Mahesh Shah vs State Of U.P.
2015 Latest Caselaw 1828 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R
 
								        RESERVED
 
			
 
Court No. - 46 						            						
 
Case :- CRIMINAL APPEAL No. - 1509 of 2007
 

 
Appellant :- Mahesh Shah
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kavita Tomar,Jai Raj Singh Tomar,R.C.Upadhaya
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

( Per Raghvendra Kumar,J.)

1 Heard learned counsel for the appellant and learned A.G.A. for the State of U.P.

2. This appeal has been filed on behalf of Mahesh Shah against the judgement and order dated 12.2.2007 passed by special Judge (D.A.A)/A.D.J., Court No.2, Etawah in S.S.T. No. 48 of 2005 under section 364 A, 368,120B, I.P.C. P.S. Civil Line, District Etawah whereby the accused Pappu Shah alias Jitendra , Mahesh Shah have been convicted for the offence under section 364A/368 IPC and each of them was sentenced with imprisonment for life for both the offences and also fine of Rs. 5000/- each with default stipulation of one year R.I. Both the accused persons, named above, have been acquitted for the offence under section 120 B I.P.C. The accused Kamlesh has been acquitted for the offence under section 364 A/368 and 120 B I.P.C.

3. As per the prosecution version, the F.I.R. was lodged with the police on 31.1.2004 at 20.10 p.m. with respect to the incident that occurred on 31.1.2004 at 5.30 p.m. Perusal of the F.I.R. reveals that one boy in the name of Prashant was working in the team of labourers of informant- Pradeep Yadav. His residential address was not known to him. He was working for the last two months alongwith other labourers. About 5 to 6 days prior to the incident, he came to the house of the informant and used to take meals there and used to sleep in the Garage. Thus he developed acquaintance with his son Master Shubh aged about one and half years. On 31.1.2004 at about 5.30 p.m., he took away Master Shubh in his lap out of the house and did not come back. Thereafter a search was made. Inspite of search the boy could not be traced and the matter was reported to the police station on 31.1.2004 at 20:10 hours. The description of the accused, namely Prasant was mentioned in the report. After registration of the case, the investigation proceeded in accordance with law. On 5.2.2004, the Station Officer of P.S. Basantpur, District- Siwan, State of Bihar received a confidential/secret information about the presence of small outsider child in the house of accused Mahesh who has been kidnapped. Acting upon the information, the Station Officer of P.S. Basantpur alongwith police officials and other inmates of the village conducted the search on 5/6.2.2004 at about 1.00 a.m. in the night and recovered one and half years child wearing blue ready-made jacket on a plank (wooden cot) from the room in presence of Pappu Shah alias Jitendra and Mahesh Shah. The recovery memo was prepared and the relevant entry was made in the G.D. of P.S. Basantpur at serial no. 85 on 6.2.2004.The accused Pappu Shah alias Jitendra told about the kidnapping of the son of informant Pradeep Yadav and also disclosed the telephone number. The investigating Officer visited the place of recovery of the child and prepared its site plan and recorded the statements of the witnesses etc.

4. The investigation of the case culminated into filing of police report in the shape of charge sheet against the accused persons, Pappu Shah alias Jitendra, Mahesh Shah, Kamlesh and Shakti Singh.

5. During the course of arguments, it has been pointed out by the learned counsel for the appellant that the instant appeal has been filed on behalf of the accused Mahesh Shah. The accused Pappu Shah alias Jitendra has not filed any appeal against the order of conviction and the sentence passed against him by the Court. The accused Kamlesh has been acquitted. The file of the accused Shakti Singh has already been separated by the trial court. Learned A.G.A has conceded the above facts and submitted that the appeal of the accused Mahesh Shah is pending before the Bench for consideration. It has been further submitted by the learned A.G.A that no Government appeal has been preferred by the State against the order of acquittal recorded in favour of accused- Kamlesh.

6. According to the defence version, the accused claimed himself to be innocent. He demanded the salary amount from the informant whereby he felt annoyed and was falsely implicated in this case. He has denied the recovery of the child from his room. He has taken defence of total denial.

7. After complying with the procedures, the charge was framed against the accused persons Pappu Shah alias Jitendra, Mahesh Shah, Kamlesh and Shakti Singh for the offence under section 364 A, 120-B and 368 I.P.C.

