# Indra Pal & Anr. (In Jail) v. State of U.P

- **Citation:** (2023) 5 ILRA 581
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-25
- **Case number:** Criminal Appeal No. 8080 of 2008
- **Bench:** Pritinker Diwaker, C.J. Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indra-pal-anr-in-jail-v-state-of-u-p-50246
- **Pages:** 18

## Headnote

Sri
Amit
Sinha,
A.G.A.,
Ms.
Mayuri
Mehrotra, State Counsel

A. Criminal Law - Criminal Procedure
Code, 1973-Section 378 - Indian Penal
Code,
1860-Sections
364-A
&
365Challenge
to-Conviction-Victim
was
kidnapped and was recovered after 14
days under wrongful confinement- The
informant PW-2 and victim/kidnapped boy
PW-3 both have proved this fact that the
boy was recovered after an encounter
between the police and the accused
persons-The Investigating Officer PW-5
also proves the story of recovery of
kidnapped body and states that after
police encounter wherein the accused
persons opened fire upon the police party
which was reciprocated in defence by the
police, accused persons were arrested and
rest of the accused persons fled away-The
boy was retrieved from the kuthia, whose
hands and mouth were roped, arms and
cartridges were also retrieved, memo of
recovery was prepared. The rope and
cloth used in tiding the boy were also
proved by PW-5- PW-6, who was
accompanying the police at the time of
recovery of the boy also states the same
story-no injury was caused to any of the
accused persons or police personnel-Thus,
the prosecution has fully proved that the
kidnapped boy was recovered from the
possession of the accused appellants-the
evidences fulfils essential ingredients of
offence u/s 365-No evidence of ransom
and prosecution has failed to establish
essential ingredients of any such demand
as required u/s 364-A-the offence falls
within
the
purview
of
Section 365Accordingly conviction of appellants under
section 364-A was altered and modified to
one under Section 365.(Para 1 to 78)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,939 of 58,556. This is a partial read: ask again with offset=39939 for what follows._

5 All. Indra Pal & Anr. Vs. State of U.P.
581
under Sections 363, 366 and 354-B I.P.C.
against the accused-appellant is confirmed.
Thus, the criminal appeal has no force and
is liable to be dismissed.

52. The appeal is, accordingly,
dismissed with the aforesaid modification
of sentence awarded under Section 354-B
I.P.C.

53. Let a copy of the judgment along
with the record of the Trial Court be sent to
the Court concerned for compliance.
----------
(2023) 5 ILRA 581
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, C.J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 8080 of 2008
With
Criminal Appeal No. 8477 of 2008

Indra Pal & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Noor Mohammad, Sri R.K. Rathore, Sri
A.K. Pandey, Sri Ajit Kumar Singh Solanki,
Archna Hansh, Sri J.S. Sengar, Sri S.B.
Singh

Counsel for the Opposite Party:
Sri
Amit
Sinha,
A.G.A.,
Ms.
Mayuri
Mehrotra, State Counsel

A. Criminal Law - Criminal Procedure
Code, 1973-Section 378 - Indian Penal
Code,
1860-Sections
364-A
&
365Challenge
to-Conviction-Victim
was
kidnapped and was recovered after 14
days under wrongful confinement- The
informant PW-2 and victim/kidnapped boy
PW-3 both have proved this fact that the
boy was recovered after an encounter
between the police and the accused
persons-The Investigating Officer PW-5
also proves the story of recovery of
kidnapped body and states that after
police encounter wherein the accused
persons opened fire upon the police party
which was reciprocated in defence by the
police, accused persons were arrested and
rest of the accused persons fled away-The
boy was retrieved from the kuthia, whose
hands and mouth were roped, arms and
cartridges were also retrieved, memo of
recovery was prepared. The rope and
cloth used in tiding the boy were also
proved by PW-5- PW-6, who was
accompanying the police at the time of
recovery of the boy also states the same
story-no injury was caused to any of the
accused persons or police personnel-Thus,
the prosecution has fully proved that the
kidnapped boy was recovered from the
possession of the accused appellants-the
evidences fulfils essential ingredients of
offence u/s 365-No evidence of ransom
and prosecution has failed to establish
essential ingredients of any such demand
as required u/s 364-A-the offence falls
within
the
purview
of
Section 365Accordingly conviction of appellants under
section 364-A was altered and modified to
one under Section 365.(Para 1 to 78)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Suman Sood @ Kamal Jeet Kaur Vs St. of Raj.
r/w Daya Singh Lahoriya @ Rajeev Sudan Vs St.
of Raj.(2007) 5 SCC 634

2. Hari Kishan & St. of Har.Vs Sukhbir Singh
(1988) AIR SC 2127

3. St. of M.P. Vs Harjeet Singh & anr. (2019)
AIR SC 1120

4. Susanta Das Vs St. of Ori. (2016) 4 SCC
371

5. Shivaji Sahab Rao Vs St. of Mah. (1973) SCC
(Cri) 1033
582 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Netra Pal Vs St. (NCT of Delhi) (2001) 0
Supreme (Del) 293

