# Pankaj Mohan Srivastava & Anr v. State of U.P

- **Citation:** (2022) 7 ILRA 807
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-07
- **Case number:** Criminal Appeal No. 2585 of 2007
- **Bench:** Devendra Kumar Upadhyaya, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-mohan-srivastava-anr-v-state-of-u-p-48849
- **Pages:** 10

## Headnote

Criminal Law - Code of Criminal Procedure,
1973- Sections 231 & 311 - Indian Evidence
Act, 1872- Section 114- Section 131-The
victim, Udit alias Vasu was not examined by
the prosecution- The prosecution need not
examine all its witnesses and that discretion
lies with the prosecution whether to tender
or not any particular witness to prove its
case- Adverse inference against prosecution
can be drawn only if withholding of witness
was with oblique motive- No oblique motive
found for which the victim was not
produced by the prosecution as a witness
before the trial Court. There is nothing in
law which compels the prosecution to
examine all such witnesses whose names
find mention in the charge sheet to produce
them before the trial Court and on this
ground,
nothing
adverse
against
prosecution can be inferred.

It is not mandatory for the prosecution to
examine all
its witnesses
but adverse
inference
can
be
drawn
where
the
prosecution withholds a witness out of
oblique motives.

Criminal Law - Indian Penal Code, 1860-
Section 364-A - There is nothing on record
to show and establish that any demand of
ransom was made or communicated to the
first informant- The victim as discussed
above, was not examined before the trial
court. Therefore, the fact that any such
demand of ransom was made to the victim,
has also not been established. Cumulative
reading of the testimonies of prosecution
witnesses of fact leads only to one
irresistible inference that the case against
the appellants falls within the ambit of
section 364 I.P.C. only rather than one
under sections 363, 364A and 368 I.P.C.-
The appellants are, thus, liable to be
convicted under section 364 I.P.C., for
which, they are liable to be sentenced to
undergo ten years' rigorous imprisonment
and a fine of Rs. 10,000/- each.

Where the prosecution fails to establish the
demand for ransom and the victim has been
withheld from testifying, then instead of the
offence u/s 363,364A and 368 of the IPC the
offence would be of Section 364 IPC. (Para 28,
33, 35, 36, 37)

Criminal Appeal partly allowed. (E-3)

Case Law/Judgements relied upon:-

## Text

7 All. Pankaj Mohan Srivastava & Anr. Vs. State of U.P.
807
(2022)07ILR A807
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 2585 of 2007
&
Criminal Appeal No. 2809 of 2007
&
Criminal Appeal No. 2366 of 2007

Pankaj Mohan Srivastava & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Anand Kumar Srivastava, Alakshyendra
Goel, Ankit Kumar, Arun Kumar, Durga
Prasad Verma, Manoj Kumar Srivastava,
Ram Kushal Tiwari, S.K. Upadhyay, S.M.
Nasir, Shiv Nath Goshwami, Shobhit Mohan
Shukla, Vivek Srivastava

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Code of Criminal Procedure,
1973- Sections 231 & 311 - Indian Evidence
Act, 1872- Section 114- Section 131-The
victim, Udit alias Vasu was not examined by
the prosecution- The prosecution need not
examine all its witnesses and that discretion
lies with the prosecution whether to tender
or not any particular witness to prove its
case- Adverse inference against prosecution
can be drawn only if withholding of witness
was with oblique motive- No oblique motive
found for which the victim was not
produced by the prosecution as a witness
before the trial Court. There is nothing in
law which compels the prosecution to
examine all such witnesses whose names
find mention in the charge sheet to produce
them before the trial Court and on this
ground,
nothing
adverse
against
prosecution can be inferred.

It is not mandatory for the prosecution to
examine all
its witnesses
but adverse
inference
can
be
drawn
where
the
prosecution withholds a witness out of
oblique motives.