8. To substantiate the charge against the accused persons, the prosecution has examined, P.W.1- Preadeep Yadav, P.W.2- Smt. Sunita, P.W.3- Shubh Yadav, P.W.4- Mahesh Pal Singh, Head Constable, who has proved the execution of Ex. Ka 3 chick F.I.R and relevant entry of G.D. Ex.Ka4. He is the formal witness. P.W.5, Ram Kishore Saran, Incharge of P.S. Basantpur, District Shiwan (Bihar) has proved the factum of recovery and has proved the relevant entry of G.D and execution of recovery memo Ex.Ka.5. P.W.6,Chhatrapati Singh, S.I. who has proved the execution of site plan Ex. Ka. 6 and G.D entry Ex. Ka. 7 and document relating to the custody (supurdagi) of the child (Master Shubh) Ex. Ka.8 and charge sheet. He is also formal witness. P.W.7, Pal Singh, Constable has proved the execution of G.D. entry dated 9.2.2004 and G.D entry of 11.2.2004 Ex. Ka.9 and Ex. Ka. 10.

9. The statement of the accused persons under section 313 Cr.P.C was recorded by the trial court.

10. Arvind Kumar Singh, D.W.1 and Baijnath Singh, D.W.2 have been examined in defence by the appellant.

11. After appreciating the evidence, the learned trial court convicted the accused-appellant which resulted in the instant appeal.

12. It has been submitted on behalf of the appellant that the accused is innocent and when the accused Prashant @ Pappu @ Jitendra Shah demanded the salary amount from the complainant-informant which annoyed him due to such annoyance the accused was falsely implicated in the case. The appellant has completely denied the prosecution case. Further submission has been made to the effect that the alleged recovery of child does not inspire confidence as the same has been proved only by the sole police witness. The public witnesses of the said recovery have not been examined. The copy of recovery memo/arrest memo was not given to the accused persons nor their signatures were obtained. Learned counsel for the appellant further contended that P.W.1 and 2 respectively are father and mother of the child. They are related and interested witnesses. Their testimony can not be relied upon. No one has witnessed the incident of taking away of the child from the house of the informant. Learned counsel for the appellant laid much emphasis on the ground that no demand of ransom was made from the informant by the appellant through telephone or by any other means. Hence, offence under section 364-A I.P.C was not made out against the accused persons and learned Trial Court only on the basis of presumption and inference has convicted the appellant.

13. Refuting the arguments of the learned counsel for the appellant, learned A.G.A has submitted that the recovery has been made from the village Rampur, P.S. Basantpur, District Shivan ( Bihar). After recovery, telephonic message was given to the informant whereupon the informant visited the place of recovery alongwith police of P.S concerned. The child was given in the supurdagi of the informant. There is no animus of giving false evidence by the police of P.S. Basantpur, District Shivan (Bihar) who is the witness of recovery. The recovery has been made from a room in the presence of accused Pappu Shah alias Jitendra and Mahesh shah.

14. It has been submitted on behalf of the appellant that the result of instant appeal would have an impact upon the co-accused who has not even preferred the appeal and is languishing in jail.

15. While deciding the appeal, the High Court guided by the principle laid down by Hon'ble Apex Court from time to time. The Hon'ble Apex Court has propounded the following principles in Padam Singh Vs. State of U.P. reported in 2000 (1) SCC 621 which is quoted here:

"it is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independant conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

16. The guidelines have been issued by three Judges Bench of the Hon'ble Apex Court in case of Majjal Vs. State of Haryana, 2013 (6) SCC 798 which is as under:

"It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which to to the root of the matter."

17. The aforesaid observations have been quoted by the Hon'ble Apex Court in a very recent judgment in the case of Kamlesh Prabhudas Tanna and Anr V. State of Gujarat reported in 2014 Cr.LJ 443.

18. Keeping in view the propositions cited above, the Court is to scrutinize the evidence available before it afresh and to draw the conclusion accordingly, bearing in mind the presumption of innocence of accused unless otherwise is established from evidence available on record without being influenced by the findings recorded by learned trial court.

19. So far as offence under section 364A I.P.C. is concerned, it has become very sensitive nowadays. Considering the sensitivity of the offence and its prevalence in the society, it has always been endeavour of the court to appreciate the evidence available on record to ensure whether necessary ingredients of the offence under section 364A I.P.C are satisfied. Before appraisal of the evidence, it would be appropriate to peruse the provisions of section 364 A as contained in I.P.C.

"Section 364A deals with 'Kidnapping for ransom etc.' This Section reads as follows:

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 intergovernmental organization 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."

(under lined by us)

20. 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.

21. 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 taking away of the victim from any place. The case at hand falls in the second category.