7. Shaik Ahmed Vs St. of Telangana (2021) 0
SCC 304

8. J. Yashoda Vs K. Shobha Rani (2007) 5 SCC
730

9. H. Siddiqui Vs A. Ramlingam (2011) 4 SCC
240

10. Jagmail Singh Vs Karamjit Singh (2020) 5
SCC 178

11. Ram Suresh Singh Vs Prabhat Singh (2009)
6 SCC 681

12. Mahesh Vs St. of UP CRLA No. 3647 of 2005

13. Ashwani Dubey Vs St. of UP CRLA 7740 of
2006

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Since these appeals have been
preferred against the same judgment and
relate to same Crime Number, they were
heard together and are being decided by
this common judgment.

2. The Special Judge (DAA) /
Additional Sessions Judge, Court No.5,
Etah
by
judgment
and order
dated
22.11.2008 passed in Special Sessions Trial
No. 25 of 1998 (Crime No. 346 of 1997),
P.S. Soron, District Etah convicted and
sentenced the appellants under Section
364A I.P.C. to undergo life imprisonment
with a fine of Rs. 2,000/- each and under
Section 307 I.P.C. read with Section 149
I.P.C. to undergo seven years rigorous
imprisonment with a fine of Rs. 500/- each
and in default of payment of fine, to
undergo three months additional rigorous
imprisonment. All the sentences were
directed to run concurrently. Aggrieved
with the said judgment, present appeals
have been preferred by the appellants.

3. Brief facts, as culled out from the
record, are that a First Information Report
was lodged by the informant, Chandra Pal
son of Roopram, resident of Badanpur,
Police Station Soron, District Etah, on
22.11.1997
at
2.45
p.m.,
with
the
averments
that
in
the
night
of
21/22.11.1997, as usual, he was sleeping
inside his shop and his wife Prema Devi
was sleeping in the shed with the kids and
nearby his children were also sleeping on
different cots. At about 12.00 p.m. when
the wife of the informant made noise that
miscreants had come, he came out
unlocking the shop. Six seven miscreants
came and took his 11 years old son Rajesh.
On raising alarm by the informant and his
wife, his neighbors also came there. When
everyone tried to rescue the boy from the
miscreants, they fired with guns and went
towards south with the boy. Jabar Singh
son of Siya Ram Jatav received gunshot
injury in the occurrence.

4. On the basis of aforesaid written
report, on 22.11.1997 F.I.R. was lodged
against 6-7 unknown miscreants for the
offence under Sections 364 and 307 I.P.C.
Investigating Officer started investigation
and inspected the spot and prepared the site
plan. Injured Jabar Singh was medically
examined on the same day at the
Community Health Centre, Soron, Etah.
During the course of investigation, on the
basis of an information dated 4.12.1997,
the Investigating Officer with other police
personnel, reached Badanpur where the
informant Chandrapal met and handed over
a letter regarding demand of ransom of Rs.
70,000/- in respect of the kidnapped boy.
When the police personnel alongwith the
informant and other persons, with a view to
5 All. Indra Pal & Anr. Vs. State of U.P.
583
search out the kidnapped boy, reached the
old brick kiln before the village Goyti,
information was received that in the house
of Pusey son of Sonpal Kashyap, the
kidnapped boy alongwith the kidnappers
are present. On the basis of the said
information, the police personnel alongwith
informer and other persons, reached at
village Chauraghat and when on the tip of
the informer, reached the corner of the
western wall of the house of Pusey
Kashyap, it was seen that six persons,
armed with gun and tamancha, were sitting
on the north face of the roof (kotha) and
when they saw the police personnel, they
fired 5-6 shots with intention to kill them.
In their defence, the police personnel also
fired upon them and by using necessary
force, two miscreants were caught by
surrounding them in front of Pusey's house
and the remaining four miscreants, namely,
Pusey, Mahatma, Awadhesh and Kallu
managed to escape. Of the criminals
caught, one told his name as Shripal son of
Chhuni Lal, resident of Pachauraghat, P.S.
Soron, District Etah and on his search, one
SBBL gun 12 bore with three live
cartridges of 12 bore were recovered,
whereas the other person identified himself
as Indrapal son of Anar Singh, resident of
Badanpur, P.S. Soron, District Etah. On his
search, one tamancha deshi bore and two
live cartridges were recovered. On the
pointing out of Shripal, the kidnapped boy
was recovered from the Pusey's roof
(kotha). Informant Chandrapal identified
him as his son Rajesh, who was kidnapped
for ransom. Accused persons Shripal and
Indrapal were arrested and recovered SBBL
gun and country made pistol alongwith live
and empty cartridges were sealed in
separate cloths and specimen seal was
prepared. The plastic rope, with which the
kidnapped boy was tied, was also seized
and a memo was prepared. On the basis of
seizure, cases under Sections 147,148, 149,
307 I.P.C. against accused Kallu, Shripal,
Indrapal, Mahatma and Pusey and under
Section 25 Arms Act against accused
Shripal and Indrapal were registered.
Rajesh, the kidnapped boy, was medically
examined on 4.12.1997 at the Community
Health Centre, Soron at 2.45 p.m. and was
handed over to his father Chandra Pal.
After completing the investigation, charge
sheets under Sections 364A and 307 I.P.C.
against the accused Shripal, Indrapal,
Mahatma, Awadhesh, Kallu and Pusey,
under Sections 147, 148, 149, 307 I.P.C.
against accused Kallu, Shripal, Indrapal,
Mahatma and Pusey and under Section 25
Arms Act against the accused Shripal and
Indrapal,
were
submitted.
Concerned
Magistrate took the cognizance. The cases
being exclusively triable by Sessions Court,
were committed to the Court of Sessions.

