# Suraj Din & Ors v. State of U.P

- **Citation:** (2024) 8 ILRA 853
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-07
- **Case number:** Criminal Appeal No. 1736 of 1992
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-din-ors-v-state-of-u-p-52473
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 364 & 365 - Kidnapping or
abducting
with
intent
secretly
and
wrongfully to confine person - Appeal
against
conviction
-
Rigorous
imprisonment
-
Code
of
Criminal
Procedure, 1973 - Section 313 - Five
named accused persons, were son-in-laws
and close relatives of informant (PW-1),
came to her house on 2.12.1988 at 6.00
a.m - Assaulted upon informant's husband
(PW-2), abducted him in order to kill him -
F.I.R.
was
lodged
by
informant
on
4.12.1988
-
During
investigation,
on
pointing-out
of
Surajdin
(accused)
abductee was recovered from his house -
Charges framed - Despite being PW-3,
PW-4, as witness of incidence turned
hostile,
they
affirmed
incident
of
abduction - Admissible as evidence - PW5, recovery witness of abductee turned
hostile - Ocular evidence - Informant, as
eye witness, in her St.ment named all the
accused persons - Delay in lodging FIR
explained - No inconsistency in entire
testimony of PW-6 - Motive - Transfer of
property of abductee in favour of two sonin-laws - Intention of accused persons
was not to commit murder, but to confine
abductee in the room of Surajdin, no
injury to victim, no ransom was demanded
854 INDIAN LAW REPORTS ALLAHABAD SERIES
- No illegality in impugned order. (Para 2,
3, 19, 23, 30, 37, 39)

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

8 All. Suraj Din & Ors. Vs. State of U.P.
853
definitely finds it doubtful that how
Bhairo Singh was recognized in the
absence of any identification parade and
also when there was definitely no
evidence on the record to have shown
that Bhairo Singh was ever known to
PW1 or to the other prosecution
witnesses. So far as the criminal history
was concerned it had no bearing on the
decision of the instant appeal.

14. Under such circumstances,
we are of the view that the implication
of Bhairo Singh becomes doubtful, and
therefore we are of the view that
appellant Bhairo Singh be acquitted of
the charges levelled against him. The
appeal vis-a-vis appellant No.4 Bhairo
Singh, therefore is allowed.

15. The impugned judgment and
order dated 26.05.1982 passed by
Special
Judge,
Additional
Session
Judge, "Dakaiti Prabhawit Chhetra
Banda, in Sessions Trial No.318 of
1981, under Sections 148, 307 read
with 149 and 302 read with 149 I.P.C.
is set-aside, vis-a-vis the surviving
appellant No.4 Bhairo Singh. He is
acquitted from aforesaid charges. He
need not surrender. The bail bonds are
cancelled and the sureties are hereby
discharged. The appeal vis-a-vis the
appellant No.4 Bhairo Singh stands
allowed.

16. Lower court record be sent
back to court concerned for necessary
compliance.
----------
(2024) 8 ILRA 853
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 1736 of 1992

Suraj Din & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.D. Misra, Sri Arvind Kumar Srivastava, Sri
Shashibind Kumar Srivastava

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 364 & 365 - Kidnapping or
abducting
with
intent
secretly
and
wrongfully to confine person - Appeal
against
conviction
-
Rigorous
imprisonment
-
Code
of
Criminal
Procedure, 1973 - Section 313 - Five
named accused persons, were son-in-laws
and close relatives of informant (PW-1),
came to her house on 2.12.1988 at 6.00
a.m - Assaulted upon informant's husband
(PW-2), abducted him in order to kill him -
F.I.R.
was
lodged
by
informant
on
4.12.1988
-
During
investigation,
on
pointing-out
of
Surajdin
(accused)
abductee was recovered from his house -
Charges framed - Despite being PW-3,
PW-4, as witness of incidence turned
hostile,
they
affirmed
incident
of
abduction - Admissible as evidence - PW5, recovery witness of abductee turned
hostile - Ocular evidence - Informant, as
eye witness, in her St.ment named all the
accused persons - Delay in lodging FIR
explained - No inconsistency in entire
testimony of PW-6 - Motive - Transfer of
property of abductee in favour of two sonin-laws - Intention of accused persons
was not to commit murder, but to confine
abductee in the room of Surajdin, no
injury to victim, no ransom was demanded
854 INDIAN LAW REPORTS ALLAHABAD SERIES
- No illegality in impugned order. (Para 2,
3, 19, 23, 30, 37, 39)

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Mehraj Singh Vs St. of U.P., (1994) 5 SCC 188

2. Thulia Kali Vs St. of T.N. reported in (1972) 3
SCC 393

3. Kishan Singh through LRs Vs Gurpal Singh &
ors. reported in (2010) 8 SCC 775

4. Koli Lakhmanbhai Chandabhai Vs St. of Guj.,
1999 (8) SCC 624

5. Ramesh Harijan Vs St. of U.P. , 2012 (5) SCC
777

6. St. of U.P. Vs Ramesh Prasad Misra and anr.

7. Raj Bala Vs St. of Har. & ors. (Special Leave
Petition (Crl.) Nos.4099-4100 of 2015)

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Present criminal appeal has been
preferred by the appellants against the
judgement and order dated 1.9.1992 passed
by the IInd Additional Sessions Judge,
Fatehpur in Sessions Trial No.82 of 1989
(State vs. Surajdin and others), convicting
and sentencing the appellants for the
offence punishable under Section 365 IPC
to
undergo
one
year's
rigorous
imprisonment and a fine of Rs. 200/- with
stipulation of default clause.

2. Brief facts of the case, as culled
out from the record, are that five named
accused persons Surajdin, Sri Narain, Lallu
@ Ram Prasad, Ram Kishore and Shiv
Shanker, who happens to be son-in-laws
and close relatives of the informant, having
grudge with the informant Smt. Laxmaniya
on account of some land dispute came to
her house on 2.12.1988 at about 6.00 a.m.
when she alongwith her husband Ghasitey
was warming before fire at the door of her
house and made assault upon Ghasitey and
abducted him in order to kill him. F.I.R.
was lodged by Smt. Laxmaniya, wife of
Ghasitey on 4.12.1988 at 9.15. a.m.

3. Investigation of the case
proceeded.
The
Investigating
Officer
recorded the statements of the witnesses,
inspected the spot and prepared site plan.
Further, he arrested the accused Lallu and
Surajdin and on pointing-out of Surajdin
recovered Ghasitey from his (Surajdin)
house in presence of Raghubir and Laxmi
Narain and prepared recovery memo Ext.
ka-5. He also recorded the statements of the
recovery witnesses and thereafter handed
over Ghasitey to the complainant by
preparing the memo of supurdginama Ext.
ka-7. After completing the investigation,
charge-sheet Ext. ka-6 against the accused
appellants
was
submitted.
Concerned
Magistrate took the cognizance and the
case, being exclusively triable by Sessions
Court, was committed to the Court of
Sessions.
4. Accused persons appeared
before the trial court and charge under
Section 364 IPC was framed against them.
Appellants denied the charge and claimed
their trial.

5. Trial proceeded and to bring
home the charge against the accused /
appellants, prosecution has examined in all
six witnesses, who are as follows:

1 Smt.
Laxamaniya
PW-1(informant)

2 Ghasitey
PW-2(abductee)

3 Sheo Prasad

PW-3
8 All. Suraj Din & Ors. Vs. State of U.P.
855
4 SheoNarain

PW-4
5 LaxmiNarain

PW-5
6 S.I. Sitaram
Shukla

PW-6
6. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1 Written report

Ext. A-1
2 Chik F.I.R.
Ext. A-2
3 Carbon copy of
G.D.
Ext. A-3
4 Site Plan
Ext. A-4
5 Recovery Memo
Ext. A-5
6 Charge sheet
Ext. A-6
7 Supurdginama
Ext. A-7

7. After conclusion of evidence,
statements of accused appellants were
recorded under Section 313 CrPC, wherein
they pleaded their false implication and
claimed the prosecution evidence to be
false and concocted. Accused Surajdin
denied that he had lodged any case before
the Consolidation Officer in the name of
Ghasitey raising objections in mutation
proceedings. Further, since accused Lallu
@ Ram Prasad committed default in
appearance and his attendance could not be
procured, his case was separated vide order
dated 20.6.1992.

8. PW-1 - Smt. Laxmaniya, is the
informant of the occurrence. She has
supported the contents of the written report
and also the entire prosecution case
including the abduction of her husband.

9. PW-2 - Ghasitey is the
abductee. He has stated the name of
accused persons and the manner in which
he was kidnapped by the miscreants.

10. PW-3 and PW-4 - Sheo Prasad
and Sheo Narain, who, according to the
prosecution version, are the witness of
incident of abduction of Ghasitey by the
accused persons but they did not support
the prosecution version and therefore they
were declared hostile by the prosecution.

11. PW-5 - Laxmi Narain is the
recovery witness of the abductee but he
denied that Ghasitey was recovered from
the house of Surajdin on his pointing out.
He was also declared hostile by the
prosecution.

12. PW-6 Sub-Inspector Sita Ram
Shukla, is the Investigating Officer of the
case, who has proved the proceedings of
investigation in his testimony and has
proved the site plan Ext. ka-4, recovery
memo Ext. ka-5, charge sheet Ext. ka 6 and
supurdginama Ext. ka-7.

13. On the basis of aforesaid oral
and documentary evidence, learned trial
court recorded the conviction of the
accused and sentenced them, as mentioned
herein-above.

14. Heard Shri Arvind Kumar
Srivastava,
learned
counsel
for
the
appellants and the learned AGA for the
State.

15. The impugned judgment and
order has been assailed on various grounds
by the learned counsel for the appellants.

16. It is submitted by the learned
counsel for the appellants that the trial
court has recorded the conviction of the
appellants only on the basis of unreliable
856 INDIAN LAW REPORTS ALLAHABAD SERIES
and sketchy evidence adduced by the
prosecution. It is further submitted that
there is no eye witness of the alleged
occurrence of abduction and the ocular
evidence of the independent witnesses does
not support the prosecution version. The
only witness of the alleged incident of
abduction is Smt. Laxmaniya, who is the
wife of Ghasitey. She alongwith her
husband Ghasitey kept grudge with the
accused persons and they managed a false
implication of the accused persons only for
the sake of some property dispute. There
was no cogent evidence on record that the
accused
Surajdin
ever
impersonated
himself for Ghasitey and moved any
application before the Tehsil Court on his
behalf. It is also submitted that the present
appellants were having no motive to
commit the crime. F.I.R. in the matter was
lodged belatedly without any plausible
explanation thereof. The prosecution has
miserably failed to prove the guilt of the
accused
appellants
beyond
reasonable
doubt. The ingredients of offence under
Section 364 IPC are completely missing
from the scrutiny of prosecution evidence
and that is why the trial court could not
convict the appellants under Section 364
IPC and subsequently they were punished
under Section 365 IPC and the evidence on
record was never sufficient to hold the
appellants
guilty
for
any
offence
whatsoever. The trial court misread the
facts and evidence on record and passed an
illegal order warranting interference by this
Court.

17. On the other hand, learned
AGA vehemently opposed the defence
version. It has been submitted that the
incident of abduction is based upon the
cogent and reliable eye witness account.
PW-1 and PW-2 had absolutely no motive
for the false implication of their own sonin-laws in a serious case of abduction. It is
also submitted that the prosecution story is
well proved beyond reasonable doubt on
the basis of oral and documentary evidence
and the appeal deserves to be dismissed.

18. I have considered the rival
submissions made by the learned counsel
for the parties and have gone through the
entire record carefully.

19. Undoubtedly, in this matter the
prosecution
case
rests
upon
ocular
evidence. PW-1 Smt. Laxmaniya, the wife
of the abductee, is the eye witness of the
incident of abduction. She has proved the
prosecution case as mentioned in the F.I.R.
and in her examination-in-chief she had
named all the five accused persons
participating in the commission of the
crime and the manner in which the victim
was lifted and carried by them has also
been explained by her. Admittedly, three of
the accused persons facing trial Surajdin,
Ram Kishore and Sri Narain are the son-inlaws of the informant Smt. Laxmaniya and
the victim Ghasitey. She has further stated
that her husband Ghasitey prior to the
incident under reference had transferred his
land in the name of Bhola and Sheo
Nandan, the other son-in-laws of the
informant. All the accused persons have
been identified by her in the course of
recording of her evidence before the trial
court. The reason for animosity and grudge
has also been explained by her and she
states that after transfer of land in the name
of Bhola and Sheo Nandan the other sonin-laws got angry and a forged case was
also filed by accused persons Dayaram,
Surajdin and Sri Narain in the name of her
husband,
which
was
confronted
by
Ghasitey, husband of the informant after
appearing before the Court concerned. This
witness has also proved the written report
8 All. Suraj Din & Ors. Vs. State of U.P.
857
Ext. ka-1. Delay in lodging the F.I.R. has
also been explained by her that when her
report was not lodged at police station
Jahanabad, she came to Bindki and an
application was got typed there and again it
was given at police station Jahanabad. In
her
cross-examination
no
inconsistent
statement has been given by her. Since
three accused persons were her own son-inlaws, she could very well identify them.
Moreover, the incident happened in the
morning and the abductee and PW-1 were
very well in a position to identify the
accused persons.

20. PW-2 Ghasitey is the star
witness from the prosecution side. He is the
abductee and corroborating the testimony
of PW-1 Smt. Laxmaniya, he has also
explained the reason of animosity between
both the sides. In his examination-in-chief
he has also explained that Surajdin and
Shiv Shanker having rifle came to his
house alongwith three other accused
persons and he was caught hold and
thereafter abducted by them. He was
brought to the house of Surajdin and locked
in a room and he managed to be released
from confinement when police came there.
He has also explained that the police
retrieved him from the house of Surajdin
after unlocking the chain of the door. He
has also stated that Surajdin and Sri Narain
assaulted him with fist but however, none
of the other co-accused persons made any
assault upon him.

21. PW-3 Shiv Prasad and PW-4
Shiv Narain are said to be the eye witness of
the incident of abduction, however, both are
hostile witnesses. PW-3 categorically states
that he did not see as to who was the person
who took Ghasitey with him and he was not
present in the village on that day. In the same
manner PW-4 also states that some persons
had abducted Ghasitey about two years back
but he did not see any assailant. This witness
has also been declared hostile by the
prosecution and does not support the
prosecution case in material terms.

22. PW-5 Laxmi Narain is the
witness of factum of the recovery of the
abductee from the house of Surajdin, but
however, in his examination-in-chief he
completely denies to be a witness of the
incident of recovery of Ghasitey on the
pointing of accused Surajdin. In his crossexamination he has stated that after receiving
the information of recovery of Ghasitey, he
went to police station Jahanabad alongwith
Raghuvir and Laxmi Narain where the police
obtained his signature over the recovery
memo but he never knew as to what was
written in it.

23 . PW-6 S.I. Sitaram Shukla is the
Investigating Officer of this case and he also
deposed on behalf of Head Moharrir
Narendra Kumar Katiyar as a secondary
witness and has proved the chik F.I.R. and
registration G.D. as Ext. ka-2 and Ext. ka-3,
respectively. This witness in his evidence has
affirmed the investigation proceedings and
also proved the site plan Ext. ka-4, recovery
memo Ext. ka-5, charge sheet Ext. ka-6 and
supurdginama Ext. ka-7. He has been tested
in the cross-examination by the defence but
his entire evidence is consistent on the point
that abductee Ghasitey was recovered from
the house of accused Surajdin. He has stated
in the cross-examination that at the time of
arrest of named accused Surajdin no public
witness
was
present.
There
is
no
inconsistency in the entire testimony of PW-6
Investigating Officer.

24. The accused persons though in
their statement under Section 313 CrPC
have claimed that the entire prosecution
858 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence is false and fabricated but to show
their innocence they have not adduced any
defence evidence.

25. In the earlier part of this
judgment, it has been clarified that albeit
there is a delay in lodging the F.I.R. but it
must be kept into the mind that the
informant - Smt. Laxmaniya is a rustic and
illiterate lady and after abduction of her
husband she was all alone and after
wandering here and there she succeeded in
lodging the F.I.R. when the application was
given to the Dy. Superintendent of Police,
Bindki, Fatehpur and on his order F.I.R.
was lodged and that caused delay in
lodging the F.I.R., hence, delay in lodging
of the F.I.R. is well explained in the facts
and
circumstances
of
the
case.
Interestingly, the written report was typed
on 2.12.1988 i.e. the same day when the
incident of abduction happened. The F.I.R.
has been lodged on the basis of written
report Ext. ka-1 and since Ext.ka-1 was
prepared on the same day when the incident
occurred it rules out any deliberation or
consultation before the lodging of the same.
A prompt F.I.R., no doubt, strengthens the
prosecution case and if delay in lodging the
same is explained properly it helps the
prosecution to prove its case beyond
reasonable doubt.

26. In Mehraj Singh Vs. State of
U.P.,
(1994)
5
SCC
188,
while
emphasising the importance of recording a
prompt F.I.R., the Hon'ble Supreme Court
observed as under :

 "FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eyewitnesses,
if any. Delay in lodging the FIR often
results in embellishment, which is a
creature of an afterthought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story."

27. In Thulia Kali Vs. State of
Tamil Nadu reported in (1972) 3 SCC
393 the Hon'ble Supreme Court held as
under.

 "..............first information report
in a criminal case is an extremely vital and
valuable piece of evidence for the purpose
of corroborating the oral evidence adduced
at the trial. The importance of the report
can hardly be overestimated from the
standpoint of the accused."

28. Similarly, in Kishan Singh
through LRs Vs. Gurpal Singh and
others reported in (2010) 8 SCC 775 the
Hon'ble Supreme Court held that "Prompt
and early reporting of the occurrence by
the informant with vivid details gives
assurance regarding truth of its version. In
case, there is some delay in recording the
FIR
the
complainant
must
give
an
explanation for the same. Undoubtedly,
delay in lodging FIR does not make the
complainant's case improbable when such
delay is properly explained."

29. In the facts of this case, it is
also evident that the victim did not receive
any injury. PW-2 in his deposition states
that he was assaulted by fisting by Surajdin
and Sri Narain but since the injuries might
8 All. Suraj Din & Ors. Vs. State of U.P.
859
not be serious or visible no medical
examination was conducted in respect of
the abductee of this case.

30. The motive of the incident has
also
been
well
explained
by
the
prosecution. Although it is a case based on
eye witness account wherein element of
motive loses its significance but what the
law requires is that if the prosecution
claims any motive behind the crime, it must
prove it. From the perusal and analysis of
the evidence of PW-1 and PW-2 it is clear
that the motive behind the incident, which
was actually the transfer of property of the
abductee in favour of his two son-in-laws,
has been established by PW-1 and PW-2
and their evidence is consistent on the point
of motive and also affirms the contents of
the F.I.R. itself.

31. It is true that two independent
witnesses of the incident of abduction PW3 and PW-4 have been declared hostile but
if the legal position with respect to the
appreciation of evidence of a hostile
witness is translated into the facts and
circumstances of the case in hand, it is a
trite law established in a catena of decisions
that the entire testimony of a hostile
witness cannot be discarded and the
relevant part of his testimony, which is
favourable to the prosecution, may be taken
as admissible and relevant piece of
evidence and the prosecution no doubt can
rely upon it.

32. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat, 1999 (8) SCC 624 has held that
evidence of a hostile witness can be relied
upon to the extent it supports the version of
prosecution and it is not necessary that it
should be relied upon or rejected as a
whole.
33. Ramesh Harijan vs. State of
U.P. , 2012 (5) SCC 777, in another
decision wherein the Hon'ble Apex Court
has held that it is settled legal position that
the evidence of a prosecution witness
cannot be rejected in toto merely because
the prosecution chose to treat him as hostile
and cross-examined him. The evidence of
such witness cannot be treated as effaced or
washed off the record altogether.

34. In State of U.P. vs. Ramesh
Prasad Misra and another , 1996 AIR
(Supreme Court) 2766, the Hon'ble Apex
Court held that evidence of a hostile
witnesses would not be totally rejected if
spoken in favour of the prosecution or the
accused but required to be subjected to
close scrutiny and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon.

35. From the above propositions of
law, it is evident that the evidence of a
hostile witness cannot be ignored totally
and the relevant portion of his entire
testimony may be taken into consideration.
In this matter, PW-3, though declared
hostile
by
the
prosecution,
in
his
examination-in-chief asserts that someone
had abducted Ghasitey in the year 1988 in
winters. Hence, this witness proves the
incident of abduction and he also makes
some positive statements in respect of
relationship of the abductee and the
accused persons. The husband of the
informant - Smt. Laxmaniya was in fact
abducted, as the prosecution claims, and
this fact finds corroboration from the
statement of PW-3 in his examination-inchief and despite being hostile witness, the
incident of abduction has been affirmed by
this witness. In the same fashion the
incident of abduction has also been proved
860 INDIAN LAW REPORTS ALLAHABAD SERIES
by PW-4. Despite being a hostile witness,
he affirms the incident of abduction of
Ghasitey, though he states that he did not
see the assailants. Therefore, from the
evidence of PW-3 and PW-4, the hostile
witnesses, it is established that Ghasitey,
husband of the informant Smt. Laxmaniya,
was really abducted in the incident and this
part of the evidence of PW-3 and PW-4 is
admissible and relevant so far as the
prosecution case is concerned.

36. In the same manner, PW-5,
who is said to be the witness of recovery of
the abductee, also states that some
miscreants had abducted Ghasitey from his
house, though the factum of recovery of
Ghasitey from the house of the accused
Surajdin is denied by him. It is significant
to see that he has proved his signature over
the memo of recovery of Ghasitey Ext. ka5 but he denies the subject matter written
therein.

37. The incident of recovery of
Ghasitey and his supurdgi in favour of his
wife, the informant, has been proved by PW-6,
Investigating Officer. The memo of recovery
has also been proved by him as Ext. ka-5
whereupon the signatures of Laxmi Narain
PW-5 and Surajdin and T.I. of other witness
Raghubir are visible. PW-6 has made a
categorical statement that he had recovered the
abductee before the witnesses Raghubir and
Laxmi Narain. PW-6 further states that
accused Surajdin was arrested at Amauli
Khajua Tiraha, though there was no public
witness present at that time. It is also pertinent
to mention here that the place of incident of
abduction has been shown as Ext. ka-4 site
plan, which has been proved by PW-6. This
document is in conformity with the version of
F.I.R. and statements of PW-1 and PW-2.
Hence, the place of occurrence is also certain
and fixed in this matter, which further
strengthens the prosecution case.

38. Hence, on the basis of oral and
documentary evidence, the prosecution has
proved its case beyond reasonable doubt, but
however, conviction of accused persons under
Section 365 IPC was recorded by the trial
court and not under Section 364 IPC for which
they were charged.

39. This Court has got an opportunity
to go through the impugned judgment and
order. The submission of the learned counsel
for the appellants made before this Court and
before the trial court as well expresses the plea
that the intention of the accused persons for
abducting Ghasitey was not to commit his
murder. This submission ought to be seen in
entirety of facts and circumstances of this case.
The abductee Ghasitey was kept under
confinement secretly and wrongfully in the
room of Surajdin but he was never put in
danger of life and further no ransom was
demanded by the accused persons for the sake
of his release. The victim was never abducted
in order to murder or to be so disposed of as to
be put in danger of being murdered. The
prosecution evidence falls short of the required
evidence to establish the offence under Section
364 IPC. In the entirety of the circumstances,
as mentioned above, the trial court proceeded to
record the conviction of the accused appellants
not under Section 364 IPC but under Section
365 IPC. It was a case of mere abduction where
the intention of the accused persons was only to
cause the victim to be secretly and wrongfully
confined and such offence comes under the
purview of the definition of Section 365 IPC
which says like this :

 "365. Kidnapping or abducting
with intent secretly and wrongfully to
confine person.-
8 All. Suraj Din & Ors. Vs. State of U.P.
861
 Whoever kidnaps or abducts any
person with intent to cause that person to
be secretly and wrongfully confined, shall
be punished with imprisonment of either
description for a term which may extend to
seven years, and shall also be liable to
fine."

40. At the same time, it is also
desirable to have a glance upon the
provisions of Section 364 IPC, which are 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."

41. From the close scrutiny of the
prosecution case and evidence, as discussed
here-in-above, and in the light of the
definitions, as mentioned here-in-above
which
include
essential
ingredients
to
establish an offence under Sections 364 IPC
and 365 IPC, this Court finds that the trial
court has committed absolutely no illegality
in convicting the appellants under Section
365 IPC in place of Section 364 IPC.