Criminal Law - Indian Penal Code, 1860-
Section 364-A - There is nothing on record
to show and establish that any demand of
ransom was made or communicated to the
first informant- The victim as discussed
above, was not examined before the trial
court. Therefore, the fact that any such
demand of ransom was made to the victim,
has also not been established. Cumulative
reading of the testimonies of prosecution
witnesses of fact leads only to one
irresistible inference that the case against
the appellants falls within the ambit of
section 364 I.P.C. only rather than one
under sections 363, 364A and 368 I.P.C.-
The appellants are, thus, liable to be
convicted under section 364 I.P.C., for
which, they are liable to be sentenced to
undergo ten years' rigorous imprisonment
and a fine of Rs. 10,000/- each.

Where the prosecution fails to establish the
demand for ransom and the victim has been
withheld from testifying, then instead of the
offence u/s 363,364A and 368 of the IPC the
offence would be of Section 364 IPC. (Para 28,
33, 35, 36, 37)

Criminal Appeal partly allowed. (E-3)

Case Law/Judgements relied upon:-

1. Crl. Appl. No.533 of 2021 @ SLP (Crl.) No.308
of 2021, Shaik Ahmed Vs St. of Telan.

2. Bhagwan Jagannath Markad & ors Vs St. of
Maha, (2016) 10 SCC 537

3. Nand Kumar Vs St. of Chhattis, (2015) 1 SCC
776

4. Vishwanath Gupta Vs St. of U.K, (2007) 11
SCC 633
808 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Malleshi Vs St. of Kar. (2004) 8 SCC 95

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. By means of the instant appeals,
the appellants have assailed the judgment
and order dated 27.09.2007 passed by the
learned Additional Sessions Judge (Fast
Track Court), Court No.4, Lucknow in
Sessions Trial No.319 of 1999 arising out
of Case Crime No.205 of 1997, under
Sections 363, 368 and 364A of the Indian
Penal Code (hereinafter referred to as
"I.P.C."), Police Station Aminabad, District
Lucknow whereby the appellants, namely,
Pankaj Mohan Srivastava and Neeraj
Mohan Srivastava (in Criminal Appeal
No.2585 of 2007) have been convicted and
sentenced
for
five
years'
rigorous
imprisonment with a fine of Rs.4,000/-
each for the offene under Section 363 I.P.C.
and in default of payment of fine, they have
further been directed to undergo for a
period of six months' additional rigorous
imprisonment.
They
have
also
been
convicted
and
sentenced
for
life
imprisonment with a fine of Rs.10,000/-
each for the offence under Sections 364A &
368 I.P.C. and in default of payment of
fine, a separate recovery proceeding has
been directed to be initiated against them.
All the sentences were directed to run
concurrently except the recovery of fine.

The
appellant-
Rajit
Ram
Verma (in Criminal Appeal No.2809 of
2007) has been convicted and sentenced for
five years' rigorous imprisonment with a
fine of Rs.4,000/- for the offene under
Section 363 I.P.C. and in default of
payment of fine, he has further been
directed to undergo for a period of six
months' additional rigorous imprisonment.
He has also been convicted and sentenced
for life imprisonment with a fine of
Rs.10,000/- for the offence under Sections
364A and 368 I.P.C. and in default of
payment of fine, a separate recovery
proceeding has been directed to be initiated
against him. All the sentences were directed
to run concurrently except the recovery of
fine.

The appellant, namely, Rajesh
(in Criminal Appeal No.2366 of 2007) has
been convicted and sentenced for five
years' rigorous imprisonment with a fine of
Rs.4,000/- each for the offence under
Section 363 I.P.C. and in default of
payment of fine, he has further been
directed to undergo for a period of six
months' additional rigorous imprisonment.
He has also been convicted and sentenced
for life imprisonment with a fine of
Rs.10,000/- for the offence under Sections
364A and 368 I.P.C. and in default of
payment of fine, a separate recovery
proceeding has been directed to be initiated
against them. All the sentences were
directed to run concurrently except the
recovery of fine.

2. Since the aforesaid criminal
appeals have been preferred against the
impugned judgment and order dated
27.09.2007 passed in Sessions Trial No.319
of 1999 arising out of Case Crime No.205
of 1997, under Sections 363, 368 and 364A
I.P.C., Police Station Aminabad, District
Lucknow, therefore, they have been heard
together and are being decided by a
common judgment.

