# Raju (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 1035
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-03
- **Case number:** Criminal Appeal No. 5374 of 2019
- **Bench:** Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-in-jail-v-state-of-u-p-46193
- **Pages:** 9

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Section 364 - Evidence Act,1872-
Section 106 - Kidnapping in order to
commit
murder
-
corpus
delicti
-
conviction in absence of recovery of dead
body - it is the trite law that the corpus
delicti need not be proved - Discovery of
the dead body is a rule of caution and not
of law - In event there exists strong
circumstantial evidence, the judgment of
conviction
can
be recorded
even in
absence of dead body under Section 364
and 302 of I.P.C - burden to proof under
Section 106 of Evidence Act shifts upon
the accused Raju to explain how he dealt
with Shivaji after having kidnapped him
on the day of occurrence - in view of the
testimony
of
eye
witness
P.W-2,
kidnapped Shivaji was last seen alongwith accused on the day of occurrence but
no explanation was given on behalf of
accused in defence to rebutt this fact,
which has been proved beyond reasonable
doubt by the prosecution evidence - In the
instant case kidnapped Shivaji was not
recovered but in view of the strong
circumstantial evidence of which chain in
itself complete the conviction of appellant
under Section 364 of I.P.C was held to be
proper. (Para 24, 25)

B. Criminal Law - Evidence Act,1872 -
Motive - in a case based only on
circumstantial
evidence,
prosecution
should prove the motive as well; as it
would
supply
the
link
in
chain
of
circumstantial evidence
-
It
is
very
difficult to prove the motive for the
commission of crime - If motive is proved
it would supply the chain of links but
absence of the motive is no ground to
reject the prosecution case - In case
based on circumstantial evidence absence
of motive is of no consequence when the
chain of proved circumstances is complete
(Para 19)
Dismissed. (E-5)

Cases Relied on :

## Text

10 All. Raju Vs. State of U.P.
1035

ix.Trauma and Medical expenses
= 25,000/-

x.
Total
compensation
:RS:
19,25,000/-

17. As far as issue of the rate of
interest is concerned, it should be 7.5%. In
the view of the latest decision of the Apex
Court in National Insurance Co. Ltd. Vs.
Mannat Johal and Others, 2019 (2)
T.A.C. 705 (S.C.) wherein the Apex Court
has held as under :

"13. The aforesaid features equally
apply to the contentions urged on behalf of the
claimants as regards the rate of interest. The
Tribunal had awarded interest at the rate of
12% p.a. but the same had been too high a rate
in comparison to what is ordinarily envisaged
in these matters. The High Court, after making
a substantial enhancement in the award
amount, modified the interest component at a
reasonable rate of 7.5% p.a. and we find no
reason to allow the interest in this matter at any
rate higher than that allowed by High Court."

18. No other grounds are urged orally
when the matter was heard.

19. In view of the above, the appeal is
partly allowed. Oral objections are allowed and
compensation recalculated. The judgment and
award passed by the Tribunal shall stand
modified
to
the
aforesaid
extent.
The
respondent-Insurance Company shall deposit
the amount within a period of 12 weeks from
today with interest at the rate of 7.5% from the
date of filing of the claim petition till the
amount is deposited.

20. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of Smt.
Hansagori P. Ladhani v/s The Oriental
Insurance Company Ltd., reported in
2007(2) GLH 291 and this High Court in , total
amount of interest, accrued on the principal
amount of compensation is to be apportioned
on financial year to financial year basis and if
the interest payable to claimant for any financial
year
exceeds
Rs.50,000/-,
insurance
company/owner is/are entitled to deduct
appropriate amount under the head of 'Tax
Deducted at Source' as provided u/s 194A (3)
(ix) of the Income Tax Act, 1961 and if the
amount of interest does not exceeds Rs.50,000/-
in any financial year, registry of this Tribunal is
directed to allow the claimant to withdraw the
amount without producing the certificate from
the concerned Income- Tax Authority. The
aforesaid view has been reiterated by this High
Court in Review Application No.1 of 2020 in
First Appeal From Order No.23 of 2001 (Smt.
Sudesna and others Vs. Hari Singh and
another) and in First Appeal From Order
No.2871 of 2016 (Tej Kumari Sharma v.
Chola Mandlam M.S. General Insurance
Co. Ltd.) decided on 19.3.2021 while
disbursing the amount.

