# Pohpee @ Pohap Singh v. State

- **Citation:** (2022) 9 ILRA 1565
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-05
- **Case number:** Jail Appeal No. 1262 of 2012
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pohpee-pohap-singh-v-state-49050
- **Pages:** 24

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973-Section 374(2) - Indian Penal
Code,1860- Section 364-A-Challenge toConviction- In the present case, there is a
clear and categorical evidence of the
kidnappee when he was going to his
sister's house, he was kidnapped by the
accused persons and thereafter, rest of
the appellants also joined them and
participated
in
his
kidnapping
and
confinement-The kidnappee was confined
there for about two months-He was also
made to write a letter to his father for
ransom of Rs. 1,50,000/-. The version of
PW 1, is supported by other witnesses- All
the witnesses have been subjected to
cross-examination, but there is no major
contradiction or infirmity in the evidence
of the witnesses- After his release, PW 1
has even pointed out the alleged house,
where he was kept in confinement-There
is
evidence
on
record,
which
unmistakeably establishes that PW 1 was
kidnapped by the accused-appellants and
was kept in confinement for two monthsThe evidence on record fulfills all the
ingredients of Section 365 of IPC-The
evidence on record clearly makes out a
case of kidnapping as punishable u/s 365
of IPC. Accordingly, the conviction of
appellants recorded by the trial court
under Section 364-A of IPC should be
altered and modified to one under Section
365 of IPC only.(Para 81 to 97)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,887 of 80,311. This is a partial read: ask again with offset=39887 for what follows._

9 All. Pohpee @ Pohap Singh Vs. State
1565

22. Accordingly, the appeal is partly
allowed, as modified above.

23. Record be sent to trial court
immediately.

Suo Moto Correction

While going through the judgment we
find that there is an error, in the third line of
the order dated 12.09.2022 in place of
Criminal Appeal No.6611 of 2016 it should
be read as Criminal Appeal No.6073 of
2016, in place of namely Rajesh Kumar it
should be read as namely Kushma Devi, in
place of his it should be read as her in line
three and four of first paragraph and in first
line of paragraph second in place of Smt.
Kushma Devi it should be read as Rajesh
Kumar and in eighth line of paragraph 21
in place of Smt. Kushma Devi it should be
read as Rajesh Kumar.

The order is corrected accordingly.

Order Date :- 14.9.2022
----------
(2022) 9 ILRA 1565
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA , J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 1262 of 2012
Connected With
Criminal Appeal No. 1684 of 2011
And
Criminal Appeal No. 1741 of 2011
And
Criminal Appeal No. 1945 of 2011
And
Criminal Appeal No. 2636 of 2011

Pohpee @ Pohap Singh ...Appellant
Versus
State ...Opposite Party
Counsel for the Appellant:
From Jail, Sri Arun Kumar Vishwakarma, Sri
Manoj Kumar Pandey, Sri Uttar Kumar
Goswami

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

A. Criminal Law - Criminal Procedure
Code, 1973-Section 374(2) - Indian Penal
Code,1860- Section 364-A-Challenge toConviction- In the present case, there is a
clear and categorical evidence of the
kidnappee when he was going to his
sister's house, he was kidnapped by the
accused persons and thereafter, rest of
the appellants also joined them and
participated
in
his
kidnapping
and
confinement-The kidnappee was confined
there for about two months-He was also
made to write a letter to his father for
ransom of Rs. 1,50,000/-. The version of
PW 1, is supported by other witnesses- All
the witnesses have been subjected to
cross-examination, but there is no major
contradiction or infirmity in the evidence
of the witnesses- After his release, PW 1
has even pointed out the alleged house,
where he was kept in confinement-There
is
evidence
on
record,
which
unmistakeably establishes that PW 1 was
kidnapped by the accused-appellants and
was kept in confinement for two monthsThe evidence on record fulfills all the
ingredients of Section 365 of IPC-The
evidence on record clearly makes out a
case of kidnapping as punishable u/s 365
of IPC. Accordingly, the conviction of
appellants recorded by the trial court
under Section 364-A of IPC should be
altered and modified to one under Section
365 of IPC only.(Para 81 to 97)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Shaik Ahmed Vs St. of Telangana (2021) 9
SCC 59

2. Deshraj Vs St. of U.P. (2019) 107 ACC 176
1566 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Mahesh V St. of U.P. CRLA No. 3647 of 2005

