Uttarakhand High Court
Sonu Kumar vs State Of Uttarakhand on 10 January, 2025
Author: Alok Kumar Verma
Bench: Ravindra Maithani, Alok Kumar Verma
Reserved on 08.11.2024
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 293 of 2013
Sonu Kumar .... Appellant
Vs.
State of Uttarakhand ....Respondent
Present:
Ms. Manisha Bhandari, Advocate and Mr. P.S Bohara,
Advocate for the appellant.
Mr. K.S. Bora, Deputy Advocate General for the State.
With
Criminal Appeal No. 385 of 2013
Sudama .... Appellant
Vs.
State of Uttarakhand ....Respondent
Present:
Ms. Manisha Bhandari, Advocate for the appellant.
Mr. K.S. Bora, Deputy Advocate General for the State.
With
Criminal Appeal No. 112 of 2014
Lokendra alias Laddan .... Appellant
Vs.
State of Uttarakhand ....Respondent
Present:
Mr. Lokendra Dobhal, Advocate for the appellant.
Mr. K.S. Bora, Deputy Advocate General for the State.
JUDGMENT
Coram: Hon'ble Ravindra Maithani, J.
Hon'ble Alok Kumar Verma, J.
Per: Hon'ble Ravindra Maithani, J.
Since common question of law and facts are
involved in all these appeals, they are taken up together and
decided by this common judgment.
2. Instant appeals are preferred against the
judgment and order 27.05.2013, passed in Sessions Trial
No. 215 of 2010, State Vs. Surendra Kumar and others, by
the court of Additional District and Sessions Judge,
Dehradun. By it, the appellants have been convicted under
Section 363 read with 34 and 364A read with 34 IPC and
sentenced as hereunder:-
(i) Under Section 363 IPC- To undergo rigorous
imprisonment for a period of five years with
a fine of Rs.1,000/-. In default of payment of
fine, to undergo imprisonment for further
period of one year.
(ii) Under Section 364A IPC- Imprisonment for
life with a fine of Rs.2,000/-a period of two
years.
Both the sentence shall run concurrently.
3. Shorn of unnecessary details, according to the
prosecution on 26.07.2010, PW1 Hemlata Singh, the
informant alongwith her son Vishvajeet aged 5 years (the
victim) had gone to bring her elder son from the school. The
co-convict Surendra Kumar was her driver. The victim
alongwith the driver was in the car. PW1 Hemlata Singh had
gone to purchase some articles in the shop. When she
returned, she did not find her car and the victim. She
immediately telephoned various persons including PW3
Vikshit Goyal, one of her acquaintances. When the victim
could not be located, an FIR (Ex. A1) was lodged. Based on
which, Case Crime No. 295 of 2010, under Section 363 IPC
was lodged against the co-convict Surendra Kumar and the
investigation proceeded. The mobile number of the appellant
driver was put under surveillance. On 27.07.2010, the
mobile phone of the co-convict Surendra Kumar was located
in Nainital. Police team had also left for Nainital. The car of
PW1, the informant was located at Bhowali car parking. It
was put under surveillance. On 27.07.2010, at about 5:30
p.m., the co-convict Surendra Kumar approached the car,
opened it and sat inside it. He was arrested.
4. It is further the case of the prosecution that two
mobile phones were recovered from the co-convict Surendra
Kumar. Upon interrogation, the co-convict Surendra Kumar
revealed that he had kidnapped the victim, with the help of
the appellants Sonu Kumar, Sudama and Lokendra @
Laddan and he is confined in Room No.17 of a hotel in
Nainital. The police team thereafter, proceeded to Nainital.
They knocked at the hotel room and recovered the victim
from the custody of the appellants Sonu Kumar and
Sudama. From the possession of the appellant Sonu Kumar,
a country-made pistol and a cartridge were recovered. It was
told by the appellants at that time that the applicant
Lokendra alias Laddan was guarding outside the hotel room
and when he suspected fear, he ran away. After
investigation, the Investigating Officer ("IO") filed
chargesheet against the appellants for the offence
punishable under Section 363, 364A IPC and cognizance
was taken. The appellants were charged for the offences
punishable under Section 363 read with 34 IPC and Section
364A read with 34 IPC, to which, they denied and claimed
trial.
5. In order to prove its case, the prosecution
examined, nine witnesses, namely, PW1 Hemlata Singh,
PW2 Vishvajeet, PW3 Vikshit Goyal, PW4 Mukesh Tyagi,
PW5 Bhupendra Singh, PW6 Pooran Singh, PW7 Vimal
Chandra Tamta, PW8 R.K. Juyal and PW9 Constable, Anil
Kumar.
