# Jay Prakash @ Bhure & Anr v. State of U.P

- **Citation:** (2022) 5 ILRA 116
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** Criminal Appeal No. 3798 of 2007
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jay-prakash-bhure-anr-v-state-of-u-p-48447
- **Pages:** 18

## Headnote

Law
-Code
of
Criminal
Procedure, 1973- Section 374(2) - Indian
Penal Code, 1860-Sections 364-A & 377believing the statement of PW-2 Victim
the trial court convicted three accused but
there is no medical evidence as to
commission of offence u/s 377 IPCcontradiction in statement of victim and
Investigating
Officer
as
to
how
information about commission of offence
received and lodged FIR-Even doctor
examined the victim generally-no medical
of the victim as to ascertain whether the
offence u/s 377 IPC was committed with
him-On the mere oral testimony of the
victim, it is difficult to hold that the
accused
persons
had
committed
the
offence-prosecution failed to prove its
case of abduction for ransom u/s 364-A
IPC-The prosecution suppressed the
genesis and origin of the occurrence and
thus not presented the true version.(Para
1 to 73)

The appeals are allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,858 of 61,522. This is a partial read: ask again with offset=39858 for what follows._

116 INDIAN LAW REPORTS ALLAHABAD SERIES

49. It is a settled principle of law
that the court should examine the statement
of a witness in its entirety and read the said
statement along with the statement of other
witnesses in order to arrive at a rational
conclusion. No statement of a witness can
be read in part and/or in isolation. We are
unable to see any material or serious
contradiction in the statement of these
witnesses which may give any advantage to
the accused."

21. We do not find any infirmity,
illegality or perversity in the judgment and
order of the trial court and are unable to
persuade ourselves to take an opinion other
than that of the trial court.

22. Consequently, the appeal lacks
merit and is accordingly dismissed.

23. The appellant is in jail, he shall
serve out the sentence awarded by the trial
court.

24. Let a copy of this order along with
lower court record be transmitted to trial
court concerned for necessary information
and follow up action.
----------
(2022)05ILR A116
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Criminal Appeal No. 3798 of 2007
&
Other connected cases

Jay Prakash @ Bhure & Anr. ...Appellants
Versus
State of U.P. ...Respondents

Counsel for the Appellants:
Sri R.S. Chaudhary, Sri M.C. Chaturvedi, Sri
P.K. Singh, Sri P.V. Singh, Sri Prashant
Kumar, Sri R.P. Kanoujiya, Sri Rajesh
Kumar Dubey, Sri S.K. Rathore, Sri Vijay
Singh Sengar, Sri Vinod Kumar Sahu, Sri
Vishnu Shanker Gupta, Sri Vishnu Kumar
Sahu

Counsel for the Respondents:
Govt. Advocate

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973- Section 374(2) - Indian
Penal Code, 1860-Sections 364-A & 377believing the statement of PW-2 Victim
the trial court convicted three accused but
there is no medical evidence as to
commission of offence u/s 377 IPCcontradiction in statement of victim and
Investigating
Officer
as
to
how
information about commission of offence
received and lodged FIR-Even doctor
examined the victim generally-no medical
of the victim as to ascertain whether the
offence u/s 377 IPC was committed with
him-On the mere oral testimony of the
victim, it is difficult to hold that the
accused
persons
had
committed
the
offence-prosecution failed to prove its
case of abduction for ransom u/s 364-A
IPC-The prosecution suppressed the
genesis and origin of the occurrence and
thus not presented the true version.(Para
1 to 73)

The appeals are allowed. (E-6)

List of Cases cited:
1. Malleshi Vs St. of Karn. (2004) 8 SCC 95

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Vishnu Kumar Sahu,
learned counsel for the appellants Jay
Prakash @ Bhure and Virendra, Sri Vishnu
5 All. Jay Prakash @ Bhure & Anr. Vs. State of U.P.
117
Shanker Gupta, learned counsel for the
appellants Munnilal Prajapati and Lajja
Ram, Sri Rajesh Kumar Mishra, learned
counsel for the appellants Shrikant and
Sarvesh @ Macchar and Sri Rupak
Chaubey, learned A.G.A. for the State.

2. These appeals are directed against
the judgments and orders dated 13.04.2007
and 28.4.2007 passed by the Additional
Sessions Judge/ Fast Track Court no.2,
Kanpur Dehat in S.T no.204 of 2006
arising out of Case Crime no.17 of 2002
under Section 364A IPC, P.S-Sikandra,
District-Kanpur Dehat.