4. Ashwani Dubey V St. of U.P. CRLA No. 7740
of 2006

5. Shaik Ahmed Vs St. of Telangana (2021) 9
SCC 59

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. These five appeals are directed
against the judgment and orders dated
26.2.2011, 28.2.2011 and 1.4.2011, passed
by Additional Sessions Judge (Court No.6),
Mathura in Sessions Trial No. 115 of 2007
(State Vs. Pooran Singh, Padam Singh and
Rahees) and Sessions Trial No.286 of 2007
(State Vs. Ramesh @ Chhote and Pohpee).
All the five accused have been held guilty
of kidnapping for ransom under Section
364-A IPC and have been sentenced to life
imprisonment
alongwith
fine
of
Rs.10,000/- each, and to undergo further
rigorous imprisonment of two years in the
event of default of payment of fine.

2. Facts, as emerge from record of
these connected appeals are that a written
report was made by the first informant
Mohar Singh (Ext. Ka-1) on 10.11.2016
stating that he is an original resident of
Village
Chaumuha,
Police
Station
Vrindavan, District Mathura. The brotherin-law of his sister namely Pohpee, son of
Mahaur Singh, wanted informant's land to
be sold. Upon the informant's refusal to sell
his land accused Pohpee threatened him
that he would kidnap his son and murder
him. On 21.10.2006 the informant's son
Satish had gone to Chaumuha Bazar but did
not return till late in the evening which
made
the
informant
suspicious.
The
informant (PW-1) made attempts to trace
out his son. He is alleged to have been
informed by Ashok Kumar (PW-3) that
from the vicinity of tea shop of Govind,
Pohpee alongwith another person took his
son on motorcycle towards Chhata. On
enquiry the informant came to know that
Pohpee and Narayan Singh had taken his
son to Naugaon, Police Station Chhata and
have handed over his son to Rahees son of
Yaseen, resident of Police Station Narsena,
District Bulandshahar; Pooran Singh son of
Karan Singh, resident of Garhi Parsoti,
Police Station Surir, District Mathura and
Padam son of Kunwar Pal, who may kill
his son. The informant disclosed that he
was trying to locate his son so far, and after
coming to know of the true facts he has
come to police station for lodging his
report. Same be registered and legal action
be taken in the matter.

3. On the basis of aforesaid written
report Police Constable Peetam Singh (PW4) entered the substance of written report in
the general diary. He thereafter prepared
the Check FIR, which was registered as
Case Crime No.493 of 2006, under Section
364 IPC, at police outpost Jait, Police
Station Vrindavan, District Mathura (Ext.
Ka-2). Perusal of same will show that it
was registered at 15.25 pm on 10.11.2006.

4. Incidentally, just five minutes after
the lodging of aforesaid FIR, the police of
Police
Station
Narsena,
District
Bulandshahar
carried
out
a
search/encounter at Unchagaon within the
limits of P.S. Narsena in which the victim
Satish (PW-2) was recovered, allegedly
from four accused namely Padam Singh
son of Kunwar Pal; Rahees son of Yaseen;
Pooran Singh son of Karan Singh and
Narayan Singh son of Udal Singh. 4
country-made pistols of 315 bore were
recovered from this person. 12 live
cartridges and four empties of aforesaid
bore.
9 All. Pohpee @ Pohap Singh Vs. State
1567