21. Record be sent to tribunal forthwith.

22. This Court is thankful to both the
learned Advocates for getting this matter
disposed of during this pandemic.
----------
(2021)10ILR A1035
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2021

BEFORE

THE HON'BLE SUBHASH CHAND, J.

Criminal Appeal No. 5374 of 2019

Raju ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Anuj Kumar Gupta, Sri Bharat singh, Sri
Irshad Ahmad

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Indian Penal Code, 1860
- Section 364 - Evidence Act,1872-
Section 106 - Kidnapping in order to
commit
murder
-
corpus
delicti
-
conviction in absence of recovery of dead
body - it is the trite law that the corpus
delicti need not be proved - Discovery of
the dead body is a rule of caution and not
of law - In event there exists strong
circumstantial evidence, the judgment of
conviction
can
be recorded
even in
absence of dead body under Section 364
and 302 of I.P.C - burden to proof under
Section 106 of Evidence Act shifts upon
the accused Raju to explain how he dealt
with Shivaji after having kidnapped him
on the day of occurrence - in view of the
testimony
of
eye
witness
P.W-2,
kidnapped Shivaji was last seen alongwith accused on the day of occurrence but
no explanation was given on behalf of
accused in defence to rebutt this fact,
which has been proved beyond reasonable
doubt by the prosecution evidence - In the
instant case kidnapped Shivaji was not
recovered but in view of the strong
circumstantial evidence of which chain in
itself complete the conviction of appellant
under Section 364 of I.P.C was held to be
proper. (Para 24, 25)

B. Criminal Law - Evidence Act,1872 -
Motive - in a case based only on
circumstantial
evidence,
prosecution
should prove the motive as well; as it
would
supply
the
link
in
chain
of
circumstantial evidence
-
It
is
very
difficult to prove the motive for the
commission of crime - If motive is proved
it would supply the chain of links but
absence of the motive is no ground to
reject the prosecution case - In case
based on circumstantial evidence absence
of motive is of no consequence when the
chain of proved circumstances is complete
(Para 19)
Dismissed. (E-5)

Cases Relied on :

1. Ravindra Vs St. of Pun. 2001 (2) JIC 981 SC

2. G. Parsavnath Vs St. of Karn. AIR 2010 SC

3. Mujendra Langeshwaran Vs State (NCT,
Delhi) AIR 2013

4. Paramshivam Vs State through Inspector of
Police AIR 2014 SC

5. Ramji Rai and others Vs St. of Bihar, 2007
(57) ACC pg. 385 SC

(Delivered by Hon'ble Subhash Chand, J.)

1. The instant Criminal Appeal has
been preferred on behalf of the appellantconvict Raju against the judgment and
order dated 20.07.2019 passed by the
Additional
Sessions
Judge/Fast
Track
Court, Sambhal at Chandausi in Sessions
Trial No. 395 of 2017 (State of U.P Vs.
Raju) arising out of Case Crime No. 400 of
2016 under Sections 364 I.P.C., P.S.
Rajpura, District Sambhal whereby the
appellant was convicted for the offence
under Section 364 of I.P.C and was
sentenced
for
ten
years
rigorous
imprisonment and fine of Rs. 20,000/-, in
default of payment of fine the convict was
also directed to under go additional
rigorous imprisonment for one year.

2. The brief facts giving rise to this
criminal appeal are that the informant Ram
Kishore moved a written information with
the police station concerned with these
allegations that his son Shivaji had gone to
B.S.V.D school, Gava to study therein on
22.08.2016 at 7 'O' clock by his own cycle.
His son was studying in class VIIIth, his
age was 15 years. His son did not come
back from the school to his house, on
10 All. Raju Vs. State of U.P.
1037
queries the informant came to know that
the cycle and bag of his son was in the
school. He made hectic search of his son
but no whereabouts could be known.
Someone has kidnapped his son. This
written information was written by
Pradeep Kumar son of Virendra resident
of Jaigera Sagarpur, P.S Rajpura, same
was signed by the informant Ram
Kishore. On this written information case
crime no. 400 of 2016 was registered
against unknown persons under Section
363 of I.P.C. The Investigating Officer
after having concluded investigation filed
charge-sheet against the accused Raju son
of Ramveer resident of village Rora, P.S
Dhaneri, District Sambhal under Section
364 of I.P.C in the court of concerned
Magistrate.

