Allahabad High Court
Lalit Kumar And Another vs State Of U.P. on 22 March, 2024
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:52037-DB Judgement Reserved on 23.02.2024 Judgement Delivered on 22.03.2024 A.F.R. Court No. - 43 Case :- CRIMINAL APPEAL No. - 2162 of 2015 Appellant :- Lalit Kumar And Another Respondent :- State of U.P. Counsel for Appellant :- Yogesh Kumar Srivastava, ,Noor Muhammad Counsel for Respondent :- Govt.Advocate,Subroto Chandra connected with Case :- CRIMINAL APPEAL No. - 2127 of 2015 Appellant :- Pappu And Another Respondent :- State of U.P. Counsel for Appellant :- Sikandar B. Kochar, ,Diwan Saifullah Khan,Noor Muhammad,Yogesh Kumar Srivastava Counsel for Respondent :- Govt.Advocate and Case :- CRIMINAL APPEAL No. - 2161 of 2015 Appellant :- Kanhaiya Alias Kural Respondent :- State of U.P. Counsel for Appellant :- Sikandar B. Kochar, Counsel for Respondent :- Govt.Advocate Hon'ble Siddhartha Varma,J.
Hon'ble Anish Kumar Gupta,J.
(Per: Anish Kumar Gupta, J.)
1. These three appeals are arising out of the common judgement and orders dated 05.05.2015 and 07.05.2015, passed by the Additional Sessions Judge, Court No.7, Ghaziabad, in Sessions Trial No. 268 of 2012 (State of U.P. vs. Lalit Kumar and others), arising out of Case Crime No. 820 of 2011 under Section 364A I.P.C. and Sessions Trial No. 363 of 2014, arising out of Case Crime No. 820 of 2011 under Section 364A (State vs. Qayyum) and Sessions Trial No. 291 of 2012 (State vs. Lalit Kumar and Ors.) arising out of Case Crime No. 1190 of 2011 under Sections 147, 148, 307/149 I.P.C. and Sessions Trial No. 292 of 2012 (State vs. Lalit Kumar) arising out of Case Crime No. 1191 of 2011 and under Section 25 of the Arms Act, Sessions Trial No. 293 of 2012 (State of U.P. vs. Pappu) arising out of Case Crime No. 1192 of 2011 under Section 25 of Arms Act, Sessions Trial No. 292 of 2017 (State of U.P. vs. Raj Kumar) arising out of Case Crime No. 1193 of 2011 under Section 25 of the Arms Act, Sessions Trial No. 295 of 2012 (State of U.P. vs. Kanhaiya) arising out of Case Crime No. 1194 of 2011 under Section 25 of the Arms Act, Sessions Trial 296 of 2012 (State of U.P. vs. Iqbal) arising out of Case Crime No. 1195 of 2012 under Section 25 of the Arms Act and Sessions Trial No. 297 of 2012 (State vs. Shivram @ vijju) arising out of Case Crime No. 1196 of 2011 under Section 25 of the Arms Act, whereby all the appellants were convicted for the offences under Sections 364A, 147, 148, 307 I.P.C. and Section 25 of the Arms Act, and sentenced under Section 364A IPC for life imprisonment with fine of Rs. 1,00,000/-, under Section 147 I.P.C., imprisonment for two years, under Section 148 imprisonment for three years, under Section 307/149 imprisonment for ten years with fine of Rs.20,000/- and under Section 25 of the Arms Act, imprisonment for of three years with fine of Rs. 10,000/- and in default of payment of fine further imprisonment for three years as provided.
2. The brief facts of the leading case in Sessions Trial No. 268 of 2012 are that PW-1, Amit Jain, had lodged a first information report on 18.10.2011 at 8:05 A.M., stating that his son, Parshva Jain, who was studying in Class II, in Diwan Public School had been abducted. He had stated that as usual on 18.10.2011, in the morning at 7:30 A.M, the guard of the informant, namely Anand, had started from the informant's house to drop Parshva Jain, son of the informant, to the school. While the guard and his son were on their way to the school, from one Scorpio car, of white and gray colour, which was parked nearby, three persons came out while the driver was still occupying the driving seat, keeping the vehicle's engine on of the three persons one person caught hold of Anand from behind and two persons snatched Parshva Jain from him and put parshva in the Scorpio car and left towards Meerut. The guard made a hue and cry and tried to follow the car but could not succeed. He could not note the vehicle number. The said boy, Parshva Jain, was wearing a school dress of blue colour half shirt, grey colour nicker and black shoes. The guard informed the informant about the incident and thereafter he had lodged the F.I.R. After registration of the F.I.R. against the four unknown accused persons on 22.10.2011, the police had recovered the kidnapped child during an encounter wherein, out of the eight persons, six were apprehended. With regard to the encounter and recovery of the kidnapped child, another Case Crime No. 1190 of 2011 was registered against all the accused persons.
3. The facts of the Case Crime No. 1190 of 2011 were that on 22.10.2011, the Inspector- Sri Anil Kaparwan, incharge of the Special Operation Group(SOG), got an information from a reliable source and through surveillance that the accused persons of Case Crime No. 820 of 2011 were hiding themselves alongwith the kidnapped child in the Dastoi Forest and due to the fear and pressure created by the police, they had shifted near Muradnagar and now they were demanding a ransom of Rs. 2,00,00,000/- (Two Crores) from the father of the kidnapped child and that some deal was going to be finalized on 22.10.2011 at Sadarpur Duhai Road and if the deal was not finalized, they were planning to shift the child to some other State and were trying to go towards Mandawali, Delhi, in the Scorpio Car through Muradnagar. On the basis of such information, Sri Anil Kaparwan, Inspector Incharge of SOG, came to the Police Station, Kavinagar and informed about the same to the SHO, Police Station- Kavinagar. Thereupon, they formed two teams of the police to apprehend the kidnappers and to recover the child.