3. The appellants herein (six in
number) have been convicted under Section
364A
IPC
and
sentenced
for
life
imprisonment with fine of Rs.10,000/- The
default punishment is five years additional
simple imprisonment for each of the
appellants.
Four
appellants
Lajjaram,
Shrikant, Jay Prakash @ Bhure and
Munnilal
Prajapati
have
also
been
convicted under Section 377 IPC for seven
years rigorous imprisonment and fine of
Rs.2000/- with the default punishment of
one year simple imprisonment. All the
sentences are to run concurrently.

Introduction:-

4. The first information report of the
incident, occurred on 20.01.2002 at about
7-7:30 p.m, was lodged on 21.01.2002 at
6.15 am by Shripal @ Pappu s/o Ramsewak
Pal reporting therein that his brother
Yashpal Singh aged about 29 years had
been abducted in order to commit his
murder by some miscreants while he and
his brother Yashpal (victim) were coming
to their house in village Maheshpur from
the Government Parag Dairy, VillageHariharpur. It was averred therein that near
the Hariharpur wali bambi ki puliya on the
western side, 5-6 persons were standing,
the first informant and his brother were on
two cycles and his brother (victim) was
fifteen paces ahead of him. Three-four
unknown persons caught his brother and
started beating him. He and his brother had
seen the miscreants in the torch light
clearly and they all were wearing pant, shirt
and sweater. The miscreants first caught his
brother, beaten him by kicks and fists and
when the first informant intervened he was
also beaten. His brother then told him to
run away and the informant ran away from
the place of the incident to save his life. His
brother
Yashpal,
however,
had
been
abducted by the unknown miscreants and
the first informant had an apprehension that
they might kill his brother out of enmity.
The first informant further states that he
alongwith villagers made all possible
efforts to search his brother but his
whereabouts could not be known. In the
written report, the first informant stated that
he could identify the miscreants if they
were brought before him.

5. On the basis of the written report,
P.W-3, Ram Chandra the Head Moharrir
posted at the police station concerned
registered the first information report and
proved that the Check report was prepared
in his handwriting and bears his signature,
it was exhibited as Exhibit Ka-1. The G.D
entry at Rapat no.7 dated 21.01.2002, at
6.15 a.m, was also proved by P.W-3 from
the original GD brought in the Court and
filing of the carbon copy thereof, marked as
Exhibit Ka-2.

6. On a suggestion to this witnesses,
he
categorically
stated
that
before
submission of the written report no oral or
telephonic information about the incident
was recieved in the police station and no
118 INDIAN LAW REPORTS ALLAHABAD SERIES
police personnel went to the spot prior to
the lodging of the first information report.
The Investigating Officer Mahipal Singh
Tomar (P.W-6) was present in the police
station when the report was lodged.

7. The Investigating Officer P.W-6
stated that the investigation was received
by him on 21.01.2002 and after copying the
Check report, G.D, the statements of the
first informant and other witnesses were
recorded. The inspection of the site was
made on the pointing out of the first
informant and the site plan had been proved
as Exhibit Ka-5, being in his handwriting
and
signature.
After
recording
the
statements of other witnesses on 22.1.2002,
the search for the victim was conducted
from 24.01.2002 for several days. On
05.03.2002, a letter of ransom which was
received by the first informant Shripal
through the post, was entered in the case
diary at parcha no.8. On 06.03.2002,
accused-appellant Sarvesh Kumar s/o Ram
Bharose was arrested, he was interrogated
in the police station. On the information of
accused Sarvesh, search was made in the
house of Mistri @ Virendra and search for
other accused persons was also made. On
8.3.2002, a wireless message was received
that the victim Yashpal was present in the
Police Station-Bhare in District Etawah. On
getting the said information, P.W-6 reached
at the police station concerned, interrogated
the victim and recorded his statement. The
victim named other accused persons in the
offence of his abduction. The Investigating
Officer states that the victim told him that
the accused persons used to visit the house
of Lajjaram in the village prior to the
incident. They took him to the jungle and
used to beat him. Two accused persons
namely Munni lal and Shrikant made Anal
sex with him and accused Virendra and
Bhure threatened him for ransom while he
was in their custody. They also forced him
to write 2-3 letters to raise the demand for
ransom.

