# Guddoo @ Nitin Singh v. State of U.P

- **Citation:** (2020) 8 ILRA 628
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-10
- **Case number:** Criminal Appeal No. 7617 of 2006
- **Bench:** Govind Mathur, C.J. Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/guddoo-nitin-singh-v-state-of-u-p-45878
- **Pages:** 10

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section
364-
Section
364-A
IPC-
Distinction between- kidnapping for the
purpose of ransom - More heinous
offence - While kidnapping/abduction;
kidnapping/abduction
in
order
to
murder;
extortion
were
pre-defined
offences with punishment upto ten year
imprisonment, by introducing section
364-A the Parliament declared a more
heinous
offence.
The
punishment
prescribed was life imprisonment or
death penalty.

Section 364-A of the IPC makes out a more
heinous
offence,
punishable
with
imprisonment for life or death penalty, since
the said section provides for kidnapping for
ransom.

Criminal Law- Indian Penal Code, 1860-
Section 364-A - Essential ingredients-
For a conviction under Section 364-A
IPC to arise or be sustained, in the facts
of the instant case, it must be seen to
have
been
established
beyond
reasonable doubt that the victim had
been
kidnapped
by
the
appellant;
and/or kept under detention upon being
kidnapped; under threat or reasonable
apprehension of or actual hurt or death
caused to the kidnapped child, to fulfill a
ransom demand. A simple demand of
ransom,
even
if
accompanied
with
kidnapping, would not complete the
ingredients of offence under Section
364-A IPC. The demand of ransom must
be proven to have been made under
threat or reasonable apprehension or
actual hurt or death.

In order to prove the offence under Section
364- A of the IPC the prosecution, inter-alia,
has to prove the ingredient of kidnapping for
the purpose of ransom made under the threat
or reasonable apprehension of causing actual
hurt or death.

Criminal Law- Indian Penal Code, 1860 -
Section 364-A - Section 365- Absence of
necessary ingredients of the offence
under section 364-A of the IPC - More
than reasonable doubts exist as to the
third
ingredient
of
offence
under
Section 364-A IPC- The prosecution has
failed to establish that there was any
threat to cause death or hurt or any
reasonable apprehension of death or
hurt being caused to the victim to
compel
payment
of
a
ransom.
Ingredients of offence under Section
365 IPC was made out, inasmuch as the
victim, who was a minor child, is found
8 All. Guddoo @ Nitin Singh Vs. State of U.P.
629
to have been kidnapped and wrongfully
confined by the appellant. In absence of
the
third/further
ingredient
of
the
offence under Section 364-A IPC, we
find the present to be a fit case to
modify the charge and, therefore, the
conviction and sentence awarded to the
appellant to one under Section 365 IPC
in place of Section 364-A IPC.

Where the prosecution has failed to prove the
third ingredient required to make out the
offence u/s 364-A, viz. that there was any
threat to cause death or hurt or any
reasonable apprehension of death or hurt
being caused to the victim to compel payment
of a ransom, but other ingredients making out
the offence u/s 365 IPC are proved, then the
accused can only be convicted u/s 365 of the
IPC.

Criminal Appeal partly allowed. ( Para 11,
15, 17, 19, 21) (E-3)

Case law relied upon/ Discussed: -

## Text

628 INDIAN LAW REPORTS ALLAHABAD SERIES
sentencing
the
accused-appellant,
is
hereby affirmed and maintained. The
accused-appellant is already in jail. He
shall serve out the sentence as awarded
by the court below.

56. Let a copy of this judgment
along with lower Court's record be
transmitted forthwith to concerned Court
below for necessary compliance.
----------
(2020)08ILR A628
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2020

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Criminal Appeal No. 7617 of 2006

Guddoo @ Nitin Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Jagdish Singh Sengar, Sri B.M.
Pandey, Sri Balendra Kumar Singh, Sri
D.K. Singh, Sri H.V. Shastri, Ms. Mary
Puncha (Sheeb Jose), Sri Mohd. Kalim,
Sri Rajiv Lochan Shukla, Sri Santosh
Kumr Misra, Sri Sushil Kumar Dwivedi, Sri
Sanjeev Singh

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

Criminal Law- Indian Penal Code, 1860-
Section
364-
Section
364-A
IPC-
Distinction between- kidnapping for the
purpose of ransom - More heinous
offence - While kidnapping/abduction;
kidnapping/abduction
in
order
to
murder;
extortion
were
pre-defined
offences with punishment upto ten year
imprisonment, by introducing section
364-A the Parliament declared a more
heinous
offence.
The
punishment
prescribed was life imprisonment or
death penalty.