4. Out of these two police teams, one was led by Sri Anil Kaparwan, Incharge- SOG and another was led by Sri Avanish Gautam, SHO, Kavinagar. Neeraj Kumar (Head Constable 47), Uday Pratap (Constable 1457), Vinay Kumar (Constable 2289), Arun Kumar (Constable 1088), Dhum Singh (Constable 711), Yogesh Kumar (Constable 372) were members of the police team led by SHO Avanish Gautam. Both these teams took their positions on the two roads, one, which went towards Sadarpur and another which went towards Madhuban Bapudham. After sometime a car was seen coming from Govindpur side and after ten minutes another car came from Sadarpur side and both stopped and one person each from both the cars came out and talked to each other and from the car which came first, a person took a bag and went towards the other car. Having satisfied that the payment of ransom was being finalized the police team rushed towards the other car. Thereupon, looking at the police the accused persons began to fire and ultimately the police team despite getting some minor injuries, surrounded the accused persons and apprehended six of the accused persons while two of the accused persons escaped from the spot. The father of the kidnapped child took the child in his arms. The apprehended accused persons were identified as Lalit Kumar s/o Lalaram, Pappu s/o Munna Singh, Raj Kumar s/o Mahendra Singh, Kanhaiya s/o Laxmi Narayan, Iqbal s/o Illiyas, Shivram @ Vijju s/o Khusiram and from each of the apprehended accused persons, various arms alongwith empty and live cartridges were recovered on the spot and on query made from the apprehended accused persons they told that two of their accomplice members, namely Qayyum and Johni @ Baba had fled from the spot. On the spot itself, the bag filled with money which was recovered from the seat of the Scorpio Car, was handed over to the original informant, Amit Jain. Thereafter, the F.I.R. in Case Crime No. 1190 of 2011 under Sections 147, 148, 149, 307 I.P.C. and separate cases under Section 25 of the Arms Act were registered against the accused persons. Recovery Memo of various arms from each of the accused persons were prepared and thereupon the Case Crime No. 1191 of 2011 was registered against Lalit Kumar under Section 25 of the Arms Act; Case Crime No. 1192 of 2011 was registered against Pappu Singh s/o Munna Singh; Case Crime No. 1193 of 2011 registered against Raj Kumar s/o Mahendra Singh; Case Crime No. 1194 of 2011 registered against Kanhaiya s/o Laxmi Narayan; Case Crime No. 1195 of 2011 was registered against Iqbal s/o Iliyas; Case Crime No. 1196 of 2011 against Shivram @ Vijju, all under Section 25 of the Arms Act. After the recovery of the child, the child was also handed over to the complainant after medical examination at the police station to the informant.
5. Thereupon, the investigation was completed and the other two co-accused persons who had fled from the spot had also been apprehended during the investigation and then charge-sheets were filed against all the accused persons in both the cases, namely Case Crime No. 820 of 2011 as well as Case Crime No. 1190 of 2011 and also under the offences under the Arms Act separately.
6. After submission of the said charge-sheets, cognizance was taken and the matters were committed to the sessions court, thereupon, the sessions court framed the charges against the accused Lalit Kumar s/o Lalaram, Papu s/o Munna Singh, Raj Kumar s/o Mahendra Singh, Kanhaiya s/o Laxmi Narayan, Iqbal s/o Illiyas, Shivram @ Vijju s/o Khusiram and Johni @ Baba jointly under Section 364A IPC and further charges under Section 364A IPC were also framed against accused Qayyum. Also charges under Sections 147, 148, 307/149 I.P.C. were framed against the accused Lalit Kumar, Pappu, Rajkumar, Kanhaiya, Shivram @ vijju, Johny @ Baba and Qayyum. Separate charges against accused Lalit Kumar, Pappu, Rajkumar, Kanhaiya, Iqbal, Shivram @ Vijju were framed under Section 25 of the Arms Act.
7. To support the case in Case Crime No. 820 of 2011 under Section 364A I.P.C., the prosecution had examined PW-1- Amit Jain (Informant), PW-2- parshva Jain, PW-3- Atul Jain, PW-4- Anand Kumar, PW-5-Constable Devendra Singh, PW-6-Sub-Inspector, Ashok Rana, PW-7 SHO Avnish Gautam, PW-8 Head Constable Vikas Kumar, PW-9 Constable Akshay Sharma, PW-10 Dr. Naveen Jain, PW-11 Head Constable- Rampal Singh, PW- 12 Constable Bijendra Singh, PW13- Raghunath Gautam. To prove the case in Case Crime No. 1190 of 2011 under Sections 147, 148, 307 I.P.C, the prosecution had examined Inspector Anil Kaparwan, PW-1-the informant of the case, PW-2 Constable- Harish Raghav, PW3 Sub-Inspector Pankaj Pant.
8. Thereupon, the statements of the accused persons were recorded under Section 313 Cr.P.C. They had denied the allegations and claimed that they had been falsely implicated in the case. After conclusion of the trial vide judgement and order dated 15.05.2015, the learned trial court had convicted the accused Lalit Kumar, Pappu, Rajkumar, Kanhaiya, Shivram @ Vijju, Iqbal for the offences under section 364A IPC and also for the offences under sections 147, 148, 307, 149 IPC and each of the accused Lalit Kumar, Pappu, Rajkumar, Kanhaiya, Shivram @ vijju, Iqbal were also convicted for the offence under section 25 of the Arms Act. The other co-accused persons Johni @ Baba, Badal @ Pawan, Qayyum were acquitted of the charges under section 364A IPC as well as for the charges under sections 147, 148, 307, 149 IPC. After the conviction, vide order dated 07.05.2015 all the six accused persons named above, were sentenced to life imprisonment alongwith a fine of Rs. 1,00,000/- for the offence under section 364A IPC, for the offence under section 147 IPC the six accused persons were sentenced to undergo two years simple imprisonment, for the offence under section 148 IPC, they were sentenced to undergo three years simple imprisonment, for the offence under sections 307/149 IPC all the accused persons were sentenced to undergo 10 years rigorous imprisonment along-with fine of Rs. 20,000/- each and for the offences under section 25 of the Arms Act all the accused persons were sentenced to undergo three years rigorous imprisonment alongwith fines of Rs. 10,000/- each. For the default in payment of fines, the accused persons were further to undergo three years additional sentence. All the sentences were directed to run concurrently.
9. Against the aforesaid judgement of conviction and sentence dated 05.05.2015 and 07.05.2015, three criminal appeals were filed by the six accused persons. The first Criminal Appeal No. 2162 of 2015 was filed by accused/convicted Lalit Kumar and Shivram @ Vijju, the Criminal Appeal No. 2127 of 2015 was filed by the accused/convicted Pappu and accused Iqbal and the Criminal Appeal No. 2161 of 2015 had been filed by accused Kanhaiya @ Kural and accused Rajkumar. Since, all the appeals arose out of a common judgement and order, all the three appeals were heard and decided together.
10. Learned counsel for the appellants and learned Amicus Curiae appointed by this Court have jointly submitted as under:
(i) In the instant case, the accused persons have been convicted and sentenced for the offence under section 364A IPC, however, from the evidence available on record and from the statements of PW1 and PW 2, there was no evidence on record to suggest that the accused persons ever threatened to cause death or hurt to the kidnapped child. Therefore, no offence under section 364A IPC can be said to have been made out against the appellants.
(ii) Learned counsel for the appellants have further submitted that the kidnapped child himself had stated that none of the accused persons, who had been apprehended, had actually kidnapped him while he was going to school. Thus, on the basis of the statement of PW-2, learned counsel for the appellants submits that the appellants herein were not kidnappers of the child and they had been falsely implicated in the case.
(iii) Learned counsel for the appellant submits that in the instant case the demand of ransom and payment thereof had not been proved beyond reasonable doubt and the bag which was stated to be carrying the amount of ransom had never been looked into and the money was never counted by any of the police personnel nor the same was recovered and sealed nor was it made part of the case property, therefore, no offence under section 364A IPC can be said to have been made out against the appellants as the demand and payment of ransom had not been established beyond reasonable doubt by the prosecution.
