Dinesh vs State Of U.P.
2021 Latest Caselaw 2118 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 2951 of 2009
 

 
Appellant :- Dinesh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Jail Appeal,Rajeev Raman Srivastava A
 
Counsel for Respondent :- Govt. Advocate,Amicus Curaie
 

 
Hon'ble Ved Prakash Vaish,J.

1. This is a jail appeal sent by the appellant, namely, Dinesh, S/o Baijnath against the judgment and order dated 14th July, 2009 passed by learned Additional District and Sessions Judge, Lucknow in Sessions Trial No.587/08 whereby the appellant has been convicted for the offence under Sections 364 and 368 Indian Penal Code ('I.P.C.') and sentenced to undergo rigorous imprisonment for six years and to pay fine of Rs.5,000/-, in default of payment of fine to further undergo imprisonment for five months.

2. The facts of the case as unfolded by prosecution during trial are that complainant (who is father of the child) lodged a complaint that his son, namely, Akhilesh aged three years, resident of Munshipulia, D-Block, Indira Nagar, P.S. Ghazipur, Lucknow went missing from Munishipuliya Chauraha on 16.03.2008 at 08:45 P.M; he requested in his complaint that his son be traced and handed over to him. On the basis of said complaint, F.I.R. No.182 of 2008 bearing Case Crime No.421 of 2008 was registered at P.S. Ghazipur, District-Lucknow. On 22.03.2008, at about 05:00P.M., the child was recovered by police from the custody of the accused-appellant from Daliganj Railway Station; seizure memo was prepared and the accused-appellant was arrested for the offence under Section 364/368 I.P.C. On completion of investigation, chargesheet for the offences under Sections 364 and 368 I.P.C. was filed. After complying with the provisions of Section 207 Cr.P.C., the case was committed to learned Sessions Judge, Lucknow.

3. After hearing arguments on charge and considering record of the case, learned trial court found sufficient ground to proceed against the appellant-Dinesh for the offence punishable under Sections 364 and 368 I.P.C. and accordingly, charges were framed on 02.06.2008. The appellant abjured his guilt and claimed trial.

4. In order to prove its case, the prosecution examined as many as five witnesses. Shri Nandu (P.W.1) is complainant/ father of the child. He deposed that his son, namely, Akhilesh aged about three years went missing on 17.03.2008 at 08.:45 P.M.; he lodged a complaint with the police. He has proved the complaint as Ex.Ka.1. He also deposed that on 22.03.2008, his son was recovered from Daliganj Railway Station at 05:00 P.M. from the possession of the accused-Dinesh and the child was delivered to him; thumb impressions of the complainant and his wife were taken. P.W.2 is the mother of the child. She deposed that at the time of incident, her son's age was three years. Her son was missing about four to five months before making her statement and after six to seven days, his son was recovered from the possession of the accused-Dinesh at Daliganj Railway Station. P.W.3 is Rakesh Kumar Singh, Constable, P.S. Ghazipur, Lucknow. He deposed that on 22.03.2008, on the basis of information received from a secret informer, he along with S.I. Vijay Kumar Pandey went to Daliganj Railway Station; the child was recovered from the possession of the accused-appellant and thereafter the appellant was arrested. Seizure memo was prepared at the railway station, the same bears the signature of the appellant and the same is Ex. Ka.2. F.I.R. was written by constable Ashok Kumar Singh and the same bears signature of Ashok Kumar Singh, Constable which is Ex.Ka.3. G.D. in the aforesaid case was written and signed by Ram Prasad Chaudhary, Head Constable, the same is Ex.Ka.4. P.W.4 is Ashok Singh, Mohrir, P.S. Ghazipur, Lucknow. He deposed that on 17.03.2008, he received tehrir, on the basis of which, he recorded F.I.R. No.182 of 2008 having Case Crime No.421 of 2008 under Section 364 I.P.C., the same is Ex.Ka.3. P.W.5 is the Investigating Officer of the case, Vijay Kumar Pandey, P.S.Ghazipur, Lucknow. He deposed that on 16.03.2008, investigation of Case Crime No.421 of 2008 for the offence under Section 364 I.P.C. was handed over to him; he received information from a secret informer that a person was taking a child aged about two and a half years from Aliganj Station Crossing; it was further informed that the child belonged to some other person as the child was crying and can be apprehended. Thereafter, he called the complainant and his wife. He along with the complainant and his wife went to the railway crossing and apprehended the accused-Dinesh in between railway crossing and Aliganj Railway station along with the child at 05:00 P.M. Complainant and his wife identified the child as their son. After disclosing reasons, the accused was arrested. On inquiry, the accused disclosed his name and the Fard was prepared by constable Rakesh Singh. The Fard of kidnapped child, namely, Akhilesh and arrest memo of the accused are papers A-7/1 and the same is Ex.Ka.2; the child was handed over to the child. Site plan was prepared which are Ex.Ka.5 and 6.

