# Dinesh v. State of U.P

- **Citation:** (2021) 2 ILRA 1029
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-09
- **Case number:** Criminal Appeal No. 2951 of 2009
- **Bench:** Ved Prakash Vaish
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-v-state-of-u-p-46718
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860-
Sections 364 & 368 - Kidnapping and
Abduction - 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.

In order to bring home the charge of kidnapping
or abduction, the burden of proof lies upon the
prosecution to prove that the accused had the
intention to cause the death of the abductee.

Criminal Law - Indian Penal Code, 1860-
Sections 364 & 368 - 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-No 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.

Where the prosecution fails to prove that the
child was kidnapped or abducted in order to
commit his murder, then mere recovery of the
child from the possession of the accused cannot
make out the offence u/s 364 and 368 against
the accused.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal
Appeal
accordingly
allowed.
(Para 15, 23, 24) (E-2)

Judgements/ Case law relied upon:-

## Text

2 All. Dinesh Vs. State of U.P.
1029
years and a half. The long lapse of time
during which the decree has remained in
limbo is on account of pendency of this
second appeal before this Court, preferred
by the defendant.

74. There is nothing to show that the
plaintiff has decisively contributed to this
delay in any manner. The price rise, if that
be a factor, during these twenty-seven years
that this second appeal by the defendant has
remained pending, cannot be capitalized
upon to sway this Court's discretion. This
Court is assured that the Lower Appellate
Court has rightly exercised discretion to
grant specific performance on the facts of
the case, the pleadings of parties, the
evidence on record and circumstances that
appear. Substantial question of law no.7 is
answered in the negative, but in terms that
the discretion has been properly exercised
on a consideration of relevant evidence,
facts and circumstances by the Lower
Appellate Court.

75. In the result, the second appeal
fails and is dismissed with costs to the
plaintiff in all Courts.

76. Let a decree be drawn up,
accordingly.
----------
(2021)02ILR A1029
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.02.2021

BEFORE

THE HON'BLE VED PRAKASH VAISH, J.

Criminal Appeal No. 2951 of 2009

Dinesh ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Jail Appeal, Rajeev Raman

Counsel for the Respondent:
Govt. Advocate, Amicus Curaie

Criminal Law - Indian Penal Code, 1860-
Sections 364 & 368 - Kidnapping and
Abduction - 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.

In order to bring home the charge of kidnapping
or abduction, the burden of proof lies upon the
prosecution to prove that the accused had the
intention to cause the death of the abductee.

Criminal Law - Indian Penal Code, 1860-
Sections 364 & 368 - 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-No 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.

Where the prosecution fails to prove that the
child was kidnapped or abducted in order to
commit his murder, then mere recovery of the
child from the possession of the accused cannot
make out the offence u/s 364 and 368 against
the accused.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal
Appeal
accordingly
allowed.
(Para 15, 23, 24) (E-2)

Judgements/ Case law relied upon:-

1. Ranjit Kumar Haldar Vs St. of Sikkim, (2019)
7 SCC 684

2. Upendra Nath Ghosh Vs Emperor, AIR 1940
Cal 561

3. Badshah & ors. Vs St. of U.P, (2008) 3 SCC
681

4. Smt. Saroj Kumari Vs St. of U.P.', (1973) 3
SCC 669

(Delivered by 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 accusedDinesh 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
2 All. Dinesh Vs. State of U.P.
1031
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
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
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
2 All. Dinesh Vs. State of U.P.
1033
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.
1034 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.
2 All. Hotilal Rajput & Anr. Vs. State of U.P.
1035

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.
----------
(2021)02ILR A1035
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE SUBHASH CHAND, J.

Criminal Appeal No. 7291 of 2019
&
Criminal Appeal No. 7649 of 2019

Hotilal Rajput & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Purushottam Dixit

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code, 1860-
Section
302/34-
Hostile
witnesses-
Although all these witnesses of fact have
been declared hostile yet their testimony
cannot be discarded in toto. All the
witnesses of fact have admitted in their
statements that death of Arti was caused
in the matrimonial house and the death of
deceased
is
homicidal.
Obviously
it
appears, these witnesses of fact have
been won over by the defence.

It is settled law that even where witnesses are
hostile, that part of their testimony can be
considered which supports the case of the
prosecution.

Evidence Act - Indian Evidence Act, 1872-
Section 106- The death of deceased Arti
was homicidal as per ocular evidence is
also corroborated with medical evidence-
Where the incident had taken place inside
the house, the onus lies upon the persons
of the house present. In such cases it is
difficult for the prosecution to lead any
direct evidence to establish the guilt of he