5. A memo of recovery of four
country-made
pistols
of
315
bore
(Tamanchas); 12 live cartridges and four
empty cartridges and recovery of victim
Satish came to be drawn by Harish Chandra
Joshi (PW-6), the then SHO of Police
Station Narsena. The recovery memo
records that on 10.11.2006 the Station
House Officer of Police Station Narsena,
District Bulandshahar received information
that some criminals were hiding in the
house of one Sabuddin alongwith an
kidnapped boy of 12-13 years of Mathura
in Village Unchagaon. This information
was recorded in the GD of Police Station
Narsena at 2.00 pm, whereafter the police
party raided the house of Sabuddin at
around 2.30 pm on 10.11.2006. The police
party on the pointing out of police informer
reached the house of Sabuddin and warned
all four criminals to surrender, since they
were surrounded by police or else they
would be killed. The four criminals are
alleged to have started firing from inside
the house on the police party, but
ultimately they were over powered and
arrested at 3.30 pm on 10.11.2006. From
the custody of these criminals a child of 12
years was recovered, who disclosed his
identity as Satish, resident of Village
Chaumuha,
Police
Station
Vrindavan,
District Mathura. The kidnapped child
informed that he had been kidnapped for
ransom from Chaumuha Bazar at Mathura.
The arrested accused persons disclosed
their names as Padam Singh son of Kunwar
Pal, resident of Garhi Parsoti, Police
Station Surir, District Mathura, who had a
315 bore Tamancha and on opening the
barrel it transpired that a fresh shot had
been fired from it, as smell of gunpowder
was present. Three live cartridges of 315
bore were also recovered. The second
criminal arrested disclosed his name as
Rahees son of Yaseen, resident of Jigni,
Police
Station
Narsena,
District
Bulandshahar from whom also a countrymade pistol of 315 bore was recovered and
a shot had also been fired from it since
there was smell of gunpowder. Three live
cartridges were also recovered from him.
Similarly, from accused Pooran Singh and
Narayan Singh also country-made pistols of
315 bore each were recovered alongwith
three live cartridges each and on opening of
barrel it transpired that a shot had been
fired from both the guns as smell of
gunpowder was present. It is recorded in
the recovery memo that all four accused
disclosed that they had kidnapped the 12
year old child alongwith co-accused
Pohpee and Chhote, resident of Police
Station Farah, District Mathura for ransom
of Rs.10 lacs on 21.10.2006 at about 5.00
pm and they were in constant touch on
phone with Govind for receiving the
ransom in a day or so.

6. During the course of investigation
of Case Crime No.493 of 2006, statement
of informant was recorded by Investigating
Officer wherein he disclosed about ransom.
Consequently the offence complained of
was altered to Section 364-A IPC from
Section 364 IPC. Upon conclusion of
investigation
two
chargesheets
were
submitted in the matter i.e. Ext. Ka-6 on
18.12.2006
against
Narayan,
Rahees,
Pooran Singh and Padam Singh, whereafter
a subsequent chargesheet was submitted on
23.2.2007 against Chhote @ Pooran and
Pohap Singh. In the chargesheet 19
witnesses were proposed to be adduced by
the prosecution to prove the charge levelled
under Section 364-A IPC against aforesaid
accused.

7. After submission of chargesheets,
the concerned Magistrate took cognizance
upon same. Since the case was triable by
1568 INDIAN LAW REPORTS ALLAHABAD SERIES
the court of sessions, the concerned
Magistrate, accordingly, committed the
case to the court of Sessions. On the basis
of aforementioned two chargesheets, two
separate sessions trial came to be registered
i.e. Sessions Trial No.115 of 2007 (State
Vs. Narayan and others) and Sessions Trial
No.286 of 2007 (State Vs. Chhote and
another). The Sessions Judge framed
separate charges under Section 364-A IPC
against each of the accused, who claimed
the
same
and
pleaded
innocence.
Resultantly trial procedure commenced.

8. The prosecution in order to
establish the charge framed under Section
364-A IPC adduced PW-1 Mohar Singh
(informant); PW-2 Satish (victim); PW-3
Ashok Kumar (witness of last scene); PW4 Head Constable Peetam Singh; PW-5 S.I.
Harendra
Kumar
Gautam,
who
had
investigated Case Crime No.493 of 2006;
PW-6 Harish Chandra Joshi, Station House
Officer, Police Station Narsena, District
Bulandshahar, who supervised the alleged
encounter leading to the recovery of victim
as well as arrest of the four accused.

9. On behalf of the defence, DW-1
Mohan Lal (brother of PW-1); DW-2 Smt.
Anjum wife of Sabuddin and DW-3 Sabir
(neighbour of Sabuddin) were adduced in
proof of the innocence of accused.

10. PW-1 Mohar Singh (first informant)
in his sworn testimony has stated that on
21.10.2006 his son Satish aged about 12
years had gone to purchase Crackers on the
eve of Diwali but did not return home. He
came to the market and made inquiries and
was informed by Ashok Kumar (PW-3) that
he had seen Satish purchasing Crackers with
Pohpee whereafter he was taken on a
motorcycle
towards
Chhata.
Another
unknown person with Pohpee was also
present who was driving the motorcycle. The
informant claims to have made all efforts to
trace out his son but in vein. After some days
PW-1 claims to have received a call on the
STD Booth of Nanak, allegedly of his
kidnapped son but while speaking to him
PW-1 could gather that it is not the voice of
his son and insead somebody else was on
call. PW-1 was asked on phone to arrange a
sum of Rs.10 lacs within four days or else his
son would not return. PW-1 also stated that
Pohpee is the Devar of his sister and has been
coming to his house often. PW-1 disclosed
that he owns certain land within 500 metres
of the highway, in respect of which there was
a proposal from Pohpee to have the land
purchased at Rs.25 lacs per bigha. Pohpee,
however, later offered rate of Rs.20 lacs per
bigha only on which PW-1 refused to sell his
land. Pohpee is alleged to have threatened
PW-1 that if he does not sell his land his son
would be kidnapped and murdered. It is
asserted by PW-1 in his statement that
precisely for this reason his son has been
kidnapped.