11. To appreciate the submissions made by learned counsel for the appellants it will be relevant to briefly note the evidence available on record. PW-1 Amit Jain, the informant, in his statement has supported the First Information Report and from his statement it is apparent that he got the information from his guard- Anand and he was not an eye witness of the incident of kidnapping. He had stated that after the kidnappers kidnapped the child, on the same day he received a phone call and he was informed that caller had kidnapped the child and if he wanted his child back safely, then he should make arrangement of money amounting to Rs. 2,00,00,000/- (Rs. Two Crores) as ransom for the release of the child. When he requested them back that he be allowed to talk to the child they did not allow him to talk to the child, however, after one or two days they arranged talk with his wife. When he has shown his inability to pay the ransom of Rs. 2,00,00,000/-(Rs. Two Crores) only and offered Rs. 20,00,000/- (Rs. Twenty Lakhs) then they called him to Bapudham Ghaziabad alone with the money. On 22.10.2011, in the night at around 1:30 A.M. he left the house and went towards Bapudham in his car. When he reached Bapudham then the other car came from the other side and stopped near his car and he started approaching that car along with the money and was about to give the money to the accused persons, when the police reached and fired at the criminal. He, however, hid himself behind his car. During the firing, the SHO Avnish Gautam and two constables sustained fire arm injuries. The child was in possession of the accused persons. After the encounter by the police, the child was recovered by the police and handed over to PW-1 and on the spot six accused persons were arrested. Two of them had run away from the spot. The money which he was to deliver to the accused persons was returned by the police to him and while handing over, the money supurdaginama was got signed by the police from him and he had identified his signature on Memo of Supurdaginama. After taking the custody of the child, he went to his house. In his cross examination, this witness has admitted that the guard Anand was working as a guard in the informant's residential house no. 67, New Okhla, Meerut Road, Hapur and he was working as such for the last 10 to 12 years and Anand was still living with him and was a native of Hapur. The informant, Amit Jain, was running the business of manufacturing utensils and his factory was at Meerut Road, Hapur. The Diwan Public School where his son used to study was around 200 to 250 metres away from his house. One of the accused persons namely accused Qayyum was also working in his factory. The remaining accused persons had never worked with him. The place from where the child was kidnapped, was park in front of the house of Mahesh Chandra Mittal. His wife had told him that Anand had came back to the house and has informed that somebody has kidnapped their child. He received this information at around 7:40 A.M. in the morning and this incident was firstly reported by the guard Anand to his sister-in-law, Sonu Jain (Bhabhi). The other persons, namely Rajkumar Tyagi, Ashok Sharma and various other persons had also informed him about the incident of kidnapping which was witnessed by them. When the police first reached on the spot he was not there. When he came back at 8:30 A.M. then he saw the police and the crowd at the spot. He admits that neither he was informed by the police that efforts were on to search out his child nor he had told the police that he was going alone with the ransom amount to get the child released. Though, he had informed the police that demand of ransom was being made, this information was given by him to the police on 18th itself.
12. Further, in his cross examination this witness had admitted that he was not having any torch etc. and it was a dark night and there was no source of light. When the firing started he had hid himself behind his car and could not see who had fired and after 15 to 20 minutes of the incident of encounter he came alongwith the police in his car to the police station. He had further stated that he had seen the accused persons in the police station and he cannot say with certainty that the accused persons present in court were the same who were involved in the incident. However, the two of them were of the same built as were involved in the incident and were brought to the police station by the police. He had stated that his child was handed over by the police at the police station and all the formalities about the same and the memos for the same were prepared at the Police Station. He further states that his signatures were obtained at the police station Kavi Nagar. He could not tell which police officer had taken into custody the child from the accused persons. No memo with regard to money which he had carried to give the kidnappers had been prepared nor the said bag was taken from him. He had alone gone alongwith the ransom amount.
13. The victim Parshva Jain has been examined as PW-2. He had stated that on 18.10.2011 at around 7:30 A.M., he was going towards his School alongwith the guard Anand. The persons who were standing at the end of our lane had asked the time from us and thereupon they had kidnapped me and kept in the Scorpio car. After a long drive they had asked me to get off of the vehicle in a sugarcane field. They were 12 to 13 persons who had kidnapped me. They kept me in the sugarcane field for 5 days. Out of these persons, two persons used to stay alongwith me and none of them had ever called my family members in front of me. The person who had kidnapped him used to give food to him. After keeping the kidnapped child for 5 days, those five-six persons had brought his towards Ghaziabad and in Ghaziabad the encounter had taken place with the police and at that point of time he was in the car. After the encounter he had stated that his my father had taken him from there. In the encounter, the police had suffered fire arms injuries. The person who were carrying him were apprehended by the police. He did not know the names of those persons. Out of the accused persons who were present in court, none of them were the persons who had kidnapped him while he was going to the school nor those persons had kept him in the sugarcane field. He could not identify the person involved in the encounter. In his cross examination he had stated that the persons who had kidnapped him used to give him food and he has stated that he has informed about the incident to his father but his father had not told him that the accused persons were demanding ransom from him. Where the encounter had taken place was a forest and the encounter had taken place in the night. To his knowledge one police personnel had suffered a fire arm injury. The persons who kept him in the sugarcane field were two in number and for all five days they were with him. He had denied the suggestion that no encounter had taken place and also he was handed over by the police at the police station to his father.
14. PW-3, Sri Atul Jain, is the uncle of the victim, Parshva Jain and brother of the first informant. He witnessed the handing over of the bag filled with the ransom amount to the informant and also handing over the child to the informant. However, this witness has stated that he had no information how the victim was recovered. However, he had stated that on the information given by the informant, he had come to know that the police had recovered the victim from the clutches of the kidnappers.
15. PW-4, Anand, who is the person alongwith whom the victim was going towards the school had stated that he was working as a guard of Amit Jain (informant) and the informant's child Parshva Jain used to study in Diwan Public School in Class II. On 18.10.2011 in the morning at around 7:30, he was going to drop Parshva Jain to his school. The bag of the child was kept by him on his shoulders. When he reached near the turn of the lane, he found that one big car was parked there, the number of which could not be seen by this witness. When he went ahead of the said vehicle, then, some unknown persons caught hold of him and the other persons snatched the child from his hands and kept the child inside the vehicle and also tried to put him in the vehicle. Thereafter, they went alongwith child towards the Gurudwara. He has further stated that thereafter he made a hue and cry, however, the unknown kidnappers succeeded in fleeing away from the spot. Thereafter, he went to the house of his owner and informed him about the incident, however, he could not recognize the colour and number of the vehicle nor could he identify the unknown kidnappers. He could not identify the accused Pawan @ Badal, Pappu, Shivram, Kanhaiya, Ramkumar and Lalit, who were present in court and he has categorically stated that the aforesaid accused persons were present in court had not kidnapped Parshva Jain on 18.10.2011. His statement was not recorded by the police. When his statement under Section 161 Cr.P.C., was shown to him, then, he said how this statement was recorded, he could not give the reasons. He deposed that it was true that on 18.10.2011, Parshva Jain was kidnapped in the morning. He denied the suggestion that he was not telling the truth before the court due to pressure. It is admitted by him that he was working as guard with Amit Jain since very long and that he used to drop the kidnapped child, Parshva Jain, in the morning to Diwan Public School. He had further stated that he didn't know when and how after the incident the said Parshva Jain was recovered. He denied the suggestion that on 18.10.2011 in the morning at about 7:30, he had identified the person who kidnapped Parshva Jain as the accused person, who were present in the Court. He further denied the suggestion that he was not telling the truth due to the settlement between the accused persons and the informant. On further cross-examination the PW-5, Anand, admitted that he had never seen the accused persons present in the Court prior to the date. He has further stated that he didn't know the names and addresses of the accused persons present in court. The accused persons who were present in court were not involved in the kidnapping of Parshva Jain. He did not know any person by the name, Johni @ Baba. No person named Johni @ Baba was ever working with his master.
