# Lalit Kumar & Anr. (In Jail) v. State of U.P. Opp. Party

- **Citation:** (2024) 3 ILRA 1314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-22
- **Case number:** Criminal Appeal No. 2162 of 2015
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalit-kumar-anr-in-jail-v-state-of-u-p-opp-party-51574
- **Pages:** 22

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 364A, 365, 147, 148, 307,
149, Arms Act, 1959 - Section 25 -
Ransom
-
Abduction
-
Detention
-
Encounter
-
Wrongful Confinement
-
Sections 364A - Kidnapping for ramson,
Section 365 - Kidnapping or abducting
with intent secretly and wrongfully to
confine person - To establish an offense
under Section 364A IPC - Prosecution
must prove three essential elements: (i)
kidnapping or abduction of a person; (ii)
threat to cause death or hurt to the
kidnapped person or apprehension of such
threat; and (iii) demand of ransom. (Para -
34)
Appellants were accused of abducting a child
and confining him secretly - Prosecution alleged
that child's abduction was for ransom - During
an encounter child was recovered - accused
were apprehended - inconsistencies emerged
regarding ransom handling - no evidence
supported a threat to the child's life or safety.
(Paras - 2 to 17)
HELD: - No evidence to support the claim that
kidnappers threatened to cause death or harm
to child. Prosecution failed to establish demand,
payment, and recovery of ransom amount
beyond reasonable doubt. Case does not meet
all three conditions, and it cannot be concluded
that accused persons committed any offense
under Section 364A IPC. Appellants were
acquitted of charge under section 364-A IPC but
convicted for offense under section 365 IPC.
Convicted for other offences under Sections
147, 148, and 307/149 IPC. Appellants are
entitled to be released from jail immediately.
(Paras - 35, 39 to 41)

Appeals partly allowed. (E-7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,878 of 77,229. This is a partial read: ask again with offset=39878 for what follows._

1314 INDIAN LAW REPORTS ALLAHABAD SERIES
of the opinion that important questions of
law and procedure relating to hearing of
criminal appeals whether against acquittal
or conviction have arisen on account of the
orders passed by the Coordinate Bench as
also in view of the procedure being
followed by different Benches of the High
Court, which require certain clarity.

60. We, therefore, refer the matter for
consideration by a Larger Bench to be
constituted by Hon'ble the Chief Justice in
exercise of his powers under Chapter V
Rule 6 of the Allahabad High Court Rules,
1952.

61. We frame the following questions
for consideration by the Larger Bench:

"(1) Whether the Chief Judicial
Magistrate or any other Magistrate can
enlarge an acquitted person or a person
convicted of an offence on bail even in a
case where in an appeal against acquittal
or conviction, as the case may be, the High
Court or any other appellate Court has
issued non-bailable warrants for securing
his presence without any such stipulation
therein for release by the Court below,
more so when such non-bailable warrant
has been issued at a subsequent stage of
appeal and not the admission stage?

(2) Assuming the Magistrate has
jurisdiction as referred in Question No. 1,
whether a general direction of a mandatory
nature can be issued by the High Court to
the Magistrate for such release, as has
been done vide order dated 18.01.2024
passed in Government Appeal No. 454 of
2022 and order dated 19.01.2024 passed in
Government Appeal No. 2552 of 1981, does
it not deprive the Magistrate of his
discretion in this regard to consider such
release on case to case basis in view of the
law discussed?

(3) Whether the observations and
directions as contained in the order dated
18.01.2024 passed in Government Appeal
No. 454 of 2022 (State of U.P. vs. Geeta
Devi and another) and the directions dated
19.01.2024 in Government Appeal No.
2552
of
1981
(State
of
U.P.
Vs.
Shamshuddin Khan and others) are in
accordance with law?

(4)
What
are
the
modes
prescribed in law for securing the presence
of acquitted person or one who has been
convicted, in an appeal before the High
Court and what should be the course to be
ordinarily adopted by the High Court in
exercise
of
its
appellate
criminal
jurisdiction for securing such presence to
facilitate hearing of such appeals?

(5) Whether an appeal, either
against acquittal or conviction, can be
heard by appointing an Amicus Curiae for
the accused-respondent or the convictedappellant, as the case may be, in the event
he is not appearing in the appellate
proceedings though his presence can be
secured, without his consent and without
any intimation to him, if so, under what
circumstances?"