11. PW-1 has also disclosed that his
son has been recovered from the possession
of Rahees, Pooran, Padam and Narayan.
However, PW-1 after seeing the accused
persons
in
the
court
failed
to
recognize/identify them. PW-1 also stated
that he had lodged a report at police outpost
Jait of Police Station Vrindavan a day prior
to his son being recovered. It is also stated
that the said report was got lodged through
a resident of different village, who is not
known to him. The report was written on
his instructions. After seeing the written
report (Ext. Ka-1) PW-1 stated that it is the
same report. He has also stated that after
his son was recovered he was given in his
Supurdagi by the police personnels of
Police
Station
Narsena,
District
Bulandshahar.
9 All. Pohpee @ Pohap Singh Vs. State
1569

12. PW-1 was also cross-examined.
This witness in his cross-examination has
stated that he has seen Pohpee on the date
of incident at about 1.00 pm but had not
spoken to him. He returned from his field at
about 4.00 pm and by 6.00 pm he came to
know that his son is missing. According to
this witness he immediately did not go to
the police station but only after a week. He
claims to have lodged a report on the 8th
day of his son's disappearance. He also
claims to have been informed by Ashok
Kumar
(PW-3)
that
Pohpee
was
accompanied by Chhote. He has also stated
that he had gone a day before Diwali for
lodging
a
report,
which
was
duly
registered, and it is on the second day of his
report that he came to know about recovery
of his son. He also claims to have received
information about the recovery of his son
from a person close to Pohpee but he does
not remember his name.

13. PW-1 in his cross-examination
has also asserted that he was informed by
the aforesaid person that his son was with a
gang and that he may contact them. He
claims to have received a phone from the
gang at Nanak's PCO. However, he feigned
ignorance about the name of Nanak's
father. The telephone call received was for
arranging Rs. 10 lacs as ransom if he
wanted his son back. This phone call is
stated to have been received four days after
lodging the report. PW-1 in his crossexamination has admitted that there was no
subsequent call received by him for
ransom. He claims to have gathered
knowledge about 9-10 days after lodging of
his report that his son has been recovered.
PW-1 claims to have gone to Police Station
Narsena with his brother. He also claims to
have
informed
the
police
about
involvement of Chhote and does not know
the reason for exclusion of his name in the
FIR. He has also claimed ignorance about
any dispute between Pooran, father of
Chhote, and his brother-in-law Hari Singh.
He has also denied the allegation that he
has enmity with the accused persons and
that is why he has falsely implicated the
accused persons.

14. PW-1 was cross-examined by the
counsel for other accused namely Padam,
Pooran
and
Rahees.
In
his
crossexamination he claims to have returned
with his son after three days of his
recovery. He has further stated that only
one police report was made by him after
about
20
days
of
the
incident
of
kidnapping. The only written report by him
is alleged to have been written by some
police personnel at Police Outpost Jait. In
the report he claims to have implicated
Pohpee and Chhote and has specifically
asserted of having not disclosed the names
of other accused. In his subsequent crossexamination PW-1 has stated of having
received a telephone call after 20 days of
his son's disappearance for ransom and to
have informed about it to the SHO
concerned. He alleged that a boy came
from the STD Booth situate just after two
houses from his house. On reaching the
PCO PW-1 claims to have again got a call
and he spoke to his son. He claimed
ignorance about the identity of other
persons present with his son. He has
categorically stated that after 20 days of his
son's disappearance he has lodged the
report and prior to it no report was made to
SSP, Police Chowki or the area Police
Station.

15. PW-1 was again recalled for
cross-examination and has stated that a
person from Pohpee came at around 12
noon and he had gone to the police station
at 7 pm. He claims to have come to know
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
about Padam Singh and Rahees only after
he reached Narsena. He has also denied the
suggestion that false statement is being
given by him and that the accused persons
met him at the Police Station Narsena.