3. The concerned Magistrate took
cognizance on the charge-sheet and the
offence been triable by the court of
Sessions committed this case to the court
of Sessions Judge for trial.

4. The trial court summoned the
accused and the charge was framed
against accused Raju under Section 364
of I.P.C. The charge framed was read
over and explained to him who denied the
charge and claimed for trial.

5. On behalf of prosecution to prove
the charge against the accused Raju in
documentary
evidence
adduced
the
written
information
Exhibit
Ka-1,
photocopy of the register Exhibit Ka-2,
the charge-sheet Exhibit Ka-3, chick
F.I.R. Exhibit Ka-4, G.D entry in regard
to registering case crime Exhibit Ka-5,
site plan of the place of occurrence
Exhibit Ka-6, carbon copy of the G.D
Exhibit Ka-7, recovery memo of one
mobile Exhibit Ka-8.

In oral evidence examined P.W1, Ram Kishore, P.W-2, Nazar Mohd.,
P.W-3, Pitambar, P.W-4, Lokesh, P.W-5,
Inspector Rajvir Singh Yadav, P.W-6,
S.I Ravindra Singh, incharge Cyber Cell.

6. The statement of accused Raju
under section 313 Cr.P.C., was recorded in
which
he
denied
the
incriminating
circumstances in the evidence against him
and said that he was not familiar with
Naresh, nothing was recovered from his
possession and Shivaji was never seen by
anyone along-with him. He has been
prosecuted in this case due to enmity.

7. On behalf of prosecution in defence
evidence examined D.W-1, Raju and
D.W-2, Rajesh.

8. The learned trial court after hearing
the contentions of the learned counsel for
the parties convicted accused Raju vide
judgment and order dated 20.07.2019 for
the offence under Section 364 of I.P.C and
sentenced him with rigorous imprisonment
for 10 years and the fine of Rs. 20,000/-, in
default of payment of fine the convict was
directed to under go additional rigorous
imprisonment of one year. Half of the
amount of the fine was to be paid to the
victim party.

9. Aggrieved from the impugned
judgment and sentence dated 20.07.2019,
this criminal appeal has been preferred on
behalf of the appellant Raju on the grounds
that the impugned judgment is based on
circumstantial evidence. The learned trial
court has passed the impugned judgment on
the basis of wrong appreciation of the
evidence of record. No alleged mobile or
SIM was recovered from the possession of
the
appellant.
During
investigation
Investigating Officer could not get any clue
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
in regard to the abducted boy and filed
charge-sheet against the appellant and trial
court had convicted him while the case is
still been investigated by C.B.C.I.D and
further investigation is going on. The
learned trial court did not consider the
defence evidence adduced on behalf of
appellant. Accordingly, prayed to allow this
Criminal Appeal and to set aside the
impugned judgment of conviction and to
acquit the appellant from the charge framed
against him.

10. I have heard submissions made by
the learned counsel for the appellant and
also learned A.G.A. for the State, and
perused the materials brought on record.

11. In chain of circumstantial
evidence
first
link
circumstantial
evidence adduced on behalf of prosecution
is missing of the son of the informant Ram
Kishore from the school on 22.08.2016
after he left his house at 7 'O' clock in the
morning to attend the class in the school.
When Shivaji did not came back after
closing of the school, the informant Ram
Kishore went to the school of Shivaji and
came to know that the cycle and bag of his
son was in the school but his son was not
found there. Thereafter, the informant
moved a report with the police station
concerned Exhibit Ka-1 in regard to
missing of his son Shivaji. The contents of
this written information has been proved by
P.W-1/informant Ram Kishore. The fact
of leaving the house at 7 'O' clock in
morning on 22.08.2016 by the son of
informant to attend the school and not
coming back to his house after closing of
the school and on reaching to the school
of Shivaji, the informant came to know
that his son Shivaji was missing from the
school while his school bag and cycle was
there, has been proved by the statement
of
P.W-1,
Ram
Kishore.
This
circumstantial evidence is also linked with
the statement of P.W-3, Pitambar Singh,
principal of the school B.S.V.D, Inter
College, Gava.