62. Let the matter be placed before
Hon'ble the Chief Justice.
----------
(2024) 3 ILRA 1314
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.03.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 2162 of 2015
Connected with
Criminal Appeal No. 2127 of 2015
And
Criminal Appeal No. 2161 of 2015
3 All. Lalit Kumar & Anr. Vs. State of U.P.
1315
Lalit Kumar & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Yogesh Kumar Srivastava, Sri Noor
Muhammad, Sri Sikandar B. Kochar (A.C.),
Sri Diwan Saifullah Khan, Sri Abhishek
Ankur Chaurasia, Sri Naveen Kumar Yadav

Counsel for the Opp. Party:
Govt. Advocate, Sri Subroto Chandra

(A) Criminal Law - Indian Penal Code,
1860 - Sections 364A, 365, 147, 148, 307,
149, Arms Act, 1959 - Section 25 -
Ransom
-
Abduction
-
Detention
-
Encounter
-
Wrongful Confinement
-
Sections 364A - Kidnapping for ramson,
Section 365 - Kidnapping or abducting
with intent secretly and wrongfully to
confine person - To establish an offense
under Section 364A IPC - Prosecution
must prove three essential elements: (i)
kidnapping or abduction of a person; (ii)
threat to cause death or hurt to the
kidnapped person or apprehension of such
threat; and (iii) demand of ransom. (Para -
34)
Appellants were accused of abducting a child
and confining him secretly - Prosecution alleged
that child's abduction was for ransom - During
an encounter child was recovered - accused
were apprehended - inconsistencies emerged
regarding ransom handling - no evidence
supported a threat to the child's life or safety.
(Paras - 2 to 17)
HELD: - No evidence to support the claim that
kidnappers threatened to cause death or harm
to child. Prosecution failed to establish demand,
payment, and recovery of ransom amount
beyond reasonable doubt. Case does not meet
all three conditions, and it cannot be concluded
that accused persons committed any offense
under Section 364A IPC. Appellants were
acquitted of charge under section 364-A IPC but
convicted for offense under section 365 IPC.
Convicted for other offences under Sections
147, 148, and 307/149 IPC. Appellants are
entitled to be released from jail immediately.
(Paras - 35, 39 to 41)

Appeals partly allowed. (E-7)

LIST OF CASES CITED: -

1. Vinod Vs St. of Har., (2008) 2 SCC 246

2. Arvind Singh Vs St. of Maha., (2021) 11 SCC
1

3. Shaik Ahmed Vs St. of Telan., (2021) 9 SCC
59

4. Malleshi Vs St. of Karn., (2004) 8 SCC 95

5. Mulla Vs St. of U.P., (2010) 3 SCC 508:
(2010) 2 SCC (Cri) 1150

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. These three appeals are arising out
of the common judgement and orders dated
05.05.2015 and 07.05.2015, passed by the
Additional Sessions Judge, Court No.7,
Ghaziabad, in Sessions Trial No. 268 of
2012 (State of U.P. vs. Lalit Kumar and
others), arising out of Case Crime No. 820
of 2011 under Section 364A I.P.C. and
Sessions Trial No. 363 of 2014, arising out
of Case Crime No. 820 of 2011 under
Section 364A (State vs. Qayyum) and
Sessions Trial No. 291 of 2012 (State vs.
Lalit Kumar and Ors.) arising out of Case
Crime No. 1190 of 2011 under Sections
147, 148, 307/149 I.P.C. and Sessions Trial
No. 292 of 2012 (State vs. Lalit Kumar)
arising out of Case Crime No. 1191 of 2011
and under Section 25 of the Arms Act,
Sessions Trial No. 293 of 2012 (State of
U.P. vs. Pappu) arising out of Case Crime
No. 1192 of 2011 under Section 25 of
Arms Act, Sessions Trial No. 292 of 2017
(State of U.P. vs. Raj Kumar) arising out of
Case Crime No. 1193 of 2011 under
Section 25 of the Arms Act, Sessions Trial
No. 295 of 2012 (State of U.P. vs.
Kanhaiya) arising out of Case Crime No.
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
1194 of 2011 under Section 25 of the Arms
Act, Sessions Trial 296 of 2012 (State of
U.P. vs. Iqbal) arising out of Case Crime
No. 1195 of 2012 under Section 25 of the
Arms Act and Sessions Trial No. 297 of
2012 (State vs. Shivram @ vijju) arising
out of Case Crime No. 1196 of 2011 under
Section 25 of the Arms Act, whereby all
the appellants were convicted for the
offences under Sections 364A, 147, 148,
307 I.P.C. and Section 25 of the Arms Act,
and sentenced under Section 364A IPC for
life imprisonment with fine of Rs.
1,00,000/-, under Section 147 I.P.C.,
imprisonment for two years, under Section
148 imprisonment for three years, under
Section 307/149 imprisonment for ten years
with fine of Rs.20,000/- and under Section
25 of the Arms Act, imprisonment for of
three years with fine of Rs. 10,000/- and in
default
of
payment
of
fine
further
imprisonment for three years as provided.