3. The prosecution case, in brief, is
that a written report, Ext.-Ka-1 came to be
lodged
at
Police
Station
Kotwali
Qaiserbagh by the first informant, Rajendra
Kumar Gupta stating therein that his son,
Udit alias Vasu, aged about 4 years, a
student of Class-Nursery, had gone to his
7 All. Pankaj Mohan Srivastava & Anr. Vs. State of U.P.
809
school, Saint Teressa Day School, Naya
Gaon, Lucknow. When the first informant
went to bring his son back to home, he
came to know that someone else had taken
his child away from the school.

4. On the basis of aforesaid written
report, Ex. Ka-1, Case Crime No.NIL/1997
came to be registered under Section 363
I.P.C. at Police Station Qaiserbagh against
unknown persons. However, since the
matter pertained to territorial jurisdiction of
Police
Station
Aminabad,
therefore,
original written report and F.I.R. which
were initially registered at Police Station
Qaiserbagh were sent to Police Station
Aminabad where it came to be registered as
Case Crime No.205 of 1997 under Section
363 I.P.C.

5. According to the recovery/arrest
memo, Ex. Ka-2, the victim, Udit alias
Vasu was recovered on 26.12.1997 from
the house of co-accused, Daya Ram Verma
situated at Village Changupur, Police
Station Jaisinghpur, District Sultanpur
where the appellants, Pankaj Mohan
Srivastava, Rajit Ram Verma and Neeraj
Mohan Srivastava were arrested and
recovery/arrest memo, Ex. Ka-2 was also
prepared on the spot.

6. Upon conclusion of investigation,
charge sheet, Ex. Ka-7 came to be
submitted against the appellants. The
appellants,
Pankaj
Mohan
Srivastava,
Neeraj Mohan Srivastava, Rajit Ram Verma
and Rajesh were charged under Sections
363, 368 and 364 I.P.C. vide order dated
03.05.1999 whereas the co-accused, Daya
Ram Verma was charged under Section 368
I.P.C. only vide order dated 17.04.2003.
However, co-accused, Daya Ram verma
has been acquitted by the learned trial
court.

7. In order to bring home guilt of
appellants, the prosecution has examined
following witnesses :-

(i)
P.W.-1,
Rajendra
Kumar
Gupta, the first informant, who is the father
of victim, Udit alias Vasu.

(ii) P.W.-2, Asad Raja, who had
accompanied the first informant, P.W.-1,
Rajendra Kumar Gupta on 26.12.1997
when the victim was recovered. He is also a
witness to the recovery/arrest memo, Ex.
Ka-2.

(iii) P.W.-3, Paridin Rawat, who
was posted as Head Moharrir at Police
Station Kotwali Kaiserbagh on 18.11.1997
who registered Crime No.NIL/1997, under
Section 363 I.P.C. against unknown persons
and also entered the same in G. D. No.30 at
13: 20 hrs. He has also proved Chik F.I.R.
as Ex. Ka-3 and G.D. as Ex. Ka-4.

(iv) P.W.-4 S. I., Rama Kant
Tiwari, who headed the Special Task Force
constituted by the then S.S.P., Lucknow for
effecting the recovery of victim, Udit alias
Vasu has proved the recovery/arrest memo,
Ex. Ka-2.

(v) P.W.-5 Ram Dev Diwedi,
Investigating Officer had prepared site plan
of place of occurrence as Ex. Ka-5 and also
prepared site plan of place of recovery of
victim, Ex. Ka-6. Upon conclusion of
investigation, he has submitted the charge
sheet, Ex. Ka-7.

8. The statements of appellants
were
recorded
under
Section
313
Cr.P.C. In their detailed statements, the
appellants have denied the allegations
levelled against them. They have stated
to have been falsely implicated.

9. The appellant, Rajesh has stated
that on 26.12.1997 at about 8:30 P.M.
he
was
distributing
''Prasad'
after
810 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusion of evening prayer. The
appellant, Pankaj Mohan Srivastava and
his father were also present in the
temple.
Meanwhile,
many
persons
appeared on the spot who wanted to
know about appellant, Pankaj Mohan
Srivastava. They hurled abuses. When
objected, Constable R. P. Kanaujia
kicked the father of appellant, Pankaj
Mohan Srivastava and asked him to
accompany them for being a witness.

