender or not any particular witness to prove its case.
28. Adverse inference against prosecution can be drawn only if withholding of witness was with oblique motive. In the present case, we do not find, as discussed above, any oblique motive for which the victim was not produced by the prosecution as a witness before the trial Court. There is nothing in law which compels the prosecution to examine all such witnesses whose names find mention in the charge sheet to produce them before the trial Court and on this ground, nothing adverse against prosecution can be inferred. The argument of learned counsel for the appellants to the contrary is, thus, not tenable.
29. Learned counsel for the appellants have submitted that the prosecution has failed to establish ingredients of the offence under Section 364A I.P.C. under which they have been convicted. In order to appreciate the aforesaid contention of learned counsel for the appellants, it is necessary to refer to Section 364A I.P.C. which is extracted herein below:-
"364A.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
30. The Hon'ble Supreme Court in the case of Vishwanath Gupta vs. State of Uttaranchal reported in (2007) 11 SCC 633 in paragraph 9 has held as under :-
"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.........."
(emphasis supplied by us)
31. Insofar as the demand of ransom is concerned, the same has to be communicated as held by the Hon'ble Supreme Court in Malleshi vs. State of Karnataka reported in (2004) 8 SCC 95 in paragraph 13, which is quoted herein below :-
"13. To pay a ransom as per Black's Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as one's due"; "to require"; "to ask relief"; "to summon"; "to call in court"; "an imperative request preferred by one person to another, under a claim of right, requiring the latter to do or yield something or to abstain from some act"; "an asking with authority, claiming or challenging as due". The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made."
(Emphasis supplied by us)
32. Adverting to the facts of the case at hand, we are able to notice a significant fact that there is nothing on record to show and establish that any demand of ransom was made or communicated to the first informant. Though, the first informant, in his testimony, has stated that he had received a telephonic call in this regard, however, who made such call has neither been alleged nor proved by the prosecution. P.W.-5, Ram Dev Diwedi, Investigating Officer, in his testimony, has stated that he was informed by P.W.-4, S.I., Rama Kant Tiwari that a letter demanding ransom was recovered from the possession of appellant, Rajit Ram Verma at the time of his arrest, which was sent to FSL for comparison of handwriting. A photocopy of which is available on record as Paper No.A10/1 and its FSL report is also available on record as Paper No.A17/2 and A17/11.
33. The appellant, Rajit Ram Verma has denied the fact that any such letter was recovered from his possession. However, if we, for the sake of argument, assume that any such letter was recovered from the possession of the appellant, Rajit Ram Verma at the time of his arrest and the same was in his own hand writing, the prosecution has failed to prove that such letter demanding or requiring any ransom to be paid was ever communicated to the first informant or his family members or any other person. The victim as discussed above, was not examined before the trial court. Therefore, the fact that any such demand of ransom was made to the victim, has also not been established.
34. The Hon'ble Supreme Court in Criminal Appeal No.533 of 2021@ Special Leave Petition (Crl.) No.308 of 2021, Shaik Ahmed vs. State of Telangana in paras 12 to 16 has held as under :-
"12. We may now look into section 364A to find out as to what ingredients the Section itself contemplate for the offence. When we paraphrase Section 364A following is deciphered:-
(i) "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction"
(ii) "and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt,
(iii) or causes hurt or death to such person in order to compel the Government or any foreign State or international intergovernmental 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 beliable to fine."
13. The first essential condition as incorporated in Section 364A is "whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction". The second condition begins with conjunction "and". The second condition has also two parts, i.e., (a) threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt. Either part of above condition, if fulfilled, shall fulfill the second condition for offence. The third condition begins with the word "or", i.e., or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom. Third condition begins with the word "or causes hurt or death to such person in order to compel the Government or any foreign state to do or abstain from doing any act or to pay a ransom". Section 364A contains a heading "kidnapping for ransom, etc." The kidnapping by a person to demand ransom is fully covered by Section 364A.
14. We have noticed that after the first conditionthe 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.
15. The use of conjunction "and" has its purpose and object. Section 364A uses the word "or" nine times and the whole section contains only one conjunction "and", which joins the first and second condition. Thus, for covering an offence under Section 364A, apart from fulfillment of first condition, the second condition, i.e., "and threatens to cause death or hurt to such person" also needs to be proved in case the case is not covered by subsequent clauses joined by "or".