12. The second link circumstantial
evidence in the chain of circumstantial
evidence on behalf of prosecution has
examined P.W-3, Pitambar Singh, this
witness in his statement says that he had
been posted as principal of B.S.V.D, Inter
College, Gava since 2007, he has brought
the attendance register of the students and
on its first page at serial no. 23 name of
Shivaji son of Ram Kishore resident of
village Mubarakpur and his mother name
recorded as Smt. Urmila Devi, date of birth
of Shivaji is 07.07.2003, Shivaji was
studying in this school class VIIIth. On
22.08.2016 in the attendance register he
was shown absent. The bag of Shivaji was
in the classroom and cycle was parked at
the
cycle
stand.
Photocopy
of
the
attendance register after having compared
with the original attendance register and
after having attested has been filed as
Exhibit Ka-2 as marked.

This
witness
in
his
crossexamination says that at that time there was
no CCTV camera in the school and there
was no arrangement of the chaukidar. This
information was communicated to Shivaji's
house that his bag and cycle was in the
school. Therefore, from the statement of
this witness, the fact of attending the
school by Shivaji on 22.08.2016 and the
fact of studying Shivaji in class VIIIth in
B.S.V.D, Inter College, Gava is proved,
although this witness says that in the
attendance register Shivaji was shown
absent on 22.08.2016 yet on the very date
the school bag was in the classroom and
cycle was in the school cycle stand proves
10 All. Raju Vs. State of U.P.
1039
this fact that on 22.08.2016 Shivaji had
reached to the school B.S.V.D, Inter
College, Gava and after leaving his bag
and cycle in the school he remained
absent from the class till the closing of
the school.

13. The third link circumstantial
evidence in the chain of circumstantial
evidence is the evidence of last seen of
Shivaji with the accused Raju by the
witness P.W-2, Nazar Mohd. and also
missing of Raju on the very date of
occurrence.. In this regard on behalf of
prosecution P.W-1, Ram Kishore in his
statement says that accused Raju present in
the court is his relative, he usually helped
him and Raju occasionally came to his
house and stayed there. He had got
complaint of Raju from his mother,
therefore, he scolded Raju. Raju was also
missing from the very day when son
Shivaji was also missing. On the day of
occurrence his son along-with Raju was
seen by Nazar Mohd. Till date no
whereabouts is known of his son and he
has utter belief that his son was made
missing by Raju. It is correct to say that
his son is not recovered till date and he had
moved an application for investigation by
C.B.C.I.D.

P.W-2, Nazar Mohd. in his
statement says that on 22.08.2016 at 7 'O'
clock of morning he was going to the shop
where he does the labour of battery and self
repair. He has acquainted with Shivaji. On
the day of occurrence, he had seen
Shivaji along-with accused Raju at the
Sambhal Chauraha. Shivaji was also his
friend and he was also acquainted with
accused Raju who usually visited Shivaji at
his house. It was 7 'O' clock and some
minutes when he saw Shivaji at Sambhal
Chauraha on the day of occurrence, he
has heard the talks exchanged between
Raju and Shivaji. Accused present in the
court was saying to Shivaji to get his goods
handed over to him. Both these went to
take jalebi and he went to his shop. On
that day Shivaji was in school uniform of
school
B.S.V.D.
On
the
day
of
occurrence he came to know from the
house of Shiivaji that Shivaji was
missing, so he had told Ram Kishore that
Shivaji was seen by him along-with Raju.

Therefore, the statement of
P.W-1, Ram Kishore is admissible in
evidence. In view of the the direct
evidence of P.W-2, Nazar Mohd. who
had seen missing Shivaji along-with
accused Raju on the date of occurrence
and since the date no whereabouts of
Shivaji was known.