16. PW-5, Devendra Singh (Constable 131), is the person who had recorded the chick F.I.R., by dictating on the computer. The said report was lodged at 8:05 A.M. on 18.10.2011 in one go. In the cross-examination, he admits that F.I.R. was recorded in his presence and the said F.I.R. was lodged on his dictation on the computer. The written report was not transcribed in his presence and on the basis of the written report he got registered the case. The persons who brought the written report did not give any photograph.
17. PW-6, Inspector Ashok Rana, is the person who was posted as SHO at Police Station- Hapur Nagar and he had conducted the investigation since 18.10.2011 to 29.10.2011. He had stated that on 18.10.2011, on the basis of the written report submitted by informant, Amit Jain, Case Crime No. 820 of 2011 was registered under Section 364A I.P.C. against unknown persons. He took over the investigation and recorded the statement of eye witness- Anand Kumar and at the indication of the said eye witness, a site plan for the place of incident was prepared and PW-6 also recorded the statements of various other persons and the same was entered in the Case Diary. On 19.10.2011, the statement of the informant- Amit Jain, was recorded and thereupon in search of the accused persons he raided the place of accused Qayyum on 22.10.2011. On receipt of information from Police Station- Kavi Nagar through the wireless set, the accused Lalit Kumar s/o Lalaram., Papu s/o Munna Singh, Raj Kumar s/o Mahendra Singh, Kanhaiya s/o Laxmi Narayan, Iqbal s/o Illiyas, Shivram @ Vijju s/o Khusiram were apprehended. During the encounter, the police alongwith kidnapped child and the vehicle and arms used in the incident arrested the accused persons while the two accused persons, namely Qayyum and Johni @ Baba had fled away from the spot. On the information received he had visited the Police Station- Kavi Nagar and had obtained the Seizure Memo etc. from the office of the Police Station- Kavi Nagar and same were made part of the Case Diary. He had also recorded the statements of the accused persons present in the police station. At the police station, Parshva Jain and his father Amit Jain also met him. The kidnapped Parshva Jain was handed over to the father- Amit Jain in presence of the witnesses and memo was prepared and the said memo was prepared in his hand writing and signature. During the process, he also recorded the statement of the informant- Amit Jain and made it part of the Case Diary. With regard to the encounter and arrest of the accused Lalit Kumar s/o Lalaram., Pappu s/o Munna Singh, Raj Kumar s/o Mahendra Singh, Kanhaiya s/o Laxmi Narayan, Iqbal s/o Illiyas, Shivram @ Vijju s/o Khusiram and other accused persons, who fled from the spot, namely Qayyum and Johni @ Baba, and for the recovery of the kidnapped child, Parshva Jain in the encounter and with regard to the vehicle and use of illegal arms etc., on 22.10.2011, Case Crime Nos. 1190 to 1196 of 2011 under Sections 147, 148, 149, 307 I.P.C., and under Section 25 of the Arms Act, were registered at Police Station- Kavi Nagar. In the said encounter, three police personnels, namely Inspector- Avnish Gautam, Constable- Vikas, Constable- Akshay Sharma, had sustained injuries. On 23.10.2011, the proceedings for warrant under Section 364A I.P.C. were initiated in the Court of A.C.J.M.- Hapur and subsequently, during investigation name of accused Pawan @ Badal also reflected, who was arrested on 27.10.2011 and was sent to jail and during the arrest of the said accused, illegal arms were also recovered and his statement was also recorded and was made part of the Case Diary. On 29.10.2011, the warrants were got issued under Section 364A I.P.C. through the Court. Thereafter, he was transferred to District- Gautam Buddh Nagar. In his cross-examination, he has stated that he has recorded the statement of the informant and the witnesseses around 10:00 A.M. to 10:30 A.M. on 18.10.2011. He had not mentioned the time of recording of the statement of these witnesses in the Case Diary. He had recorded the statement of these witnesses in the police station. He had prepared the site plan at the indication of witnesses- Anand at 11:30 A.M. He had not recorded any statement of any employee of the Rao Palace Hotel. In supurdaginama, there is no signature of kidnapped Parshva Jain. He has denied the suggestion that no encounter with the police has taken place and that the kidnapped Parshva Jain was recovered. He has also denied the suggestion that he was not was present in the police station, that is why the signature of Parshva Jain was not obtained in the supurdaginama. He further denied the suggestion that in the supurdaginama signature of witnesses and the informant were obtained later on. In the Police Station- Kavi Nagar he had not inquired from the informant that where was the money which he had brought to be given to the kidnappers nor he had seen the said money nor he has inquired as to whether the said money was in which bag or briefcase. On 23.10.2011, he had not recorded the statement of the police personnels who were involved in the encounter, though, they were present in the Police Station- Kavi Nagar. On the said date he had not gone to the Sarvodaya Hospital nor he had recorded the statement of doctor who has examined the injured police officers in the encounter. He had not conducted any identification proceedings of the accused persons vis-a-vis the witness, Anand Kumar. He had denied the suggestion that to disclose the incident he has conducted the proceedings in collusion with Incharge SOG- Anil Kaparwan and made out the recovery of kidnapped Parshva Jain and the arrest of the accused persons. He also denied the suggestion that he had not conducted the investigation in a transparent manner. He also denied the suggestion that during the investigation he had not recorded the statement of Parshva Jain and he had not visited the place from where Parshva Jain was recovered nor any site plan was prepared by him of the place of recovery of Parshva Jain. He had undertaken the investigation after registration of the case at the Police Station. It is true that the time of initiation of investigation was not mentioned in the Case Diary. He did not record the statement of Parshva Jain as he was not well at that time. He had mentioned this fact in the Case Diary that Parshva Jain was not well. It is true that on 22.10.2011, Parshva Jain was not well and subsequently, he continued with the investigation till 29.10.2011. He did make an attempt to record the statement of Prashva Jain and the same was mentioned in Case Diary on 27 to 29.05.2011. However, he could not meet Parshva Jain on both the dates as it was told to him that he had gone to Delhi for treatment. He had gone to the school and verified that he was studying in the school. However, no statement of any person from the school was recorded. He has recorded the statement of the persons surroundings the case of incident. He could not take the statement of police personnel who recovered the kidnapped child due to the fact that he was busy in various other proceedings. In his further cross examination, he had stated that on 22.10.2011, that he had received intimation through wireless set from Police Station- Kavi Nagar, with regard to the work place, encounter and recovery of the kidnapped child Parshva Jain and arrest of all the six accused persons. From the incident, the vehicle and the illegal weapons were also recovered which were used in the crime. The two accused- Qayyum and Johni @ Baba had fled from the spot. On 18.10 2011, in the statement of Anand itself, the name of Qayyum was reflected and thereupon, on 19.10.2011, he had raided the house of the accused Qayyum for his arrest. However, the accused- Qayyum could not be arrested on that date.