2. The brief facts of the leading
case in Sessions Trial No. 268 of 2012 are
that PW-1, Amit Jain, had lodged a first
information report on 18.10.2011 at 8:05
A.M., stating that his son, Parshva Jain,
who was studying in Class II, in Diwan
Public School had been abducted. He had
stated that as usual on 18.10.2011, in the
morning at 7:30 A.M, the guard of the
informant, namely Anand, had started from
the informant's house to drop Parshva Jain,
son of the informant, to the school. While
the guard and his son were on their way to
the school, from one Scorpio car, of white
and gray colour, which was parked nearby,
three persons came out while the driver was
still occupying the driving seat, keeping the
vehicle's engine on of the three persons one
person caught hold of Anand from behind
and two persons snatched Parshva Jain
from him and put parshva in the Scorpio
car and left towards Meerut. The guard
made a hue and cry and tried to follow the
car but could not succeed. He could not
note the vehicle number. The said boy,
Parshva Jain, was wearing a school dress of
blue colour half shirt, grey colour nicker
and black shoes. The guard informed the
informant about the incident and thereafter
he had lodged the F.I.R. After registration
of the F.I.R. against the four unknown
accused persons on 22.10.2011, the police
had recovered the kidnapped child during
an encounter wherein, out of the eight
persons, six were apprehended. With regard
to the encounter and recovery of the
kidnapped child, another Case Crime No.
1190 of 2011 was registered against all the
accused persons.

3. The facts of the Case Crime No.
1190 of 2011 were that on 22.10.2011, the
Inspector- Sri Anil Kaparwan, incharge of
the Special Operation Group(SOG), got an
information from a reliable source and
through surveillance that the accused
persons of Case Crime No. 820 of 2011
were hiding themselves alongwith the
kidnapped child in the Dastoi Forest and
due to the fear and pressure created by the
police, they had shifted near Muradnagar
and now they were demanding a ransom of
Rs. 2,00,00,000/- (Two Crores) from the
father of the kidnapped child and that some
deal was going to be finalized on
22.10.2011 at Sadarpur Duhai Road and if
the deal was not finalized, they were
planning to shift the child to some other
State and were trying to go towards
Mandawali, Delhi, in the Scorpio Car
through Muradnagar. On the basis of such
information, Sri Anil Kaparwan, Inspector
Incharge of SOG, came to the Police
Station, Kavinagar and informed about the
same
to
the
SHO,
Police
Station-
Kavinagar. Thereupon, they formed two
teams of the police to apprehend the
kidnappers and to recover the child.
3 All. Lalit Kumar & Anr. Vs. State of U.P.
1317

4. Out of these two police teams, one
was led by Sri Anil Kaparwan, Incharge-
SOG and another was led by Sri Avanish
Gautam, SHO, Kavinagar. Neeraj Kumar
(Head
Constable
47),
Uday
Pratap
(Constable 1457), Vinay Kumar (Constable
2289), Arun Kumar (Constable 1088),
Dhum Singh (Constable 711), Yogesh
Kumar (Constable 372) were members of
the police team led by SHO Avanish
Gautam. Both these teams took their
positions on the two roads, one, which went
towards Sadarpur and another which went
towards
Madhuban
Bapudham.
After
sometime a car was seen coming from
Govindpur side and after ten minutes
another car came from Sadarpur side and
both stopped and one person each from
both the cars came out and talked to each
other and from the car which came first, a
person took a bag and went towards the
other car. Having satisfied that the payment
of ransom was being finalized the police
team rushed towards the other car.
Thereupon, looking at the police the
accused
persons
began
to
fire
and
ultimately the police team despite getting
some minor injuries, surrounded the
accused persons and apprehended six of the
accused persons while two of the accused
persons escaped from the spot. The father
of the kidnapped child took the child in his
arms. The apprehended accused persons
were identified as Lalit Kumar s/o Lalaram,
Pappu s/o Munna Singh, Raj Kumar s/o
Mahendra Singh, Kanhaiya s/o Laxmi
Narayan, Iqbal s/o Illiyas, Shivram @ Vijju
s/o Khusiram and from each of the
apprehended accused persons, various arms
alongwith empty and live cartridges were
recovered on the spot and on query made
from the apprehended accused persons they
told that two of their accomplice members,
namely Qayyum and Johni @ Baba had
fled from the spot. On the spot itself, the
bag filled with money which was recovered
from the seat of the Scorpio Car, was
handed over to the original informant, Amit
Jain. Thereafter, the F.I.R. in Case Crime
No. 1190 of 2011 under Sections 147, 148,
149, 307 I.P.C. and separate cases under
Section 25 of the Arms Act were registered
against the accused persons. Recovery
Memo of various arms from each of the
accused
persons
were
prepared
and
thereupon the Case Crime No. 1191 of
2011 was registered against Lalit Kumar
under Section 25 of the Arms Act; Case
Crime No. 1192 of 2011 was registered
against Pappu Singh s/o Munna Singh;
Case Crime No. 1193 of 2011 registered
against Raj Kumar s/o Mahendra Singh;
Case Crime No. 1194 of 2011 registered
against Kanhaiya s/o Laxmi Narayan; Case
Crime No. 1195 of 2011 was registered
against Iqbal s/o Iliyas; Case Crime No.
1196 of 2011 against Shivram @ Vijju, all
under Section 25 of the Arms Act. After the
recovery of the child, the child was also
handed over to the complainant after
medical examination at the police station to
the informant.