16. The victim Satish was also
adduced as PW-2, who claims to be aged
about 13 years. The trial court has clearly
noticed in its order that the witness
understands the concept of statement on
oath and fully understands what is good or
bad for him. PW-2 has thus been found
fully mature to testify before the court.

17. PW-2 was stated that he had gone
to get fire crackers at Ramleela ground,
where Pohpee met him. He has identified
Pohpee
in
court,
who
lured
into
accompanying him for buying fire crackers.
PW-2 claims that he was then taken to a
liquor shop where he met Chhote. These
two persons then took the victim on a
motorcycle. His eyes were covered. The
victim claims to have been taken to
Naugaon where four other persons met him
and were calling each other with the names
of Narayan Singh, Rahees, Pooran and
Padam.
PW-2
was
then
taken
to
Bulandshahar on a motorcycle where they
stayed for 12 days, and thereafter he was
taken to Unchagaon. PW-2 has stated that
these four accused persons got a call made
from him to his father on STD booth. PW-2
has also identified Rahees and Pohpee in
the court.

18. PW-2 was firstly cross-examined
on behalf of Chhote and Pohpee. In his
cross-examination he has stated that he was
taken to the liquor shop and then at about
5.00 pm he was taken on a motorcycle by
Pohpee and another person with his eyes
covered. He claims to have gone on bike to
an undisclosed place. PW-2 then claims to
have met the other four accused namely
Raess, Narayan, Pooran and Padam and
these persons got a phone call made from
Unchagaon on the 13th day of his
kidnapping. PW-2 has also admitted about
existence of a dispute between his father
and accused Pohpee.

19. On behalf of remaining accused
also PW-2 was cross-examined on behalf
of other accused also. In his first crossexamination this witness had disclosed that
he stayed in the same house for 12 days,
whereafter he was taken to Unchagaon. The
accused stayed in the same room and PW-2
was taken out also by these four persons.
PW-2 claims to have spoken to his father
on phone once. PW-2 has also stated that
he was sleeping on the roof top when
police found him. The time of such event
was stated to be 12.00-1.00 pm. The four
accused persons are stated to have fled on
seeing the police and were arrested on the
ground floor. He has also stated that neither
any shot was fired by the police nor these
four accused persons had fired any shot at
police and that all the four accused persons
were unarmed. He claims to have met his
father 13 days after the telephone call was
made. He also stated that his eyes were not
kept covered in the Village Unchagaon and
he used to freely move in the village. He
has, however, stated that he was initially
beaten by these four persons but not
thereafter.

20. PW-2 was again re-examined in
which he has re-affirmed that none of four
accused persons had fired on the police on
the date he was recovered by the police. He
has also stated that written report was
scribed at the Police Station Narsena. He
claims that his father narrated facts which
were scribed by the Police Inspector. PW-2
has denied the suggestion that he was not
9 All. Pohpee @ Pohap Singh Vs. State
1571
kidnapped and that FIR has been falsely
lodged.

21. PW-3 Ashok Kumar claims to
have seen Pohap Singh taking Satish (PW2) on a motorcycle. He also claims to have
disclosed PW-1 about this fact at around
8.00 pm on 21.10.2006. In his crossexamination he has stated that he did not
recognize the other person, who was
driving the motorcycle. He has denied the
suggestion that he did not know Narayan or
that he was making a false deposition.

22. PW-4 Head Constable Peetam
Singh claims to have made endorsement of
written report in the GD and scribed the
check FIR in his own handwriting. In his
cross-examination he has clearly stated that
police report was lodged after 20 days of
the alleged disappearance of victim i.e.
PW-2. The informant (PW-1) is stated to
have intimated PW-4 that after gathering
information about his son's disappearance
the written report came to be lodged. PW-4
has clearly stated that no report was lodged
with the local police prior to 10.11.2006
regarding kidnapping of PW-2. It is
admitted that at the time when PW-1 came
for lodging the report his brother was also
with him. He has denied the suggestion that
FIR is ante-timed.

23. S.I. Harendra Kumar Gautam,
who deposed as PW-5, has stated that the
written report was given by PW-1 at Police
Station Chowki whereafter investigation
was carried out by him. He also stated that
after PW-1 informed him about demand of
ransom of Rs.10 lacs the investigation was
altered to Section 364-A IPC in place of
Section 364 IPC. He has admitted that
Satish was recovered from the accused
persons during encounter within the limits
of Police Station Narsena. PW-5 also
claims to have gone to Narsena, where the
statement of informant and PW-2 were
recorded alongwith others. All the accused
persons were present at the police station
and
the
victim
was
also
medically
examined. He claims to have submitted a
chargesheet
after
concluding
the
investigation, which has been proved by
him.