10. The appellant, Rajit Ram
Verma has, in his statements under
Section 313 Cr.P.C., stated that the
victim, Udit alias Vasu was shown to
him at S.S.P. Office.

11. Triveni Prasad Verma was
examined from the side of defence as
D.W.-1,
who
has
stated
that
the
appellants-Rajesh and Pankaj Mohan
Srivastava were present in the temple,
who were taken away by the police
personnel from the temple.

12. Upon conclusion of trial,
learned
trial
Court
convicted
and
sentenced the appellants as above by
the impugned judgment and order dated
27.09.2007.

13. Aggrieved by the aforesaid
impugned judgment and order dated
27.09.2007,
the
appellants
have
preferred these appeals.

14. We have heard Sri Ram Kushal
Tiwari and Sri Ankit Kumar, learned
counsel for the appellants and Sri
Dhananjay
Kumar
Singh,
learned
Additional
Government
Advocate
appearing for the State-respondents and
have perused the entire record available
before us.

15. Learned counsel for the appellants
has submitted that the appellants are
innocent and have been falsely implicated
in this case. The finding of guilt of
appellants recorded by the learned trial
Court is against the weight of evidence
which is illegal and, therefore, the same
deserves to be set aside.

16. Learned counsel for the appellants
has also argued that the prosecution has
miserably failed to establish that there was
any demand of ransom and any threat to the
life of victim was extended by the
appellants. Therefore, the conviction of
appellants dehors the necessary ingredients
which constitute offence under Section
364A I.P.C. is not sustainable. They have
also submitted that the victim, who was an
important witness, was not examined by the
prosecution,
therefore,
the
entire
prosecution story becomes doubtful and the
appellants deserve to be given benefit of
doubt.

17. To buttress their aforesaid
arguments, reliance has been placed on the
judgment of Hon'ble Supreme Court
rendered in Criminal Appeal No.533 of
2021 @ Special Leave Petition (Crl.)
No.308 of 2021, Shaik Ahmed vs. State of
Telangana.

18. Per contra, learned A.G.A. has
opposed the submissions made by learned
counsel for the appellants. He submits that
the child of first informant, Udit alias Vasu
was kidnapped in a planned manner by the
appellants, some of whom were employees
of the first informant, to procure ransom.
The victim was recovered from the Village
Changupur on 26.12.1997 from where the
appellants,
namely,
Pankaj
Mohan
Srivastava, Neeraj Mohan Srivastava and
Rajit Ram Verma were arrested on the spot.
7 All. Pankaj Mohan Srivastava & Anr. Vs. State of U.P.
811
He further submits that a letter demanding
ransom was recovered from the possession
of the appellant-Rajit Ram Verma, which
was sent to Forensic Science Laboratory
(hereinafter referred to as FSL) for
comparison of hand writing. According to
FSL report, the same was found to be in the
handwriting of the appellant, Rajit Ram
Verma, vide FSL Report, paper No.A17/2
and A17/1.

19. It is also contended by the learned
A.G.A. that the prosecution, in exercise of
its right under Section 231 Cr.P.C., has
examined four witnesses of facts and has
thus, successfully proved its case beyond
reasonable doubt. The prosecution cannot
be compelled to produce all or any
particular witness mentioned in the charge
sheet in order to bring home guilt of
appellants. Learned A.G.A. has concluded
his arguments by submitting that the
impugned judgment and order is well
discussed
and
reasoned
wherein
no
interference in exercise of power under
Section 386 Cr.P.C. by this Court is
required and the appeals deserve to be
dismissed.

20. Upon a close scrutiny of
testimony of first informant, P.W.-1,
Rajendra Kumar Gupta, we find that he is
father of victim, Udit alias Vasu, aged
about 4 years, a student of Class Nursery of
Saint Teressa Day School situated at Naya
Gaon, Lucknow. On 18.11.1997 when this
witness went to receive his child back from
Saint Teressa Day School, he did not find
his child in the school and he came to know
that his child has been taken away by some
unknown persons from the school. A
prompt written report in respect of
aforesaid incident came to be lodged on the
date of incident itself i.e. on 18.11.1997 as
Ex. Ka-3. He has also stated on oath that on
26.12.1997 at about 9:30 A.M., he received
a telephonic call in Hotel Vaishali,
Aminabad whereby he was directed to
bring Rs.5,00,000/-, failing which, he was
threatened that his child, victim will be
done to death.