5. On 23.5.1998, charges under
Sections 148, 307 I.P.C. read with Section
149 I.P.C. were framed against accused
Kallu, Shripal, Indrapal and Mahatma in S.T.
No. 193 of 1998. On the said date, charge
under Section 25 Arms Act was also framed
against accused Indrapal and Shripal in the
said S.T.. On 18.8.1999, charges under
Sections 364A and 307 I.P.C. read with
Section 149 I.P.C. were framed against
accused
Shripal,
Indrapal,
Mahatma,
Awadhesh, Pusey and Kallu in S.S.T. No. 25
of 1998. On 4.12.1998 in S.T. No. 676 of
1998 against the accused Pusey, charges
under Sections 148, 307 I.P.C. read with
Section 149 I.P.C. were framed.

6. All the six accused persons
appeared before the trial court. They denied
the charges and claimed their trial.

7. It transpires from the record that
accused persons charged in this case were
584 INDIAN LAW REPORTS ALLAHABAD SERIES
tried in different sessions trials, which were
subsequently
amalgamated.
Accused
Shripal, Indrapal, Mahatma, Kallu and
Pusey were tried in S.S.T. No. 25 of 1998,
accused Kallu, Shripal, Indrapal and
Mahatma were tried in Sessions Trial No.
193 of 1998 and accused Pusey was tried in
Sessions Trial No. 676 of 1998. It also
transpires from the record that earlier
evidence of separate Sessions Trial was
recorded
separately,
particularly,
in
Sessions Trial Nos. 25 of 1998 and 193 of
1998 and that is why the exhibits marked
over the documents in separate sessions
trials
when
taken
together
make
a
confusing situation and accordingly Exhibit
Numbers marked over the documents are
somewhere overlapping, but the learned
trial
court
has
made
a
systematic
assessment of the evidence on record and
this Court is also apprised of this fact.

8. Trial proceeded and to bring home
the charges against the accused persons,
prosecution has examined in all eight
witnesses, who are as follows:

1
Jabar Singh
PW-1 (injured) (in
S.S.T.
No.
25/1998)
2
Chandra Pal
PW-2
(informant)
(in
S.S.T.
No.
25/1998)
3
Rajesh
PW-3
(kidnapped
boy) (in S.S.T. No.
25/1998)
4
Dr. Awadhesh
Kumar
PW-4 (witness of
injury report) (in
S.S.T.
No.
25/1998)
5
Indra
Pal
Singh Solanki
PW-5
(Investigating
Officer) (in S.S.T.
No. 25/1998)
6
Inspector
PW-6 (witness of
Dharam Singh
recovery
of
the
boy) (in S.S.T. No.
25/1998)
7
HCP Giridhari
Singh
PW-7 (scribe) (in
S.S.T.
No.
25/1998)
8
S.I.
Shitla
Prasad
PW-8
(Investigating
Officer of police
firing
case)
(in
S.S.T.
No.
25/1998)

9. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1
Chik F.I.R. crime
no. 346/1997
Ext. A-1
2
Copy of recovery
memo
Ext. A-2
3
Supurdginama
Ext. A-3
4
Injury report
Ext. A-4
5
Injury report
Ext. A-5
6
Site Plan
Ext. A-6
7
Site Plan
Ext. A-7
8
Charge sheet
Ext. A-8
9
Carbon
copy
of
G.D.
Ext. A-9
10
Site plan of place
of recovery
Ext. A-10
11
Charge sheets
Ext.
A-11,
Ext.
A-12,
Ext.
A-13,
Ext. A-14
12
Prosecution
sanction
letter
against
accused
Shripal
Ext. A-15
13
Prosecution
sanction
letter
against
accused
Indra Pal
Ext. A-16
14
Supplementary
Ext. A-17
5 All. Indra Pal & Anr. Vs. State of U.P.
585
charge sheet
15
Chik F.I.R. under
Section 25 Arms
Act
Ext. A-18

10. After closure of evidence,
incriminating materials appearing in the
prosecution evidence were put to the
appellants in their statements under Section
313 CrPC of which they denied and
claimed false implication.