6. After the prosecution evidence, the appellants
were examined under Section 313 of the Code of Criminal
Procedure, 1973. According to them, they have been falsely
implicated and the witnesses have falsely deposed. The co-
convict Surendra Kumar had admitted that he was driver of
PW1 Hemlata Singh. He was not paid his salary, therefore,
he had gone to his village.
7. After hearing the parties, by the impugned
judgment and order, the appellants have been convicted and
sentenced as stated hereinbefore.
8. Learned counsel appearing for the appellant Sonu
Kumar would submit that even if the entire prosecution case
is accepted in its entirety, it does not make out an offence
under Section 364A IPC. She would submit that mere
kidnapping is not punishable under Section 364A IPC. In
order to attract the provisions of Section 364A IPC, it has
also to be shown that the accused threatens to cause death
or hurt to the kidnapped person, or by his conduct gives rise
to reasonable apprehension that such person may be put to
death or hurt. It is argued that there is no evidence in the
instant case that any call for ransom was ever received by
the PW1 Hemlata Singh or any threat to cause death or
threat to life was extended by any of the appellants. She
would submit that the statements of PW1 Hemlata Singh
and PW2 Vishvajeet on this point is not reliable because
both these witnesses had not told it to the IO that the
appellants or any of them had ever extended any threat to
them or their conduct gave rise to any apprehension that
the victim would be put to death or hurt. She would refer to
the statements of PW1 Hemlata Singh, PW2 Vishvajeet and
PW8 R.K. Juyal, the IO. While arguing on the non-
applicability of Section 364 A IPC, learned counsel for the
appellant Sonu has referred to the principles of law, as laid
down in the case of Shaik Ahmed Vs. State of Telangana,
(2021) 9 SCC 59.
9. In the case of Shaik Ahmed (supra), the Hon'ble
Supreme Court after discussing the law on the point on the
subject observed as follows:-
"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."
10. In the case of Shaik Ahmed (supra), the Hon'ble
Supreme Court also considered the law, as laid down in the
case of Arvind Singh Vs. State of Maharashtra, (2021) 11
SCC 1. In that case, an eight years old boy was kidnapped
and he was subsequently killed. His dead body was
recovered. In that case, argument was raised that the child
was kidnapped for ransom but there was no intention to
take the life of a child. Therefore, offence under Section 364
A IPC is not made out. In paras 93 and 94 of the judgment
in the case of Arvind Singh (supra), the Hon'ble Supreme
Court, observed as follows:-
"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 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 than that the view taken by the learned
Sessions Judge as well by the High Court."
11. In the case of Shaik Ahmed (supra), while
considering the observations made in the case of Arvind
Singh (supra), the Hon'ble Supreme Court observed "the
above observation made by the three-Judge Bench
in Arvind Singh case has to be read in context of the
facts of the case which was for consideration before this
Court. No ratio has been laid down in para 94 that when
an eight-year-old child (or a child of a tender age) is
kidnapped/abducted for ransom there is inherent threat
to cause death and the second condition as noted above
i.e. threatens to cause death or hurt to such person, is
not to be proved. The observations cannot be read to
mean that in a case of kidnapping or abduction of an
eight-year-old child (or child of a tender age),
presumption in law shall arise that kidnapping or
abduction has been done to cause hurt or death. Each
case has to be decided on its own facts."
12. In the case of Neeraj Sharma Vs. State of
Chhatisgarh, (2024) 3 SCC 125 also, the Hon'ble Supreme
Court followed the principles of law, as laid down in the case
of Shaik Ahmed (supra) and observed that "for making out
a case under Section 364-A, the first condition i.e.
kidnapping or abduction must be coupled with either
the second or the third condition as held by the Hon'ble
Supreme Court in the case of Shaik Ahmed (supra)."
13. On behalf of the appellant Lokendra alias Laddan,
learned counsel would adopt the arguments made on behalf
of the appellant Sonu Kumar. In addition, it is argued that
appellant is not named in the FIR.
14. On behalf of the appellants Sudama also, the
arguments made by learned counsel for the co-convict Sonu
Kumar have been adopted. It is argued that it is not a case
under Section 364 A IPC. It is a mere case of kidnapping.
15. Learned State counsel would submit that the
prosecution has been able to prove the charge against the
appellants. He would refer to the statements of PW1
Hemlata Singh and PW2 Vishvajeet to argue that the victim
in his statement before the court has stated that he was
scared by the conduct of the appellants. He had cried also.
There have been ransom calls. It is argued that admittedly,
PW1 Hemlata Singh and PW2 Vishvajeet have not told it to
the IO that any ransom call was made or any threat was
extended. It is argued that it does not, in any manner,
shakes the credibility of the PW1 Hemlata Singh and PW2
Vishvajeet. It may at the most be an omission on the part of
the IO. The IO might not have asked those questions. It is
argued that demand of ransom is enough to prove the
charge under Section 364 A IPC even if such demand is not
communicated.