5. After completion of prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C and incriminating evidence were put to him. The appellant denied the same and pleaded innocence. The appellant did not lead any defence evidence.

6. After completion of evidence and considering the rival contentions of the parties, learned trial court found the appellant to be guilty for the offence under Section 364/368 I.P.C. and sentenced the appellant.

7. Being aggrieved by the impugned judgment and order of sentence dated 14th July, 2009, the appellant has preferred the present jail appeal.

8. Learned Amicus Curiae for the appellant vehemently urged that the appellant is neither named in the complaint nor in the F.I.R,; he was not known to the complainant or his wife; there is no allegation that the appellant kidnapped or abducted the child. According to learned Amicus Curiae for the appellant the offence under Section 364 I.P.C. is not made out.

9. Learned Amicus Curiae for the appellant also submitted that the ingredients of Section 368 I.P.C. are not made out. He submitted that there is no allegation that the appellant knew that the child was kidnapped or abducted. He also submitted that the child was not recovered from the custody of the appellant; no independent witness was joined at the time of alleged recovery; the appellant has been falsely implicated in this case.

10. On the other hand, learned Addl. G.A. for the State submitted that the child was recovered from the custody of the appellant at Daliganj Railway Station on 22.03.2008; the appellant was apprehended and on inquiry, he disclosed his name as Dinesh Kumar. Learned Addl. G.A. for the State referred to the statements of Investigating Officer, Vijay Kumar Pandey, Sub Inspector (P.W.5) who stated that the appellant was apprehended and on inquiry he disclosed his name as Dinesh Kumar.

11. According to learned Addl. G.A. for the State, the child was recovered from possession of the appellant and therefore, it can be presumed that the appellant kidnapped the child and concealed him for six days. In support of her submissions, she has relied upon the judgment of Hon'ble Supreme Court in the case of 'Ranjit Kumar Haldar v. State of Sikkim', (2019) 7 SCC 684.

12. I have carefully considered the rival submissions made by Sri Anurag Shukla, learned Amicus Curiae for the appellant and Ms. Meera Tripathi, learned Addl. G.A. for the State and have also perused the material available on record.

13. Before embarking upon the legal issues, it is necessary to consider the definition of 'Kidnapping' and 'Abduction' as contained under Sections 359 and 362 of the I.P.C. which are in the following terms:-

"359. Kidnapping

Kidnapping. is of two kinds: kidnapping from, and kidnapping from lawful guardianship.

* * * * *

362. Abduction

Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."

14. It is also necessary to consider the relevant provisions of Section 364 and 368 of the I.P.C., the same read as under:-

"364. Kidnapping or abducting in order to murder

Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with 152[imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

...

368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person

Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."

15. On a bare reading of Section 364 I.P.C., it is manifestly clear that the prosecution must prove kidnapping by the accused, such person was kidnapped in order (a) that such person might be murdered; or (b) that such person might be so disposed of as to be put in danger of being murdered. In case of abduction, the prosecution must prove that the accused compelled the person to go from the place in question, that he so compelled the person by means of force; or that he induced that person to do so by deceitful means and that he so abducted the person in question in order that (a) such person might be murdered, or (b) such person might be so disposed of as to be put in danger of being murdered. The prosecution must prove that person charged with the offence had the intention at the time of kidnapping or abduction that the person kidnapped should be murdered or would be so disposed of as to be put in danger of being murdered. In order to bring home a charge under this Section, the Court must be satisfied that at the time when the accused took away the victim/ person so kidnapped, he had the intention to cause his death.

16. In this regard, reference can be made to a decision in the case of 'Upendra Nath Ghosh v. Emperor', AIR 1940 Cal 561, in the said case, it was held:-

"To establish an offence punishable under Section 364, Penal Code, it must be proved that the person charged with the offence had the intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered. Even if after the abduction the accused perso placed the abducted person in danger of being murdered that would not establish sthe charge of abduction punishable under Section 364 against him. It would be necessary for the Crown to establish that he intended at the time of the abduction to place the abducted person in a position which would put that person in danger of being murdered"

17. The Hon'ble Supreme Court in 'Badshah and ors. vs. State of Uttar Pradesh', (2008) 3 SCC 681 considered the ingredients of Section 364 I.P.C. and it was held:-

"13. Ingredients of the said offence are (1) Kidnapping by the accused must be proved; (2) it must also be proved that he was kidnapped in order to;

(a) that such person may be murdered; or (b) that such person might be disposed of as to be put in danger of being murdered. The intention for which a person is kidnapped must be gathered from the circumstances attending prior to, at the time of and subsequent to the commission of the offence. A kidnapping per se may not lead to any inference as to for what purpose or with what intent he has been kidnapped."