14. Next link evidence in the chain of
circumstantial evidence is the messages
and phone call on the mobile phone of
P.W-1, Ram Kishore in the night of date
of occurrence on 22.08.2016. In this regard
P.W-1, Ram Kishore in his statement says
that on missing of his child on the date of
occurrence in the night he got two
messages on his mobile 9759708801. In
that messages it was said that his son was
with them, thereafter, phone call was also
came on his mobile in which the same
statement as in the message was repeated.
In cross-examination this witness says that
he does not recollect the complete number
of the person sending the message on his
mobile phone but the last digit was 50, he
is not aware whose number was it. It was
also in those messages that his son was
wearing white shirt and pant of B.S.V.D
school, he was of sharp intellect and was
with him, if he wanted the life of his son
come to him in failure, the life of his son
would be finished. The second message
was that if he wanted to know his name, he
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
was terrorist Kangaroo who hated India.
These two messages came on 23rd day.
One call also came in which same
statement was reiterated. He could not
recognize the sound of the persons calling
him. After these messages he reached to
the police station to show his mobile
Darogiji arrested Raju on the 25th day
and took in custody two mobiles and
three SIMS from the possession of Raju,
his mobile was given back to him by
Darogiji.

15. Next link evidence in the chain of
circumstantial evidence is the testimony of
P.W-4, Lokesh, this witness in his
statement says that his shop of mobile
repair is at Gava. He sells vodaphone SIM.
The
SIM
number
9719058850
was
purchased from his shop. It was purchased
by Raju and Naresh, it was 1 'O' clock of
the day time this SIM was issued on the I.D
of Naresh and it was activated on 22nd day
while the SIM was issued on the 19th day.
The entry of this SIM is at serial number 5
of his register. The attested photocopy of
the same was filed by him which is Exhibit
Ka-3. On the 22nd day Raju came to him
taking the mobile to activate this SIM on
his mobile and he activated this SIM in
mobile of Raju. This witness identified
Raju who was present in the court and
stated that he was the very Raju who
had came to his shop to get the SIM
activated on his mobile. In crossexamination this witness says that he is a
authorized seller of Vodaphone company.
He had got the summon to give evidence in
the court.

This link evidence in the chain
of circumstantial evidence is further
corroborated with the link evidence of
CDR details on the mobile set and
recovery of the mobile and also the
evidence of sending messages and calling
with the SIM 9719058850 from the
mobile set of accused Raju. In this regard
on behalf of prosecution has examined
P.W-6, Ravindra Singh. This witness in
his
cross-examination
says
that
on
24.08.2016, he had got information that on
the
mobile
number
of
informant
9759708801 the message were received in
regard to kidnapped Shivaji from mobile
number 9719058850. He received CDR of
mobile no. 9719058850. This CDR is
paper no. 9Kha(3). From the CDR it is
evident that the mobile set of EMEI
911483706280880 was of dual SIM in
which a few days before SIM no.
7409221184 was also used which was of
Raju. He being the Investigating Officer
recorded the statement of informant who
had told Raju to be his relative and also
recorded the statement of eye witness
Naresh Mohd. who had seen Shivaji alongwith Raju on the date of occurrence at the
Sambhal Chauraha. On 27.08.2016, he also
recorded the statement of Lokesh who
had issued the SIM no. 9719058850, it
was told by Lokesh to him that this SIM
was on the I.D of Naresh which was
activated on mobile of Raju. He also
recorded the statement of Naresh.
Thereafter, on 30.08.2016 he arrested
Raju and a mobile was recovered from
the possession of the Raju. The entry of
the same was made in the G.D No. 65 at
23:40 hrs on 30.08.2016. Carbon copy of
the G.D 9Kha/5 is recorded which is in his
writing and signed by him Exhibit Ka-7
was marked on it. The mobile which was
recovered from the accused Raju is the
material Exhibit-1 and the cloth in which
it was packed material Exhibit-2. The
recovery memo of this mobile was
prepared by him, it is in his hand writing
and signature Exhibit Ka-8 was marked
therein. He informed DCRB and adjoining
10 All. Raju Vs. State of U.P.
1041
district Delhi, NCR but nothing was known
in regard to whereabouts of Shivaji,
publication was made in the newspaper on
12.10.2016. He was transferred. In crossexamination this witness says that as per
CDR call details, it was found that the
messages and calls were made by the
device recovered from the possession of
Raju. From the beginning of investigation
till the closing of investigation Shivaji was
not recovered. During investigation no such
evidence was collected by him in regard of
murder of Shivaji or any evidence of dead
body of Shivaji. The EMEI number was
of this mobile recovered from the
accused Raju from which messages was
sent.