16. PW1 Hemlata Singh is the informant. She has
proved the FIR. According to her, on 26.07.2010, she had
gone to bring her elder son back from the school. Initially,
she had gone to purchase cake for birthday celebration of
the victim. But when the victim insisted for purchasing
some other articles, she sent the victim back with the co-
convict Surendra Kumar in their car who was their driver.
When she came back from the shop, she did not find the
car. She called the co-convict Surendra Kumar. Initially, he
told that he is in the back side of the college. But thereafter,
he did not come and stopped replying the phone calls made
by this witness. Meanwhile, according to this witness, her
elder son returned from school. They searched out for the
co-convict Surendra Kumar and the victim. She was scared.
She called a family friend and lodged a report. She proved
the FIR, Ex.A1. According to PW1 Hemlata Singh, on the
same day at about 9:00-9:15 A.M., she received a telephone
call from the mobile phone of the co-convict Surendra
Kumar. The caller had threatened her to kill the victim. She
could then also identify the voice of the co-convict Surender
Kumar, who was prompting the caller to speak. PW1
Hemlata Singh, further states that on 27.07.2010, she
received another call and Rs.50 Lakh as ransom was
demanded from her. She expressed her inability to pay such
amount as her husband was not at home. This witness has
also stated about another call that were made and her
conversion with the co-convict Surendra Kumar, the driver.
Finally, according to this witness, on 27.07.2010 at 5:00-
5:15 in the evening, she received a call that the victim has
been recovered.
17. PW2 Vishvajeet Singh, is the victim. He has
supported the statement of PW1 Hemlata Singh. According
to him, when he was in the car, the driver started the car
and moved. He questioned, as to where is he proceeding.
According to this witness, the co-convict Surendra Kumar
then told it to him that he would get him skates and they
are going towards the another gate and he started moving
the vehicle. On the way, other persons also boarded in the
car. They were total four in the car. They also called her
mother and told that in case, money is not given, they would
kill this witness. They all reached Nainital in a hotel. They
all had their meals in the hotel. They also gave milk to this
witness. They also made this witness to call his mother. In
the evening, according to this witness, the co-convict
Surendra Kumar had gone to bring the car. Appellant
Lokendra alias Laddan had also gone with him. The
appellants Sonu Kumar and Sudama were with him. After
about one hour, the police came and recovered him.
18. PW3 Vikshit Goyal is the family friend of PW1
Hemlata Singh. He has supported the statement of PW1
Hemlata Singh. This witness had also come to Nainital in
search of the victim. According to him, he spotted the car of
the informant at Bhowali car parking. A little thereafter, the
co-convict Surendra Kumar approached the car. As soon as
he sat in the car, he was arrested. He revealed that the
victim is in the hotel alongwith the appellants Sonu Kumar,
Sudama and Lokendra @ Laddan. They reached in the hotel
at Nainital and recovered the victim, who was with the
applicants Sudama and Sonu Kumar. This witness has
proved the recovery memo and other documents that were
prepared by the police. He had also stated that the police
had also recovered mobile phones etc and prepared
documents.
19. PW4 Mukesh Tyagi has put the mobile phone of
the co-convict Surendra Kumar on surveillance. He had
stated about the IMEI number, his location and his calls
that were made to the PW1 Hemlata Singh, the informant.
He is also a witness of recovery of the victim from the
Nainital hotel. He has stated about it. PW5 Bhupendra
Singh is also the witness of recovery.
20. PW6 Pooran Singh is an employee of the hotel
where the victim was confined and from where he was
recovered. He has stated that the room was booked by the
co-convict Surendra Kumar. According to him, he has
identified the co-convict Surendra Kumar and appellants
Sudama and Sonu Kumar and has stated that they were in
his hotel when the child was recovered. He has proved the
documents which were taken by the police from the hotel
including visitors register etc.
21. PW7 Vimal Chandra Tamta is the IO. He has
submitted charge sheet in the matter. He was the second IO.
The first IO is PW8 R.K. Juyal. He has stated about the
steps taken during investigation.
22. No arguments have been raised with regard to the
recovery of victim from the possession of the co-convict
Surendra Kumar and appellants Sonu Kumar and Sudama.
PW2 Vishvajeet has identified all the appellants that they
alongwith co-convict Surendra Kumar took him to Nainital.