18. PW-7, Avanish Gautum, SHO, stated that on 22.10.2011 he was posted as SHO- Kavi Nagar. On that date the SHO- Anil Kaparwan, incharge of SOG, alongwith police personnels, Pankaj Pant (SI), Akshay Sharma (Constable), Tejpal Singh (Constable), Vikas Sharma (Constable), Harish Raghav (Constable), Neeraj Kumar (Constable), Uday Pratap (Constable), Vinay Kumar (Constable), Arun Kumar (Constable) came to the Police Station- Kavi Nagar and informed that the kidnappers of the kidnapped child of Case Crime No. 820 of 2011 under Section 364A IPC were hiding in the forest of Village- Dastoi and now they had come to Muradnagar alongwith their associates and the child. They had demanded a ransom of Rs.2,00,00,000/- from the family members of kidnapped child- Prashva Jain and today the deal for the release of the kidnapped child was about to take place at Sadarpur Duhai road and on such deal it had come to his knowledge that the said kidnapped child shall be released and if the deal was not finalized the accused kidnappers shall shift the child to some other State. The said persons were expected to come in a Scorpio car from Muradnagar to Duhai Sadarpur Marg and they would proceed to Mandawali. Relying upon the said information given by the SHO- Anil Kaparwan and after discussing with him they formed two teams of the police officers and both the teams proceeded towards Sadarpur Dhulai and Bajwaha Road at 1:40 A.M. on 22.10.2011, wherefrom, one road goes towards Sadarpur and the other road goes towards Madhuban Bapudhan Colony, where both the teams were placed on both sides of the roads and they waited for the accused persons to reach there. A vehicle came from the side of Govindpur and after 10 minutes another vehicle came from the side of Duhai and the second vehicle stopped near the earlier first vehicle which came from side of the Govindpur and from both the vehicles, one person came down and started talking to each other. Thereafter, the person who came in the vehicle from Govindpur side took out a bag from his vehicle and proceeded towards the other vehicle. That is the time the police realised that in the second vehicle there were the accused persons and the kidnapped child. He further deposed that when the police parties proceeded towards the said vehicle, the accused persons looking at the police personnel opened fired at the police team in which three police personnels sustained injuries and they also fired in self-defence and subsequently surrounded the accused persons and arrested six of them at 3:30 A.M. from the spot. After the arrest of the said six persons they recovered Parshva Jain. The informant, Amit Jain, who came from the Govindpur side took the child in his arms. The kidnappers were searched and on enquiry they disclosed their name as Lalit Kumar s/o Lalaram., Pappu s/o Munna Singh, Raj Kumar s/o Mahendra Singh, Kanhaiya s/o Laxmi Narayan, Iqbal s/o Illiyas, Shivram @ Vijju s/o Khusiram and from their possession various arms with live cartridges and empty cartridges were recovered, which were used in the incident. They disclosed the names of the two persons who fhad led away as Qayyum and Johni @ Baba and they also disclosed that kidnapped child which had been recovered on that day, was Kidnapped by them for ransom from Hapur and on the finalisation of deal they had brought the child for release on receipt of the ransom. The bag in which the ransom amount was kept was brought by the informant, Amit Jain was handed over to him and the recovery memo etc., were prepared on the spot in the light of the torch and recovery memos of arms and cartridges were also prepared and the same were sealed. The injuries sustained by him as well as the other police officers were examined at Sarvodaya Hospital on 22.10.2011 and on the same date the kidnapped Parshva Jain was handed over to his father Amit Jain and memo was prepared. In his cross examination this witness has further stated that at about 1:30 A.M. in the night the Inspector- Anil Kaparwan had come to the Police Station- Kavi Nagar and thereafter at 1:50 A.M., they had left for the place of incident and they had reached there within 20 minutes. The informant- Amit Jain had come from the side of Govindpur for giving the ransom amount. After 15 minutes of the reaching of Amit Jain, another vehicle had come from the other side and stopped at a distance of 20-25 feet. Amit Jain was having a faded black bag and he had informed that he had brought Rs. 17,00,000/- in the said bag. The said Rs. 17,00,000/- were counted by the Inspector SOG- Anil Kaparwan. This witness did not remember that the notes were of which denomination. This witness stated that no supurdaginama was prepared, however, the same was not on record. He further stated that at that time of arrest of the accused and recovery of Parshva Jain, the informant- Amit Jain and his family members had reached there on the spot and the memo was prepared in their presence. In his further cross-examination, PW-7, Avanish Kumar Gautam, categorically stated that the accused persons had come in their Scorpio vehicle which was of silver colour and the vehicle number was HR 30 F 0397. However, he was not able to describe the make and colour of the vehicle on which the informant had reached at the place of encounter. He admits the firing by the accused persons in the encounter, however how many rounds of fire were made by the accused persons, he was not able to give any details. However, subsequently he has described that around 10-12 round fires were made by them and the victim child was recovered from the Scorpio vehicle and the accused persons were apprehended by the police parties at 3:30 A.M. The accused had not surrendered. The police parties had warned the accused persons and thereafter while firing in self-defence they had surrounded the accused persons and apprehended them. The ransom amount which was carried in the bag was counted on the spot and about Rs. 17,00,000/- were found there in the black bag. He did not remember the description of the notes and who counted the said ransom amount was not disclosed by this witness and after completion of the formalities, supurdaginama was prepared and the ransom amount was returned to the informant on the spot. He has denied the suggestion with regard to the encounter and recovery of the child being fabricated and that the accused were arrested from their respective houses. He further had stated in his cross-examination that the ransom amount of Rs. 17,00,000/- was recovered on the spot from the Scorpio vehicle and the amount which was recovered was handed over to the informant on the spot itself. After the incident, he was admitted in the Sarvodaya Hospital for four days and thereafter he joined his duty.
19. PW-8, Vikas Kumar (Constable 58) has also supported the statement as stated by PW-7 with regard to the encounter, recovery of the child and recovery of the money and supurdaginama etc. However, in the cross examination he had not been able to describe how much money was there in the bag which was brought by Amit Jain and who has counted the amount is also not in the knowledge of this witness. He admits that the injury sustained by him in the incident and he was admitted in the hospital.
