# Ashwani Dubey v. State Of U.P - **Citation:** (2016) 8 ILRA 714 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-10 - **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashwani-dubey-v-state-of-u-p-44376 - **Pages:** 7 ## Headnote These criminal appeals were filed against the judgment and order dated 28.11.2006 passed by the Special Judge (D.A.A.) Act, Etawah in Special Sessions Trial No. 79 of 2004 (State of U.P. vs. Usha Gupta and others), whereby the appellants were convicted under Section 364A IPC and Section 27 of the Dacoity Affected Areas (D.A.A.) Act and sentenced to life imprisonment with fine. Headnote: Where prosecution fails to prove the essential ingredients of Section 364A IPC, namely demand for ransom and threat to cause death or harm, conviction under Section 364A cannot be sustained. In absence of reliable evidence regarding ransom demand, the offence would fall within the ambit of Section 365 IPC (kidnapping with intent to secretly and wrongfully confine). In the present case, the prosecution evidence did not establish any demand of ransom by the accused persons nor any threat of death linked with such demand. The alleged payment of money by the informant was found unreliable due to material improvements and contradictions in testimony. The evidence on record only proved that the victim was taken away and kept in wrongful confinement. Hence, the conviction under Section 364A IPC was liable to be altered to one under Section 365 IPC. Result: Appeals allowed in part. Conviction of the appellants under Section 364A IPC set aside and altered to Section 365 IPC. Sentence of life imprisonment modified to seven years' imprisonment with fine. As the appellants had already undergone the modified sentence, they were directed to be released forthwith, if not wanted in any other case. 8 All. Ashwani Dubey Vs State Of U.P. 715 ## Text 714 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 714 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 10.08.2016 BEFORE THE HON'BLE BALA KRISHNA NARAYANA, J. THE HON'BLE ARVIND KUMAR MISHRA-I, J. Criminal Appeal No.- 7740 Of 2006 & Connected With Other Cases Ashwani Dubey ...Appellant Versus State Of U.P ...Respondent Counsel for the Appellant: Sri Rajrshi Gupta; Sri Umesh Chandra Mishra; Sri Brij Raj; Sri Dilip Kumar; Sri Rajiv Lochan Shukla; Sri Bhishm Pal Singh; Sri S.K. Gupta; Sri Yogish Kumar Saxena; Sri Arvind Kumar Yadav; Sri Rajendra Joshi Counsel for the Respondent: Sri J.K. Upadhyay, A.G.A.; Kumari Meena, A.G.A.; Government Advocate Procedure: These criminal appeals were filed against the judgment and order dated 28.11.2006 passed by the Special Judge (D.A.A.) Act, Etawah in Special Sessions Trial No. 79 of 2004 (State of U.P. vs. Usha Gupta and others), whereby the appellants were convicted under Section 364A IPC and Section 27 of the Dacoity Affected Areas (D.A.A.) Act and sentenced to life imprisonment with fine. Headnote: Where prosecution fails to prove the essential ingredients of Section 364A IPC, namely demand for ransom and threat to cause death or harm, conviction under Section 364A cannot be sustained. In absence of reliable evidence regarding ransom demand, the offence would fall within the ambit of Section 365 IPC (kidnapping with intent to secretly and wrongfully confine). In the present case, the prosecution evidence did not establish any demand of ransom by the accused persons nor any threat of death linked with such demand. The alleged payment of money by the informant was found unreliable due to material improvements and contradictions in testimony. The evidence on record only proved that the victim was taken away and kept in wrongful confinement. Hence, the conviction under Section 364A IPC was liable to be altered to one under Section 365 IPC. Result: Appeals allowed in part. Conviction of the appellants under Section 364A IPC set aside and altered to Section 365 IPC. Sentence of life imprisonment modified to seven years' imprisonment with fine. As the appellants had already undergone the modified sentence, they were directed to be released forthwith, if not wanted in any other case. 8 All. Ashwani Dubey Vs State Of U.P. 715 (Delivered by Hon'ble Bala Krishna Narayana, J.) (Hon'ble Arvind Kumar Mishra-I, J. concurring) (Delivered by Hon'ble Bala Krishna Narayana, J. & Hon'ble Arvind Kumar Mishra-I, J.) 1. Heard Sri Rajrshi Gupta, learned counsel for the appellants, Sri J.K. Upadhyay and Kumari Meena, learned A.G.A. for the State. 