Back
ALLAHABAD HIGH COURT
Pritinker Diwaker, C.J. and
Nalin Kumar Srivastava, J.
Indra Pal and Anr. – Appellants
versus
State of U.P. – Respondent
Criminal Appeal No.8080 of 2008 with Criminal Appeal No.8477 of 2008
Decided on 25.04.2023
(A) Indian Penal Code, 1860 – Section 149 – Attempt to murder – It is not necessary that injury capable of causing death, should have been inflicted – What is material to attract provisions of Section 307 is intention or knowledge with which all was done, irrespective of its result – Intention and knowledge are matters of inference from totality of circumstances and cannot be measured merely from results – Question of intention to kill or knowledge of death is always a question of fact and not of law – Section 307, I.P.C. does not require that injury should be on vital part of body – Merely causing hurt with intention or knowledge of causing death is sufficient to attract Section 307, I.P.C. (Paras 37 and 43)
(B) Indian Penal Code, 1860 – Sections 364A and 307 read with Section 149 – Kidnapping for ransom and attempt to murder – Common object – Conviction and sentence – One gunshot injury was inflicted upon injured during commission of offence of kidnapping – Trial court has made anxious consideration of evidence on record and has rightly convicted appellants under Sections 307/149 I.P.C. – Boy was recovered after encounter between Police and accused persons – Prosecution has fully proved that kidnapped boy was recovered from possession of accused appellants – Prosecution is under obligation to establish that demand of ransom was made on family of complainant and it is also to be kept in mind that in absence of there being any communication demanding payment of ransom, case of prosecution will not be covered under Section 364A I.P.C. – Evidence on record fulfills all ingredients of Section 365 of IPC – Conviction and sentence under Section 307/149 IPC affirmed – Conviction and sentence under Section 364A of IPC modified to one under Section 365 of IPC. (Paras 45, 48, 52, 76 and 77)
(C) Indian Evidence Act, 1872 – Section 65 – Secondary evidence – If original copy of any document is available it is primary evidence and such document must be proved by virtue of Section 64 of Evidence Act – In matter in hand, nowhere it has been explained by prosecution that as to why original ransom inland letter could not be produced before Court – Unless prosecution shows that original has been lost or destroyed or falls in any of categories mentioned in Section 65 of Evidence Act, it was not permitted to produce photocopy of document as secondary evidence – Wrong procedure was adopted by prosecution to prove photocopy of alleged ransom letter without showing its inability to produce original thereof before Court. (Para 66)
Result: Criminal Appeals Partly allowed.
JUDGMENT
Nalin Kumar Srivastava, J.—Since these appeals have been preferred against the same judgment and relate to same Crime Number, they were heard together and are being decided by this common judgment.
2. The Special Judge (DAA)/Additional Sessions Judge, Court No.5, Etah by judgment and order dated 22.11.2008 passed in Special Sessions Trial No. 25 of 1998 (Crime No. 346 of 1997), P.S. Soron, District Etah convicted and sentenced the appellants under Section 364A I.P.C. to undergo life imprisonment with a fine of Rs. 2,000/- each and under Section 307 I.P.C. read with Section 149 I.P.C. to undergo seven years rigorous imprisonment with a fine of Rs. 500/- each and in default of payment of fine, to undergo three months additional rigorous imprisonment. All the sentences were directed to run concurrently. Aggrieved with the said judgment, present appeals have been preferred by the appellants.
3. Brief facts, as culled out from the record, are that a First Information Report was lodged by the informant, Chandra Pal son of Roopram, resident of Badanpur, Police Station Soron, District Etah, on 22.11.1997 at 2.45 p.m., with the averments that in the night of 21/22.11.1997, as usual, he was sleeping inside his shop and his wife Prema Devi was sleeping in the shed with the kids and nearby his children were also sleeping on different cots. At about 12.00 p.m. when the wife of the informant made noise that miscreants had come, he came out unlocking the shop. Six seven miscreants came and took his 11 years old son Rajesh. On raising alarm by the informant and his wife, his neighbors also came there. When everyone tried to rescue the boy from the miscreants, they fired with guns and went towards south with the boy. Jabar Singh son of Siya Ram Jatav received gunshot injury in the occurrence.
4. On the basis of aforesaid written report, on 22.11.1997 F.I.R. was lodged against 6-7 unknown miscreants for the offence under Sections 364 and 307 I.P.C. Investigating Officer started investigation and inspected the spot and prepared the site plan. Injured Jabar Singh was medically examined on the same day at the Community Health Centre, Soron, Etah. During the course of investigation, on the basis of an information dated 4.12.1997, the Investigating Officer with other police personnel, reached Badanpur where the informant Chandrapal met and handed over a letter regarding demand of ransom of Rs. 70,000/- in respect of the kidnapped boy. When the police personnel alongwith the informant and other persons, with a view to search out the kidnapped boy, reached the old brick kiln before the village Goyti, information was received that in the house of Pusey son of Sonpal Kashyap, the kidnapped boy alongwith the kidnappers are present. On the basis of the said information, the police personnel alongwith informer and other persons, reached at village Chauraghat and when on the tip of the informer, reached the corner of the western wall of the house of Pusey Kashyap, it was seen that six persons, armed with gun and tamancha, were sitting on the north face of the roof (kotha) and when they saw the police personnel, they fired 5-6 shots with intention to kill them. In their defence, the police personnel also fired upon them and by using necessary force, two miscreants were caught by surrounding them in front of Pusey’s house and the remaining four miscreants, namely, Pusey, Mahatma, Awadhesh and Kallu managed to escape. Of the criminals caught, one told his name as Shripal son of Chhuni Lal, resident of Pachauraghat, P.S. Soron, District Etah and on his search, one SBBL gun 12 bore with three live cartridges of 12 bore were recovered, whereas the other person identified himself as Indrapal son of Anar Singh, resident of Badanpur, P.S. Soron, District Etah. On his search, one tamancha deshi bore and two live cartridges were recovered. On the pointing out of Shripal, the kidnapped boy was recovered from the Pusey’s roof (kotha). Informant Chandrapal ide
Kidnapping for ransom under Section 364A requires proof of abduction and threats of death or harm, which was established in this case.
The prosecution must prove threats to cause death or hurt for a conviction under Section 364A IPC; failure to do so leads to a conviction under Section 365 IPC for wrongful confinement.
The prosecution's failure to establish the fundamental elements of kidnapping and ransom resulted in the High Court overturning the convictions due to lack of evidence and procedural irregularities.
Prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubt, for committing an offence under Section 364(A) IPC.
The essential ingredients for a conviction under Section 364-A IPC include proof of kidnapping, a demand for ransom, and a threat to the victim's life, all of which must be established beyond a reaso....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