8. On 10.03.2002, P.W-6 received a
message that appellants Munni lal Prajapati
and Jay Prakash @ Bhure had been arrested
in some other case in District Auraiya. Their
statements were recorded in the police station
Ajitmal, they also took the names of
Laljjaram, Shrikant, Sarvesh @ Machchar,
Virendra @ Tiwari and Lambu as co-accused.

9. The victim was produced before the
CJM for recording his statement under
Section 164 Cr.P.C. At G.D Rapat no.5 dated
9.3.2002, the offence under Section 364A
IPC was added and the carbon copy of the
said GD had been proved and exhibited as
Exhibit Ka-'7'. Photo copy of an inland letter
with envelop received by the first informant,
entered in the CD, was produced and proved
as Exhibit Ka-'8' and Ka-'9'. After the
investigation was completed, the chargesheet
was submitted. In cross, when the statement
of victim Yashpal was put to P.W-6, he
admitted that the victim told him that apart
from one accused named as Lambu, all other
four miscreants used to come to the house of
Lajjaram in the village for playing cards and
that is why the victim knew all of them. The
appellant Lajjaram was resident of the same
village as that of the victim. P.W-6 stated that
after receipt of the information of the
incident, he reached at the spot of the incident
at about 10-10.30 hours. P.W-6 denied any
knowledge of there being any enmity
between Lajjaram and the first informant and
also denied the suggestion that a false case
was lodged due to enmity.

10. P.W-6 proved that he recorded
statement of the first informant on the date
of the incident and made inspection of the
site on the same day. He stated that the first
5 All. Jay Prakash @ Bhure & Anr. Vs. State of U.P.
119
informant did not mention name of any of
the accused in his first statement nor
expressed any suspicion on any of them.
P.W-6 proved that the victim, in his first
statement, told that he knew accused
Shrikant before the incident as Shrikant
used to come to the house of Lajjaram in
the village Maheshpur and knew his name
as well. A suggestion of enmity between
Shrikant and the first informant was given
to P.W-6 which he had denied. In cross for
appellant Lajjaram, P.W-6 stated that the
victim had taken the names of Munni lal
and Shrikant while making allegations of
commission of Anal sex with him. It was
admitted that the place of the incident falls
within the jurisdiction of the police station
Sikandra, whereas the first informant was
the resident of village Maheshpur.

11. The doctor P.W-5 who had
examined the victim on 08.03.2002 at the
District hospital, Etawah proved that the
victim was brought by the police personnel
of the concerned police station in the
District Etawah. During the examination,
the victim complained of pain on his both
shoulders, right leg and chest but there
were no visible injuries and as such no
definite opinion could be formed about the
cause of pain. The doctor, however, stated
that such pain may occur due to beating by
kicks and fists or because of some old
injury. The medico legal report of the
victim was proved by P.W-5, as Exhibit Ka4, being in his hand writing and signature
and
bearing
thumb
impression
and
identification mark of the victim. In cross,
P.W-5, again stated that the victim told him
during the examination that he was
experiencing pain but there was no visible
injury or swelling and further that the
victim did not make complaint of any pain
in his Anus. No proximate time could be
estimated as there was no visible injury.

12. The formal witnesses, thus,
proved the documents prepared by them
during the course of the investigation and
the medical examination of the victim. The
charge under Section 364 A and 377 IPC
framed against the accused appellants had
been denied by all of them.

Prosecution Case:-

13. Three witnesses of fact were
produced by the prosecution, amongst
whom, P.W-1 is the cousin of the victim
and the first informant; P.W-2 is the victim
Yashpal; P.W-4 is the first informant
Shripal @ Pappu. P.W-1 Shivbalak s/o
Jorawar Singh, resident of Maheshpur
stated that he met the first informant in the
field near his house, one kilometre towards
the east from the place of the incident. He
stated that after hearing the cries he went to
the place of the incident at around 7 to 7.15
p.m, Shripal told him that he (Shripal) was
also beaten by the miscreants and he had
left his cycle at the place of the incident.
He came running to the field where P.W-1
was met. The statement of this witness is
hearsay so far as the incident of abduction
is concerned and nothing much could be
elicited from his testimony, in favour of the
prosecution.

14. The star witnesses of the
prosecution are two brothers P.W-2, the
victim and P.W-4, the first informant whose
testimony will decide the fate of the case.