24. In the cross-examination PW-5
has disclosed that check FIR was received
by him for investigation. He claims to have
received information on mobile that the
victim alongwith accused persons have
been apprehended and are at Police Station
Narsena. He claims to have gone to Police
Station
Narsena
on
11.11.2006
and
returned thereafter on 13.11.2006. He has
clearly stated that apart from the written
report received on 10.11.2006 no prior
intimation was received either at Jait or
Vrindavan and no missing report was
recorded either. He has stated that the name
of person who demanded ransom of Rs.10
lacs has not been disclosed by PW-1 to
him, nor during the course of investigation
he could ascertain as to which of the
accused had demanded ransom of Rs.10
lacs. He, however, admitted that disclosure
about demand of ransom was made by PW1. He has stated that during investigation a
site plan has been drawn of the place fromwhere the accused persons were arrested
and victim was recovered. However, he has
not seen any mark of firing at the site of the
encounter. He has denied the suggestion
that FIR has been lodged after recovery of
the victim. He has also stated that there was
no independent witness to the recovery of
victim.

25. Statement has also been recorded
of Sri Harish Chandra Joshi (PW-6), who
was the SHO of Police Station Narsena and
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
lead the police party which recovered the
victim and arrested the four accused. He
has proved the memo of recovery of four
country-made pistols; 12 live cartridges and
four empties as also the recovery of victim.
He has disclosed that none of the
independent witness came forward to
testify the aforesaid recovery. He has
supported the prosecution version about the
criminals' firing on the police party and the
criminals being arrested thereafter on
valiant act of bravery by the police party. In
his cross-examination PW-6 has stated that
after arresting all the accused he returned at
the police station at 6.10 pm and the
arrested persons were produced before the
Magistrate on the next day. The kidnapped
child was alleged to be given in the
Supurdagi of Investigating Officer from
Police
Station
Vrindavan,
but
the
Supurdagi memo has not been produced in
court. PW-6 has further stated in the crossexamination that the victim was kidnapped
from Mathura and he was not aware about
the time of lodging of the FIR. While
supporting the prosecution story PW-6 has
admitted that he had not arrayed Sabuddin
or his family members as an accused. PW-6
has further stated that PW-2 had informed
him about his kidnapping for ransom but
had not informed about demand of Rs.10
lacs, which was accordingly not mentioned
in the recovery memo. He has also
admitted that there was no independent
witness to the recovery nor he was made
aware about which of the criminals had
demanded the ransom. A suggestion has
also made to PW-6 that the accused persons
have been falsely implicated on the
instigation of Devi Charan, which was
denied by him.

26 . After the prosecution evidence
was over, statements of accused were
recorded under Section 313 Cr.P.C. All the
adverse circumstances were disclosed to
the accused. They, however, denied the
same. They have pleaded innocence.
Accused Pooran Singh stated that he had
gone alongwith Padam Singh to search for
the groom for his daughter and was falsely
implicated due to enmity by Devi Charan.
Similar stand has also been taken by Padam
Singh.

27. On behalf of accused defence
witnesses have also been produced. DW-1
is the brother of PW-1 Mohan Lal, who has
stated that about a year back there was a
dispute between PW-1 and Pohap Singh on
account of which Pohap Singh has been
implicated. He has denied the fact that PW2 was kidnapped by Pohap Singh or
Ramesh. He claims to be living with his
brother Mohar Singh. He has further
admitted in the cross-examination that
differences between Pohap Singh and
Mohar Singh had developed in respect of
sale of agricultural land and after the
transaction failed, the accused Pohap Singh
alongwith others tried to recover ransom by
kidnapping PW-2. He has also stated that
kidnapping of PW-2 was made only for
ransom.

28. DW-2 is Smt. Anjum wife of
Sabuddin, who has denied recovery of PW2 from her house. She also denied that any
firing took place between the police and the
alleged kidnapper. She has stated that she
has only one house and none of the
criminals ever stayed with the victim in her
house nor were arrested from there. She has
completely and categorically denied the
prosecution story about kidnapping and
recovery of victim from her house.

