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

The Allahabad High Court recently altered the Kidnapping for Ransom (Section 364A IPC) conviction of two men who kidnapped an 11-year-old boy, to that of Kidnapping with intent secretly and wrongfully to confine a person (Section 365 IPC), on the ground that the alleged letter for ransom sent to father of the child was not proved by prosecution. 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...

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

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

Sparsh Upadhyay

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