22. To attract the provisions of Section 364A what is required to be proved is (1) that the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction;and (3) that the kidnapping or abduction was for ransom (4) there must exist threat to cause death or hurt to such person or their conduct, gives rise to an apprehension that such person may be put to death or hurt or causes death or hurt of such person.

23. In the case of Vinod v/s State of Haryana MANU/SC/70052008 Hon'ble Apex Court has held that to attract the provisions of Section 364A what is required to be proved is (1) that the accused kidnapped or abducted the person, and (2) kept him under detention after such kidnapping and abduction,and (3) that the kidnapping or abduction was for ransom. Similar view was expressed by Hon'ble Apex Court in the case of Akram Khan v/s State of West Bengal MANU/SC/1470/2011.

24. The 'word' ransom means as per Concise Oxford English Dictionary, 2002, p. 1186. 'to hold some-one captive and demand for payment for their release, Money paid to have a kidnapped person released. So the person abducted or kidnapped must be in the custody of the person at the time demand of ransom is made or communicated.

25. It has been vehemently argued on behalf of the appellant that P.W.-1 and P.W.-2 are the parents of the child respectively father and mother. They are related and interested witnesses and their testimony has not been corroborated by any independent witness, hence reliance cannot be placed on their testimony. This point has been considered by the Apex Court in catena of decision laying down the guidelines for appreciating the evidence of related or interested witnesses.

26. Hon'ble the Apex Court has opined in the case of Shiv Ram and Anr v State of U. P. reported in (1998) 1 SCC 149 that nowadays it is common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased person. But, what is required is that the Court must scrutinize the evidence with utmost care and caution. Time and again, it has also been stated by Hon'ble the Apex Court that civilized people are in general insensitive when the crime is committed even in their presence, they withdraw themselves from both victim and the assailants. They keep themselves away from the Court. Evidence has to be appreciated keeping in view such ground realities. The Court instead of doubting prosecution case when no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for nugget of truth with doubt of probability, if any suggested by the accused.

27. Hon'ble the Apex Court in its judgment in the case of Kuria and Another vs State of Rajasthan, (2012) 10 SCC 433 has held in paragraph 34 as under:-

"The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly reliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar vs State of Punjab, (2203) 11 SCC 367, Brathi vs State of Punjab (1991) 1 SCC 519 and Alaguapndi vs State of T. N., (2012) 10 SCC 451."

28. In a recent judgment in the case of Gurjit Singh and Ors. v State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative. Apart from it, Hon'ble the Apex Court in the case of Veer Singh and Ors. v State of U. P. reported in (2014) 2 SCC 455 has observed that court can and may act on the single testimony. Legal system has laid emphasis on value, weight and quality of evidence rather than the quantity.

29. The position has been crystallized with respect to appreciation of evidence of interested or related witness through catena of decisions. In such situation Courts have been enjoined with a greater responsibility of scrutinizing the evidence of related or interested witness with utmost care and precaution and if the Court after considering the evidence of such witnesses in its entirety, is of the opinion that their testimony is credible, reliable and trustworthy, then there would be no legal impediment in placing reliance upon testimony of such a related or interested witness.

30. From the perusal of the case law cited above, it can safely be discerned that mere on the score of witness being related or interested, his testimony cannot be discarded, but in such circumstances, a heavy duty is cast upon the Court to scrutinize the evidence of the related witness with utmost care and caution. After critical appraisal of the evidence the reliance is required to be placed upon the testimony of such witness if it inspires confidence.

31. It is evident from the testimony of Pradeep Yadav (P.W.-1) that one Prashant was engaged by P.W.-1 as labour, who after sometime started working at the house of the P.W.-1 as a domestic help, whereby he developed acquaintance with the family members and the child as well. It has been alleged by the P.W.-1 that his son Master Subh, aged about one and a half years was taken away by the Prashant. The recovery of the child is alleged to have been made from village within P.S. Basantpur, District- Siwan Bihar from a room in the presence of accused Prashant @ Pappu Shah @ Jitendra Shah and Mahesh Shah.