29. DW-3 Sabir is the neighbour of
Sabuddin, who too has denied any incident
in which four accused persons were
9 All. Pohpee @ Pohap Singh Vs. State
1573
apprehended in an encounter as also the
recovery of the victim.

30. The trial court on the basis of
above evidence came to the conclusion that
PW-2 was kidnapped for ransom by Pohap
Singh alongwith other four co-conspirators
but convicted all the five accused and
sentenced them for life imprisonment under
Section 364-A IPC alongwith fine.

31 . On behalf of appellants it has been
urged that the prosecution case is full of
inconsistency and the witnesses are wholly
unreliable. It is submitted that the charge of
kidnapping for ransom has not been proved
beyond reasonable doubt, in view of the
following facts:-

(i). That the alleged kidnapping
of PW-2 took place on 21st October, 2006
while written report was submitted after 20
days. It is urged that the conduct of PW-1
in not lodging any missing report or nonlodging of an FIR for 20 days is against the
natural conduct of a father whose son has
been kidnapped and the prosecution has
failed to explain such conduct/inaction of
the father. The aforesaid creates a doubt
much less a reasonable doubt in the
prosecution case.

(ii). It is argued that apart from
Pohpee and Chhote none of the other
accused had previously met or known PW1 and it is difficult to explain as to how
name of Rahees, Pooran and Padam could
be disclosed in the FIR alongwith their
parentage and address, when the victim
himself had not been recovered nor these
persons had been apprehended before the
lodging of the FIR. It is then sought to be
urged that the entire prosecution case is
fallacious, inasmuch as the FIR itself has
been lodged after the victim was recovered.
The FIR is ante-timed and for such reason
the entire prosecution story is rendered
unreliable.

(iii). It is then contented that
demand of ransom has not been proved,
inasmuch as neither the exact date and time
of telephone call has been specified nor any
call detail record (CDR) produced to
support the alleged demand of ransom. It is
also urged that even the telephone number
on which the call for ransom was received
has been specified nor the telephone
number of the caller has been disclosed. As
such the entire prosecution story regarding
demand of ransom is unreliable.

(iv). Questioning the case of
prosecution regarding demand of ransom, it is
urged by counsel for appellants that the PCO
owner Nanak has not been produced in
evidence nor even his identity has been
established.

(v).
There
are
material
contradictions in the statement of PW-1 visa-vis PW-2 regarding the date and time of
demand of ransom, which renders the
prosecution story wholly unreliable.

(vi). It is also highlighted that as
per prosecution story only one call was made
for arranging funds without specifying the
date, time or place for the ransom to be
delivered, which exposes the falsity in the
prosecution case.

(vii). The prosecution case of
encounter at Sabuddin's house or firing etc. is
not supported by any independent witness
and PW-2, the victim himself, which renders
the prosecution story highly improbable.

(viii). The FIR has been sent to
Magistrate after four days for which no
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
explanation has come forward, which
clearly supports the appellants' contention
that FIR itself is ante-timed.

(ix). The house of Sabuddin is in
the midst of market and the fact that no
independent witness adduced to prove the
alleged encounter and the statement of PW2 being at variance with the prosecution
story, the entire prosecution case is
rendered wholly doubtful, particularly as
neither anyone had sustained any injury nor
any signs of gunshot were found on the
spot from where the victim is alleged to
have been recovered.

(x). It is submitted then that the
story set up by PW-1 that he lodged the
police report earlier is contrary to the
evidence on record and is otherwise selfcontradictory, which renders the entire
prosecution
version
of
the
alleged
occurrence unworthy of trust.

32. To the contrary, it is alleged on
behalf of the respondents that the first
information report was registered initially
under section 364 IPC at Police Station
Vrindavan, District Mathura. Thereafter it
was converted under section 364-A IPC on
the basis of the statement of the victim. The
ocular testimony of PW-1 and PW-2 were
recorded by the trial court and kidnapping
for ransom has been proved. PW-3 is the
witness of last scene and has stated that
victim was taken away by accused Pohpee
on his motorcycle. The GD entry of the
first information report has been proved by
PW-4. PW-6 is the Station House Officer
of P.S. Narsena, District Bulandshahar,
who conducted the raid at the house of
Sabuddin and recovered the victim (PW-2)
and arrested the accused persons from the
spot. Case under Section 307 IPC and
Section 25 of the Arms Act was also
registered and the trial against them is
pending. The offence under Section 364-A
IPC is clearly made out against accused on
the basis of evidence available on record as
there was demand of ransom made through
telephone. The ingredients of Section 364A IPC are clearly established against the
accused. DW-1 Mohan Lal has himself
stated that victim was kidnapped by the
accused for ransom.