11. Appellants in their defence have
examined DW-1 Ram Prakash and DW-2
Saudan Singh.

12. During trial, accused Awadhesh
died and trial against him was abated.

13. PW-1 Jabar Singh is the injured
witness
of
the
occurrence.
In
his
examination-in-chief, he has stated that his
house is near the house of the informant. It
was 12.00 in the night. 5-6 miscreants came
to the house of Chandrapal. On the noise,
he woke-up. While the miscreants were
taking away Rajesh son of Chandrapal, he
shouted that he recognized the miscreant,
the miscreant immediately shot him which
hit on his ear. He further stated that firstly,
the villagers carried him at Police Station
and thereafter to the hospital. He further
stated that he had recognized miscreant
Awadhesh, who was the resident of
Badanpur but could not recognize the other
miscreants. He further states that he fainted
as soon as he got shot. After 15-20 days of
the incident, his statement was recorded by
the police. He further stated that when he
regained consciousness after eight days, he
told the name of Awadhesh to Chandrapal.

14. PW-2, Chandrapal, is the
informant of the occurrence. He has
supported the contents of the written
report and also the entire prosecution case
including the recovery of the kidnapped
boy and the weapons and also the role of
the miscreants.

15. PW-3 is Rajesh, the kidnapped
boy. He has stated the manner in which he
was kidnapped by the miscreants. He has
also
stated
that
he
recognized
the
miscreants as Kallu, Shripal, Awadhesh,
Mahatma and Indrapal. He also stated that
the miscreants had not covered their faces.
He has deposed the entire scene of his
recovery.

16. PW-4 Dr. Awadhesh Kumar has
medically examined the injured Jabar
Singh and Rajesh, the kidnapped boy and
has proved the injury reports as Ext. A-4
and Ext. A-5.

17. PW-5 S.S.I. Indrapal Singh
Solanki is the Investigating Officer. He
has
proved
the
proceedings
of
investigation in his examination-in-chief
and also proved the site plans (Ext A-6
and Ext. A-7). He has also proved the
charge sheet (Ext. A-8).

18. PW-6 Inspector Dharm Singh was
posted as S.O. of the police station
concerned. He also accompanied the
Investigating Officer for the recovery of the
kidnapped boy and has proved the manner
of the recovery of the kidnapped boy, firing
on police by the miscreants, the weapons,
live and empty cartridges recovered from
the possession of the accused persons, the
rope with which the kidnapped boy was
tied, the blindfold and the empty cartridges,
which the police had fired in defence.

19. PW-7, Head Constable Giridhari
Singh, is the scribe of the F.I.R. and has
proved the chik F.I.R. and G.D. Rapat No.
586 INDIAN LAW REPORTS ALLAHABAD SERIES
4 at 2.45 a.m. as Ext. A-18 and Ext. A-9,
respectively.

20. PW-8, Sub-Inspector Shitla
Prasad, the Investigating Officer of crime
no. 354 of 1997 under Section 147, 148,
149, 307 of I.P.C. P.S. Soron and crime
nos. 355 of 1997 and 356 of 1997, which
was handed over to him on 4.12.1997. He
has proved the investigation proceeding,
the site plan (Ext. A-10) and charge sheets
(Ext. A-11 and Ext. A-17). He has also
proved the permission letters of the District
Magistrate to initiate prosecution under
Section 25 Arms Act against accused
Shripal and Indrapal as Ext. A-15 and Ext.
A-16, respectively. He has also proved the
chik F.I.R. (Ext. A-18).

21. DW-1, Ram Prakash @ Prakash,
has stated in his deposition that Chandrapal
is his uncle and Rajesh, the abductee, is his
brother. Upon hearing the noise, he had
gone to the house of Chandrapal. He has
further stated that the miscreants had not
covered their faces. He knew the accused
persons Indrapal, Kallu, Shripal, Pusey,
Mahatma
and
Awadhesh
before
the
incident. They had come to his village shop
to take ration. They had not kidnapped
Rajesh. Awadhesh had not fired upon Jabar
Singh. He had also gone to police station
alongwith other villagers. Since the
miscreants could not be recognized, the
F.I.R. was lodged against unknown
persons. He further stated that there was
strong partibandi in his village. He
further stated that neither the kidnapped
boy was recovered before him nor there
was any firing between the police party
and the miscreants. No weapon was
recovered before him from the possession
of accused Indrapal and Shripal. He had
seen the miscreants carrying Rajesh
alongwith them.

22. DW-2 Saudan Singh, has stated
that on the day of incident at about 11.0012.00 p.m. the buffalo of his uncle
Chandrapal (informant) was calving. The
gas lantern was en-lighting due to calving
of buffalo. His house is in front of the
house of Chandrapal (informant). Rajesh
was kidnapped by unknown miscreants.
When the miscreants came, their faces were
uncovered. He, Jabar Singh and Chandrapal
could not recognize them. He had also gone
to police station for lodging F.I.R. but as
the miscreants could not be recognized, the
F.I.R.
was
lodged
against
unknown
persons. He was not interrogated by the
police about the incident.

23. On the basis of aforesaid
evidence, learned trial court came to the
conclusion
that
the
prosecution
has
succeeded to establish the guilt against the
accused persons on the basis of cogent,
consistent
and reliable evidence and
charges against accused were proved
beyond reasonable doubt and accordingly
conviction order was passed.

24. Heard Shri Noor Mohammad,
learned counsel for the appellants in both
the appeals and Shri Amit Sinha, learned
AGA and Ms. Mayuri Mehrotra, learned
State Counsel.

25. Learned counsel for the appellants
has assailed the impugned judgment and
order on various grounds. It has been
argued that the accused persons are not
named in the F.I.R. and F.I.R. was lodged
against unknown persons whereas the
evidence reveals that the accused persons
were identified at the place of occurrence at
the time of kidnapping. It is also pointed
out that the kidnapping of the son of the
informant was not done for any ransom
and, hence, the case of the prosecution does
5 All. Indra Pal & Anr. Vs. State of U.P.
587
not fall within the ambit of Section 364A
I.P.C. It is further submitted that the
evidence
of
witnesses
of
fact
is
contradictory to each other. In the so called
police firing case, all the accused persons
have been acquitted and it is found by the
trial court that the alleged occurrence of
police firing was false and since the
kidnapped boy is said to be recovered in
the incident of the aforesaid police firing
case, the story of which has been falsified
by the witnesses, the alleged recovery of
the kidnapped boy from the possession of
the present appellants is also proved to be a
false story. It is next contended that due to
previous animosity, the appellants have
been falsely implicated in this case and on
some other points also it has been
submitted that the appellants deserve to be
acquitted of the charges and the appeals
deserve to be allowed.

26. Per contra, learned AGA,
vehemently opposing the appeals has stated
that the kidnapping of the son of the
informant was made for ransom. The
factum of kidnapping has been proved by
cogent and reliable evidence of the
kidnapped boy himself, which is fully
corroborated by the evidence of his father
and village witness Jabar Singh. The injury
report of the injured Jabar Singh affirms the
fact that during the commission of the
offence of kidnapping, the injured Jabar
Singh was shot fired by the appellants. The
evidence also reveals that ransom letter was
received by the informant, which was sent
by the appellants and the same was handed
over to the Investigating Officer. Apart
from this, on the basis of several other
grounds, the present appeals have been
assailed by the learned State Counsel and
dismissal of the appeals is prayed for.

27. To proceed with the present
matter, it will be desirable to have a glance
upon the provisions of Section 364A I.P.C.,
which are as follows:

"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
inter-governmental
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."

28. The Hon'ble Apex Court in
Suman Sood alias Kamal Jeet Kaur vs.
State of Rajasthan read with Daya Singh
Lahoriya alias Rajeev Sudan vs. State of
Rajasthan, (2007) 5 SCC 634 has laid
down
certain
requirements
for
the
application of Section 364A I.P.C. and it
has been so held by the Hon'ble Apex
Court :

"57. Before above section is
attracted and a person is convicted, the
prosecution must prove the following
ingredients:

(1)
the
accused
must
have
kidnapped, abducted or detained any
person;

(2) He must have kept such
person under custody or detention; and

(3) Kidnapping, abduction or
detention must have been for ransom."
588 INDIAN LAW REPORTS ALLAHABAD SERIES

29. The first and foremost fact to be
ascertained in the case in hand is whether
the minor son of the informant was
kidnapped by the present appellants and
firearm injury was caused to injured Jabar
Singh during the commission of crime of
kidnapping.

30. A perusal of the F.I.R. (Ext. ka-1)
proved by the informant PW-2 goes to
show that at the time of occurrence, 6-7
accused persons took away Rajesh Kumar,
the son of the informant and when on their
shrieks their neighbours also came over
there and tried to rescue the boy, the
accused persons fled away with the boy
firing by their guns and the gun shot injury
also inflicted upon Jabar Singh and he
sustained injury. The said F.I.R. was
written in the hand writing of PW-7, the
scribe of the F.I.R., who has proved his
hand writing and signature over it and also
the registration G.D. as Ext. ka-9.

31. In his cross-examination, PW-1
further
states
that
accused
persons
Awadhesh, Indrapal and Mahatma are the
native of his own village, who are
acquainted with him and further he states
that the accused persons were very well
identified by him in the light of gas lantern.
At one place, he says that he did not know
the accused persons by name, but later in
his deposition, he names the accused
persons involved in the incident. Further
more, he states that he knew the accused
persons by their names and face prior to the
incident and none of the accused persons
had hidden their face. He fairly admits that
he has not named the accused persons in
his report, nor disclosed it to the
Investigating Officer and further testimony
of this witness reflects that he had a fair
reason to conceal the name of the accused
persons.

32. This witness states that during the
commission of the occurrence, fire was
made upon Jabar Singh, which inflicted
injury over his ear. He further clarified that
it was the accused Awadhesh who had shot
fire upon Jabar Singh, but he was afraid of
the murder of his son, if he disclose the
name of Awadhesh Singh, as his son was in
the custody of the accused persons. In his
cross-examination, he fairly admits that "मैंने
बयान में कहा था की अवधेि ने जबर भसंह को फायर मारा था । 5 कदम
की दूरी से मारा था । अवधेि का नाम मैंने ररपोर्ष में इसभलए नहीं भलखाया
था भक मेरा लड़का फंसा हुआ था । अगर मैं नाम भलखाता तो मेरा लड़का
मारा जाता ।"

33. The aforesaid statement of PW-2
is found by us to be capable of explaining
the circumstances under which albeit
knowing very well the names and addresses
of the accused persons, their identity was
not disclosed in the F.I.R. by PW-2 and it
was lodged against unknown persons. This
is also an innocent statement of the poor
father, PW-2 that he did not name the
accused
Awadhesh
even
to
the
Investigating Officer or any other person in
order to save the life of his young son.

34. PW-1, injured Jabar Singh, has
also corroborated this fact that when on
shrieks he awoke in the night, he saw that
some accused persons were carrying the
son of Chandrapal and when he shouted, he
was fired upon by one of the accused
Awadhesh, a native of his own village and
the firearm injury was inflicted upon his
ear. He was taken to the police station and
thereafter to the hospital. In the crossexamination, he has clearly stated that
accused Awadhesh had not hidden his face
at the time of occurrence but he did not
know the other co-accused persons and
eight days after the incident, when he
became conscious, he disclosed this fact to
the informant Chandrapal.
5 All. Indra Pal & Anr. Vs. State of U.P.
589

35. PW-3, Rajesh, is the kidnapped
boy and is the key-witness. In his
testimony, he has affirmed this fact that at
the time of the occurrence, in the night,
accused persons Kallu, Shripal, Awadhesh,
Mahatma and Indrapal took him from his
house with guns and deshi pistols with
them and when they were chased by his
family members, fire was opened by them.
He has also clarified that since the accused
person happened to come over his grocery
shop, they were known to him prior to the
incident. In his cross-examination, he has
stated that none of the accused persons had
hidden their face, they had come with open
face, and during the occurrence, he has also
received some injuries in his hand and
buttock.

36. The Investigating Officer - PW-5
in S.S.T. No. 25 of 1998 has affirmed this
fact that the kidnapped boy Rajesh in his
statement had told him that Pusey, Shripal,
Indrapal, Awadhesh, Kallu and Mahatma
had kidnapped him in the incident. He has
corroborated this fact that when the
informant came to the police station, he
himself was present over there and he had
sent the witness Jabar Singh, who was not
in a condition to speak, to the hospital. He
was informed by them that some unknown
persons had kidnapped Rajesh and it was
also not disclosed to him that the fire was
shot by accused Awadhesh. It is to be
mentioned here that the reason for nondisclosure of the names of the accused
persons has been discussed in the earlier
part of this judgment. The same statement
has been made by PW-6 Inspector Dharam
Singh that in his presence the F.I.R. was
lodged but the names of the accused
persons
were
not
disclosed
by
the
informant or witnesses in the police station.

37. The prosecution has produced
PW-4 Dr. Awadhesh Kumar to prove the
fact that one gunshot injury was inflicted
upon the injured Jabar Singh during the
commission of offence of kidnapping.

38. PW-4, Dr. Awadhesh Kumar, has
stated in his evidence that on 22.11.2003 at
3.20 a.m. he had medically examined
injured Jabar Singh of P.S. Soron where he
was working as Medical Officer and found
following injuries on the injured Jabar
Singh :

"(1) Organ damage Rt ear and
Fire Arm wound size 10 cm X 4 cm X bone
deep on Rt. side of Head about 9 cm.
Lateral to Rt. Eye brow. Blackening &
Burn present, injury kept U/O advice X ray
skull (antero - posterior & lateral views).
Pt. Refer to District Hospital Etah for x ray
and further management.

(2) Abrasion size 2 cm X 0.5 cm
on Lt forehead about 2 cm above Lt.
Eyebrow.

Opinion - injury No. (1) caused
by any type of fire arm and injury No. (2)
caused by friction. Injury No. (1) kept U/O
advice x ray skull (antero - posterior &
lateral views) Injury no. (2) simple in
nature. Duration of all injury - fresh."

PW-4 has proved the injury
report as Ext. ka-4. It is important to
mention here that the medical examination
of injured Jabar Singh has been performed
on the basis of ''chitthi majrubi' (letter for
medical examination) given by the police.