Section 364-A of the IPC makes out a more
heinous
offence,
punishable
with
imprisonment for life or death penalty, since
the said section provides for kidnapping for
ransom.

Criminal Law- Indian Penal Code, 1860-
Section 364-A - Essential ingredients-
For a conviction under Section 364-A
IPC to arise or be sustained, in the facts
of the instant case, it must be seen to
have
been
established
beyond
reasonable doubt that the victim had
been
kidnapped
by
the
appellant;
and/or kept under detention upon being
kidnapped; under threat or reasonable
apprehension of or actual hurt or death
caused to the kidnapped child, to fulfill a
ransom demand. A simple demand of
ransom,
even
if
accompanied
with
kidnapping, would not complete the
ingredients of offence under Section
364-A IPC. The demand of ransom must
be proven to have been made under
threat or reasonable apprehension or
actual hurt or death.

In order to prove the offence under Section
364- A of the IPC the prosecution, inter-alia,
has to prove the ingredient of kidnapping for
the purpose of ransom made under the threat
or reasonable apprehension of causing actual
hurt or death.

Criminal Law- Indian Penal Code, 1860 -
Section 364-A - Section 365- Absence of
necessary ingredients of the offence
under section 364-A of the IPC - More
than reasonable doubts exist as to the
third
ingredient
of
offence
under
Section 364-A IPC- The prosecution has
failed to establish that there was any
threat to cause death or hurt or any
reasonable apprehension of death or
hurt being caused to the victim to
compel
payment
of
a
ransom.
Ingredients of offence under Section
365 IPC was made out, inasmuch as the
victim, who was a minor child, is found
8 All. Guddoo @ Nitin Singh Vs. State of U.P.
629
to have been kidnapped and wrongfully
confined by the appellant. In absence of
the
third/further
ingredient
of
the
offence under Section 364-A IPC, we
find the present to be a fit case to
modify the charge and, therefore, the
conviction and sentence awarded to the
appellant to one under Section 365 IPC
in place of Section 364-A IPC.

Where the prosecution has failed to prove the
third ingredient required to make out the
offence u/s 364-A, viz. that there was any
threat to cause death or hurt or any
reasonable apprehension of death or hurt
being caused to the victim to compel payment
of a ransom, but other ingredients making out
the offence u/s 365 IPC are proved, then the
accused can only be convicted u/s 365 of the
IPC.

Criminal Appeal partly allowed. ( Para 11,
15, 17, 19, 21) (E-3)

Case law relied upon/ Discussed: -

1. Malleshi Vs St. of Kar., (2004) 8 SCC 95

2. Suman Sood @ Kamal Jeet Kaur Vs St. of
Raj., (2007) 5 SCC 634

3. Anil alias Raju Namdev Patil Vs Admin. of
Daman & Diu & anr., (2006) 13 SCC 36

4. Shyam Babu & ors. Vs St. of Har., (2008)
15 SCC 418

5. Vikram Singh alias Vicky & anr. Vs U.O.I &
ors., (2015) 9 SCC 502

6. St. of U.P. Vs Ram Chandra Trivedi (1976)
4 SCC 52

(Delivered by Hon'ble Saunitra Dayal Singh, J.)

1. This Criminal Appeal arises from
the judgment dated 01.12.2006 passed by
the Additional Sessions Judge, Fast
Track Court No. 1, Fatehpur. The learned
court below has recorded conviction of
the accused appellant-Guddoo @ Nitin
Singh for offence punishable under
Section 364-A IPC. and sentenced him to
undergo imprisonment for life. The
learned court has also imposed fine of
Rs. 10,000/- and in default thereof,
provided the appellant would undergo
additional rigorous imprisonment for one
year. The appellant-Guddoo @ Nitin
Singh is disclosed to be in jail since
09.06.2005, i.e. for last fifteen years.