5. Thereupon, the investigation was
completed and the other two co-accused
persons who had fled from the spot had
also
been
apprehended
during
the
investigation and then charge-sheets were
filed against all the accused persons in both
the cases, namely Case Crime No. 820 of
2011 as well as Case Crime No. 1190 of
2011 and also under the offences under the
Arms Act separately.

6. After submission of the said
charge-sheets, cognizance was taken and
the matters were committed to the sessions
court, thereupon, the sessions court framed
the charges against the accused Lalit
Kumar s/o Lalaram, Papu s/o Munna
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh, Raj Kumar s/o Mahendra Singh,
Kanhaiya s/o Laxmi Narayan, Iqbal s/o
Illiyas, Shivram @ Vijju s/o Khusiram and
Johni @ Baba jointly under Section 364A
IPC and further charges under Section
364A IPC were also framed against
accused Qayyum. Also charges under
Sections 147, 148, 307/149 I.P.C. were
framed against the accused Lalit Kumar,
Pappu, Rajkumar, Kanhaiya, Shivram @
vijju, Johny @ Baba and Qayyum. Separate
charges against accused Lalit Kumar,
Pappu,
Rajkumar,
Kanhaiya,
Iqbal,
Shivram @ Vijju were framed under
Section 25 of the Arms Act.

7. To support the case in Case Crime
No. 820 of 2011 under Section 364A
I.P.C., the prosecution had examined PW1- Amit Jain (Informant), PW-2- parshva
Jain, PW-3- Atul Jain, PW-4- Anand
Kumar, PW-5-Constable Devendra Singh,
PW-6-Sub-Inspector, Ashok Rana, PW-7
SHO
Avnish
Gautam,
PW-8
Head
Constable Vikas Kumar, PW-9 Constable
Akshay Sharma, PW-10 Dr. Naveen Jain,
PW-11 Head Constable- Rampal Singh,
PW- 12 Constable Bijendra Singh, PW13-
Raghunath Gautam. To prove the case in
Case Crime No. 1190 of 2011 under
Sections
147,
148,
307
I.P.C,
the
prosecution had examined Inspector Anil
Kaparwan, PW-1-the informant of the case,
PW-2 Constable- Harish Raghav, PW3
Sub-Inspector Pankaj Pant.

8. Thereupon, the statements of the
accused persons were recorded under
Section 313 Cr.P.C. They had denied the
allegations and claimed that they had been
falsely implicated in the case. After
conclusion of the trial vide judgement and
order dated 15.05.2015, the learned trial
court had convicted the accused Lalit
Kumar,
Pappu,
Rajkumar,
Kanhaiya,
Shivram @ Vijju, Iqbal for the offences
under section 364A IPC and also for the
offences under sections 147, 148, 307, 149
IPC and each of the accused Lalit Kumar,
Pappu, Rajkumar, Kanhaiya, Shivram @
vijju, Iqbal were also convicted for the
offence under section 25 of the Arms Act.
The other co-accused persons Johni @
Baba, Badal @ Pawan, Qayyum were
acquitted of the charges under section
364A IPC as well as for the charges under
sections 147, 148, 307, 149 IPC. After the
conviction, vide order dated 07.05.2015 all
the six accused persons named above, were
sentenced to life imprisonment alongwith a
fine of Rs. 1,00,000/- for the offence under
section 364A IPC, for the offence under
section 147 IPC the six accused persons
were sentenced to undergo two years
simple imprisonment, for the offence under
section 148 IPC, they were sentenced to
undergo three years simple imprisonment,
for the offence under sections 307/149 IPC
all the accused persons were sentenced to
undergo 10 years rigorous imprisonment
along-with fine of Rs. 20,000/- each and for
the offences under section 25 of the Arms
Act all the accused persons were sentenced
to
undergo
three
years
rigorous
imprisonment alongwith fines of Rs.
10,000/- each. For the default in payment
of fines, the accused persons were further
to undergo three years additional sentence.
All the sentences were directed to run
concurrently.

9. Against the aforesaid judgement
of
conviction
and
sentence
dated
05.05.2015 and 07.05.2015, three criminal
appeals were filed by the six accused
persons. The first Criminal Appeal No.
2162
of
2015
was
filed
by
accused/convicted
Lalit
Kumar
and
Shivram @ Vijju, the Criminal Appeal No.
2127
of
2015
was
filed
by
the
3 All. Lalit Kumar & Anr. Vs. State of U.P.
1319
accused/convicted Pappu and accused Iqbal
and the Criminal Appeal No. 2161 of 2015
had been filed by accused Kanhaiya @
Kural and accused Rajkumar. Since, all the
appeals arose out of a common judgement
and order, all the three appeals were heard
and decided together.