16. P.W-5, Rajvir Singh Yadav,
filed the charge-sheet against accused Raju
after collecting the evidence under Section
364 of I.P.C.

17. On behalf of accused in defence
evidence has examined D.W-1 Raju son of
Harpal. This witness says that he is the real
nephew of informant and accused Raju is real
brother-in-law (bahnoi). His maternal uncle
wanted to get his sister-in-law married with
his younger brother and same was opposed
by Raju and due to this enmity Raju has been
falsely implicated in this case. This witness in
his cross-examination says that this fact he
has told in the court for the first time. The
complaint of the same was never made by
him to any of the police station concerned.

18. D.W-2, Rajesh in his statement
says that Ram Kishore is the maternal fatherin-law of his sister. Ram Kishore wanted to
get his nephew Viresh married with their 14
years old minor sister. Raju was falsely
implicated in this case by Ram Kishore due
to enmity of opposing by Raju. In his crossexamination this witness says that Raju is his
real brother-in-law.

19. It is submitted by the learned counsel
for the appellant that there is no motive of
committing the offence and the appellant has
been falsely implicated in this case due to
enmity. The motive of commission of any
crime gets locked in the mind of the maker. It
is very difficult to prove the motive for the
commission of crime if it is proved. It would
supply the chain of links but absence of the
motive is no ground to reject the prosecution
case. Since the motive of any crime is always
hidden in the mind of the perpetrator of the
crime, therefore, in case of circumstantial
evidence the evidence of motive becomes
relevant if the motive is given in the
prosecution version. In present case no
motive has been mentioned in prosecution
case, therefore, the absence of motive could
not be ground to reject the prosecution
evidence. The Hon'ble Apex Court in
Ravindra Vs. State of Punjab 2001 (2) JIC
981 SC held:

"in
a
case
based
only
on
circumstantial evidence, prosecution should
prove the motive as well; as it would supply
the link in chain of circumstantial evidence.
Absence thereof cannot be ground to reject the
prosecution case."

20. From the evidence adduced on
behalf of prosecution, it is found that the chain
of circumstantial evidence is interlinked none
of the link is missing to indicate the perpetrator
of the crime all above circumstantial evidence
proved that it is the accused Raju who had
committed the offence.

21. The Hon'ble Apex Court in G.
Parsavnath Vs. State of Karnataka AIR
2010 SC pg. 2914, held:
1042 INDIAN LAW REPORTS ALLAHABAD SERIES

"the
circumstantial
evidence
appreciation of the same must be made to
the common course of natural events and
human conduct. Facts established should
be consistent only with hypothesis of guilt
of accused. It is not mean that each and
every hypothesis suggested by the accused
must be excluded by the brief facts.

The case based on circumstantial
evidence absence of motive is of no
consequence when the chain of proved
circumstances is complete."

22. The Hon'ble Apex Court in
Mujendra
Langeshwaran
Vs.
State
(NCT, Delhi) AIR 2013 pg. 2790 SC,
held:

"in case of circumstantial of the
circumstances must lead to the conclusion
that the accused alone committed crime
none else."

23. The plea in defence taken by the
accused is plea of enmity in false
implication. The false implication is the
enmity of refusal of getting married of the
relatives of accused Raju as per wish of
informant is not found sustainable. This
fact is well proved from the statement of
eye witness P.W-2, Nazar Mohd. Which is
also corroborated with the statement of
P.W-4,
Lokesh
and
also
from
the
statement of P.W-6, Ravindra Singh that
missing Shivaji was seen with accused
Raju last time on the dated of occurrence
and the CDR details on the mobile set of
Raju also affirm this fact that Shivaji was
with Raju on the day of occurrence,
therefore, burden to proof under Section
106 of Evidence Act shifts upon the
accused Raju to explain how he dealt with
Shivaji after having kidnapped him on the
day of occurrence.