32. First and fore most question is regarding the identity of the accused Prashant whether he is the same person with the name of Jitendra @ Pappu Shah. P.W.-1 and P.W.-2 have been proved his identity in the Court. P.W.-1 in his statement on oath has stated that accused Prashant was his servant who after the recovery of the child disclosed his correct name as Pappu Shah @ Jitendra Shah in the presence of police. P.W.-2 (Sunita) has stated that accused Pappu Shah while working as a servant was mixed up with the family who has taken away the boy. Nothing has been elicited through the cross examination of P.W.-1 and 2 so as to establish that Prashant and Pappu @ Jitendra are two different person. No where such suggestion has been given. In absence of any suggestion or any alternative plea in the statement under Section 313 Cr.P.C., it cannot be inferred that Pappu Shah @ Jitendra Shah and Prashant were two different persons whereas identity of the person (Prashant @ Pappu Shah @ Jitendra) who had taken away the child has been well established in the Court through the oral testimony of P.W.-1 and P.W.-2. Thus we are of the considered opinion that Prashant and Pappu Shah @ Jitendra is one and the same person.

33. So far as the evidence of kidnapping of Subh is concerned, it has categorically been admitted by P.W.-1 that when Prashant had kidnapped the child (Subh) he was not available in the house and he was sitting 100 paces away in the market. He further conceded that the child (Subh) was not kidnapped in his presence by accused- Prashant. He further conceded that taking away the child by accused Prashant @ Jitendra @ Pappu was told to him by his wife. As such the testimony of P.W.-1 is of no avail with respect to kidnapping of the child by the accused Prashant @ Pappu @ Jitendra Shah.

34. Thus, remain the testimony of P.W.-2 for scrutiny with respect to taking away of the child by the accused Prashant @ Pappu @ Jitendra on the date, time, place and the manner as alleged in the FIR.

35. P.W.-2 (Sunita) is the mother of the child who was present at the relevant time of kidnapping of the child by the accused Pappu @ Jitendra @ Prashant. Her presence in the house was natural. She has categorically stated in her on oath statement that on 31.1.2004 at about 5:30 p.m., the accused had taken away to the child. When the accused Pappu Shah @ Jitendra Shah did not come back after a lapse of sufficient time, a search of the child was made. When the child could not be traced, the FIR of the incident was lodged by her husband. The witness has been put to a lengthy cross examination in which she has admitted that the accused Prashant @ Pappu Shah @ Jitendra had come to her house 5 to 6 days back. She did not know any details about the accused. He was mixed up with the family as well as the child. He became familiar to everyone of the family. Nothing could be extracted from the witnesses by way of cross examination whereby it can be said that she had made any admission in the cross examination which materially prejudice the statement recorded in examination-in-chief or which is contrary to any averment made. She is the mother of the child. She had no occasion to falsely implicate the accused Pappu @ Jitendra @ Prashant. She has not stated in her statement to the I.O. under Section 161 Cr.P.C. about any demand of ransom. She being the sole witness mere on the ground of relationship or witnesses not required to be discarded since there is no contradiction between the examination in-chief and the cross examination of the witness. On the careful scrutiny of the entire testimony, it does not appear that she has given any exaggerated version of the incident. Her testimony with respect to taking away of the child from the lawful custody of the parents by a accused Pappu @ Jitendra @ Prashant has although been consistent with FIR thus inspire confidence as she was the most natural witness on this point. The witnesses appear to be credible and trustworthy and there is no legal impediment to place reliance upon the testimony of the witnesses with respect to taking away of the child.

36. During the course of cross examination, it has categorically been admitted by P.W.-1 that no demand for any ransom was made through letter or message or by any other mode. No such statement was given by P.W.-1 to the I.O. under Section 161 Cr.P.C. In view of the above admission, it can safely be inferred that taking away of the child was not for any ransom.

37. P.W.-3 (Subh Yadav) the victim child has been discharged by the learned trial court. P.W.-4 has formally proved the chick FIR and G.D. He is the formal witness.

38. As per prosecution version, the recovery of child was made by the police of P.S. Basantpur, District Shiwan ( Bihar) on 5/6.2.2004 in the night. To substantiate this fact P.W.5, Ram Kishore Incharge of P.S. Basantpur, District Shiwan has been examined. He has categorically stated that he received information about the presence of unknown boy who has been kidnapped by the accused Mahesh Shah. Acting upon information he alongwith witnesses of public and police officials conducted search in the night of 5/6.2.2004 at the house of Mahesh Shah and recovered the child from the room in presence of accused Mahesh Shah and Pappu alias Jitendra alias Prasant. The recovery of boy and arrest memo was prepared on the spot and it was duly signed and relevant entry was made in the G.D. Which has been marked as Ex. Ka 5. The recovery memo has been assailed on behalf of learned counsel for the appellant on the ground that it has not been signed by the witnesses in whose presence the recovery of the boy was made and the arrest of the accused persons was effected.