33. It is further submitted on behalf of
respondents that PW-1 has given the
explanation
for
lodging
the
first
information report at the belated stage. PW3 is not a tutored witness. Non-recording of
the statement of the owner of the PCO and
non-collection of the Call Detail may be
deficiency in investigation but deficiency in
investigation is by itself insufficient to
dislodge the conviction awarded by court
below. The alleged deficiency does not
demolish the case of the prosecution, since
there is ocular testimony available on
record
regarding
ransom.
The
Supurdaginama in writing is not necessary
component and not the requirement of law,
since the victim was handed over to his
father, who is natural guardian. Nonproduction of the victim before the
Magistrate concerned for recording his
statement under Section 164 Cr.P.C., after
his recovery can be said to be an
irregularity but certainly not an illegality.
The recovery cannot be said to doubtful
just because evidence of independent
witness has not been recorded, who was
present at the spot.

34. In alternate, it is also submitted on
behalf of respondents that If the Court finds
that the case of prosecution under Section
364-A IPC is not made out as per the
testimonies of the witnesses and in absence
of any other material available on record, in
9 All. Pohpee @ Pohap Singh Vs. State
1575
such a situation, the prosecution has
successfully made out a case against the
appellants under Section 365 IPC. The
charge against the appellants can be altered
in the appeal by the appellate court,
irrespective of the fact that the trial court
failed to make any alternate charge against
them under Section 365 IPC. From the
contents of the framing of charge order
dated 08.06.2007 it is evident that it is in
two parts, one relates to the kidnapping of
the victim by the appellants and the another
is demand of ransom. Thus, the charge
under Section 365 IPC is inherent in the
order dated 8.6.2007. Reliance placed upon
Section 464 Cr.P.C. by the appellants,
which deals with the effect of omission to
frame or absence or error in charge is
misconceived. The case of prosecution
shall not fall on this ground. Lastly, it is
submitted that this Court in exercise of
appellate jurisdiction can sentence the
accused appellants, accordingly.

35. It is in the above factual scenario
and the rival contentions advanced that this
Court has to determine whether the offence
of kidnapping for ransom has been proved
against the accused appellants or not? The
Court is also required to consider the
alternate submission of learned AGA that
in case the charge under Section 364-A is
not established against accused appellants
they can certainly be convicted for an
offence under Section 365 IPC i.e. for
kidnapping simplicitor.

36. We have heard Sri Rajeev Lochan
Shukla alongwith Sri Subhash Chandra
Raghav for appellants Padam Singh and
Rahees ( Criminal Appeal No. 1945 &
2636 of 2011); Sri Uttar Kumar Goswami,
learned Amicus Curiae for the appellant
Pohpee (Jail Appeal No. 1262 of 2012); Sri
S.S. Rajput for the appellant Pooran Singh
(Criminal Appeal No. 1648 of 2011), Sri
Rajeev Goswami for appellant Ramesh @
Chhote (Criminal Appeal No. 1741 of
2011) and Sri S. A. Murtaza & Sri
Arunendra Singh, the learned AGA for the
State.

Analysis on Facts

37. The only charge framed against
all the five accused appellants is of
kidnapping for ransom i.e. under Section
364-A IPC. Section 364-A IPC, as it exists
after
its
amendment,
is
reproduced
hereinafter:-

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

38. Learned counsel for the parties are
at ad idem on the necessary ingredients
required to be proved for an offence under
Section 364-A IPC as has been expressly
held by the Supreme Court in the case of
Shaik Ahmed Vs. State of Telangana,
(2021) 9 SCC 59. After referring to Section
364-A IPC the Court observed as under in
paragraphs 12 to 14 of the judgment in
Shaik Ahmed (supra):-

"12. We may now look into
section 364A to find out as to what
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
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
inter-
governmental
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 be liable to fine."

The first essential condition as
incorporated in Section 364-A 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 inter-governmental
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
364-A contains a heading "kidnapping for
ransom, etc." The kidnapping by a person
to demand ransom is fully covered by
Section 364-A.

13. We have noticed that after the
first condition the 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.

14. 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"."

39. After noticing the previous
judgments on the issue the Court delineated
it's views as under in paragraph 20 of the
report in Shaik Ahmed (supra):-

"20.