2. These three criminal appeals have been preferred by the appellants, Ashwani Dubey, Usha Gupta, Kallu, Neelam, Shyam alias Radhey Shyam and Raja Yadav alias Anurudh Yadav alias Raja Bhaiya against the judgement and order dated 28.11.2006 passed by the learned Special Judge (D.A.A.) Act, Etawah in Special Session trial no. 79 of 2004 (State of U.P. vs. Usha Gupta and others), by which all the appellants have been convicted under Section 364A I.P.C. and section 27 Dacoity Affected Areas (D.A.A.) Act and sentenced to life imprisonment and fine of Rs. 10,000 each and in default of payment of fine one year R.I. 3. The facts of the case are that one Shivam son of Updesh Babu Mishra who had gone to attend Bhagwatpath in Friends Colony pandal near Ramnagar, Etawah with his parents on 09.05.2004 went missing from there on the same day at about 7 p.m. during "Prasad Vitran". A missing report in this regard was lodged by the PW1, Updesh Babu Mishra at Police Station-Civil Line, district-Etawah on10.5.2004 at 8:30 p.m. Thereafter on the basis of a written complaint given by the father of the missing boy on 18.05.2004 at about 14:15 p.m., Case Crime no. 130 of 2004 was registered at Police Station-Civil Line, district-Etawah against the appellants and one Meera Gupta who died during the trial. The prosecution case as spelt out in the F.I.R. dated 18.05.2004 (Ext.Ka-2) is that the son of the informant PW1, Updesh Babu Mishra had gone missing from Bhagwatpath Pandal, Friends Colony, Etawah on 09.05.2004 where he had gone with his parents, with regard to which a missing report was lodged by PW1 at the same police station stating therein that he suspected either his son had lost his way or had mistakenly gone with someone else. He further stated in the F.I.R. that when he did not find his son in Friends Colony and the other nearby localities of the city he went in his search to Ashok Nagar where he met one Sri Amar Nath Tiwari, s/o not known, resident of Ashok Nagar near Tiwari Hospital who told him that on 09.05.2004 at about 7:00 p.m. he had seen his son Shivam with Usha Gupta, Meera Gupta, daughter of Sri Ramchand Gupta and Gopeshwar alias Sonu son of Rajkumar Tiwari, Raja Yadav, Anirudh Yadav son of Sri Bharat Singh Yadav, Sri Ashwani Kumar Dubey son of Umashankar Dubey sitting in a white Maruti van bearing registration no. DL 26-A 8462 at Bharsana crossing from where they had gone towards Bharsana. He also stated that although he was related to the missing boy but he did not inform his parents as he was not aware that the boy had been kidnapped. The chek F.I.R. (Ext.Ka10) and the G.D. entry (Ext.Ka9) were prepared by constable, Mahesh Pal Singh, PW8. The investigation of the case was entrusted to PW7 Chatrapati Singh, S.H.O. of Police Station-Civil Line who recorded the statement of Updesh Babu Mishra and prepared the site plan of the spot at the behest of PW1 after inspecting the same (Ext.Ka-8). Thereafter the investigation was transferred 716 INDIAN LAW REPORTS ALLAHABAD SERIES to PW6 S.H.O, Ramesh Singh Rathod who continued with the search of the missing boy and after completion of investigation submitted charge sheets Ext.Ka-5, Ext.Ka-6 and Ext.Ka-7 under Sections 364A, 368, 120B, 216A I.P.C. and section 10/12 (D.A.A.) Act against Usha Gupta and other accused. Since the offences enumerated in the charge sheet were triable by Court of session, the case was committed to the Court of session for trial of the accused thereafter the matter was transferred to the court of Special Judge (D.A.A.) Act. Charge was framed against all the accused under Section 364A I.P.C. and 16/12 Dacoity Affected Areas (D.A.A.) Act. The accused on being produced before the Court denied the charges framed against them and claimed trial. 4. The prosecution in order to prove its case examined as many as eight witnesses namely, PW1 Updesh Babu, PW2 Smt. Pushpa Mishra, PW3 Amarnath, PW4 Shivam (victim), PW5 Dr. Shailendra Tiwari, PW6 Inspector, Ramesh Singh Rathod, PW7 S.I., Chatrapati Singh and PW8 Maheshpal Singh. All the accused in their statements under Section 313 Cr.P.C. denied the prosecution case and stated that they had been falsely implicated due to local enmity. 5. Learned trial Judge after considering the submissions advanced by learned counsel for the parties and scanning the evidence on record convicted the appellants and awarded them the aforesaid sentences. 