10. Learned counsel for the appellants
and learned Amicus Curiae appointed by
this Court have jointly submitted as under:

(i) In the instant case, the accused
persons have been convicted and sentenced
for the offence under section 364A IPC,
however, from the evidence available on
record and from the statements of PW1 and
PW 2, there was no evidence on record to
suggest that the accused persons ever
threatened to cause death or hurt to the
kidnapped child. Therefore, no offence
under section 364A IPC can be said to have
been made out against the appellants.

(ii) Learned counsel for the
appellants have further submitted that the
kidnapped child himself had stated that
none of the accused persons, who had been
apprehended, had actually kidnapped him
while he was going to school. Thus, on the
basis of the statement of PW-2, learned
counsel for the appellants submits that the
appellants herein were not kidnappers of
the child and they had been falsely
implicated in the case.

(iii) Learned counsel for the
appellant submits that in the instant case
the demand of ransom and payment thereof
had not been proved beyond reasonable
doubt and the bag which was stated to be
carrying the amount of ransom had never
been looked into and the money was never
counted by any of the police personnel nor
the same was recovered and sealed nor was
it made part of the case property, therefore,
no offence under section 364A IPC can be
said to have been made out against the
appellants as the demand and payment of
ransom had not been established beyond
reasonable doubt by the prosecution.

11. To appreciate the submissions
made by learned counsel for the appellants
it will be relevant to briefly note the
evidence available on record. PW-1 Amit
Jain, the informant, in his statement has
supported the First Information Report and
from his statement it is apparent that he got
the information from his guard- Anand and
he was not an eye witness of the incident of
kidnapping. He had stated that after the
kidnappers kidnapped the child, on the
same day he received a phone call and he
was informed that caller had kidnapped the
child and if he wanted his child back safely,
then he should make arrangement of money
amounting to Rs. 2,00,00,000/- (Rs. Two
Crores) as ransom for the release of the
child. When he requested them back that he
be allowed to talk to the child they did not
allow him to talk to the child, however,
after one or two days they arranged talk
with his wife. When he has shown his
inability to pay the ransom of Rs.
2,00,00,000/-(Rs. Two Crores) only and
offered Rs. 20,00,000/- (Rs. Twenty Lakhs)
then they called him to Bapudham
Ghaziabad alone with the money. On
22.10.2011, in the night at around 1:30
A.M. he left the house and went towards
Bapudham in his car. When he reached
Bapudham then the other car came from the
other side and stopped near his car and he
started approaching that car along with the
money and was about to give the money to
the accused persons, when the police
reached and fired at the criminal. He,
however, hid himself behind his car.
During the firing, the SHO Avnish Gautam
and two constables sustained fire arm
injuries. The child was in possession of the
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons. After the encounter by the
police, the child was recovered by the
police and handed over to PW-1 and on the
spot six accused persons were arrested.
Two of them had run away from the spot.
The money which he was to deliver to the
accused persons was returned by the police
to him and while handing over, the money
supurdaginama was got signed by the
police from him and he had identified his
signature on Memo of Supurdaginama.
After taking the custody of the child, he
went to his house. In his cross examination,
this witness has admitted that the guard
Anand was working as a guard in the
informant's residential house no. 67, New
Okhla, Meerut Road, Hapur and he was
working as such for the last 10 to 12 years
and Anand was still living with him and
was a native of Hapur. The informant, Amit
Jain,
was
running
the
business
of
manufacturing utensils and his factory was
at Meerut Road, Hapur. The Diwan Public
School where his son used to study was
around 200 to 250 metres away from his
house. One of the accused persons namely
accused Qayyum was also working in his
factory. The remaining accused persons
had never worked with him. The place
from where the child was kidnapped, was
park in front of the house of Mahesh
Chandra Mittal. His wife had told him that
Anand had came back to the house and has
informed that somebody has kidnapped
their child. He received this information at
around 7:40 A.M. in the morning and this
incident was firstly reported by the guard
Anand to his sister-in-law, Sonu Jain
(Bhabhi). The other persons, namely
Rajkumar Tyagi, Ashok Sharma and
various other persons had also informed
him about the incident of kidnapping which
was witnessed by them. When the police
first reached on the spot he was not there.
When he came back at 8:30 A.M. then he
saw the police and the crowd at the spot.
He admits that neither he was informed by
the police that efforts were on to search out
his child nor he had told the police that he
was going alone with the ransom amount to
get the child released. Though, he had
informed the police that demand of ransom
was being made, this information was
given by him to the police on 18th itself.