21. P.W.-2, Asad Raja happens to be
manager of the first informant. This
witness, in his testimony, has stated that he
accompanied the first informant, P.W.-1,
Rajendra
Kumar
Gupta
and
police
personnels to the place from where the
victim, Udit alias Vasu was recovered.

22. P.W.-3, Paridin Rawat, Head
Constable, in his testimony, has stated that
the then S.S.P., Lucknow had constituted a
Special Task Force for effecting recovery
of victim. This Special Task Force was
headed by P.W.-3. He has stated on oath
that on 26.12.1997, the first informant
informed him about receiving a telephonic
call demanding ransom. This witness has
proved recovery/arrest memo, Ex. Ka-2
which, according to this witness, was
prepared at the place of recovery by him in
his own handwriting.

23. S.I., Rama Kant Tiwari has been
examined as P.W.-4, who, in his testimony,
has stated that on 26.12.1997, he was
informed by the first informant that
someone has telephonicaly demanded from
him Rs.5,00,000/- as ransom for releasing
his child. He has been asked to reach at
platform no.1, Sultanpur Railway Station.
Thereafter, this witness accompanied by the
first informant, Ajay Bhatnagar, P.W.2Asad Raja and other police personnels
reached Sultanpur Railway Station where
the appellant-Rajesh was arrested by the
police personnels, who told that the victim,
Udit alias Vasu is kept in the VillageChangupur
by
the
appellants-Pankaj
812 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohan
Srivastava,
Neeraj
Mohan
Srivastava
and
Rajit
Ram
Verma.
Thereafter, the police party and the
appellant-Rajesh
went
to
Village
Changupur where the victim was recovered
and
the
appellants-
Pankaj
Mohan
Srivastava, Neeraj Mohan Srivastava and
Rajit Ram Verma were arrested. This
witness has proved the recovery/arrest
memo, Ex. Ka-2.

24. Investigating Officer, Ram Dev
Diwedi has been examined as PW-5, who,
in his testimony, has stated that he prepared
site plan of place of occurrence, Ex. Ka-5
and after recovery of victim from Village
Changupur, he also visited and prepared the
site plan of place of recovery of victim as
Ex.
Ka-6.
Upon
conclusion
of
investigation, he submitted charge sheet
against the appellants, Ex. Ka-7.

25. We have undertaken a survey of
prosecution evidence in the light of rival
submissions advanced by learned counsel
for the parties and we find that the
appellants,
namely,
Pankaj
Mohan
Srivastava and Neeraj Mohan Srivastava
were employees of the first informant. In
spite of this fact, the first informant had
given an innocent written report without
naming them in the written report, Ex. Ka-1
when his son, victim, Udit alias Vasu had
gone missing on 18.11.1997. We also find
that
the
victim
was
recovered
on
26.12.1997 after about 38 days from the
date of incident from Village Changupur.

26. Had there been any intention of
the first informant to falsely rope in
appellants,
namely,
Pankaj
Mohan
Srivastava and Neeraj Mohan Srivastava,
who were employees of the first informant,
he would have very easily named these
appellants in the first information report
itself. However, he did not do so. As
mentioned above, the victim was recovered
on 26.12.1997 after about 38 days from the
date of incident. Thus, we do not see any
reason as to why the first informant would
risk his son's life for false implication of
the appellants, namely, Pankaj Mohan
Srivastava and Neeraj Mohan Srivastava or
other
appellants
for
getting
rid
of
appellants,
namely,
Pankaj
Mohan
Srivastava and Neeraj Mohan Srivastava
from his private employment. We, thus, do
not find any substance in the contention of
learned counsel for the appellants that the
appellants,
namely,
Pankaj
Mohan
Srivastava and Neeraj Mohan Srivastava
were falsely implicated by the first
informant
because
they
were
his
employees.