15. Coming to the statement of P.W-4,
the first informant Shripal @ Pappu, it is to
be noted that in his deposition in the Court,
he described the incident in the same manner
as narrated in the FIR. In his examination in
chief, P.W-4 stated that he believed that the
accused had abducted the victim due to
enmity and they would either kill him or
120 INDIAN LAW REPORTS ALLAHABAD SERIES
release him on ransom. The report of the
incident was dictated to Videsh Singh and
after the report was read over to him, it was
signed, the written report is Exhibit Ka-3.
P.W-4 further stated that he clearly saw the
accused persons namely Virendra, Lajjaram,
Sarvesh @ Machchar, Jay Prakash in the
torch light. But the names of these persons,
were disclosed by his brother (P.W-2) when
he returned back. At the time when the report
was lodged, he (P.W-4) did not know the
names of the accused persons. P.W-4
admitted that no examination of his alleged
injuries was conducted and the Investigating
Officer recorded his statement.

16. In cross, P.W-4 narrated a different
story that the miscreants had muffled their faces
and he could not identify any of them as it was
dark and for that reason, he did not mention the
names of the accused persons in the first
information report and it was lodged against
unknown persons. P.W-4 further stated that he
was beaten by the miscreants by lathi and danda
and the act of beating continued for about 2-3
minutes. The miscreants had given a blow of
danda on his head. He left his cycle on the spot
and it was brought to the village by one
Nandram. He then stated that the police had
reached at the spot before lodging of the first
information report and it seemed to him that
someone had intimated the police. He then
stated that he did not give information to the
police. The suggestion given to this witness that
his brother was not abducted and the story was
created as his brother had fallen in a bad
company, was denied by him. He then stated
that he went to the spot of the incident along
with the police and they made searches in the
torch light. The cycle was lying at the roadside
and the police picked it up.

17. P.W-4 further stated for lodging
the first information report he left to the
police station at about 06.15 am by
motorcycle and he went alone. In the same
breath he says that he could not drive the
motorcycle and did not remember the name
of the person who drove the motorcycle.

18. With regard to the identity of the
accused, P.W-4 admitted in the cross
examination that accused Lajjaram was
resident of his village and the fields of
Lajjaram
were
nearby
his
field. A
suggestion was given to P.W-4 of previous
enmity due to Nali (drain) in their field
which he denied. P.W-4 also denied that
Lajjaram and Munnilal were friends and
that the accused Munnilal used to come to
the house of Lajjaram in his village and he
had falsely implicated both of them. P.W-4
also admitted that he knew Shrikant prior to
the incident but denied any enmity with
him because of the betel shop (kiosk). The
suggestion that the report was lodged
intentionally against unnamed persons and
the accused were falsely implicated later
after deliberations with his brother (P.W-2)
was denied by P.W-4.

19. P.W-2 is the victim namely
Yashpal who was aged about 29 years on
the date of his deposition. He stated that the
incident had occurred at about 7.30 pm
when he was coming from Hariharpur after
delivering milk. 5-6 persons gheroed him
near bambi ki puliya and when his brother
Shripal flashed his torch, he had seen that
they were carrying guns, country made
pistol, lathi and danda. The miscreants
caught him though his brother could
escape. The miscreants took him to the
jungle while covering his eyes but he could
slightly see that they used to change places.
On the third day of the incident they had
beaten him and while beating they asked
him as to how much gold and silver and
cash he had in his account. One letter was
got written by the miscreants for ransom
5 All. Jay Prakash @ Bhure & Anr. Vs. State of U.P.
121
around 14-15th February. The said letter
was stamped and addressed to his brother.
The contents of the letter had been narrated
by P.W-2 in his testimony to emphasize that
the ransom of Rs.5,51,101/-, as offerings to
Maa Durge, was demanded.

20. P.W-2 admitted that amongst the
miscreants, Lajjaram was the resident of his
village and also narrated the details of
residences of other accused except one
unknown miscreant named Lambu; and
then stated that he could identify that
person if he was brought before him. P.W-2
further stated that except Lambu he knew
everyone prior to the incident as they used
to come to the house of accused Lajjaram
in the village and they all played cards
together and since then he knew their
names as well. P.W-2 then stated that the
miscreants used to beat him and tortured
him to do all their daily works such as
making of food and fetching the water.
They also committed Anal sex with him
against his wishes and Shrikant, Munnilal
Prajapati and Lajjaram were amongst those
who had sex with him. On 20.02.2002, the
co-accused Sarvesh @ Machchar alongwith
others took him to his village Maheshpur
and detained him in his field; they were
getting food from the house of accused
Sarvesh @ Machchar and stayed there for
one week. On 28.04.2002, he was beaten
by the accused while they were asking the
place of residence of his brother Shiv Balak
in District Auraiya.