2. The prosecution case is - on
02.04.2005, a missing person report was
lodged by Suresh Kumar Sahu, PW-1
(paternal uncle of the victim) at the
Police
Station
Khakhreru,
District
Fatehpur, reporting that his nephew
Aman, aged about nine years, had gone
missing while the latter had been riding a
bicycle, in the village. His abandoned
bicycle was found near Medipur village.
More than two months after the said
report had been lodged, the said Suresh
Kumar (PW-1) made another written
report at P.S. Khakhreru, on 09.06.2005.
In that report, he made further allegations
against still unknown miscreants - of
demand of ransom. Personal clothes &
slippers of the victim and, a ransom note
were disclosed to have been received
from unknown miscreants. The same
were stated to be available with Rajesh
Kumar (PW-3), father of the victim. On
09.06.2005 itself, the appellant-Guddoo
@ Nitin Singh and another accused-Lala
@ Digvijai Singh @ Rahul are said to
have been arrested by the police of P.S.
Dhoomanganj, District-Allahabad (now
Prayagraj) and the victim recovered from
their illegal custody, at a place described
as jungle near the Military Farms, on the
eastern side of Devprayagam Colony, in
District Allahabad. The third accused
Munna Singh is also claimed to have
been named by the victim and also the
630 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons Guddoo and Lala (upon
their arrest), as being the third person
involved in the kidnapping.

3.
 Upon
completion of
the
investigation, appellant-Guddoo @ Nitin
Singh, co-accused Lala @ Digvijai Singh
@ Rahul and Munna Singh were charged
for offence under Section 364-A IPC.
They pleaded not guilty and were hence
tried.

4. At the trial, four written notes
demanding ransom were made exhibits.
These were sought to be proved by the
first informant Suresh Kumar (PW-1).
Also, the said Suresh Kumar as also the
victim
child
Aman
(PW-2)
were
examined for ocular evidence alongwith
Rajesh Kumar, the father of the victim
who was also examined as PW-3. All
three witnesses generally supported the
prosecution story. PW-1 and PW-2 were
put through extensive cross-examination,
wherein it came out that neither any of
the ransom notes were received by either
of them directly nor they had received
any phone call on their personal
phones/mobile phones demanding any
ransom amount, nor they had received
such demand directly, from any of the
accused persons, through any other
mode. On the contrary, Suresh Kumar
(P.W.-1) stated that certain personal
clothes, slippers and the first ransom note
were received by a relative of PW-1,
namely
Shiv
Mangal
Sahu,
on
19.04.2005 from two unknown persons.
The second ransom note was again
claimed to have been received by the said
Shiv Mangal Sahu being a letter dated
13.05.2005 received through registered
post, on 19.05.2005. A third ransom note
dated 06.06.2005 is also stated to have
been received through Shiv Mangal
Sahu. A ransom demand is also stated to
have been made during certain telephonic
conversation on the mobile phone of the
village 'Pradhan' Narpat Singh. Further,
according to the prosecution, yet another
ransom note was received by the family
of the victim child through one Budul
Yadav, inside a wedding invitation card.
However, none of the aforesaid three
persons was examined as a prosecution
witness. Suresh Kumar (PW-1) also
clarified that the ransom notes were first
produced before the police authorities on
9.06.2005, after the victim child had been
recovered and that Narpat Singh had
informed him about the phone call
received on his mobile phone, to demand
ransom prior to 09.06.2005. Then, of his
own, he appears to have added that an
information had been received on the
mobile phone of Narpat Singh regarding
demand of ransom and that he (PW-1)
had spoken to the abductors on the
mobile phone of Narpat Singh.

