'Ransom Letter Not Proved; Kidnapped Child Kept Secretly & In Wrongful Confinement': Allahabad HC Alters Conviction U/S 364A IPC To S. 365 IPC

Taking into account the evidence on record, the bench of Chief Justice Pritinker Diwaker and Justice Nalin Kumar Srivastava observed that the intention of the appellants/convicts for kidnapping the son of the informant was to keep him secretly and under wrongful confinement.

“It is thus clear that the ingredient of ransom is not proved and the evidence establishes the ingredients of Section 365 of IPC, and therefore, the conviction can be altered from Section 364A of IPC to u/s 365 of IPC,” the Court observed.

The case in brief

It was the case of the prosecution that six-seven unknown miscreants, on the night of November 21-22, 1997, came to the informant’s house and took away his 11-year-old son.

On seeing this, the informant, and his wife raised an alarm, which prompted the neighbours to gather there and when everyone tried to rescue the boy from the miscreants, they fired with guns and went south with the boy.

While fleeing from the place, a gunshot by Accused-Awadhesh (who died during the course of the trial) injured one PW-1, injured Jabar Singh.

Subsequently, an FIR in the case was registered against 6-7 unknown miscreants. Importantly, during the course of the trial, the informant admitted that he has identified all the miscreants, however, he did not disclose their names to the IO as he had a fear that his son would be killed by them.

During the course of the investigation, the informant handed over a letter regarding the demand for a ransom of Rs. 70,000/- in respect of the kidnapped boy.

Later on, a tip was received by the police regarding the whereabouts of the kidnapped boy. The police reached the place where the boy was kept and the boy was recovered following firing from both sides (police and accused persons).

Later on, the names of the accused persons appeared following the investigation, a chargesheet was filed against them under various sections of IPC,

After the trial, Special Judge (DAA) / Additional Sessions Judge, Etah, in 2008, convicted the appellants under Section 364A, 307 r/w 149 and were sentenced to undergo life imprisonment.

Challenging the conviction and sentence, the accused moved the HC contending that they are not named in the FIR as the same was lodged against unknown persons.

It was also argued that the kidnapping of the son of the informant was not done for any ransom and, hence, the case of the prosecution does not fall within the ambit of Section 364A I.P.C.

Importantly, it was also argued that since the so-called police firing case had been found by the trial court to be a false one, and hence, the alleged recovery of the kidnapped boy from the possession of the present appellants could also be deemed to be a false story.

Court’s observations

At the outset, the Court noted that in the statements of PW-1, PW-2 (Informant) the name of Accused-Awadhesh had featured as the one who fired upon the injured witness, a fact which was corroborated by the medical evidence.

The Court also noted that in the statement of PW-3 (Kidnapped child), the names of all five accused- Pusey, Shripal, Indrapal, Awadhesh, Kallu and Mahatma- had appeared.

In view of this, the Court found justification in the conviction of the accused under Sections 307/149 IPC as it observed thus:

“It is noteworthy that albeit accused Awadhesh, who is said to be the main assailant to open fire upon injured Jabar Singh, has died but since the offence was committed in prosecution of the common object of all the members of unlawful assembly, being the member of unlawful assembly, all the appellants were guilty jointly for the aforesaid offence and on that basis, their conviction is legal and proper.”

Now, coming to the question of conviction under Section 364A IPC, the Court noted that the original letter of ransom was not produced before the Court; instead, the trial court had relied upon the photocopy of such letter, which was impermissible as per the Evidence Act.

In this regard, the Court referred to Section 64 of the Evidence Act which says that if the original copy of any document is available, then it is the primary evidence and such document must be proved during the Trial.

The Court also added that unless the prosecution shows that the original has been lost, destroyed or fallen, it was not permissible for them to produce a photocopy of the document as secondary evidence.

“In the matter in hand, nowhere it has been explained by the prosecution that as to why the original ransom inland letter could not be produced before the Court… a wrong procedure was adopted by the prosecution, to prove the photocopy of the alleged ransom letter without showing its inability to produce the original thereof before the Court and the trial court has also committed an error of law while permitting to exhibit the photocopy of the said ransom letter without ascertaining that for want of original, the photocopy was capable of being permitted to be produced in Court as evidence.”

Therefore, the Court said that since the said ransom letter (in original) had not been proved in the manner prescribed by law and thus, the same had no legal sanctity and was of no use and hence, the offence under Section 364A IPC (which requires demand of ransom), was not made out.

“…there was no evidence on record to show that the victim was anyway threatened for his death or hurt by the accused persons or hurt was actually caused to him in order to compel the informant to pay the ransom,” the Court said.

Against this backdrop, noting that the accused kept the boy in the field of sugar cane, thereafter in the field of bajra and then kept in kuthia with his eyes closed with cloth, and cotton was placed into his ears and hands were also tied, the Court said that the evidence fulfilled the essential ingredients of the offence under Section 365 IPC.

Consequently, the Court altered the conviction of the Convicts from Section 364A IPC to Section 365 IPC.

“The evidence on record clearly makes out a case of kidnapping as punishable u/s 365 of IPC. Accordingly, we are of the firm opinion that the conviction of appellants recorded by the trial court under Section 364A of IPC should be altered and modified to one under Section 365 of IPC only, wherein the offence is punishable with imprisonment of either description for a term which may extend to seven years, coupled with fine,” the Court said while affirming their conviction under Section 307 r/w 149 of IPC.

Appearances

For appellants: Advocate Noor Mohammad

For Respondent: AGA Amit Sinha & State Counsel Mayuri Mehrotra

Case title - Indra Pal and another vs. State of U.P. along with a connected appeal

Case Citation: 2023 LiveLaw (AB) 139

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