6. Learned counsel for the appellants in all the appeals has vehemently submitted that the prosecution having failed to adduce any evidence for proving that the victim was either kidnapped by the appellants with the intent of committing his murder or for ransom, the conviction of the appellants under Section 364A I.P.C. can not be sustained. He next submitted that inordinate and unexplained delay of more than nine days on the part of the complainant PW1 in lodging the F.I.R. although the complainant PW1 claimed that the identity of the so-called kidnappers was disclosed to him by his father-in-law, PW3 Amar Nath Tiwari on the very next day of the kidnapping and even before lodging the missing report by him yet he strangely chose to file a missing report instead of a named F.I.R, which clearly indicates that the entire prosecution as spelt out in the F.I.R. is false and concocted and the appellants were falsely implicated in the present case by PW1 as on after thought after due deliberations. The four witnesses of fact examined on behalf of the prosecution PW1, PW2, PW3 and PW4 are vacillating in their testimonies. Their testimonies are at variance to their statements recorded before the investigation and embellished with improvements. He also submitted that the prosecution having failed to prove its case against the appellants beyond all reasonable doubts, they are entitled to acquittal. 7. In the alternative he submitted that even if, the entire prosecution case which is full of loop wholes and contradictions and the testimonies of the witnesses of fact examined on behalf of the prosecution during the trial are taken to be gospel truth, the offence, if any proved to have been committed by the appellants from the evidence on record does not travel beyond section 365 I.P.C. and hence recorded conviction of the appellants and the sentence awarded to them deserve to be altered. 8 All. Ashwani Dubey Vs State Of U.P. 717 8. Per contra, Sri J.K. Upadhyay, learned A.G.A. refuting the submissions made by learned counsel for the appellants submitted that the prosecution having fully proved the charge framed against the appellants by leading cogent evidence, their conviction is not liable to be set aside or modified in view of the submissions made by learned counsel for the appellants. He further invited our attention on page 16 of the paper book and referred to the cross-examination of PW3, in which he has stated that on the assurance of appellant, Usha Gupta he had paid a sum of Rs. 1,51,000/- (Rs. One lac fifty one thousand) to the appellant Kallu, son of Ram Chandra Gupta for arranging his meeting with Nirbhai Gujjar for negotiating the release of his son and hence the submission of appellants' counsel that there is no evidence of demand of ransom is without any basis. These appeals lack merit and are liable to be dismissed. 9. We have very carefully considered the submissions made by learned counsel for the parties, scanned the entire lower court record and perused the impugned judgement. 10. The twin questions, involved for our consideration in these three criminal appeals, inter-alia, are that whether the prosecution has been able to prove its case against the appellants beyond all reasonable doubts, and that whether even if the prosecution case is accepted unequivocally to be true the conviction of the appellants recorded by the trial court under Section 364A can be sustained and the same is liable to be altered to one under Section 365 I.P.C. 11. We have very carefully scanned the evidence of PW1, PW2, PW3 and PW4, the four witnesses of fact examined on behalf of the prosecution but none of them have deposed that the appellants had kidnapped the victim, Shivam either for ransom or with the intention of committing his murder. It is true that PW1 on page 16 of the paper book has stated in his cross-examination that he had paid a sum of Rs.1,51,000/- (Rs. One lac fifty one thousand) to the appellant Kallu at the behest of Usha Gupta for arranging his meeting with Nirbhay Gujjar for negotiating the release of his son and appellant Kallu had arranged his meeting with Nirbhay Gujjar who on meeting PW1 had warned him in case he insisted on the prosecution of Usha Gupta and Meera Gupta who were innocent in the case of his son's kidnapping, his son Shivam would be killed. He also stated that Nirbhay Gujjar had initially demanded Rs. 1,00,000,00 (Rs. One crore) as ransom for releasing his son but later the demand of ransom was reduced to Rs. 5,000,00/- (Rs. Five lacs) and when he had gone to meet Nirbhay Gujjar along with Kallu he had not seen any of the other accused there. But strangely the aforesaid facts do not find any mention in his statement recorded under Section 161 Cr.P.C. and by stating the aforesaid facts for the first time before the trial court he has attempted to make material improvements in the prosecution case. Further it is noteworthy that PW1 divulged neither the time nor the day on which or the place where he had made the payment of sum of Rs.1,51,000/- (Rs. One lac fifty one thousand) to appellant, Kallu and for the aforesaid reasons, we do not find the evidence of PW1 on the point of payment of ransom reliable. PW2, Pushpa Mishra who is the mother of the victim is witness of the victim going missing from the Bhagwatpandal in Friends Colony, Etawah alone. She had neither seen the appellants kidnapping the victim nor she deposed that any ransom was demanded. As far as PW3 who is the real maternal grandfather of the victim, Shivam and who was the first person to have seen the victim with the accused on the day he had gone missing and on whose information the appellants were nominated as accused in the F.I.R. 718 INDIAN LAW REPORTS ALLAHABAD SERIES lodged by the PW1 is concerned, although he in his evidence tendered during the trial supported the prosecution case but later he had filed his affidavit before the trial court and proved the same as Ext.Ka-1, in which he totally denied the prosecution case and for the aforesaid reason his evidence is of no help to prosecution for proving it's case against the accused-appellants. 12. Now we proceed to scrutinize the evidence of the star witness in this case, PW4, kidnappee Shivam. PW4, who on the date of incident was about six years old and on the date of recording his evidence aged about eight years. He in his examination-in-chief stated that Sonu Bhaiya, Raja Bhaiya, Ashwani Bhaiya, Meera Bua and Usha Bua had taken him away from the Bhagwatpandal where he had gone with his parents and at that time it had become slightly dark. Sonu Bhaiya had told him that his father was calling him. He further deposed that he knew Sonu Bhaiya whose house was near his house and he used to go to play in his house where Raja Bhaiya and Ashwani Bhaiya also used to come. He knew Usha Bua and Meera Bua who were next door neighbours of Sonu Bhaiya. He also deposed that he was taken away from Bhagwatpandal to a forest where he was handed over to Nirbhay Gujjar who sported a beard and had long hair, he lived with him for about 4-5 months. As a result of police firing one day the culprits escaped and although he had lost his way but he met two persons in a field, to whom he referred to as 'Bhaiyas' who took him to Etawah Railway Station and asked him his name and address but he told him that he did not know his address but he knew the name of his school on which they took him to his school. But since his school was closed, they took him to the Principal's residence and handed him over to the Principal. He also testified that there were about fifty men and two women in the gang of the person with long hair and beard. The name of one of them was 'Mucchar' but he did not know the names of the others. The names of the two girls of his gang were Neelam and Sarla. PW4 has also not testified that any ransom was demanded by the appellants for his release or any injury was caused to him by them or he was threatened with death in case his father failed to pay the ransom. 13. The victim's version about his escape from the clutches of Nirbhay Gujjar deposed by him in his evidence remained uncorroborated and no effort was made by the I.O. to ascertain the veracity of the facts stated by the victim in this regard. It appears that neither any effort was made by the Investigation Officer to trace out the two strangers who had left the victim, Shivam in the custody of the Principal of his school and to ascertain their identities nor the Principal of the victim's school was interrogated by him at any stage of the investigation. The aforesaid glaring omissions on the part of the I.O. reflect the lackadaisical manner in which the investigation in this case was conducted by him. 14. The remaining witnesses namely, PW5 Dr. Shailendra Tiwari, PW6 Ramesh Singh Rathore and PW8 Mahesh Pal Singh examined on behalf of the prosecution are formal witnesses. The testimonies of the fact witnesses produced by the prosecution for proving the charge framed against the appellants under Section 364A I.P.C. at the most can be taken to be confined to the extent of kidnapping with an intent to confine the victim secretly and wrongfully. There is no iota of evidence against the appellants even faintly showing that they had either demanded or were involved in demanding any ransom. 