21. On 04.03.2002, accused Sarvesh
@ Machchar went to his house and on
06.03.2002, the police arrested Sarvesh @
Machchar and then there was a lot of chaos
amongst the miscreants and they took him
to the 'Behad' (deep jungle) of the Yamuna
river. There was one more abducted person
with them. On 08.03.2002, while the
accused persons were sleeping having been
tired near the Yamuna river in the field of
the jungle and another kidnapped person
was sitting, P.W-2 states, that he escaped
and reached at the police station Bhare in
District Etawah. His medical examination
was done at Etawah and the Investigating
Officer of the police station Sikandara
reached there at about 2.00-2.30 p.m. After
interrogation by the Investigating Officer
he was taken to the Court for recording his
statement under Section 164 Cr.P.C.

22. He further stated that the letter for
ransom was given by his brother to the
Investigating Officer. In cross for the
accused Virendra, Sarvesh and Jay Prakash,
P.W-2 reiterated the incident as narrated in
his examination in chief but categorically
stated that the miscreants were not covering
their faces when they pounced from the
field at the place of the incident. He further
stated that they also hit him by the butt of
the gun and all miscreants had beaten him.
On being confronted, P.W-2 stated that he
knew
everyone
in
the
village
and
population of his village was about 2000.
He narrated the place of residence of the
accused
persons,
namely
Shrikant,
Virendra, Sarvesh and Jay Prakash, and
stated that Sarvesh was a relative of
Lajjaram and used to come to his village.
P.W-2 further stated that he knew names
and addresses of the accused persons as
they used to play cards in the house of
Lajjaram and their addresses were not told
to him by anyone else. The accused
Lajjaram was resident of his village and the
accused Shrikant, Munnilal, Jay Prakash
and Virendra were coming to the house of
the Lajjaram for about 11⁄2 years prior to the
incident and he also used to go there to play
cards with them. P.W-2 then stated that his
brother knew the accused Shrikant and
Lajjaram and no one else.
122 INDIAN LAW REPORTS ALLAHABAD SERIES

23. P.W-2 further disclosed that he
had partnership with Lajjaram for the crop
of sugarcane and there was one more
partner with them named as Radhakishan.
The partnership was alive at the time of the
incident and it was ended only because of
the first information report lodged by P.W-2
against
the
accused
persons.
P.W-2
however, stated that in relation to the
partnership with Lajjaram, no dispute had
arisen nor there was any dispute relating to
the cost of the crop. At the time when he
was with the accused, crop was harvested
and the share of Lajjaram had been sent to
his house and his own share came to his
house. When he came back, though
Lajjaram was sent to jail but all accounting
of the crop was done by his family
members. P.W-2 then denied that a false
report was lodged by him because of the
dispute relating to the partnership and also
denied that any dispute had arisen between
them on account of playing of cards
together.

24. P.W-2 further stated that the
accused persons used to keep him at
different
places
and
a
ransom
of
Rs.5,51,101/- was demanded. He was also
beaten by the accused persons. P.W-2
repeated many times in his deposition that
he knew the accused persons prior to the
incident though denied that it was wrong to
say that no such incident took place or the
accused persons had not beaten him or not
demanded ransom. It was stated that the
letter for ransom was written by him on the
instructions of the miscreants and the
signatures of all the accused persons were
present thereon which also bears his
signature. He stated that he was released
from the custody of the accused after 20-22
days of writing of the said letter. The
accused persons namely Munnilal and
Shrikant used to commit Anal sex with
him. P.W-2 stated that the site plan of the
site of the incident was prepared at his
instance.
P.W-2
again
admitted
that
Lajjaram was the resident of his village and
their fields were adjacent and the drain of
their fields was common though he denied
that any dispute had occured between them
on account of the common drain.

25. In cross for the accused Shrikant,
P.W-2 stated that his brother was not used
to going to the house of Lajjaram and that
he
(P.W-2)
could
not
identify
the
miscreants when they first met him. The
name of the village of the accused Shrikant
was disclosed by P.W-2 but he denied any
dispute with Shrikant because of the betel
kiosk. He stated that when miscreants were
taking him with them he did not raise any
alarm.