5. At the same time, Rajesh Kumar
(PW-3), who is father of the victim,
stated
that
he
was
informed
on
08.06.2005, that the victim child had
been
recovered.
He
reached
P.S.
Dhoomanganj, Allahabad on 09.06.2005
in the morning and stayed back at
Allahabad on 09.06.2005 and gained
custody
of
the
victim
child
on
10.07.2005. He also specifically stated
that he was very familiar with the voice
of the present appellant-Guddoo @ Nitin
Singh, and the co-accused-Lala @
Digvijai Singh @ Rahul as they were
known to him from before the incident,
yet, during his cross-examination, he had
clarified that during his telephonic
conversations with the abductors, he
could recognise only the voice of his son
but not of the abductors. Also, during
8 All. Guddoo @ Nitin Singh Vs. State of U.P.
631
cross-examination, he specifically stated
that the victim child was 'chanchal' and
that when the child could not be found,
he (PW-1) had stated before the police
inspector that he believed that the child
had probably gone to some relative
(without informing him).

6. Insofar as the recovery of victim
is concerned, the testimony of police
personnel is consistent and categorical,
that the present appellant had been
apprehended by the police personnel of
P.S. Dhoomanganj, District Allahabad on
09.06.2005, on a tip off received from
certain local children - of a child being
held in captivity at a place described as
the jungle adjoining the Military Farms,
near Devprayagam - a residential colony,
in Allahabad. It was also sought to be
established that the demand of ransom of
about Rs. 5 lacs was made, of which Rs.
70,000/- had been paid in cash, a part of
which is claimed to have been recovered
from the appellant at the time of his
arrest.

7. In defence, the appellant doubted
the prosecution story on every aspect and
it was claimed that he had been falsely
made accused on account of certain preexisting disputes between the families of
appellant-Guddoo @ Nitin Singh and the
village 'Pradhan' Narpat Singh, with
whom the family of the victim was close
inasmuch as PW-3 Rajesh Kumar (father
of the victim) admitted to have helped
the said Narpat Singh during his election
as the village 'Pradhan'. Also, it was
suggested (during the cross examination
of PW-1), that the appellant's family held
a
very
large
agricultural
holding
exceeding 100 bighas, whereas the
agricultural holdings of the family of
victim was very small in comparison
being about 4 - 4.5 bighas (during the
cross examination of PW-3). Therefore,
the allegation of abduction for ransom
was suggested to be wholly concocted
and inherently improbable. It has also
been stated that the appellant had been
arrested
from
the
house
of
his
relative/brother-in-law
and
illegally
detained without formal arrest being
shown and that his brother-in-law had
been forced to withdraw Rs. 10,000/-
from his bank account at Allahabad
Kshetriya Gramin Bank, on 09.06.2005
for payment of bribe to the police party
that had arrested him. The police had
upon receipt of that money shown its
false recovery as part of the ransom
received. A defence witness Vijay Singh
(DW-1), the real brother-in-law of the
accused persons Guddoo and Lala was
examined. He testified that those accused
persons had been staying with him, in
Allahabad for last few months before
their arrest and that the police personnel
of Dhoomanganj police had picked them
up on 07.06.2005 and that he had
withdrawn money from his bank account
at the Allahabad Kshetriya Gramin Bank
from which alleged bribe was paid to the
police personnel to obtain release of the
accused Guddoo and Lala.

8. Upon consideration of the entire
evidence, the learned court below has
convicted the present appellant for the
offence under Section 364-A IPC and
sentenced him to undergo life term
imprisonment together with fine of Rs.
10,000/-. Inter alia, the trial court relied
heavily on the evidence of PW-1, PW-2
and PW-3 with respect to allegation of
kidnapping and demand of ransom and
on the testimony of police personnel with
respect to his recovery. The defence
evidence with respect to appellant having
632 INDIAN LAW REPORTS ALLAHABAD SERIES
been picked up by the police, a few days
before the recovery of the victim child,
was disbelieved.

9. Heard Sri Sanjeev Singh, learned
Senior Advocate, assisted by Ms. Mary
Puncha for the appellant and Sri Jai
Narayan
Singh,
learned
Additional
Government Advocate for the State and
perused the record.