27. For considering the submission
made on behalf of the appellants that the
victim, Udit alias Vasu was not examined
by the prosecution, we may refer to the
judgment of Hon'ble Supreme Court in the
case of Bhagwan Jagannath Markad and
others vs. State of Maharashtra reported
in (2016) 10 SCC 537 and in Nand
Kumar vs. State of Chhattisgarh reported
in (2015) 1 SCC 776 wherein their
Lordships of Hon'ble Supreme Court while
explaining the provisions of Sections 231
and 311 Cr.P.C. and Sections 114 and 131
of Indian Evidence Act, have held that the
prosecution need not examine all its
witnesses and that discretion lies with the
prosecution whether to tender or not any
particular witness to prove its case.

28.

Adverse
inference
against
prosecution
can
be
drawn
only
if
withholding of witness was with oblique
motive. In the present case, we do not find,
as discussed above, any oblique motive for
which the victim was not produced by the
7 All. Pankaj Mohan Srivastava & Anr. Vs. State of U.P.
813
prosecution as a witness before the trial
Court. There is nothing in law which
compels the prosecution to examine all
such witnesses whose names find mention
in the charge sheet to produce them before
the trial Court and on this ground, nothing
adverse against prosecution can be inferred.
The argument of learned counsel for the
appellants to the contrary is, thus, not
tenable.

29. Learned counsel for the appellants
have submitted that the prosecution has
failed to establish ingredients of the offence
under Section 364A I.P.C. under which they
have been convicted. In order to appreciate
the aforesaid contention of learned counsel
for the appellants, it is necessary to refer to
Section 364A I.P.C. which is extracted
herein below:-

"364A.- Whoever kidnaps or
abducts any person or keeps a person in
detention
after
such
kidnapping
or
abduction, and threatens to cause death or
hurt to such person, or by his conduct gives
rise to a reasonable apprehension that such
person may be put to death or hurt, or
causes hurt or death to such person in
order to compel the Government or [any
foreign
State
or
international
intergovernmental organisation or any other
person] to do or abstain from doing any act
or to pay a ransom, shall be punishable
with death, or imprisonment for life, and
shall also be liable to fine."

30. The Hon'ble Supreme Court in the
case of Vishwanath Gupta vs. State of
Uttaranchal reported in (2007) 11 SCC
633 in paragraph 9 has held as under :-

"9. The important ingredient of
Section
364-A
is
the
abduction
or
kidnapping, as the case may be. Thereafter,
a threat to the kidnapped/abducted that if
the demand for ransom is not met then the
victim is likely to be put to death and in the
event death is caused, the offence of
Section 364-A is complete. There are three
stages in this section, one is the kidnapping
or abduction, second is threat of death
coupled with the demand of money and
lastly when the demand is not met, then
causing death. If the three ingredients are
available, that will constitute the offence
under
Section
364-A
of
the
Penal
Code.........."

(emphasis supplied by us)

31. Insofar as the demand of ransom
is concerned, the
same has to be
communicated as held by the Hon'ble
Supreme Court in Malleshi vs. State of
Karnataka reported in (2004) 8 SCC 95 in
paragraph 13, which is quoted herein below
:-

"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, under a
claim of right, requiring the latter to do or
yield something or to abstain from some
act"; "an asking with authority, claiming or
challenging as due". The definition as
pointed out above would show that the
demand has to be communicated. It is an
imperative request or a claim made."

 (Emphasis supplied by us)

32. Adverting to the facts of the case
at hand, we are able to notice a significant
fact that there is nothing on record to show
and establish that any demand of ransom
was made or communicated to the first
informant. Though, the first informant, in
814 INDIAN LAW REPORTS ALLAHABAD SERIES
his testimony, has stated that he had
received a telephonic call in this regard,
however, who made such call has neither
been alleged nor proved by the prosecution.
P.W.-5, Ram Dev Diwedi, Investigating
Officer, in his testimony, has stated that he
was informed by P.W.-4, S.I., Rama Kant
Tiwari that a letter demanding ransom was
recovered from the possession of appellant,
Rajit Ram Verma at the time of his arrest,
which was sent to FSL for comparison of
handwriting. A photocopy of which is
available on record as Paper No.A10/1 and
its FSL report is also available on record as
Paper No.A17/2 and A17/11.