24. The Hon'ble Apex Court in
Paramshivam Vs. State through Inspector
of Police, AIR 2014 SC pg. 2936, held:

"burden of proof the evidence of
the eye witness that the accused had
abducted deceased. No explanation by the
accused as to how he dealt with abducted
persons. Presumption could be drawn that
the
accused
persons
have
murdered
deceased."

25. In this case in view of the
testimony of eye witness P.W-2, Nazar
Mohd. kidnapped Shivaji was last seen
along-with accused Raju on the day of
occurrence but no explanation was given
on behalf of accused in defence to rebutt
this fact which has been proved beyond
reasonable doubt by the prosecution
evidence.

26. In present case kidnapped Shivaji
is not recovered till date. Section 364 of
I.P.C reads as under:

"364. Kidnapping or abducting
in order to murder.- Whoever kidnaps or
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
[imprisonment
for
life]
or
rigorous
imprisonment for a term which may extend
to ten years, and shall also be liable to
fine."

From the bare perusal of this
Section 364 of I.P.C, it is evident that the
kidnapping or abduction is made of made
of any person in order such persons may be
murdered.

Kidnapped or abducted person
may be disposed of as to put such person in
danger of being murdered.
10 All. Mohit Kumar Vs. State of U.P.
1043

27. Even if the victim Shivaji is not
recovered but in view of the strong
circumstantial evidence of which chain
in itself complete the conviction of
appellant under Section 364 of I.P.C is
proper.

28. Hon'ble Apex Court in Ramji Rai
and others Vs. State of Bihar, 2007 (57)
ACC pg. 385 SC, held:

"Now it is the trite law that the
corpus
delicti
need
not be
proved.
Discovery of the dead body is a rule of
caution and not of law. In event there exists
strong
circumstantial
evidence,
the
judgment of conviction can be recorded
even in absence of dead body under Section
364 and 302 of I.P.C".

29. Therefore, in view of the over all
assessment and re-appreciation of the
evidence on record, it is found that the
prosecution had proved its case beyond
reasonable doubt. The impugned judgment
of conviction and sentence passed by the
court below does not bear any infirmity and
needs
no
interference.
Accordingly,
criminal appeal deserves to be dismissed.

30. Accordingly, Criminal Appeal is
dismissed. Judgment and order dated
20.07.2019 passed by the Additional
Sessions Judge/Fast Track Court, Sambhal
at Chandausi in Sessions Trial No. 395 of
2017 (State of U.P Vs. Raju) is hereby
affirmed. The appellant is in jail. He is
directed to serve the remaining sentence as
has been awarded by the trial court.

31. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2021)10ILR A1043
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2021

BEFORE

THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 7380 of 2019
with
Criminal Appeal No. 6840 of 2019

Mohit Kumar ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Jagmohan Singh, Sri Lavkush Kumar
Bhatt

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Dowry Death - Indian
Penal Code, 1860 - Section 304B
-
Conviction - conviction u/s 304-B I.P.C.
cannot be made unless all of the ingredients
of Section 304-B I.P.C are satisfied even
though some of the ingredients are fulfilled
- Ingredients - death of woman by burns or
bodily injury or otherwise than under
normal circumstances; within 7 years of her
marriage; cruelty or harassment by husband
or his relatives; for or in connection with,
the demand of dowry soon before her death
(Para 28)

B. Criminal Law - Dowry Death - Indian
Penal Code, 1860 - Section 304B - 'death
occurring
otherwise
than
in
normal
circumstances' - Prosecution has to rule out
the possibility of a natural or accidental
death so as to bring it within the purview of
the 'death occurring otherwise than in
normal circumstances' (Para 36)

C. Criminal Law - Dowry Prohibition Act,
1961 - Section 2 - Dowry - 'dowry' means
any property or valuable security given or