39. Although x-ray report of injured
Jabar Singh is available on record wherein
a fracture of right temporal bone has been
found but the said X-ray report was not
proved in evidence.
590 INDIAN LAW REPORTS ALLAHABAD SERIES

40. However, it is pertinent to
mention here that the firearm injury has
been inflicted over the right ear of the
injured Jabar Singh and the dimension
thereof was 10 cm X 4 cm X bone deep.
This injury was 9 cm lateral to the right
eyebrow with blackening and burn was also
present which means that the injury was
inflicted from a close range on a vital part
of the body in the forehead area of the
injured, which itself speaks that the fire
was made with intention to kill the injured,
who was trying to rescue the kidnapped
boy.

41. The specific plea taken by the
appellants in respect of non-proving of the
x-ray report and thereby claiming a legal
lacuna to put the case of the prosecution
within the ambit of Section 307 I.P.C. takes
us to the perusal of the provisions of
Section 307 I.P.C. as conviction of the
appellants has been made under Section
307/149 I.P.C. also for the specific charge
of inflicting firearm injury over the injured
Jabar Singh with intention to kill him.

42. Section 307 I.P.C. provides as
under:

"307. Attempt to murder.--
Whoever does any act with such intention
or
knowledge,
and
under
such
circumstances that, if he by that act caused
death, he would be guilty of murder, shall
be punished with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine;
and if hurt is caused to any person by such
act, the offender shall be liable either to
imprisonment
for
life,
or
to
such
punishment as is hereinbefore mentioned.

Attempts by life convicts -
When any person offending under this
section is under sentence of imprisonment
for life, he may, if hurt is caused, be
punished with death."

43. The law settled in the context of
Section 307 I.P.C. is that it is not necessary
that injury, capable of causing death,
should have been inflicted. What is
material to attract the provisions of Section
307 is the intention or knowledge with
which, all was done, irrespective of its
result. The intention and knowledge are the
matters of inference from totality of
circumstances and cannot be measured
merely from the results. In fact the
important thing to bear in mind for
determining the question whether the
offence under Section 307 I.P.C. is made
out, is the intention and not the injury, even
if it may be simple or minor. Question of
intention to kill or knowledge of death is
always a question of fact and not of law. The
Hon'ble Supreme Court in Hari Kishan and
State of Haryana vs. Sukhbir Singh, AIR
1988 SC 2127 has held that the intention or
knowledge of the accused must be such as is
necessary to constitute murder. In State of
Madhya Pradesh vs. Harjeet Singh and
another, AIR 2019 SC 1120, it was reiterated
that Section 307 I.P.C. does not require that
injury should be on vital part of the body.
Merely causing hurt with intention or
knowledge of causing death is sufficient to
attract Section 307 I.P.C.

44. Since the blackening and burn
was found in the injury of the injured by
the doctor, fire might have been made from
a close range and the injured PW-1 makes a
specific statement on this point that the fire
was made by Awadhesh from a distance of
3-4 steps, which elucidates the intention to
kill the injured on the part of the appellants.

45. On the basis of evidence on
record, we are of the considered view that
5 All. Indra Pal & Anr. Vs. State of U.P.
591
the learned trial court has made an anxious
consideration of the evidence on record and
has rightly convicted the appellants under
Sections 307/149 I.P.C. 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
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.

46. The legal position has been
clarified in Susanta Das vs. State of
Orissa, (2016) 4 SCC 371, wherein it was
held that :

"When once, participation of each
member of an unlawful assembly of five or
more persons is shown, who indulge in an
offence as a member of such an unlawful
assembly, for the purposes of invoking
Section 149, it is not necessary that there
must be specific overt act played by each of
the member of such an unlawful assembly
in the commission of an offence. What is
required to be shown is the participation as
a member in pursuance of a common object
of the assembly or being a member of that
assembly, such person knew as to what is
likely to be committed in prosecution of
any such common object. In the event of
the proof of showing of either of the above
conduct of a member of an unlawful
assembly, the offence, as stipulated in
Section 149, will stand proved."

47. After successfully proving its case
in respect of kidnapping of the son of the
informant and injury caused to the injured
Jabar Singh, while trying to rescue the
kidnapped boy, the prosecution further
claims that the kidnapped boy was
recovered from the possession of the
appellants.

48. The informant PW-2 and
victim/kidnapped boy PW-3 both have
proved this fact that the boy was recovered
after an encounter between the police and
the accused persons. The informant PW-2
states that the Investigating Officer had
taken him to the place of recovery and
there firing took place between both the
sides. His son was recovered from the
kuthia. The kidnapped boy PW-3 also
states the same fact. The Investigating
Officer PW-5 also proves the story of
recovery of kidnapped body and states that
after police encounter wherein the accused
persons opened fire upon the police party
which was reciprocated in defence by the
police, accused persons Indrapal and
Shripal were arrested and rest of the
accused persons fled away. The boy was
retrieved from the kuthia, whose hands and
mouth were roped, arms and cartridges
were also retrieved, memo of recovery
(Ext. ka-7) was prepared. The rope and
cloth used in tiding the boy were also
proved as material Ext. ka 1,2 and 3 by
PW-5. PW-6 Inspector Dharam Singh, who
was accompanying the police at the time of
recovery of the boy also states the same
story. However, no injury was caused to
any of the accused persons or police
personnel. Thus, the prosecution has fully
proved that the kidnapped boy was
recovered from the possession of the
accused appellants.