33. The appellant, Rajit Ram Verma has
denied the fact that any such letter was
recovered from his possession. However, if
we, for the sake of argument, assume that any
such letter was recovered from the possession
of the appellant, Rajit Ram Verma at the time
of his arrest and the same was in his own
hand writing, the prosecution has failed to
prove that such letter demanding or requiring
any
ransom
to
be
paid
was
ever
communicated to the first informant or his
family members or any other person. The
victim as discussed above, was not examined
before the trial court. Therefore, the fact that
any such demand of ransom was made to the
victim, has also not been established.

34. The Hon'ble Supreme Court in
Criminal Appeal No.533 of 2021@ Special
Leave Petition (Crl.) No.308 of 2021, Shaik
Ahmed vs. State of Telangana in paras 12 to
16 has held as under :-

"12. We may now look into
section 364A to find out as to what
ingredients the Section itself contemplate
for the offence. When we paraphrase
Section 364A following is deciphered:-

(i) "Whoever kidnaps or abducts
any person or keeps a person in detention
after such kidnapping or abduction"

(ii) "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,

(iii) or causes hurt or death to
such person in order to compel the
Government or any foreign State or
international
intergovernmental
organisation or any other person to do or
abstain from doing any act or to pay a
ransom"

(iv) "shall be punishable with
death, or imprisonment for life, and shall
also beliable to fine."

13. The first essential condition
as incorporated in Section 364A is
"whoever kidnaps or abducts any person or
keeps a person in detention after such
kidnapping or abduction". The second
condition begins with conjunction "and".
The second condition has also two parts,
i.e., (a) threatens to cause death or hurt to
such person or (b) by his conduct gives rise
to a reasonable apprehension that such
person may be put to death or hurt. Either
part of above condition, if fulfilled, shall
fulfill the second condition for offence. The
third condition begins with the word "or",
i.e., or causes hurt or death to such person
in order to compel the Government or any
foreign
State
or
international
intergovernmental organisation or any other
person to do or abstain from doing any act
or to pay a ransom. Third condition begins
with the word "or causes hurt or death to
such person in order to compel the
Government or any foreign state to do or
abstain from doing any act or to pay a
ransom". Section 364A contains a heading
"kidnapping
for
ransom,
etc."
The
7 All. Pankaj Mohan Srivastava & Anr. Vs. State of U.P.
815
kidnapping by a person to demand ransom
is fully covered by Section 364A.

14. We have noticed that after the
first conditionthe second condition is joined
by conjunction "and", thus, 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.

15. The use of conjunction "and"
has its purpose and object. Section 364A
uses the word "or" nine times and the
whole
section
contains
only
one
conjunction "and", which joins the first and
second condition. Thus, for covering an
offence under Section 364A, apart from
fulfillment of first condition, the second
condition, i.e., "and threatens to cause
death or hurt to such person" also needs to
be proved in case the case is not covered by
subsequent clauses joined by "or".

16. The word "and" is used as
conjunction. The use of word "or" is clearly
distinctive. Both the words have been used
for different purpose and object. Crawford
on Interpretation of Law while dealing with
the subject "disjunctive" and "conjunctive"
words with regard to criminal statute made
following statement:-

"..........................The
Court
should be extremely reluctant in a criminal
statute to substitute disjunctive words for
cojunctive words, and vice versa, if such
action adversely affects the accused."