20. PW-9, Sub Inspector Akshay Sharma has also supported the statement of the SHO Avanish Gautam and the manner of information received from Inspector Anil Kaparwan and informing of the team of the police officers, their arrival and division in two teams and subsequently arrival of the father of the kidnapped child on the spot and then the accused persons who are subsequently apprehended and the child was recovered and six of the accused persons were arrested on spot alongwith their arms and the recovery memo and supurduginama were also prepared.
21. PW-11, Ram Pal Singh has proved the registration of the Case Crime Nos. 1190 to 1196 of 2011 at the police station on 5:40 A.M. He has identified the accused persons in court. In the cross examination this witness has confirmed that on 22.10.2011, he was on duty at Police tation- Kavi Nagar and he has registered the Case Crime Nos. 1190 to 1196 of 2011 on the instruction of SHO-Avnish Gautam.
22. PW-12, SHO Bijendra Singh is the Investigation Officer who was handed over the investigation of the case. On 05.11.2011, he had recorded the statement of SHO- Avanish Kumar Gautam, Constable- Dhum Singh, Constable- Yogesh Kumar and also received the medical report of Incharge- Avanish Kumar Gautam, Head Constable- Akshay Sharma, Constable Vikas Kumar and same was included in the Case Diary. The injury report of the child was also received which was also made part of the Case Diary. The memo of the supurduginama of Rs. 17,00,000/- and the kidnapped child was also received in original and was made part of the Case Diary. He inspected the place of incident and the site plan of the place of incident was prepared. Subsequently, on 10.11.2011 he recorded the statement of Anil Kumar Kaparwan, Head Constable- Neeraj Kumar, Constable- Tejpal, Constable- Harish Raghav, Constable- Arun Kumar etc. On 19.11.2011, he had again recorded the statement of injured Head Constable- Akshay Sharma, Constable- Vikas Sharma, Constable- Uday Pratap, Constable- Vinay Kumar. On 20.11.2011, statement of kidnapped- Parshva Jain was also recorded and on 26.11.2011 the permission was obtained from officer for proceedings under Section 25 of the Arms Act. On 28.11.2011 the statement of accused Kayyum and accused Johni @ Baba was also recorded and all were made part of the Case Diary. On 30.11.2011, the recovered arms were sent for the examination and on 02.12.2011, the charge-sheet was filed under Sections 147, 148, 307 and Section 25 of the Arms Act and on the same date, the charge-sheet was also filed against the accused Iqbal, Pawan, Kanhaiya, Ramkumar, Pappu, Shivram and Lalit Kumar under Section 25 of the Arms Act. In the cross-examination he had stated that he was not posted at Police Station- Kavi Nagar. However, on 03.11.2011 he was handed over the task of investigation of the case through the dak and 05.11.2011. Thereafter, he met Avnish Gautam for the investigation and recorded his statement. On the date when the incident had taken place, he was not on the spot. Subsequently, he had gone to the house of the kidnapped child and recorded his statement. He had recorded the statements of Police Officers at the police station and at the SOG Office. He had not recorded the statements at the Hospital. This witness stated that he had not seen the amount of Rs. 17,00,000/-. However, he has recorded the statement of the person in whose supurdugi the said amount was given. He had also not seen the bag in which the ransom amount had been brought for giving to accused persons. He had not seen the vehicle from which the accused persons were arrested nor he had tried to verify the ownership of the said vehicle. On the spot he has not recovered any empty cartridges as he had gone to the spot after 12-13 days of the incident.
23. PW13- Raghunath Gautam is the person who had taken over the investigation after the transfer of earlier Investigation Officer, Sri Ashok Rana in the Case Crime No. 820 of 2011 under Section 364A I.P.C. He had taken over the investigation on 26.11.2011. The name of the accused Lalit Kumar, Raj Kumar, Kanhaiya, Shivram, Johni @ Baba, Badal @ Pawan, Qayyum and Amit were brought in the light by the previous Investigation Officer. He examined the Case Diary and thereafter he received the surrender application of Johni @ Baba and thereafter he had recorded the statement of kidnapped child, Parshva Jain and the statement of SHO- Avanish Kumar Gautam, Anil kumar Kaparwan, Akshay Sharma, Tejpal, Vikas Sharma, Harish Raghav, Neeraj, Uday Pratap, Vinay Kumar, Arun Kumar, Bhup Singh, Yogesh Kumar. All the statements were made part of the Case Diary and after recording the statement of the informant and the other witnesses, the charge-sheet was prepared against accused- Lalit Kumar, Raj Kumar, Kanhaiya, Iqbal, Shivram, Johni @ Baba, Badal @ Pawan, Qayyum and Amit and the same was sent to the Magistrate concerned on 26.11.2011. In his cross examination he deposed that he has recorded the statement of the kidnapped child and also the statement of other police personnels. However, he has not gone to the hospital for recording the statement. At the time of the recovery of the child he was not present. He deposed that he has not recorded the statements of Peon, Principal and Teachers of the School since the earlier Investigating Officer has already recorded their statements.
24. PW-14, Sri Rajendra Singh Yadav, is the SHO of Police Station- Hapur, had taken over the investigation from 06.05.2012 and had submitted the charge-sheet on 25.05.2012 against accused Qayyum. Sri Anil Kapwarwan, Inspector was also examined as PW-1 in Sessions Trial No. 291 of 2012, wherein he has stated that on 22.10.2011, he was posted as Incharge, SOG, Ghaziabad and on the information received that a child who was kidnapped from Hapur is being carried by the accused persons for a deal of ransom with the father of the victim. The accused persons have demanded a ransom of Rs. 2,00,00,000/- Thereafter, he came to the Police Station- Kavi Nagar and after forming two teams with the SHO- Kavi Nagar and himself, they went to Sadarpur Duhai Marg and have apprehended the accused persons at around 3:30 A.M. and recovered the kidnapped child alongwith ransom amount. The countrymade pistols, empty cartridges and live cartridges were also recovered from the spot. The bag filled with the ransom amount of Rs. 17,00,000/- was also recovered from the spot. Six accused persons were arrested while two accused persons had fled away from the spot. The said car was sealed and brought to the police station. The bag was taken in possession of police and was handed over to the informant and the child was also handed over to the informant, after medical examination. The supurduginama of the ransom amount as well as supurduginama of handing over of the kidnapped child got prepared through SHO- Avnish Gautam and was signed by him. This witness submits that at the place of encounter, there was source of light through the mercury lights and tube lights on the poles. The informant Amit Jain had reached at the spot on his WagonR car. The accused persons were apprehended on the spot. This witness was further re-examined on 02.11.2011 and in his examination-in-chief, he has stated that after the incident they have searched the accused persons and from the possession of the Lalit Kumar, one pistol of 32 bore and four live cartridges with Magazines were recovered. From the possession Pappu, one pistol of 315 bore with five live cartridges recovered and from third, Raj Kumar, one country made pistol of 32 bore with three live cartridges of 32 bore, from the fourth, Kanhaiya, one countrymade pistol of 315 bore and three live cartridges were recovered from him. From the fifth accused Iqbal, one countrymade pistol of 315 bore and one empty cartridges and three live cartridges were recovered. From the sixth accused Shivram, one countrymade pistol of 315 bore with one empty cartridges and three live cartridges were recovered and were sealed and exhibited. In his cross-examination, this witnesses has stated that his team has not fired on the accused persons as the other team of the police was firing on the accused persons and in the incident three police personnels were injured. The arms recovered from the accused persons were sealed by S.I. Pankaj Pant. He has denied the suggestion that no deal for ransom had taken place for the release of the child or the accused persons were arrested from their houses. The bag filled with the ransom amount was recovered from the Scorpio car and the same was recovered and was handed over to the informant. He has denied further suggestions that the other accused persons were apprehended from any other place than the place of the incident.
25. Constable 795 Harish Raghav was examined as PW- 2 in Sessions Trial No. 291 of 2012. He has supported the incident as stated by the other witnesses with regard to the information received for a deal of ransom being finalized and on such information two teams of police were formed and they have encountered the accused persons and apprehended them and the child and the ransom amount and recovery of the arms from the apprehended accused persons on the spot. In his cross-examinations, this witness has been firm with regard to the incident of encounter and the arrest of the accused persons, recovery of the ransom amount and the child from such encounter and recovery of the arms from the accused persons. He has denied the suggestions that the accused persons were not arrested on the spot or were arrested from some other place.
26. Similarly, S.I. Pankaj Pant was examined as PW-3 in Sessions Trial No. 291 of 2012. He also supported the information received through the SOG Anil Kaparwan and thereafter forming of the two police teams and they went to the place of occurrence and countered the accused persons and recovered the ransom amount and the child. In the said encounter, six persons were arrested and various arms were recovered from their possession and the ransom amount as well as the recovered child was handed over to the informant. In his cross-examination, he has denied suggestion that the accused persons were not arrested during the encounter and were arrested from their houses.
27. After conclusion of the prosecution witnesses, the statement of the accused persons were recorded under Section 313 Cr.P.C. and the accused persons have denied the allegations against them and claimed that they have been falsely implicated in the case. However, none of the accused have ever been able to demonstrate any reason as to why they were falsely implicated in the case by the police officers.
28. From the aforesaid evidence available on record, the following is proved beyond reasonable doubt that:-
(i) from the statement of PW-1, PW-2 and PW-4 (Anand Kumar), it is proved that on 18.10.2011, when the witness Anand Kumar was going to drop the kidnapped child, Parshva Jain, to his school, some unknown persons came in a Scorpio car and kidnapped the child, Parshva Jain and ran away.
(ii) From the statements of PW-1, Amit Jain, it is also proved that on 18.10. 2011 itself in the evening they had received the ransom call by the kidnappers and the same was informed by him to the police. Thereupon, police kept a surveillance and got to know that a ransom demand of Rs.. 2,00,00,000/- was made by some unknown kidnappers and finally a deal was to be executed on 22.10.2011. On such information received by the Incharge of Special Operation Group- Anil Kaparwal, he alongwith the other police personnel came to the Police Station- Kavi Nagar and discussed the issue with the SHO Avnish Gautam and thereupon they formed two teams and went near the spot where the ransom deal was about to be executed.
(iii) It is further proved that informant- Amit Jain had reached the spot alone in his private car and after a few minutes of his arrival the accused persons had reached the spot alongwith the child. Thereupon, one of the accused persons and the informant talked to each other and the informant had taken out a bag from his car and had proceeded towards the Scorpio car in which the accused persons were present and at that very time the police officers being satisfied that the deal with regard to the ransom was being finalized, surrounded the accused persons. It was at this time that the accused persons fired on them. Thereupon, in retaliation the police personnel also fired and subsequently apprehended six accused persons on the spot and also recovered the child on the spot. It is also evident from the evidence on record that the bag was also recovered, however, from the evidence available on record, there is no definite evidence that any of the police officials have, in fact, counted the ransom amount which is alleged to be there in the bag and though it is being stated that there were Rs. 17,00,000/- in the said bag, none of the witnesses was able to describe as to who had actually counted the said amount or what was the description of the currency notes available in the bag. The witnesses had stated that the said bag was handed over on the spot to the informant-Amit Jain and supurdaginama was prepared. In supurdaginama, the brother of the informant- Atul Jain had signed as witness. However, in the statement he had denied that any handing over of the bag or child has taken place in his presence. PW-3 Atul has denied his presence on the spot and denied that any bag filled with the ransom amount was handed over to the informant in his presence. So far as the recovery of the child on the spot is concerned that has been amply proved through the evidence of PW-1, PW-2. The child was kidnapped and thereafter the said child was recovered after the encounter but with regard to any ransom being paid or demanded, there is very little evidence available on record. Therefore, undoubtedly prosecution one had failed to prove the demand, payment and recovery of ransom amount beyond reasonable doubt. The prosecution has further failed to prove that the accused persons had ever threatened or caused any hurt to the child.
29. From the aforesaid proven facts it is to be examined whether the offence under Section 364A IPC is made out against the accused persons. To determine whether the offence under section 364A IPC is made out or not, it will be relevant to note the provisions of Section 364A IPC, which reads as under:-
"'364-A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
30. In Vinod v. State of Haryana, (2008) 2 SCC 246, the Apex Court has held as under:-
"8. The section refers to both 'kidnapping' and 'abduction'. Section 359 defines kidnapping. As per the said provision there are two types of kidnapping i.e. : (1) kidnapping from India; and (2) kidnapping from lawful guardianship.
9. Abduction is defined in Section 362. The provision envisages two types of abduction i.e. : (1) by force or by compulsion; and/or (2) inducement by deceitful means. The object of such compulsion or inducement must be the going of the victim from any place. The case at hand falls in the second category.
10. To 'induce' means 'to lead into'. Deceit according to its plain dictionary meaning signifies anything intended to mislead another. It is a matter of intention and even if promise held out by the accused was fulfilled by him, the question is : Whether he was acting in a bona fide manner?
11. The offence of abduction is a continuing offence. This section was amended in 1992 by Act 42 of 1993 with effect from 22-5-1993 and it was subsequently amended in 1995 by Act 24 of 1995 with effect from 26-5-1995. The section provides punishment for kidnapping, abduction or detaining for ransom."
31. In Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1, the Apex Court has held as under:-
"92. An argument was raised that the child was kidnapped for ransom but there was no intention to take life of the child, therefore, an offence under Section 364-A is not made out. To appreciate the arguments, Section 364-A IPC is reproduced as under:
'364-A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.'
93. Section 364-A IPC has three ingredients relevant to the present appeals, one, the fact of kidnapping or abduction, second, threatening to cause death or hurt, and last, the conduct giving rise to reasonable apprehension that such person may be put to death or hurt.