Even otherwise, no arguments have been raised on behalf of
the prosecution with regard to the kidnapping of the PW2
Vishvajeet Singh. The statements of PW1 Hemlata Singh and
PW2 Vishvajeet Singh with regard to kidnapping are totally
reliable and trustworthy. Therefore, this Court is of the view
that the prosecution has been able to prove that on
26.07.2010, the appellants kidnapped PW2 Vishvajeet Singh
and took him to Nainital. The victim was removed from
lawful custody of his guardian.
23. The question that falls for consideration is, as to
what offence has been committed. The appellants have been
convicted for the offence punishable under Section 363 read
with 34 and Section 364A read with 34 IPC. Section 363 and
Section 364A IPC are as follows:-
"363. Punishment for kidnapping.--Whoever kidnaps
any person from India or from lawful guardianship, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.
364A. 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."
24. In the instant case, there is no call recording
which may establish that any ransom call was made or any
threat was extended to the informant or to the victim child.
PW4 Mukesh Tyagi has though stated about the telephonic
call made between co-convict Surendra Kumar and the
informant.
25. PW1 Hemlata Singh is mother of the victim.
According to her, on 26.07.2010 after kidnapping of the
child, she received a call, threatening her that her driver i.e.
the co-convict Surendra Kumar and the victim are in their
possession and they would kill the child. This witness
further says that on 27.07.2010 at 2:00 early in the
morning, she received a ransom call of Rs.50 Lakh. But, this
has not been stated by the PW1 Hemlata Singh, the
informant to the IO during investigation. She was asked
about it in her cross examination. She said that she had told
it to the IO; she does not know as to why it was not recorded
by the IO. PW2 Vishvajeet is the victim. According to him,
after he was kidnapped, the appellants and the co-convict
on the way alighted from the car and telephoned his mother,
threatening his mother that in case, money is not given,
they would kill the child.
26. The question at the first instance is that as to
how this witness would say that the appellants and co-
convicts did speak to his mother. In his cross examination,
PW2 Vishvajeet, the victim has stated that when police
reached in the hotel, the appellants Sonu Kumar and
Sudama were demanding Rs.50 Lakh. It has not been so
stated by PW1 Hemlata Singh.
27. PW8 R.K. Juyal has conducted investigation. He
is the first IO. He has stated that PW1 Hemlata Singh did
not tell him about any ransom call. He has also stated that
he was not told by anyone that any ransom call was ever
made. When asked, PW8 R.K. Juyal has stated that the
victim has also not told it to him about any demand of
ransom. PW8 R.K. Juyal has also stated that PW1 Hemlata
Singh did not tell him that the appellants and co-convict did
demand Rs.40 Lakh or else to kill the child. He expressed
ignorance as to how PW1 Hemlata Singh has so stated in
the court. According to him, PW1 Hemlata Singh did not tell
him that she was threatened. In the same sequel, PW8 R.K.
Juyal has stated that the child had not told it to him that he
was threatened to life, in case money was not given.
28. If any ransom call was made or any threat was
extended to PW1 Hemlata Singh, the informant and PW2
Vishvajeet, the victim, why they had not revealed it to the
IO. For the first time in court, this statement was given.
PW8 R.K. Juyal has categorically stated that neither PW1
Hemlata Singh nor PW2 Vishvajeet had told him that any
ransom call was made or any threat to life of the victim was
extended. According to this witness, even no person has told
him about any ransom call or any threat. The statements of
PW1 Hemlata Singh and PW2 Vishvajeet are not reliable
insofar as, ransom call or threat is concerned. Therefore, the
second condition, as laid down in the case of Shaik Ahmed
(supra) has not been proved by the prosecution. It has not
been proved that "there is a threat to cause death or hurt to
such person or the accused by their conduct give rise to a
reasonable apprehension that such person may be put to
death or hurt."
29. In view of the above observations, we are of the
view that prosecution has not been able to prove the charge
under Section 364 A IPC. The prosecution has proved that
the appellants and co-convict had kidnapped the victim
child on 26.07.2010 and he was recovered from Nainital on
27.07.2010. Therefore, we are of the view that prosecution
has been able to prove the charge under Section 363 read
with 34 IPC against the appellants. They are liable to be
convicted accordingly.
30. The appellants are acquitted of the charge under
Section 364 A IPC.
31. The conviction and sentence of the appellants
under Section 363 IPC is upheld.
32. The appellants have been sentenced to five years
rigorous imprisonment with a fine of Rs.1000/- each under
Section 363 IPC. Since the appellants are already in custody
for more than five years in the instant case, they shall be
released forthwith if not wanted in any other case.
33. The impugned judgment and order is modified to
the extent as indicated above.
34. The appeals are decided accordingly.
35. Let a copy of this judgment along with Lower
Court Record be transmitted to the Court below for
compliance.
(Alok Kumar Verma, J.) (Ravindra Maithani, J.)
10.01.2025
Jitendra