26. P.W-2 stated that the letter for
ransom was written in the name of his brother
Shripal and the original letter was not brought
in the Court on the date of his deposition but
kept at his home. PW-2 was recalled and
crossed for the accused Shrikant wherein he
stated that his brother Shripal knew the
accused Shrikant and Lajjaram prior to the
incident because of the fact that Lajjaram was
resident of his village and Shrikant used to go
to the house of Lajjaram and further that
Shrikant was also resident of a nearby village.
P.W-2 stated that his brother identified two of
the miscreants but the reason for lodging the
report against unknown persons could not be
explained by him. He then stated that he
could identify the miscreants when they were
at a distance of one feet. P.W-2 stated that he
told the doctor to examine his injuries; and to
the Investigating Officer that the accused had
committed Anal sex with him.

Arguments of the counsels for the
appellants:-
5 All. Jay Prakash @ Bhure & Anr. Vs. State of U.P.
123

27.

Placing
the
above
noted
statements of the prosecution witnesses and
the documentary evidences on record, it is
argued by the learned counsel for the
appellants that 5-6 persons were implicated
for the offence under Sections 364-A and
Section 377 IPC at the instance of P.W-2,
the alleged victim of the occurence. The
first informant/P.W-4 lodged the report of
the
incident
allegedly
occurred
on
20.01.2002 at about 7.30 p.m., on the next
morning, ie 21.01.2002 at about 6.00 a.m.
No reason for delay in lodging of the first
information report could be furnished by
P.W-4. According to P.W-2, the victim, he
had escaped from the custody of the
accused persons and reached to the police
station at Etawah. He was then examined
by the doctor and he told the doctor as also
the Investigating Officer that the offence
under Section 377 IPC was committed with
him.

28. It is urged that the victim, in so
many words had admitted that he knew the
accused persons prior to the incident except
one Lambu. He also admitted that his
brother, the first informant namely P.W-4
also knew two of the accused persons
namely
Lajjaram
&
Shrikant.
No
explanation could be offered by the
prosecution as to why the written report
was lodged against unnamed persons. The
explanation offered by P.W-4 that he
though identified the miscreants but did not
know their names and hence the first
information report was lodged against
unnamed persons is belied by the version of
the P.W-2, victim, in his deposition both in
chief and cross. There are material
inconsistencies in the statements of two
prosecution witnesses who are real brothers
and
their
testimonies
are
full
of
embelishments and exaggerations. The
statement of P.W-4 that the accused persons
were covering their faces and, as such, he
could not identify them is in complete
contradiction to the statement of P.W-2, the
victim and his own version in the FIR. This
statement is nothing but a material
improvement in the testimony of P.W-4
when he was confronted as to why he did
not name the accused persons whom he
knew well since before the incident. The
scribe of the FIR, Videsh Singh was
resident of a different village. There is no
injury report for the alleged assault on the
first
informant
(P.W-4).
Other
contradictions in the statement of P.W-4,
the first informant and the Investigating
Officer about visiting the spot of the
incident even after lodging of the first
information report have been pointed out
by the learned counsels for the appellants to
assert that none of the prosecution
witnesses are credible, their testimonies are
liable to be thrown at the very threshold.

29. It was argued that the victim P.W2 admitted that the fields of one of the
accused Lajjaram and his field were
adjacent to each other and his brother P.W4 knew him very well. The act of P.W-4 in
making the written report against unknown
persons
itself
demolishes
the
entire
prosecution story.

30. Moreover, the letter for ransom
was not proved by production of original in
the Court by both the prosecution witnesses
ie P.W-2, (the victim) and P.W-4 (his
brother) though P.W-2 deposed that the
original letter was kept at his home. P.W-2
though narrated the contents of the letter
but did not prove the document in the
Court. The proof of photocopy of the letter
for ransom in the deposition of the
Investigating Officer is of no relevance.
P.W-2, the victim though stated that the
letter for ransom was written by him and
124 INDIAN LAW REPORTS ALLAHABAD SERIES
signed by all the accused persons but no
forensic report to tally the writing and
signature of the accused persons was
obtained to testify the genuineness of the
said document. It is thus argued that as the
demand of ransom could not be proved by
the prosecution, the conviction for the
offence under Section 364A IPC of the
appellants cannot be sustained.

31. Further, there is no medical report
to support the allegations of commission of
offence under Section 377 IPC. The
conviction
under
the
said
provision,
therefore, has to be set aside. Further, no
bodily injury could be found on the person
of the victim to support his version that he
was beaten by the accused persons. The
medical evidence, thus, shatters the occular
version of the victim, P.W-2, that he was
threatened to death or the conduct of the
accused
persons
gave
rise
to
an
apprehension in his mind that he might be
put to death. The ingredients of Section
364A, thus, could not be proved by the
prosecution.

