The Allahabad High Court has modified the conviction of persons who had been found guilty of kidnapping a 11-year-old boy while allowing the appeals of the convicted persons.
The Division Bench of Chief Justice Pritinker Diwaker and Justice Nalin Kumar Srivastava passed this order while hearing a criminal appeal filed by Indra Pal and another.
The Special Judge (DAA) / Additional Sessions Judge, Etah by the dated 22.11.2008 passed in Special Sessions Trial, PS Soron, District Etah convicted and sentenced the appellants under Section 364A IPC to undergo life imprisonment with a fine of Rs 2,000 each and under Section 307 IPC read with Section 149 IPC to undergo seven years rigorous imprisonment with a fine of Rs 500 each and in default of payment of fine, to undergo three months additional rigorous imprisonment.
Aggrieved with the said judgment, the appeals have been preferred by the convicts.
The facts of the case are that a First Information Report was lodged by informant Chandra Pal, son of Roopram, resident of Badanpur, Police Station Soron, District Etah, on 22.11.1997 at 2.45 pm, with the averments that on the night of 21/22.11.1997, he was sleeping inside his shop and his wife Prema Devi was sleeping in the shed with the children on different cots. At about 120 pm when the wife of the informant made noise that miscreants had come, he came out unlocking the shop. Six-seven miscreants took his 11-year-old son Rajesh. On raising an alarm by the informant and his wife, his neighbours also came there. When everyone tried to rescue the boy from the miscreants, they fired at them with guns and went south with the boy. Jabar Singh, son of Siya Ram Jatav, received gunshot injury in the incident.
On the basis of aforesaid written report, an FIR was lodged on 22.11.1997 against 6-7 unknown miscreants for the offence under Sections 364 and 307 IPC.
During the course of investigation, on the basis of an information dated 4.12.1997, the Investigating Officer with other police personnel, reached Badanpur where the informant Chandrapal met and handed over a letter regarding demand of ransom of Rs 70,000 for the kidnapped boy.
When police personnel along with the informant and other persons, with a view to search for the kidnapped boy, reached the old brick kiln before the village Goyti, information was received that in the house of Pusey, son of Sonpal Kashyap, the kidnapped boy along with the kidnappers are present.
On the basis of the said information, the police personnel along with informer and other persons, reached village Chauraghat and when on the tip of the informer, reached the corner of the western wall of the house of Pusey Kashyap, it was seen that six persons, armed with guns and tamanchas, were sitting on the north face of the roof and when they saw the police personnel, they fired 5-6 shots with the intention to kill them.
In their defence, the police personnel fired upon them and by using necessary force, two kidnappers were caught by surrounding them in front of Pusey’s house and the remaining four, namely, Pusey, Mahatma, Awadhesh and Kallu, managed to escape.
Of the criminals caught, one said his name was Shripal, son of Chhuni Lal, resident of Pachauraghat, PS Soron, District Etah and on searching him, a SBBL gun 12 bore with three live cartridges of 12 bore were recovered, whereas the other person identified himself as Indrapal, son of Anar Singh, resident of Badanpur, PS Soron, District Etah.
On searching him, a tamancha desi bore and two live cartridges were recovered. On Shripal’s pointing out, the kidnapped boy was recovered from Pusey’s roof (kotha). Informant Chandrapal identified him as his son Rajesh, who had been kidnapped. Accused persons Shripal and Indrapal were arrested and recovered SBBL gun and country-made pistol along with live and empty cartridges were sealed in separate cloths and specimen seal was prepared.
On the basis of seizure, cases under Sections 147,148, 149, 307 I.P.C against accused Kallu, Shripal, Indrapal, Mahatma and Pusey and under Section 25 Arms Act against accused Shripal and Indrapal were registered. Rajesh, the kidnapped boy, was medically examined on 4.12.1997 at the Community Health Centre, Soron at 2.45 p.m and was handed over to his father Chandra Pal.
After completing the investigation, charge-sheets under Sections 364A and 307 IPC against the accused Shripal, Indrapal, Mahatma, Awadhesh, Kallu and Pusey, under Sections 147, 148, 149, 307 IPC against accused Kallu, Shripal, Indrapal, Mahatma and Pusey and under Section 25 Arms Act against the accused Shripal and Indrapal were submitted.
All the six accused persons appeared before the trial court. They denied the charges and claimed their trial.
The counsel for the appellants has assailed the impugned order on various grounds. It has been argued that the accused persons are not named in the FIR and the FIR was lodged against unknown persons whereas the evidence reveals that the accused persons were identified at the place of occurrence at the time of kidnapping. It is also pointed out that the kidnapping of the son of the informant was not done for any ransom and, hence, the case of the prosecution does not fall within the ambit of Section 364A IPC.
The AGA opposed the appeals and stated the kidnapping of the boy was for ransom. The fact of kidnapping has been proved by cogent and reliable evidence of the kidnapped boy himself, which is fully corroborated by the evidence of his father and village witness Jabar Singh. The injury report of the injured Jabar Singh affirms the fact that during the commission of the offence of kidnapping, Jabar Singh was shot at by the appellants. The evidence also reveals that a ransom letter was received by the informant, which was sent by the appellants and the same was handed over to the Investigating Officer.
In view of the above, the conviction and sentence under Section 364A of IPC awarded by the trial court order is set aside and modified by the Court to the extent that the appellants are convicted under Section 365 of IPC and are sentenced to the imprisonment of seven years with a fine of Rs 2,000 each, however, the conviction and sentence awarded by the trial court for the offence under Section 307/149 IPC vide impugned judgment and order is affirmed.
“The appellants Indrapal and Shripal are said to be in jail since last about 14 years and thus, they have already spent more than seven years of incarceration. The sentences passed in all the offences were to run concurrently, therefore, the total period of imprisonment has already been undergone by the appellants Indrapal and Shripal. We maintain the fine amount and default sentence. The default sentence will start after seven years, which would also now be over in respect of appellants Indrapal and Shripal. Appellants Indrapal and Shripal be released forthwith, if they are not wanted in connection with any other case.
However, appellants Kallu and Mahatma are on bail, their bail bonds are cancelled and sureties are discharged. The concerned Court is directed to take the appellants Kallu and Mahatma into custody forthwith and send them to jail to serve out the remaining sentence,” the order reads.