12. Further, in his cross examination
this witness had admitted that he was not
having any torch etc. and it was a dark
night and there was no source of light.
When the firing started he had hid himself
behind his car and could not see who had
fired and after 15 to 20 minutes of the
incident of encounter he came alongwith
the police in his car to the police station.
He had further stated that he had seen the
accused persons in the police station and he
cannot say with certainty that the accused
persons present in court were the same who
were involved in the incident. However, the
two of them were of the same built as were
involved in the incident and were brought
to the police station by the police. He had
stated that his child was handed over by the
police at the police station and all the
formalities about the same and the memos
for the same were prepared at the Police
Station. He further states that his signatures
were obtained at the police station Kavi
Nagar. He could not tell which police
officer had taken into custody the child
from the accused persons. No memo with
regard to money which he had carried to
give the kidnappers had been prepared nor
the said bag was taken from him. He had
alone gone alongwith the ransom amount.

13. The victim Parshva Jain has been
examined as PW-2. He had stated that on
18.10.2011 at around 7:30 A.M., he was
going towards his School alongwith the
3 All. Lalit Kumar & Anr. Vs. State of U.P.
1321
guard Anand. The persons who were
standing at the end of our lane had asked
the time from us and thereupon they had
kidnapped me and kept in the Scorpio car.
After a long drive they had asked me to get
off of the vehicle in a sugarcane field. They
were 12 to 13 persons who had kidnapped
me. They kept me in the sugarcane field for
5 days. Out of these persons, two persons
used to stay alongwith me and none of
them had ever called my family members
in front of me. The person who had
kidnapped him used to give food to him.
After keeping the kidnapped child for 5
days, those five-six persons had brought his
towards Ghaziabad and in Ghaziabad the
encounter had taken place with the police
and at that point of time he was in the car.
After the encounter he had stated that his
my father had taken him from there. In the
encounter, the police had suffered fire arms
injuries. The person who were carrying him
were apprehended by the police. He did not
know the names of those persons. Out of
the accused persons who were present in
court, none of them were the persons who
had kidnapped him while he was going to
the school nor those persons had kept him
in the sugarcane field. He could not
identify the person involved in the
encounter. In his cross examination he had
stated that the persons who had kidnapped
him used to give him food and he has stated
that he has informed about the incident to
his father but his father had not told him
that the accused persons were demanding
ransom from him. Where the encounter had
taken place was a forest and the encounter
had taken place in the night. To his
knowledge one police personnel had
suffered a fire arm injury. The persons who
kept him in the sugarcane field were two in
number and for all five days they were with
him. He had denied the suggestion that no
encounter had taken place and also he was
handed over by the police at the police
station to his father.

14. PW-3, Sri Atul Jain, is the uncle
of the victim, Parshva Jain and brother of
the first informant. He witnessed the
handing over of the bag filled with the
ransom amount to the informant and also
handing over the child to the informant.
However, this witness has stated that he
had no information how the victim was
recovered. However, he had stated that on
the information given by the informant, he
had come to know that the police had
recovered the victim from the clutches of
the kidnappers.

15. PW-4, Anand, who is the person
alongwith whom the victim was going
towards the school had stated that he was
working as a guard of Amit Jain
(informant) and the informant's child
Parshva Jain used to study in Diwan Public
School in Class II. On 18.10.2011 in the
morning at around 7:30, he was going to
drop Parshva Jain to his school. The bag of
the child was kept by him on his shoulders.
When he reached near the turn of the lane,
he found that one big car was parked there,
the number of which could not be seen by
this witness. When he went ahead of the
said vehicle, then, some unknown persons
caught hold of him and the other persons
snatched the child from his hands and kept
the child inside the vehicle and also tried to
put him in the vehicle. Thereafter, they
went
alongwith
child
towards
the
Gurudwara. He has further stated that
thereafter he made a hue and cry, however,
the unknown kidnappers succeeded in
fleeing away from the spot. Thereafter, he
went to the house of his owner and
informed him about the incident, however,
he could not recognize the colour and
number of the vehicle nor could he identify
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
the unknown kidnappers. He could not
identify the accused Pawan @ Badal,
Pappu, Shivram, Kanhaiya, Ramkumar and
Lalit, who were present in court and he has
categorically stated that the aforesaid
accused persons were present in court had
not kidnapped Parshva Jain on 18.10.2011.
His statement was not recorded by the
police. When his statement under Section
161 Cr.P.C., was shown to him, then, he
said how this statement was recorded, he
could not give the reasons. He deposed that
it was true that on 18.10.2011, Parshva Jain
was kidnapped in the morning. He denied
the suggestion that he was not telling the
truth before the court due to pressure. It is
admitted by him that he was working as
guard with Amit Jain since very long and
that he used to drop the kidnapped child,
Parshva Jain, in the morning to Diwan
Public School. He had further stated that he
didn't know when and how after the
incident the said Parshva Jain was
recovered. He denied the suggestion that on
18.10.2011 in the morning at about 7:30, he
had identified the person who kidnapped
Parshva Jain as the accused person, who
were present in the Court. He further
denied the suggestion that he was not
telling the truth due to the settlement
between the accused persons and the
informant. On further cross-examination
the PW-5, Anand, admitted that he had
never seen the accused persons present in
the Court prior to the date. He has further
stated that he didn't know the names and
addresses of the accused persons present in
court. The accused persons who were
present in court were not involved in the
kidnapping of Parshva Jain. He did not
know any person by the name, Johni @
Baba. No person named Johni @ Baba was
ever working with his master.