10. Earlier, a two judge bench of
the Supreme Court in Malleshi Vs. State
of Karnataka, (2004) 8 SCC 95, laid
down three ingredients required to
complete an offence under Section 364-A
IPC. In para 12 of the aforesaid report, it
has been observed as under:

"12. To attract the provisions of
Section 364-A what is required to be
proved is: (1) that the accused kidnapped
or abducted the person; (2) kept him
under detention after such kidnapping
and
abduction;
and
(3)
that
the
kidnapping
or
abduction
was
for
ransom......"

Similar test was also applied in
another two judge bench decision of that
Court in Suman Sood alias Kamal Jeet
Kaur Vs. State of Rajasthan, (2007) 5
SCC 634.

11. However, a different view was
taken, in at least two other decisions of
the Supreme Court. Therein, a distinction
was drawn between ingredients of
offence as defined under Sections 364
and
other
pre-defined
offences
of
kidnapping and extortion, on one hand
and, that under the newly added Section
364-A IPC. The newly added section
introduced the offence - kidnapping or
abduction carried out and/or illegal
detention of the victim held under threat
of hurt or murder etc. to compel the
government or a person etc. to do or not
do any act or to compel payment of
ransom.
Thus,
while
kidnapping/abduction;
kidnapping/abduction in order to murder;
extortion were pre-defined offences with
punishment upto ten year imprisonment,
by
introducing
section
364-A
the
Parliament declared a more heinous
offence,
described
above.
The
punishment
prescribed
was
life
imprisonment or death penalty. In Anil
alias
Raju
Namdev
Patil
Vs.
Administration of Daman & Diu,
Daman & Anr., (2006) 13 SCC 36, it
was held:

"The
ingredients
for
commission of offence under Section 364
and 364-A are different. Whereas the
intention to kidnap in order that he may
be murdered or may be so disposed of as
to be put in danger as murder satisfies
the requirements of Section 364 of the
Penal Code, for obtaining a conviction
for commission of an offence under
Section 364-A thereof it is necessary to
prove that not only such kidnapping or
abetment has taken place but thereafter
the accused threatened 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
intergovernmental
organisation or any other person to do or
abstain from doing any act or to pay a
ransom."

12. Again, in Shyam Babu & Ors.
Vs. State of Haryana, (2008) 15 SCC
8 All. Guddoo @ Nitin Singh Vs. State of U.P.
633
418, another two judge bench of the
Supreme Court interpreted the provision
of Section 364-A IPC, thus:

"Shri Kush, learned counsel
concentrated on the nature of the offence.
According to him, the ingredients of
Section 364-A IPC were not proved in
this case and at the most, the conviction
could be under Section 364. Section 363
deals
with
the
punishment
for
kidnapping, which offence is defined in
Section 359. The punishment is seven
years.
Section
364
provides
for
kidnapping or abducting in order to
murder, while Section 364-A deals with
kidnapping for ransom. The wording is
as under:

"364-A.
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
intergovernmental
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."

The wording itself suggests that
when kidnapping is done with the threat
to cause death or hurt to the kidnapped
person
or
gives
a
reasonable
apprehension that some person may be
done to death or hurt or compels any
Government,
any
foreign
State
or
international
intergovernmental
organisation or any person to pay a
ransom, the offence is complete."

13. While an apparent conflict of
opinion exists in the aforesaid decisions
of the Supreme Court, all of equal bench
strength, yet, that difficulty may not hold
us any longer, since a three judge bench
of the Supreme Court, in Vikram Singh
alias Vicky & Anr. Vs. Union of India
& Ors., (2015) 9 SCC 502 also had the
occasion to deal with this issue. Upon
elaborate consideration of the textual
background and history of legislation, the
Supreme
Court
interpreted
the
ingredients of Section 364-A IPC thus :-

"The
argument
though
attractive does not stand on closer
scrutiny. The reasons are not far to seek.
Section 364-A IPC has three distinct
components viz. (i) the person concerned
kidnaps or abducts or keeps the victim in
detention after kidnapping or abduction;
(ii) threatens to cause death or hurt or
causes apprehension of death or hurt or
actually hurts or causes death; and (iii)
the kidnapping, abduction or detention
and the threats of death or hurt,
apprehension for such death or hurt or
actual death or hurt is caused to coerce
the person concerned or someone else to
do something or to forbear from doing
something or to pay ransom. These
ingredients are, in our opinion, distinctly
different from the offence of extortion
under Section 383 IPC. The deficiency in
the existing legal framework was noticed
by the Law Commission and a separate
provision in the form of Section 364-A
IPC proposed for incorporation to cover
the ransom situations embodying the
ingredients
mentioned
above.
The
argument that kidnapping or abduction
for ransom was effectively covered under
634 INDIAN LAW REPORTS ALLAHABAD SERIES
the existing provisions of IPC must,
therefore, fail."