8 All. Ashwani Dubey Vs State Of U.P. 719 15. The prosecution has failed to prove the demand of ransom by the accused or payment of ransom money to any accused which is a necessary ingredient to constitute an offence under Section 364A I.P.C. Cumulative reading of the testimonies of prosecution witnesses of fact leads only to one inference that the case falls within the ambit of section 365 I.P.C. rather than one under Section 364A I.P.C. A demand of ransom if, any, was made by Nirbhay Gujjar alone as deposed by PW1, Updesh Babu Mishra but strangely Nirbhay Gujjar was never nominated as an accused in this case. It will be useful to extract Section 365 I.P.C. herein below : "365. Kidnapping or abducting with intent secretly and wrongfully to confine person.--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 16. Thus, upon a thorough marshaling of the facts of this case and thread bare scrutiny of the evidence on record, we have no hesitation in holding that the prosecution has miserably failed to prove by any cogent evidence that the appellants after kidnapping the victim, Shivam had made any demand of ransom for releasing him or any ransom money was paid to them or they had extended any threat to commit his murder in case the demand of ransom was not fulfilled.Thus the prosecution having failed to establish the necessary ingredients for convicting an accused under Section 364A I.P.C., the recorded conviction of the appellants and the sentence awarded to them under Section 364A I.P.C. by the trial court vide impugned judgement and order can not be sustained are accordingly scored out. The conviction of the appellants is converted to one under Section 365 I.P.C. and the life sentence awarded to them is palliated to seven years imprisonment and a fine of Rs. 1000/- each and in default of payment of fine 6 months additional imprisonment. 17. All the appeals stand allowed in part. The judgement and order dated 28.11.2006 passed by the learned Special Judge, Dacoity Affected Areas (D.A.A.) Act, Etawah in special session trial no. 79 of 2004 (State of U.P. vs. Usha Gupta and others) is modified accordingly in this case. 18. All the appellants are in jail since 24.11.2006 and it is apparent that they have already served out the sentence of seven years imprisonment awarded to them by us after converting their conviction under Section 364A I.P.C. to one under Section 365 I.P.C. and the period of 6 months additional imprisonment which they would have been required to undergo in case of default of payment of fine of Rs. 1000/- each has also been undergone by them and hence they are not required to make any payment of fine. 19. The appellants shall be released forthwith, if they are not wanted in any other case. 20. There shall be however no order as to cost. ----------- 720 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 720 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 10.08.2016 BEFORE THE HON'BLE HARSH KUMAR, J. Criminal Misc. Bail Application No.- 29519 Of 2015 Sanni Malik @ Sanni Jaat ...Applicant Versus State Of U.P. ...Opposite Party Counsel for the Applicant: N.K. Srivastava, Rajesh Kumar Sharma Counsel for the Opposite Party: Govt. Advocate, Sushil Shukla Procedure: Application for bail in S.T. No. 53 of 2015, arising out of Case Crime No. 682 of 2011, under Sections 364-A, 120-B, 34 IPC, Police Station Sector-20, Noida, District Gautam Budh Nagar. Citation: Relied on: CBI Vs. Vijay Sai Reddy, (2013) 7 SCC 452; Y.S. Jagan Mohan Reddy Vs. CBI, (2013) 7 SCC 439. Headnote: Bail in a case of kidnapping for ransom cannot be granted where the applicant approaches the Court with false statements and concealment of material facts. Filing an incorrect copy of the victim's statement, falsely asserting absence of criminal history, and taking a false plea regarding lack of knowledge of proceedings amounts to an attempt to mislead the Court and procure bail by fraud .In considering bail, the Court must evaluate the nature and gravity of the accusation, criminal antecedents of the accused, likelihood of tampering with evidence, and larger public interest. Where the accused has criminal antecedents, was absconding for a long period, and has attempted to misguide the Court, the discretion of bail should not be exercised in his favour. Result: Bail Application Rejected. (Delivered by Hon'ble Harsh Kumar, J.) (Delivered by Hon'ble Harsh Kumar, J.) 1. Heard Sri N.K. Srivastava, Sri Rajesh Kumar Sharma, learned counsel for the applicant, Sri Sushil Shukla, learned counsel for the first informant, learned AGA for the State and perused the record.