32. It is argued that the present is a
case of false implication of the accused
persons at the hands of P.W-2 who
projected himself as a victim. It seems that
the alleged victim himself went with the
appellants and later on the brother of the
victim implicated all his acquaintence
falsely for the reasons best known to the
complainant and the victim. The testimony
of P.W-4 is liable to be discarded as a
whole as this witness has been proved to be
a liar.

Arguments of the State:-

33. Learned AGA, in rebuttal, argued
that the best witness in a case of
kidnapping is the victim himself. The fact
that an unnamed FIR was lodged rather
proves that the prosecution is truthful is not
making a case of false implication. No
contradictory suggestion was given to P.W2 when he stated that he was taken to
different places by the accused persons.
The names of all accused persons were
disclosed by the victim in his first
statement under Section 161 Cr.P.C. No
contrary suggestion had been given to the
victim for false implication of the accused
persons by him. The statement of the victim
(P.W-2) is that all the accused persons
demanded ransom and used to ask him as
to how much money, gold and silver he
owned and that they also asked about the
financial status of his brother Shiv Balak
and the place of his residence, proved the
demand for ransom.

34. As regards the submission of the
learned counsels for the appellants that
P.W-2 went on his own with the accused
persons, it was argued by the learned A.G.A
that there was no suggestion to P.W-2 in
that regard during his cross examination.
The victim had given a vivid description of
the entire occurence. It is evident that the
accused persons were caught one by one
and then only the victim could escape from
their custody, who straightway went to the
police station and his medical examination
was conducted which also proved that he
was beaten by the accused persons. In any
case, the statement of P.W-4 cannot be
discarded as no motive of making a false
report
regarding
abduction
could
be
assigned to him. He cannot be said to be an
untrustworthy witness. The demand for
ransom coupled with the threat given to
P.W-2 was proved by him in his oral
testimony. The fact that the original of the
letter for ransom was not produced or the
writing and signatures were not tallied
would not make any difference in so far as
5 All. Jay Prakash @ Bhure & Anr. Vs. State of U.P.
125
the
offence
under
Section
364A
is
concerned.

35. It is argued by the learned AGA
that contradictions in the testimony of
prosecution witnesses are not such that
their testimony as a whole, can be
discarded. Each and every statement of the
prosecution witnesses cannot be read in
piecemeal to discard the prosecution
witnesses. The fact that P.W-4 did not
disclose the names of two of the accused
persons who were known to him rather
supports the prosecution case and dispels
the defence theory that it was a case for
false implication, as in that case it was very
easy for the first informant to name the
accused persons at the very beginning. The
submission of the learned counsels for the
appellants that there was no medical report
to support the version of the victim about
commission of the offence under Section
377 IPC, by the accused persons, however,
could not be contradicted by making any
submissions.

36. In rejoinder, it was reiterated by the
learned counsels for the appellants that in this
case, the demand for ransom could be proved
by the original letter to compare the letter
(photocopy) produced by the Investigating
Officer but since the original of the said letter
was not brought before the Court, the
allegations of demand for ransom could not
be said to be proved by the prosecution.
Further, there is absolutely no evidence that
the victim had faced threat of his death. As
per his own version the victim was well
known to the appellants and he remained in
their company for about 11⁄2 months. The
entire story put forth by P.W-2 projecting
himself as a victim is concocted one. The
appeal, thus, deserves to be dismissed.

Analysis:-

37. Having heard learned counsels for
the parties, we find it fit to go through the
provisions of Section 364A to understand
as to what would be the circumstances
required in a case, to attract the provisions
of Section 364A of the Indian Penal Code.

38. Section 364A of the Code deals
with kidnapping for ransom. The Section
reads as under:-

"[364A. 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.]"

This Section refers
to both
kidnapping and abduction.

39. Section 359 defines kidnapping
and as per the definition therein the offence
of kidnapping is not attracted in the present
case.

40. Abduction is defined in Section
362 as under:

"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.

Abduction is distinguished from
kidnapping. It is well known that the
126 INDIAN LAW REPORTS ALLAHABAD SERIES
ingredients of the two offences-'kidnapping'
and 'abduction' are entirely different. These
are two distinct offences;" The ingredients
of two offences namely of kidnapping and
abduction, are entirely different. These are
two distinct offences as noted above. The
offence of kidnapping is not made out in
the instant case.