14. In State of U.P. Vs. Ram
Chandra Trivedi (1976) 4 SCC 52,
such a situation was clearly resolved by
providing a simple touchstone to the
High Courts - "to try to find out and
follow the opinion expressed by the
larger benches of the Supreme Court".

15. Thus, upon such authoritative
pronouncement made by a larger bench
of the Supreme Court, no quarrel can
arise or exist as to the true ingredients of
an offence under Section 364-A IPC. For
that offence to be complete, there must
necessarily co-exist the following three
ingredients:

(a) kidnapping or abduction OR
detention after kidnapping or abduction;

(b) threat to cause death or hurt
OR reasonable apprehension as to that
OR death or hurt actually caused to the
kidnapped person/abductee;

(c) the above acts must have
been performed to compel

(i) the Government OR foreign
state OR international inter-governmental
organisation OR any other person;

(ii) to do or to abstain from
doing any act OR to pay a ransom.

Unless all three ingredients are
proved to have existed, together i.e. in a
single chain or by way of an interlinked
transaction, the offence may not be said
to have been committed. Thus, for a
conviction under Section 364-A IPC to
arise or be sustained, in the facts of the
instant case, it must be seen to have been
established beyond reasonable doubt that
the victim Aman had been kidnapped by
the appellant-Guddoo @ Nitin Singh;
and/or kept under detention upon being
kidnapped; under threat or reasonable
apprehension of or actual hurt or death
caused to the kidnapped child, to fulfill a
ransom demand.

16. In the facts of the present case,
the requisite proof had to arise in two
parts. The prosecution was first burdened
to establish that the victim child had been
kidnapped
and/or
detained
by
the
appellant. In that regard, the prosecution
story
emerges
quite
consistently,
logically and truthfully, inasmuch as,
undisputedly the victim child was only
nine years of age on the date of his
disappearance. Then, on 02.04.2005,
PW-1 Suresh Kumar, who is the paternal
uncle of the victim, lodged a missing
person report alleging that the victim
went missing while the bicycle that he
was riding, was found lying abandoned
near village- Medipur. Then, besides the
discrepancy as to the date of recovery of
the victim on 09.06.2005 (as claimed by
the police) and 08.06.2005 (as claimed
by the father of the victim i.e. PW-3), S.I.
Narendra Kumar Singh (PW-4), who was
Chowki
Incharge
Rajroopur,
P.S.
Dhoomanganj at the relevant time and
Shail Kumar Singh (PW-6), SHO, P.S.
Dhoomanganj, categorically stated that
upon a tip off, the appellant and the coaccused Lala @ Digvijai Singh @ Rahul
were arrested, while they held illegal
custody of the victim child. They were
cross-examined
at
length.
No
inconsistency or doubt arose during such
extensive cross-examination as to the
factum of recovery and manner of
recovery of the victim claimed by the
prosecution. Therefore, there is no reason
8 All. Guddoo @ Nitin Singh Vs. State of U.P.
635
to doubt the prosecution allegation that
the victim was recovered from the
custody of the appellant and the coaccused Lala @ Digvijai Singh @ Rahul,
from the spot described as a jungle on the
eastern side of the residential colony,
Devprayagam, near the Military Farms,
at Allahabad. It may further be stated for
the purpose of completion of facts that
there is no case of appellant having
gained custody of the victim minor child
with consent of his natural guardian. The
victim child also testified as to his
kidnapping by the appellant and the other
co-accused and of being kept detained by
them till his discovery and recovery by
the police. Thus, the first part of the
burden to prove (that lay on the
prosecution), stood discharged beyond
any reasonable doubt. Also, there is no
doubt that the appellant had illegally
detained the victim for almost two
months since he was kidnapped. Though,
the appellant did state that he had been
falsely
implicated
by
the
police
personnel, he could not lead any positive
evidence in support of such claim.

17. However, as noted above, for
the offence under Section 364-A IPC to
be complete, kidnapping or abduction
and
illegal
detention
of
the
kidnapped/abducted
is
only
a
part
ingredient. The key ingredient that
distinguishes the offence under Section
364-A IPC from that of kidnapping;
extortion and; kidnapping for murder, is
the demand of a ransom under the threat
to cause hurt or death or reasonable
apprehension as to that or causing death
or hurt - to extract the ransom. It is in this
regard that the prosecution story waivers
and serious doubts emerge that require
consideration. In the first place, it was
the own case of the key prosecution
witness namely the first informant (PW1) and the father of the victim (PW-3)
that the personal clothes & slippers of the
victim as also the ransom notes were not
received by them, directly from any of
the accused persons. On the contrary,
they
asserted
that
such
personal
belongings of the victim and the ransom
notes were received by Shiv Mangal
Sahu, and Budul Yadav. Also, it was the
prosecution's own case that a ransom
demand was also received telephonically
on the mobile phone of the village
'Pradhan', namely Narpat Singh. Rajesh
Kumar, PW-3 (father of the victim)
further claimed to have spoken to the
abductors and the victim on the mobile
phone of Narpat Singh. However, for
reasons not known to the Court, neither
of the three persons, who allegedly
received the ransom notes and on whose
mobile phone demand for ransom was
made, were ever produced as a witness to
support that crucial aspect of the
prosecution
story.
It
is
also
not
completely free from doubt how PW-1
could have proven the exhibits i.e.
ransom notes and, clothes & slippers of
the victim, when, according to his own
statement, he had not received the same
from the abductors/accused persons but
the same were disclosed to have been
received from Shiv Mangal Sahu and
Budul Yadav. No effort whatsoever was
made to establish that the ransom notes
were in the handwriting of the accused
persons. The child witness who was
alleged to have been forced to write his
name on those ransom notes did not
identify his writing.

18. In any case, the prosecution
story in that regard, falls flat upon the
cross-examination of Rajesh Kumar
(PW-3) i.e. father of the victim child who
636 INDIAN LAW REPORTS ALLAHABAD SERIES
conceded that he had thought the victim
child had gone away to some relative, till
he was recovered. If the father of the
victim child always believed that the
latter was staying with some relative till
his recovery on 08/09.06.2005, then the
entire story of receipt of ransom notes
and threat to life of the victim child is
rendered completely unbelievable. It has
to be discarded in entirety. It may also be
noted, the victim child though supported
the prosecution allegation of demand of
ransom made over telephone, during the
telephonic conversations, yet, during his
cross-examination he stated that he did
not remember what transpired during
those telephonic conversations between
the abductors and his parents. Also,
though such demands or ransom, are
claimed to have been over a period of
almost two months from the date of
abduction till the date of arrest and
recovery, yet, that matter was never
reported to the police authorities. Also,
according to the first informant and the
father of the victim, they had partly
complied with the demand of ransom of
Rs 5,00,000/-. However, no evidence
could be led to establish the payment of
Rs. 70,000/- by way of part ransom
amount. In any case, that fact would
remain very difficult to prove, by its very
nature. At the same time, there also exist
doubts as to the exact amount of ransom
demanded-whether Rs. 2,00,000/- or Rs.
5,00,000/- or Rs. 2,70,000/-, in view of
varying
statements
of
different
prosecution witnesses, in that regard.