16. PW-5, Devendra Singh (Constable
131), is the person who had recorded the
chick F.I.R., by dictating on the computer.
The said report was lodged at 8:05 A.M. on
18.10.2011 in one go. In the crossexamination, he admits that F.I.R. was
recorded in his presence and the said F.I.R.
was lodged on his dictation on the
computer. The written report was not
transcribed in his presence and on the basis
of the written report he got registered the
case. The persons who brought the written
report did not give any photograph.

17. PW-6, Inspector Ashok Rana, is
the person who was posted as SHO at
Police Station- Hapur Nagar and he had
conducted
the
investigation
since
18.10.2011 to 29.10.2011. He had stated
that on 18.10.2011, on the basis of the
written report submitted by informant,
Amit Jain, Case Crime No. 820 of 2011
was registered under Section 364A I.P.C.
against unknown persons. He took over the
investigation and recorded the statement of
eye witness- Anand Kumar and at the
indication of the said eye witness, a site
plan for the place of incident was prepared
and PW-6 also recorded the statements of
various other persons and the same was
entered in the Case Diary. On 19.10.2011,
the statement of the informant- Amit Jain,
was recorded and thereupon in search of
the accused persons he raided the place of
accused Qayyum on 22.10.2011. On receipt
of information from Police Station- Kavi
Nagar through the wireless set, the accused
Lalit Kumar s/o Lalaram., Papu s/o Munna
Singh, Raj Kumar s/o Mahendra Singh,
Kanhaiya s/o Laxmi Narayan, Iqbal s/o
Illiyas, Shivram @ Vijju s/o Khusiram
were apprehended. During the encounter,
the police alongwith kidnapped child and
the vehicle and arms used in the incident
arrested the accused persons while the two
accused persons, namely Qayyum and
Johni @ Baba had fled away from the spot.
3 All. Lalit Kumar & Anr. Vs. State of U.P.
1323
On the information received he had visited
the Police Station- Kavi Nagar and had
obtained the Seizure Memo etc. from the
office of the Police Station- Kavi Nagar
and same were made part of the Case
Diary. He had also recorded the statements
of the accused persons present in the police
station. At the police station, Parshva Jain
and his father Amit Jain also met him. The
kidnapped Parshva Jain was handed over to
the father- Amit Jain in presence of the
witnesses and memo was prepared and the
said memo was prepared in his hand
writing and signature. During the process,
he also recorded the statement of the
informant- Amit Jain and made it part of
the Case Diary. With regard to the
encounter and arrest of the accused Lalit
Kumar s/o Lalaram., Pappu s/o Munna
Singh, Raj Kumar s/o Mahendra Singh,
Kanhaiya s/o Laxmi Narayan, Iqbal s/o
Illiyas, Shivram @ Vijju s/o Khusiram and
other accused persons, who fled from the
spot, namely Qayyum and Johni @ Baba,
and for the recovery of the kidnapped child,
Parshva Jain in the encounter and with
regard to the vehicle and use of illegal arms
etc., on 22.10.2011, Case Crime Nos. 1190
to 1196 of 2011 under Sections 147, 148,
149, 307 I.P.C., and under Section 25 of the
Arms Act, were registered at Police
Station- Kavi Nagar. In the said encounter,
three police personnels, namely Inspector-
Avnish
Gautam,
Constable-
Vikas,
Constable- Akshay Sharma, had sustained
injuries. On 23.10.2011, the proceedings
for warrant under Section 364A I.P.C. were
initiated in the Court of A.C.J.M.- Hapur
and subsequently, during investigation
name of accused Pawan @ Badal also
reflected, who was arrested on 27.10.2011
and was sent to jail and during the arrest of
the said accused, illegal arms were also
recovered and his statement was also
recorded and was made part of the Case
Diary. On 29.10.2011, the warrants were
got issued under Section 364A I.P.C.
through the Court. Thereafter, he was
transferred to District- Gautam Buddh
Nagar. In his cross-examination, he has
stated that he has recorded the statement of
the informant and the witnesseses around
10:00 A.M. to 10:30 A.M. on 18.10.2011.
He had not mentioned the time of recording
of the statement of these witnesses in the
Case Diary. He had recorded the statement
of these witnesses in the police station. He
had prepared the site plan at the indication
of witnesses- Anand at 11:30 A.M. He had
not recorded
any
statement of any
employee of the Rao Palace Hotel. In
supurdaginama, there is no signature of
kidnapped Parshva Jain. He has denied the
suggestion that no encounter with the
police has taken place and that the
kidnapped Parshva Jain was recovered. He
has also denied the suggestion that he was
not was present in the police station, that is
why the signature of Parshva Jain was not
obtained in the supurdaginama. He further
denied
the
suggestion
that
in
the
supurdaginama signature of witnesses and
the informant were obtained later on. In the
Police Station- Kavi Nagar he had not
inquired from the informant that where was
the money which he had brought to be
given to the kidnappers nor he had seen the
said money nor he has inquired as to
whether the said money was in which bag
or briefcase. On 23.10.2011, he had not
recorded the statement of the police
personnels who were involved in the
encounter, though, they were present in the
Police Station- Kavi Nagar. On the said
date he had not gone to the Sarvodaya
Hospital nor he had recorded the statement
of doctor who has examined the injured
police officers in the encounter. He had not
conducted any identification proceedings of
the accused persons vis-a-vis the witness,
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
Anand
Kumar.
He
had
denied
the
suggestion that to disclose the incident he
has conducted the proceedings in collusion
with Incharge SOG- Anil Kaparwan and
made out the recovery of kidnapped
Parshva Jain and the arrest of the accused
persons. He also denied the suggestion that
he had not conducted the investigation in a
transparent manner. He also denied the
suggestion that during the investigation he
had not recorded the statement of Parshva
Jain and he had not visited the place from
where Parshva Jain was recovered nor any
site plan was prepared by him of the place
of recovery of Parshva Jain. He had
undertaken
the
investigation
after
registration of the case at the Police
Station. It is true that the time of initiation
of investigation was not mentioned in the
Case Diary. He did not record the statement
of Parshva Jain as he was not well at that
time. He had mentioned this fact in the
Case Diary that Parshva Jain was not well.
It is true that on 22.10.2011, Parshva Jain
was not well and subsequently, he
continued
with
the
investigation
till
29.10.2011. He did make an attempt to
record the statement of Prashva Jain and
the same was mentioned in Case Diary on
27 to 29.05.2011. However, he could not
meet Parshva Jain on both the dates as it
was told to him that he had gone to Delhi
for treatment. He had gone to the school
and verified that he was studying in the
school. However, no statement of any
person from the school was recorded. He
has recorded the statement of the persons
surroundings the case of incident. He could
not take the statement of police personnel
who recovered the kidnapped child due to
the fact that he was busy in various other
proceedings.
In
his
further
cross
examination, he had stated that on
22.10.2011, that he had received intimation
through wireless set from Police Station-
Kavi Nagar, with regard to the work place,
encounter and recovery of the kidnapped
child Parshva Jain and arrest of all the six
accused persons. From the incident, the
vehicle and the illegal weapons were also
recovered which were used in the crime.
The two accused- Qayyum and Johni @
Baba had fled from the spot. On 18.10
2011, in the statement of Anand itself, the
name of Qayyum was reflected and
thereupon, on 19.10.2011, he had raided
the house of the accused Qayyum for his
arrest. However, the accused- Qayyum
could not be arrested on that date.