94. The kidnapping of an 8-year-old child was unequivocally for ransom. The kidnapping of a victim of such a tender age for ransom has inherent threat to cause death as that alone will force the relatives of such victim to pay ransom. Since the act of kidnapping of a child for ransom has inherent threat to cause death, therefore, the accused have been rightly been convicted for an offence under Section 364-A read with Section 34 IPC. The threat will remain a mere threat, if the victim returns unhurt. In the present case, the victim has been done to death. The threat had become a reality. There is no reason to take different view that the view taken by the learned Sessions Judge as well by the High Court."
32. In Shaik Ahmed v. State of Telangana, (2021) 9 SCC 59, the Apex Court considering the provisions of Section 364A I.P.C. has held as under:-
"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.
34. The second condition which is "and threatens to cause a death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt" is relevant for consideration in this case since appellant has confined his submission only regarding non-fulfilment of this condition. We may also notice that the appellant has filed grounds of appeal before the High Court in which following was stated in Grounds 6 and 7:
"6. The learned Judge failed to see that PW 2 stated that he was treated well and as such there was no threat to cause death or hurt.
7. The learned Judge should have seen that PW 1 did not state that the accused threatened to cause death or hurt to his son."
33. In Malleshi v. State of Karnataka, (2004) 8 SCC 95, the Apex Court has held as under:-
"12. To attract the provisions of Section 364-A what is required to be proved is : (1) that the accused kidnapped or abducted the person; (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal v. State (NCT of Delhi) [2001 Cri LJ 1669 (Del)] to contend that since the ransom demand was not conveyed to the father of PW 2, the intention to demand was not fulfilled.
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."
34. To make a case under section 364A IPC following ingredients are required to be fulfilled:-
(i) whoever kidnaps or abducts any person or keeps a person in determination after such kidnapping or abduction; and
(ii) threaten to cause death or hurt to such person or by its conduct gives rise to enable apprehension that such persons maybe 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 Intergovernmental organisation or any other person to do or abstain from doing any act or pay ransom;
(iv) if all the above three conditions are fulfilled, then, such persons shall be punished with death or imprisonment for life and shall also be liable to fine.
35. From the evidence available on record as noted hereinabove, there is enough evidence that the child, Parshva Jain was kidnapped by some unknown persons and the said child was recovered from the possession and detention of the accused persons and all the six accused persons were apprehended in the encounter and the child was recovered from their possession. However, from the entire evidence available on record, there is no evidence available with regard to the fact that such kidnappers had ever threatened to cause death or hurt to the kidnapped child. It was certain that none of the conduct of the accused persons had ever given any reasonable apprehension that the said child may be put to death or would be hurt, therefore, the second condition is entirely absent from the evidence brought on record by the prosecution in the instant case. With regard to the third condition, there was definitely no hurt caused or anyone was put to death. However, there is some evidence for demand of ransom san the threat of causing hurt or death to any person. Also, the prosecution has failed to establish demand, payment and recovery of ransom amount beyond reasonable doubt. From perusal of the records as well as the statement of the victim P.W. 2 parshva Jain, it is clear that there was no threat to him of being put to death or of being hurt. Nor there was any such apprehension that the victim may be put to death or would be hurt in the absence of ransom. In his statement the PW-2 has specifically stated that the kidnappers used to provide him food and he had also stated that his father had not informed him about the ransom. Another aspect of the matter so far ransom part is concerned is that the prosecution had come with a clear case that an amount of Rs. 17,00,000/- which was kept in the black bag and was brought by the informant to pay to the kidnappers had been handed over to the informant on the spot itself and superdiginama of the said Bag (Ext. Ka-7) and the superdiginama of the recovered child (Ext.Ka-2) were also prepared in which P.W. 3 Atul Jain had signed as a witness but P.W.3 Atul Jain in his deposition has clearly stated he had no personal knowledge that how his nephew had been recovered and he came to know from his brother- informant-Amit Jain that the police had got recovered the victim from the kidnappers. Therefore, the prosecution had completely failed to establish that there was any threat to cause death or hurt to the victim and there was any such apprehension that the victim may be put to death or would be hurt to pay a ransom, as provided in Section 364-A IPC. The other aspect of the matter with regard to the recovery of bag and the cash kept therein is concerned, there is nothing on record that the cash of Rs. 17,00,000/- alleged to be carried by the informant had ever been counted by the police or had been made case property and it is alleged that the same was handed over the informant on the very same date under superdiginama (Ext. Ka-7) in the presence of Atul Jain, P.W. 3, who is a witness of superdiginama and brother of the informant but in his deposition he had shown his ignorance of any such fact. Therefore, since all the three conditions mentioned above are not fulfilled in the instant case, therefore, it cannot be concluded that the accused persons had committed any offence under Section 364A IPC. However, we have to consider as to what is the offence made out against the appellants.
36. Learned counsel for the State has vehemently submitted that though the offence under Section 364 A IPC may not be made out as the conditions with regard to the threat to cause death or hurt had not been established nor there was any definite proof with regard to the demand and payment of ransom, then, definitely the act of the accused persons would come within the purview of Section 365 IPC, which reads as under:-
"Section 365. Kidnapping or abducting with intent secretly and wrongfully to confine person- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
37. In Mulla v. State of U.P. [(2010) 3 SCC 508 : (2010) 2 SCC (Cri) 1150] , after considering various earlier decisions, this Court held as under:
"67. It is settled legal position that the punishment must fit the crime. It is the duty of the court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime."
38. In the instant case, the child was kidnapped and was kept secretly and confined wrongfully and was subsequently recovered from the possessions of the accused persons herein, who were apprehended on the spot by the police teams. However, the prosecution has failed to prove the demand payment and recovery of ransom amount. Further, no threat of causing death or hurt to the child had been established.
39. For all the reasons stated above, in our considered opinion the charge under section 364-A IPC is not made out against the appellants and since the child was abducted and kept secretly and wrongfully confined and was recovered from the possession of the appellants, therefore, at the most offence under Section 365 IPC is made out against the appellants. Accordingly, the appellants are acquitted of the charge under section 364-A IPC and instead they are convicted for the offence under section 365 IPC and sentenced to seven years imprisonment with fine of Rs.50,000/- each. With regard to the conviction of the accused persons for the offences under Sections 147, 148, 307/149 IPC we uphold their conviction and the sentence as was awarded by the Additional Sessions Judge. Since the trial court had already directed that all the sentences would run concurrently and since it has been informed by the learned counsel for the appellants that all the appellants have already undergone sentence for more than 10 years. We hold that the appellants are entitled to be released from jail forthwith, if they are not required in any other case.
40. Therefore, it is directed that the concerned Jail Authorities shall verify the aforesaid facts that if all the appellants have completed their sentences as modified hereinabove, they shall be released forthwith, if they are not required in any other case with the aforesaid observations, these appeals are partly allowed.
41. We appreciate the hard work done by learned Amicus Curiae, Sri Sikandar B. Kochar and put on record our gratitude. We further direct the Legal Services Authority to make payment of Rs. 25,000/- per appeal as Honorarium in which the learned Amicus Curiae argued.
Order: 22nd March, 2024
Shubham Arya
(Anish Kumar Gupta,J.) (Siddhartha Varma,J.)