19. Then, as discussed above, a
simple demand of ransom, even if
accompanied with kidnapping, would not
complete the ingredients of offence under
Section 364-A IPC. The demand of
ransom must be proven to have been
made
under
threat
or
reasonable
apprehension or actual hurt or death.
Looked in this light, it is also relevant
that there were no injuries or marks of
any injury or torture found on the body of
victim child, at the time of his recovery on
09.06.2005. He also did not make any
statement to that effect. In his entire
testimony, he did not bring out any
allegation of any attempt made on his life or
any threat to life having been made on him
at the hands of the appellant or the other coaccused. In fact, he had described, in great
detail, his uneventful journeys and stay at
various places from 02.04.2005 up to the
point of his recovery by the police. Not only
this, there is a complete lack of any threat to
life or hurt in that narration, in fact, it is
completely uneventful except a stray
statement that he (PW-2) had once been
threatened while at an unspecified railway
station. Thus, that narration also does not
bring out any allegation of attempt to
murder or threat to murder or any bodily
injury caused to the victim to demand
ransom.

20. Thus, in entirety of the evidence
brought forth by the prosecution, we find that
more than reasonable doubts exist as to the
third ingredient of offence under Section 364A IPC. To conclude, the prosecution has
failed to establish that there was any threat to
cause death or hurt or any reasonable
apprehension of death or hurt being caused to
the victim to compel payment of a ransom.
Also, neither the ransom notes were ever
proved, nor the victim child proved the
demand of ransom. Further, it is doubtful that
such ransom notes were ever received or if a
conversation demanding ransom ever took
place, inasmuch as, the father of the victim
(PW-3) always thought, till the recovery of
the victim child that the latter had run away to
some relative. The kidnapped child was
8 All. Rameshwar @ Ramesh Vs. State of U.P.
637
recovered safe and sound. Thus, for the
reasons noted above, the third ingredient of
the offence under Section 364-A IPC is
found not proved.

21. As a consequence of the above
discussion and for the reasons given, we
find that ingredients of offence under
Section 365 IPC was made out, inasmuch as
the victim, who was a minor child, is found
to have been kidnapped and wrongfully
confined by the appellant. In absence of the
third/further ingredient of the offence under
Section 364-A IPC, we find the present to
be a fit case to modify the charge and,
therefore, the conviction and sentence
awarded to the appellant-Guddoo @ Nitin
Singh, to one under Section 365 IPC in
place of Section 364-A IPC.

22. Accordingly, the appeal is allowed
in part. The conviction of the appellantGuddoo @ Nitin Singh under Section 364-A
IPC is modified to one for offence punishable
under Sections 365 IPC. The maximum
punishment for such offence is seven years
only. The sentence is modified accordingly.
The appellant-Guddoo @ Nitin Singh has
remained confined for more than 15 years.
He is directed to be released forthwith, unless
required in any other case. The fine of Rs.
10,000/-, awarded by the learned court
below, is set-aside.
----------
(2020)08ILR A637
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.06.2020

BEFORE

THE HON'BLE RAJENDRA KUMAR -IV, J.

Criminal Revision No. 888 of 2018

Rameshwar @ Ramesh ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Satendra Kumar Upadhyay, Smt. A.P.
Upadhyay, Sri M.P.S. Chauhan

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

Competent court - can fully rely - on a
solitary
witness-record
conviction
-
legal system laid emphasis-quality over
quantity-no legal or otherwise error in
judgment
of
Court
below-Revision
partly allowed.

Held, so far as the public witness is
concerned, it is well settled that in absence of
public witness, prosecution story cannot be
disbelieved unless it is otherwise proved.
Incident like rape or sexual assault is
generally committed in lonely place and it is
not possible for prosecution to produce public
witness. (para 16)

Revision partly allowed. (E-9)

Cases referred: -

1. Dalip Singh Vs. St. of Punjab, AIR,1953, SC 364

2. Dharnidhar Vs. St. of U.P. (2010) 7 SCC 759,

3.Ganga Bhawani Vs. Rayapati Venkat Reddy
& ors., 2013(15) SCC 298

4.Sampath Kumar Vs. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124

5. Sachin Kumar Singhraha Vs. St. of M.P. in
Criminal Appeal Nos. 473-474 of 2019

6.Namdeo Vs. St. of Maharashtra (2007) 14
SCC 150

(Delivered by Hon'ble Rajendra Kumar -IV, J.)

1. Heard Sri MPS Chauhan, learned
counsel for revisionist, learned AGA for State
and perused the material available on record.