18. PW-7, Avanish Gautum, SHO,
stated that on 22.10.2011 he was posted as
SHO- Kavi Nagar. On that date the SHO-
Anil
Kaparwan,
incharge
of
SOG,
alongwith police personnels, Pankaj Pant
(SI), Akshay Sharma (Constable), Tejpal
Singh
(Constable),
Vikas
Sharma
(Constable), Harish Raghav (Constable),
Neeraj Kumar (Constable), Uday Pratap
(Constable), Vinay Kumar (Constable),
Arun Kumar (Constable) came to the
Police Station- Kavi Nagar and informed
that the kidnappers of the kidnapped child
of Case Crime No. 820 of 2011 under
Section 364A IPC were hiding in the forest
of Village- Dastoi and now they had come
to Muradnagar alongwith their associates
and the child. They had demanded a
ransom of Rs.2,00,00,000/- from the family
members of kidnapped child- Prashva Jain
and today the deal for the release of the
kidnapped child was about to take place at
Sadarpur Duhai road and on such deal it
had come to his knowledge that the said
kidnapped child shall be released and if the
deal was not finalized the accused
kidnappers shall shift the child to some
other State. The said persons were expected
to come in a Scorpio car from Muradnagar
to Duhai Sadarpur Marg and they would
3 All. Lalit Kumar & Anr. Vs. State of U.P.
1325
proceed to Mandawali. Relying upon the
said information given by the SHO- Anil
Kaparwan and after discussing with him
they formed two teams of the police
officers and both the teams proceeded
towards Sadarpur Dhulai and Bajwaha
Road at 1:40 A.M. on 22.10.2011,
wherefrom,
one
road
goes
towards
Sadarpur and the other road goes towards
Madhuban Bapudhan Colony, where both
the teams were placed on both sides of the
roads and they waited for the accused
persons to reach there. A vehicle came
from the side of Govindpur and after 10
minutes another vehicle came from the side
of Duhai and the second vehicle stopped
near the earlier first vehicle which came
from side of the Govindpur and from both
the vehicles, one person came down and
started talking to each other.