18. In order to invoke the provisions of Section 368 I.P.C., the following ingredients must be satisfied;

(i) the person has been kidnapped or abducted;

(ii) the accused was knowing that fact; and

(iii) the accused must have concealed or confined such person.

19. In the case of 'Smt. Saroj Kumari vs. the State of U.P.', (1973) 3 SCC 669, the Hon'ble Supreme Court considered the provisions of Section 368 I.P.C. and it was observed as under:-

"10. To constitute an offence under Section368, it is necessary that the prosecution must establish the following ingredients:

(1) The person in question has been kidnapped.

(2) The accused knew that the said person had been kidnapped.

(3) The accused having such knowledge, wrongfully conceals or confines the person concerned."

20. I have gone through the judgment in Ranjit Kumar Haldar's case (Supra). The law laid down in the said judgment is well settled. The same is not applicable to the facts and circumstances of this case. The Hon'ble Supreme Court after considering the provisions of Section 101 and 106 of the Evidence Act, 1872 observed as under:

"17. In State of Rajasthan v. Thakur Singh, this Court reiterated the principle that burden of proving guilt of the accused is on the prosecution but there may be certain facts pertaining to a crime that can be known only to the accused. The Court held as under: (SCC p.218, para22)

"22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."

21. In the instant case, according to the case of prosecution, child , namely, Akhilesh aged about three years, resident of Munshipulia, D-Block, Indira Nagar, P.S. Ghazipur, Lucknow went missing; complainant/ father of the the child, namely, Nandu (P.W.1) lodged a complaint that his child was missing from Munishipuliya Chauraha on 16.03.2008 at 08:45 P.M; on the basis of said complaint, F.I.R. No.182 of 2008 bearing Case Crime No.421 of 2008 under Section 364 I.P.C. was registered at P.S. Ghazipur, District-Lucknow was registered against an unknown person. Thereafter, on 22.03.2008 at about 05:00 P.M., on the basis of secret information, the child was recovered from possession of the appellant from Daliganj Railway Station; the Investigating Officer (P.W.5) along with P.W.1 and P.W.2 reached at Daliganj Railway Station and found that the appellant was giving sweets (Jalebi) to the child; the child was recovered and handed over to the father (complainant) and the appellant was apprehended.

22. It is not understandable that when the complainant, namely, Nandu lodged a missing report, he did not name any person and he did not allege that the child was kidnapped or abducted by anyone, how the F.I.R. under Section 364 I.P.C. was registered. The complainant (who is father of the child), namely, Nandu (P.W.1) and mother of the child, namely, Preeti (P.W.2) entered into witness box and they have stated that they did not know the appellant before the date when the child was recovered. They have not uttered even a single word that the child was kidnapped or abducted by the appellant. They have also not stated that the appellant had the knowledge that the child was kidnapped or abducted. They have also not stated that the child was concealed or confined by the appellant for a period of six days. Even the Investigating Officer has not stated that the child was kidnapped or abducted by the appellant in order to commit murder or the appellant had the knowledge that the child was kidnapped or abducted or that the child remained in custody of the appellant for a period of six days.

23. At this juncture, it may be mentioned that the Investigating Officer should have moved an application for recording statement of the child under Section 164 Cr.P.C. No efforts were made by the Investigating Officer for recording statement under Section 164 Cr.P.C. Moreover, the child has not been produced in the Court. Thus, the appellant cannot be fastened with the liability for the offence under Section 364 and 368 of the I.P.C. merely because the child was recovered from the possession of the appellant.

24. After a careful scrutiny of the evidence on record, I do not find any reliable evidence to show that the child was concealed by the appellant or that the child was kidnapped in order to commit murder. There is no material on record to hold that the appellant had knowledge that the child was kidnapped or abducted. Hence, it can be said that the prosecution has failed to prove the case and, therefore, the conviction of the appellant is not proper and the appellant would be entitled to acquittal on benefit of doubt.

25. As a result of above discussion, the appeal is allowed and the impugned judgment and order dated 14th July, 2009 passed by learned Additional District and Sessions Judge, Lucknow in Session Trial No.587 of 2008 arising out of Case Crime No.421 of 2008, P.S. Ghazipur, District Lucknow is set aside and the appellant is acquitted.

26. On 20.01.2021, Sh. Anurag Shukla, Advocate was appointed as Amicus Curiae. The fees of learned Amicus Curiae is fixed at Rs.11,000/- (Rupees Eleven Thousand Only).

27. Trial court record along with copy of this judgment be sent back forthwith.

(Ved Prakash Vaish)

Judge

Order Date :- 09th February, 2021

Shanu/-