16. 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:-
"..........................The Court should be extremely reluctant in a criminal statute to substitute disjunctive words for cojunctive words, and vice versa, if such action adversely affects the accused."
35. After scrutinizing the evidence adduced by the prosecution to prove the charges under Section 364A I.P.C. against the appellants, we find that though the first informant, P.W.-1, Rajendra Kumar Gupta, in his testimony, has stated that he had received a telephonic call demanding Rs.5,00,000/- as ransom and had also received a letter demanding such ransom which he handed over to the Investigating Officer and that photocopy of such letter is available on record as Paper No.A-10/1, but we also notice the fact that P.W.-5, Ram Dev Diwedi, Investigating Officer, in his testimony, has very clearly stated that he was informed by P.W.-4, S.I., Rama Kant Tiwari that the alleged letter, demanding ransom was recovered from the possession of the appellant-Rajit Ram Verma, which was sent to FSL for comparison of handwriting. However, this witness, in his cross-examination, has himself admitted that the alleged letter demanding ransom which was sent to FSL for comparison of handwriting, was recovered from the possession of appellant-Rajit Ram Verma at the time of his arrest and that the first informant, P.W.-1, Rajendra Kumar Gupta had not handed over any letter demanding ransom to him. Therefore, the prosecution story regarding the letter demanding ransom having been written and sent by the appellant-Rajit Ram Verma does not inspire confidence. We are, therefore, of the considered view that the prosecution has been unable to prove that ransom was ever demanded or required to be paid. There is not even an iota of evidence against the appellants, even faintly, showing that they had either demanded or were involved in demanding any ransom. Therefore, necessary ingredients to prove the charge under Section 364A I.P.C. were not proved against the appellants.
36. Cumulative reading of the testimonies of prosecution witnesses of fact leads only to one irresistible inference that the case against the appellants falls within the ambit of section 364 I.P.C. only rather than one under sections 363, 364A and 368 I.P.C. It will be useful to extract section 364 I.P.C. herein below:
"364. Kidnapping or abducting in order to murder - Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with 1[imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
37. Thus, upon a thorough marshaling of the facts of this case and thread bare scrutiny of the evidence on record, we have no hesitation in holding that the prosecution has miserably failed to prove by any cogent evidence that the appellants after kidnapping the victim had made any demand of ransom for releasing him or any ransom was paid to them. Thus, the prosecution has been unable to establish the necessary ingredients for convicting appellants under section 364A I.P.C.. Therefore, the recorded conviction of the appellants and the sentence awarded to them under sections 363, 364A & 368 I.P.C. by the Trial Court vide impugned judgement and order cannot be sustained which are accordingly liable to be set aside. The appellants are, thus, liable to be convicted under section 364 I.P.C., for which, they are liable to be sentenced to undergo ten years' rigorous imprisonment and a fine of Rs. 10,000/- each and in default of payment of fine, they would further undergo six months' additional rigorous imprisonment.
38. The instant appeals are, thus, partly allowed. The conviction of appellants- Pankaj Mohan Srivastava, Neeraj Mohan Srivastava, Rajit Ram Verma and Rajesh under Sections 363, 364A and 368 I.P.C. and sentences awarded therefor are hereby set aside and accordingly they are acquitted of these charges. The appellants are convicted under Section 364 I.P.C. and are hereby awarded sentence of rigorous imprisonment for ten years with a fine of Rs.10,000/- each and in default of payment of fine, they would undergo further six months' additional rigorous imprisonment.
39. In case, the appellants have already undergone sentences awarded to them for the offence under Section 364 I.P.C., they shall be released forthwith, unless required in any other case.
40. The appellants, after their release, shall file a personal bond of Rs.50,000/- and two sureties each in the like amount to the satisfaction of the learned trial Court in compliance of Section 437A Cr.P.C within a period of two months from the date of their release.
41. Let a copy of this judgment be placed on records of Criminal Appeal Nos.2809 of 2007 and 2366 of 2007.
42. Let the lower court record along with a copy of this judgment be transmitted forthwith to the concerned trial Court for information and necessary compliance.
Order Date :- 07.07.2022
Mahesh
(A.K. Srivastava-I, J.) (D.K. Upadhyaya, J.)