39. The matter of recovery of child in the case of kidnapping has always been a very sensitive circumstance. In the event of recovery it has always been endeavour of the authority to ensure safety and security of the child in all circumstances. Even if for arguments sake it is conceded that no signature of the public witnesses or accused persons or police officials were obtained on the recovery memo, it would be incumbent upon the court to see whether on such score alone the factum of recovery would be discarded. It is admitted that the boy belongs to the District of Etawah (U.P.). The aspect of animosity with the accused persons from whose possession the recovery was made can not be sustained with the kidnapped boy or with the informant. The accused Mahesh Shah was neither known to the informant nor was a regular employee with the informant as per evidence.

40. The recovery has been made by the police of P.S. Basantpur, District Shiwan ( Bihar) From perusal of the statement of P.W.5, it is clear that P.W.5, Ram Kishore Saran received information through telephone about presence of kidnapped boy at the place of Mahesh Shah. The recovery of the boy was made pursuant to the information received by him in the presence of accused Mahesh Shah, Pappu alias Jitendra from the room where Mahesh was residing. It is Pappu alias Jitendra who provided telephone number of Pradeep Yadav- informant to P.W.5. The recovery of boy was even taking to the residence of the then Chief Minister of Bihar and this fact as stated by P.W.5 finds support to the testimony of P.W.1 that from Basantpur the child was called upon by the then Chief Minister. This fact further fortifies the factum of recovery of the child from Bihar and the story set up by P.W.5 appears to have force and inspire confidence.

41. After recovery of the child, the factum of recovery was mentioned in the G.D. of the concerned police station. The G.D. is a document maintained at the police station and the entries therein are made in the due discharge of official duties. The entry of the G.D. has been proved by the P.W.-5 which supports the oral testimony of P.W.-5

42. It has always been the efforts of the court to impart substantial justice in any matter which is pending before the court. Any lapse or omission by any officials during discharge of official obligation should be treated to be bonafide unless otherwise is established because it is established presumption that public servant discharge their obligation honestly bonafidely, sincerely and with commitment though this presumption is rebuttable. Hypertechnical approach regarding absence of signatures on the recovery memo would not have affect of negating the factum of recovery. From perusal of Ex. Ka 5 which is copy of recovery bears the signatures of Ram Adhar Singh and Kapildev who are alleged to be witnesses of recovery. They have not been examined. Now the question for consideration would be before court that whether non examination of the witnesses would belie the entire story of recovery of child from the place of Mahesh Shah in his presence and Pappu alias Jitendra as well.

43. It would be appropriate to consider the legal proposition enunciated by Hon'ble Apex Court from time to time regarding appreciation of police report. It has been categorically stated in the case of Yakub Abdul Razak Memon Vs. State of Maharashtra, reported in (2013)13 SCC 1 as follows:

" The evidence of police officials can be held to be worthy of acceptance even if no independent witness has been examined. In such a fact situation, a duty is cast on the court to adopt greater care while scrutinising the evidence of the police official. If the evidence of the police official is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined"

44. In the case of Kalpnath Rai Vs. State through CBI reported in (1997)8 SCC 732: AIR 1998 SC 201, Hon'ble Apex has further held as under:

"There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non- examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that the court must reject the prosecution version solely on the ground that no independent witness was examined"

45. In view of the propositions laid above, the testimony of police officer can be relied upon even in the absence of independent witness. What is required that the scrutiny should be made with greater caution and care. Merely the witness being a police officer, his testimony cannot be discarded even if the independent witnesses have not been examined. This fact can also not been ignored that the child was kidnapped from Etawah and the raid was conducted in the night. There was no occasion for P.W.-5 (Ram Kishore Saran) to falsely show the recovery of the child from the alleged place. No such suggestion has been given on behalf of the accused- appellant that a false recovery has been shown from the place to falsely implicate. In absence of such suggestion no adverse inference can be drawn against the testimony of P.W.-5. No specific question was put to the witness- P.W.-5 by way of cross examination. When the factum of recovery of the child was put to appellant under Section 313 Cr.P.C. he has simply replied as "JHUTHI GAWAHI DI HAI" (falsely deposed). No specific reply has been given. Simply a plea of false recovery has been taken in his statement under Section 313 Cr.P.C. which is general in nature.

46. It is settled proposition of law that whenever any specific question is put, it should be categorically replied by the accused. In the absence of any specific suggestion or specific reasons for showing false recovery, it does not appear justifiable to discard the testimony of P.W.-5 regarding recovery of the child on the date, time and place of recovery from the room in the presence of accused Pappu @ Jitendra and Mahesh Shah.