42. Upon careful analysis and
consideration of the settled legal position in
the backdrop of the facts and circumstances
of the present case, I am of the opinion that
the conclusion arrived at by the learned trial
court in the impugned judgment and order is
in accordance with law and the evidence
available on record. The impugned judgment
is the result of the thoughtful consideration
and cautious scrutiny of the evidence on
record, oral as well as documentary. Thus,
this Court is of the view that the prosecution
has been able to establish the guilt of the
accused appellants under Section 365 IPC
beyond reasonable doubt and to the
satisfaction of the judicial conscience of the
Court.

43. The part of sentence is also
under challenge and viewed by this Court
cautiously. Awarding sentence in a matter is
always a difficult task which requires
balancing of various considerations. The
principle of law is well settled that the
principle of proportionality between the
punishment and crime cannot be brushed
aside and the sentence must be just and
proper.
No
doubt
the
concept
of
proportionality permits of discretion to the
Court but the same has to be guided by
certain principles. Hon'ble Supreme Court in
Raj Bala vs. State of Haryana & Ors
(passed in Special Leave Petition (Crl.)
Nos.4099-4100 of 2015), has observed that
neither the personal perception of a Judge nor
self
adhered
moralistic
vision
nor
hypothetical
apprehensions
should
be
allowed to have any play. There can neither
be a straitjacket formula nor a solvable theory
in mathematical exactitude. Similarly an
offender cannot be allowed to be treated with
leniency solely on the ground of discretion
vested in a Court. The real requisite is to
weigh the circumstances in which the crime
has been committed. The discretion should
not be in the realm of fancy. It should be
embedded in the conceptual essence of just
punishment.
A
Court
while
imposing
sentence has to keep in view the various
complex matters in mind. In respect of
certain offences, sentence can be reduced by
giving adequate special reasons but the
special reasons have to rest on real special
circumstances.
862 INDIAN LAW REPORTS ALLAHABAD SERIES
44. In the instant case, criminal
machinery came into motion about 36 years
ago and the present appeal has been
pending for a long period of 32 years.
There is nothing on record to show that the
appellants are previous convict or having
any criminal antecedents. Also the accusedappellants alone cannot be held responsible
for long delay in disposal of this appeal. At
present appellant no.1 Surajdin is 77 years
old, appellant no.2 Ram Kishore is 57 years
old, appellant no.3 Sri Naraina is 67 years
old and appellant no.4 Sheo Shanker is 74
years old. It has been submitted and also
finds support from the record that the
appellants remained in custody for about
one month. Neither any injury has been
caused by the accused appellants to the
abductee nor any ransom was demanded by
them for the sake of his release. Hence,
considering all aspects of the matter, in my
view, no useful purpose would be served
by sending accused-appellants in judicial
custody at this stage, rather in the aforesaid
special circumstances, it would be in the
interest of justice if in lieu of one year's
rigorous
imprisonment
they
may
be
sentenced for the period already undergone
by them in this case and also sufficient fine
may be imposed upon them which would
be an adequate punishment to them in the
entire circumstances of this case. The
appellants, who are old men at present
should be repenting men.

45. Resultantly, the appeal is partly
allowed. The conviction of the appellants
for the offence under Section 365 IPC is
upheld but the sentence of one year's
rigorous imprisonment awarded by the trial
court vide impugned judgment and order is
converted
into
the
period
already
undergone by them alongwith a fine of Rs.
2,000/- each. Appellants are on bail. They
need not surrender. Their bail bonds are
cancelled and sureties are discharged. The
amount of fine shall be deposited within
two months from today failing which the
appellants will have to undergo for ten days
simple imprisonment as default sentence.

46. A copy of this order alongwith
trial court record be transmitted to the
Sessions Judge, Fatehpur for necessary
compliance.
----------
(2024) 8 ILRA 862
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 2134 of 1983

Ratan Shanker @ Silloo ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Satish Trivedi, Sri Rajesh Kumar

Counsel for the Respondent:
D.A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 302/34 - Punishment for murder -
Code of Criminal Procedure, 1973
-
Section 313 - Appeal against conviction -
Imprisonment for life - Incident occurred
on 6.6.1982 at 6.20 pm, a FIR was lodged
at 6.50 pm by informant (PW-1) - When
deceased and informant were returning
after seeing a movie by a bicycle, Shiv
Singh and appellant along with two other
persons surrounded them - Appellant and
two other persons pulled down deceased
from bicycle, Shiv Singh shot at him by his
pistol - Informant along with PW-2 had
gone to police station, returned with two
constables at the site, deceased was taken