41. The provision which defines
abduction
envisages
two
types
of
abductions,
ie
(i)
by
force
or
by
compulsion; and/or (ii) inducement by
deceitful means. The object of such
compulsion or inducement must be the
going of the victim from any place.

To "Induce" means "to lead into".
'Deceit' according to its plain dictionary
meaning signifies anything intended to
mislead another. It is a matter of intention,
if the case falls in the second category. The
case at hand, however, falls in the first
category.

42. It is held by the Apex Court in
Malleshi vs State of Karnataka reported in
(2004) 8 SCC 95 that the offence of
abduction is a continuing a offence. Section
364A provides punishment for kidnapping,
arrest, abduction or detaining for ransom.
To attract the provisions of Section 364A,
what is required to be proved is:-

(1) that the accused kidnapped or
abducted the person; and

(2) kept him under detention after
such kidnapping and abduction; and

(3)
that
the
kidnapping
or
abduction was for ransom;

43. The question as to what would
amount to pay ransom had further been
deliberated by the Apex Court in the
aforesaid decision while referring to the
dictionary meaning of the words "to pay a
ransom" and "demand".

Relevant paragraph-'13' of the
decision is to be quoted as under:-

"13.To pay a ransom as per
Black's Law Dictionary means "to pay
price or demand for ransom". The word
"demand" means "to claim as one's due;"
"to require"; "to ask relief"; "to summon";
"to call in Court"; "An imperative request
preferred by one person to another
requiring the latter to do or yield
something or to abstain from some act;" An
asking with authority, claiming." The
definition as pointed out above would show
that the demand has to be communicated. It
is an imperative request or a claim made. "

It was noted in paragraph-'13' that
the essence of abduction is causing to stay
a person in isolation and demand for
ransom. It cannot be laid down as a straight
jacket formula that the demand for payment
has to be made to a person who ultimately
pays. It has to be established in the facts of
the case that the object of abduction was
for ransom. In the facts of that case it was
held that the demand of ransom was clearly
conveyed to the victim and he was even
conveyed the amount to be paid. The victim
was told that, for his release his family
members would have to pay a certain
amount of money. It was held that if after
making the demand to the kidnapped or
abducted person merely because the
demand could not be conveyed to some
other persons, as an accused is arrested in
the meantime, does not take away the
offence outside the purview of Section 364
A. It has to be seen in such a case as to
what was the object of kidnapping or
abduction. It was held in the facts of that
case that since the demand had already
been made therein by conveying it to the
victim, the conviction of the accused under
5 All. Jay Prakash @ Bhure & Anr. Vs. State of U.P.
127
Section 364A could not be said to suffer
from any infirmity. It was lastly noted that
who
pays
the
ransom
is
not
the
determinative fact.

44. Considering the observations in
the judgment of the Apex Court in Malleshi
(supra), it is clear that the provisions of
Section 364A can be said to be attracted in
a case where both the ingredients are
proved:-

(i) that the accused abducted the
person and kept him under detention after
abduction;

(ii) the object was for ransom, i.e
detention of the victim is with the intention
to demand for ransom;

45. Whether the demand could be
conveyed to the person or the family
members who were to pay for his release is
immaterial. It has to be seen by the Court
that the object for abduction was for
ransom and the demand was conveyed to
the victim.

46. In the light of the said discussion,
it has to be seen as to whether in the facts
of the present case, the prosecution has
been able to prove the ingredients of
Section 364A IPC.

47. Coming to the facts of the present
case, from the evidence of P.W-2 and P.W-4
as noted above, it is established that
admittedly the victim P.W-2 knew all the
accused persons before hand except one
named as Lambu as he used to play cards
with them when they came to the house of
accused Lajjaram, who was resident of the
same village. The accused Lajjaram and the
victim had a partnership in relation to a
crop of sugarcane at the time of the
incident. The fields of the accused Lajjaram
and the victim P.W-2 were adjacent. As per
the version of P.W-4, the first informant in
the written report as also his deposition in
the Court, he had seen the accused persons
clearly in the torch light when they caught
hold of his brother (victim P.W-2) and
beaten him.

48. In the said scenario, it is
impossible to believe that P.W-4 could not
identify Lajjaram who was his next door
neighbour and was well acquainted with
both of them, i.e. P.W-4 and his brother (the
victim herein). It is also difficult to believe
that the first informant (P.W-4) could not
identify another accused Shrikant whom he
knew well as per his own version.