47. In the instant case, the question was put about the recovery of the child in the night of 5/6th February, 2004 from the house of Mahesh Shah from a wooden plank in a room in the presence of accused persons namely, Mahesh Shah and Pappu Shah @ Jitendra @ Prashant, in the presence of public witnesses Ram Adhar and Kapil Dev has been replied by the accused by giving a generalised answer statement that "falsely deposed". Nowhere any suggestion has been given to the witnesses on behalf of the accused-appellant during the course of trial by way of cross examination about any animosity of the accused persons with P.W.-5 whereby a false recovery has been shown. The statement of P.W.-1 and P.W.-5 bring out the fact that the kidnapped child was taken to the residence of then Chief Minister of the State. This fact fortifies the testimony of P.W.-5 and goes to prove the recovery from Bihar. The execution of Ex-Ka-5 has been duly proved which bears the information regarding date, time and place of recovery and name of witnesses in whose presence recovery was made and what recovery was made. This bears the signature of Ram Adhar and Kapil Dev (both public men). The argument of the defence that there was no public witness of the recovery. Thus can not be sustained.

48. From the material available on record, it is established that no demand of ransom was ever made to the P.W.-1 and P.W.-2. No evidence is available on record to show that the child was kidnapped with the purpose of murder. Since taking away the child from the lawful guardianship has been established from the evidence, it clearly indicates that the offence committed by the accused persons would come only within the purview of an offence under Section 363 IPC instead of 364-A IPC.

49. It has been pointed out by the defence that accused-appellant is in jail since April, 2004.

50. On the basis of reasons discussed in the body of the judgment, we are of the considered opinion that in absence of any demand for ransom, the finding of conviction recorded by the learned court below against appellant Mahesh Shah and Pappu Shah @ Jitendra @ Prashant (Not appealed) for the offence under Section 364-A IPC cannot be sustained and the learned court below has erred in appreciation of evidence in right perspective.

51. In view of discussion made above, we are of the considered view that the appellant and co-accused had taken away the victim- Subh. He was taken away from Etawah to Basantpur where he was kept in their home, but there is absolutely no evidence that any ransom was demanded from the parents of the victim by the appellant. There is absolutely no evidence that any hurt was caused to the victim. The attending circumstances clearly indicates that there was no intention of the accused persons to kill the victim. Had they any other intention then they could have done it in Etawah (U.P.) or at any other adjoining place, but they had taken the victim to Siwan, State of Bihar. The witnesses of fact have clearly admitted that no demand of ransom was communicated. The offence proved is that a minor boy was kidnapped and was kept in confinement in the house of the appellant. There is no evidence of demand of ransom or communication of any such demand.

52. Thus, the offence committed by the appellant and convicted accused would not travel beyond the purview of Sections 363 and 368 IPC. Learned trial court only on the basis of inference has drawn the conclusion that the kidnapping was done with the intention of demanding ransom. So, the conviction of the appellant and the other convicted accused for the offence under Section 364-A IPC cannot be sustained under law.

53. The conviction of appellant Mahesh Shah deserves to be modified from Section 364-A/368 IPC to Section 363/368 IPC. The appellant and the convicted accused Pappu Shah @ Jitendra @ Prashant are continuously in custody from the date of arrest i.e. 6.2.2004 and they have already undergone more than 11 years detention. So, in our considered opinion the end of justice would meet if the appellant and the other convicted accused are sentenced with imprisonment for the period already undergone by them.

54. Accordingly the appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant is hereby modified under Section 363 and 368 IPC and for both the offences, he is sentenced with imprisonment for the period already undergone by him in the instant case.

55. Though the other convicted accused has not preferred any appeal, but we have concluded that the offence committed by the accused persons was only in the purview of Section 363 and 368 IPC. Therefore, in the absence of any appeal, in the interest of justice, the benefit of this judgment must also be extended to the co-accused Pappu @ Jitendra @ Prashant, who has not preferred any appeal. Since he has also undergone the same period, therefore, the benefit of this judgment is also hereby extended to him.

56. The appellant Mahesh Shah and the co-accused Pappu Shah @ Jitendra @ Prashant, who has not preferred an appeal are in custody. They shall be released forthwith if not wanted in any other case.

57. Office is directed to communicate this order to the Court concerned and also to send back the lower court record forthwith for compliance.

Dated : 17th August, 2015

R/KU

Raghvendra Kumar, J. S.V. S. Rathore, J.