49. Against the cogent and reliable
evidence adduced by the prosecution,
depositions of DW-1 and DW-2 do not
inspire confidence in its entirety because at
one place both the DWs make a total denial
of the prosecution version whereas at some
592 INDIAN LAW REPORTS ALLAHABAD SERIES
places,
their
depositions
support
the
material facts of the prosecution story.

50. We have also noted that in their
statements under Section 313 CrPC, the
accused persons have not made any
specific statement in their defence. They
have simply stated that the incriminating
evidence and circumstances proved against
them are wrong and even the question
regarding retrieving the kidnapped boy
from their possession and his rescue has
been answered only as ''wrong'. We would
like to impress upon Shivaji Sahab Rao vs.
State of Maharashtra, 1973 SCC (Cri)
1033, wherein it has been observed that:

"The prisoner's attention should
be drawn to every inculpatory material so
as to enable him to explain it. Where such
an omission has occurred it does not ipso
facto vitiate the proceedings and prejudice
occasioned by such defect must be established
by the accused. It is open to the appellate
court to call upon the counsel for the accused
to show what explanation the accused has as
regards the circumstances established against
him but not put to him and if the accused is
unable to offer the appellate court any
plausible or reasonable explanation of such
circumstances, the court may assumed that no
acceptable answer exists and that even if the
accused had been questioned at the proper
time in the trial court he would not have been
able to furnish any good ground to get out of
the circumstances on which the trial court had
relied for its conviction."

51. In the light of the aforesaid
discussions, we find the testimony of DW-1
and DW-2 as unreliable and no benefit
thereof can be given to the appellants.

52. Further, the prosecution is under
obligation to establish that the demand of
ransom was made on the family of the
complainant and it is also to be kept in
mind that in the absence of there being any
communication demanding payment of
ransom, case of the prosecution will not be
covered under Section 364A I.P.C.

53. In the case in hand, the informant
Chandrapal, PW-2, who is the father of the
kidnapped boy, deposes in his examination
in chief that "लड़के को भफरौती के भलए भचट्ठी आई थी भजसे मैंने
S.I. धमष भसंह को दे भदया था भजसकी फोर्ो प्रभत अभिलेख में िाभमल है
इस लड़के की वापसी के भलए भफरौती 70000/- सत्तर हज़ार मांगी गयी
थी ये भचट्ठी डाक से आयी थी ।......भफरौती की भचट्ठी मैंने दरोगा जी को
गााँव में दी थी जब दरोगा जी 14 भदन बाद गााँव आये थे ।".
Inspector Dharam Singh, PW-6, who was
accompanying the Investigating Officer of
the case S.S.I. Indrapal Singh Solanki when
police surrounded the accused persons in
order to recover the kidnapped boy from
their possession, states in his evidence that
when the police force came to Badanpur in
order to enquire into the whereabouts of the
accused persons and recovery of the
kidnapped boy, Chandrapal, the father of
the kidnapped body, met them and showed
ransom letter which he had received and
handed over to the Investigating Officer of
the case S.S.I. Indrapal Singh Solanki. He
has proved the photocopy of the ransom
letter, sent by inland letter, as Ext. Ka-7.

54. To pay ransom may be taken as
"to pay price or demand for ransom", as
defined in Black's Law Dictionary, and the
''demand' may be taken as "to require or to
claim as one's due", "an asking with
authority" "claiming" etc. It is also
necessary that the demand for ransom must
be
communicated
and
claimed
or
imperative request or asking with authority
could only be if the demand is conveyed or
communicated. To transit or to convey or
to give information or the sharing of
knowledge
by
one
with
another
is
5 All. Indra Pal & Anr. Vs. State of U.P.
593
communication in broad sense and thus we
can say that the ''demand' in order to
communicate, requires necessarily the
information to be conveyed to the person
for whom it is meant. It is only receipt of
this information that the question to pay a
ransom would arise. The said dictum was
promulgated by the Delhi High Court in
Netra Pal vs. State (National Capital
Territory of Delhi), 2001 0 Supreme
(Del) 293.

55. In Shaik Ahmed vs. State of
Telangana, 2021 0 Supreme (SC) 304, it
has been held that the ingredients of
Section 364A I.P.C. must be necessarily
proved to bring home the charge under the
aforesaid
provision
and
the
second
condition provided in the said Section
"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
inter-governmental
organization or any other person to do or
abstain from doing any act or to pay a
ransom".