35. After scrutinizing the evidence
adduced by the prosecution to prove the
charges under Section 364A I.P.C. against the
appellants, we find that though the first
informant, P.W.-1, Rajendra Kumar Gupta, in
his testimony, has stated that he had received
a telephonic call demanding Rs.5,00,000/- as
ransom and had also received a letter
demanding such ransom which he handed
over to the Investigating Officer and that
photocopy of such letter is available on
record as Paper No.A-10/1, but we also
notice the fact that P.W.-5, Ram Dev Diwedi,
Investigating Officer, in his testimony, has
very clearly stated that he was informed by
P.W.-4, S.I., Rama Kant Tiwari that the
alleged letter, demanding ransom was
recovered from the possession of the
appellant-Rajit Ram Verma, which was sent
to FSL for comparison of handwriting.
However,
this
witness,
in
his
crossexamination, has himself admitted that the
alleged letter demanding ransom which was
sent to FSL for comparison of handwriting,
was recovered from the possession of
appellant-Rajit Ram Verma at the time of his
arrest and that the first informant, P.W.-1,
Rajendra Kumar Gupta had not handed over
any letter demanding ransom to him.
Therefore, the prosecution story regarding the
letter demanding ransom having been written
and sent by the appellant-Rajit Ram Verma
does not inspire confidence. We are,
therefore, of the considered view that the
prosecution has been unable to prove that
ransom was ever demanded or required to be
paid. There is not even an iota of evidence
against the appellants, even faintly, showing
that they had either demanded or were
involved
in
demanding
any
ransom.
Therefore, necessary ingredients to prove the
charge under Section 364A I.P.C. were not
proved against the appellants.

36. Cumulative reading of the
testimonies of prosecution witnesses of fact
leads only to one irresistible inference that
the case against the appellants falls within
the ambit of section 364 I.P.C. only rather
than one under sections 363, 364A and 368
I.P.C. It will be useful to extract section 364
I.P.C. herein below:

"364. Kidnapping or abducting
in order to murder - Whoever kidnaps or
816 INDIAN LAW REPORTS ALLAHABAD SERIES
abducts any person in order that such
person may be murdered or may be so
disposed of as to be put in danger of being
murdered,
shall
be
punished
with
1[imprisonment for life] or rigorous
imprisonment for a term which may extend
to ten years, and shall also be liable to
fine."

37. Thus, upon a thorough marshaling
of the facts of this case and thread bare
scrutiny of the evidence on record, we have
no
hesitation
in
holding
that
the
prosecution has miserably failed to prove
by any cogent evidence that the appellants
after kidnapping the victim had made any
demand of ransom for releasing him or any
ransom was paid to them. Thus, the
prosecution has been unable to establish the
necessary
ingredients
for
convicting
appellants under section 364A I.P.C..
Therefore, the recorded conviction of the
appellants and the sentence awarded to
them under sections 363, 364A & 368
I.P.C. by the Trial Court vide impugned
judgement and order cannot be sustained
which are accordingly liable to be set aside.
The appellants are, thus, liable to be
convicted under section 364 I.P.C., for
which, they are liable to be sentenced to
undergo ten years' rigorous imprisonment
and a fine of Rs. 10,000/- each and in
default of payment of fine, they would
further undergo six months' additional
rigorous imprisonment.

38. The instant appeals are, thus,
partly
allowed.
The
conviction
of
appellants- Pankaj Mohan Srivastava,
Neeraj Mohan Srivastava, Rajit Ram
Verma and Rajesh under Sections 363,
364A and 368 I.P.C. and sentences awarded
therefor
are
hereby
set
aside
and
accordingly they are acquitted of these
charges. The appellants are convicted under
Section 364 I.P.C. and are hereby awarded
sentence of rigorous imprisonment for ten
years with a fine of Rs.10,000/- each and in
default of payment of fine, they would
undergo further six months' additional
rigorous imprisonment.

39. In case, the appellants have
already undergone sentences awarded to
them for the offence under Section 364
I.P.C., they shall be released forthwith,
unless required in any other case.

40. The appellants, after their release,
shall file a personal bond of Rs.50,000/-
and two sureties each in the like amount to
the satisfaction of the learned trial Court in
compliance of Section 437A Cr.P.C within
a period of two months from the date of
their release.

41. Let a copy of this judgment be
placed on records of Criminal Appeal
Nos.2809 of 2007 and 2366 of 2007.

42. Let the lower court record along
with a copy of this judgment be transmitted
forthwith to the concerned trial Court for
information and necessary compliance.
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(2022)07ILR A816
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Revision No. 12 of 2021

State of U.P. ...Revisionist
Versus
The Court of Spl. Judge M.P./M.L.A./A.S.J.
Vi Raebareli And Ors. ...Opposite Party

Counsel for the Revisionist: