& Ors Vs. State of U.P.  Insc 169 (12 February 2008)
Sinha & Harjit Singh Bedi
APPEAL NO.554 OF 2005 S.B. Sinha, J.
Appellants herein are residents of village Salampur, Police Station Kuraoli,
district Mainpuri in the State of Uttar Pradesh. They were accused of charges under Section 364 of the
Indian Penal Code for commission of the offence of kidnapping and murder of one
Suraj Pal Singh on 23.5.1980 at about 10.00 pm. They are resident of a village called Kherioa. The majority of the
population of the said village either belongs to Yadav caste, to which the
accused persons belong to, or Kumhar caste, to which the prosecution party
criminal cases were instituted against the prosecution witnesses by the accused.
They were, however, acquitted. Suraj Pal Singh son of Jagal Lal, admittedly,
was looking after the said cases.
First Information Report was lodged by Pahalvan Singh, PW-1, brother of Suraj
Pal Singh at about 5.15 pm on 23.5.1980 alleging that when the said Suraj Pal
Singh along with PW-3, Ram Pal, Summer Singh, Khetal Singh and Puttu Lal were
sleeping in their field where crops had been harvested and ready for thrashing,
the appellants herein as also Buddhi (since acquitted) reached there armed with
guns and caught hold of Suraj Pal Singh and bodily lifted him. Puttu Lal, Ram
Pal and other persons who were present there, questioned the accused persons as
regards their said conduct and being resisted thereto, they resorted to firing
thereby creating panic amongst them. Allegedly, they also gave out that Suraj
Pal Singh was being abducted for being killed. On hearing the hue and cry as
also the sound of firing shots, the informant, Pahalwan Singh, came to the
place of occurrence where the other prosecution witnesses narrated the incident
to him. An abortive search was made for Suraj Pal.
not found and as such a First Information Report was lodged wherein
apprehension was expressed as regards danger to the life of the said Suraj Pal
learned Trial Judge found the appellants guilty of commission of the offence
under Section 364 of the Indian Penal Code and sentenced them to undergo
rigorous imprisonment for seven years. However, accused No.6, Buddhi was
appeal preferred by the appellants has been dismissed by the High Court by
reason of the impugned judgment.
Swarup, learned counsel appearing on behalf of the appellant, submitted that no
evidence having been brought on record to show that Suraj Pal Singh had been
kidnapped for causing his murder or with a view to see that he was murdered, as
envisaged under Section 364 of the Indian Penal Code, the impugned judgment of
conviction and sentence is illegal. At best, the learned counsel contended, an
offence under Section 365 of the Indian Penal Code has been made out.
Dash, learned senior counsel appearing on behalf of the respondent, on the
other hand, supported the impugned judgment.
Before the Trial Court, the appellants abjured their guilt. It was contended
that in view of the fact that the prosecution witnesses did not have any legal
electricity connection for running the thrashing machine and there being no
light, they could not have identified. Delay in lodging the First Information
Report, according to the appellants, also gives rise to a suspicion. It was
furthermore contended that all the prosecution witnesses are interested.
learned Trial Judge, however, relied upon the deposition of PW-1 and PW-2 to
hold that all the charges for grant of electrical connection having been
deposited, user of electrical energy by the prosecution witnesses was
permissible. The Investigating Officer, in his deposition, also found existence
of electrical connection. The learned Trial Judge consulted an almanac to infer
that it was a full moon night and further having regard to the fact that both
the parties were known to each other, being residents of the village, the
appellants had rightly been identified by the prosecution witnesses as having
committed the offence.
learned Trial Judge furthermore found that PW-1 has rendered sufficient
explanation for the delay in lodging the First Information Report as the
kidnapped persons were searched by him and others. In regard to the contention
that all the prosecution witnesses were interested witnesses, it was opined
that in view of the fact that there were two factions in the village, no
independent witness was available. PW-2, however, was considered to be an
High Court affirmed the said finding by reason of the impugned judgment.
Before embarking upon the legal issue, we may notice the definition of
kidnapping and abduction, as contained in Section 359 and 362 of the Indian
Penal Code which are in the following terms:
is of two kinds:
from India, and kidnapping from lawful
by force compels, or by any deceitful means induces, any person to go from any
place, is said to abduct that person."
also notice Section 364 of the Indian Penal Code which reads as under:
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."
Ingredients of the said offence are (1) Kidnapping by the accused must be
proved; (2) it must also be proved that he was kidnapped in order to;
such person may be murdered; or
such person might be disposed of as to be put in danger of being murdered.
intention for which a person is kidnapped must be gathered from the circumstances
attending prior to, at the time of and subsequent to the commission of the
offence. A kidnapping per se may not lead to any inference as to for what
purpose or with what intent he has been kidnapped.
The fact that the parties were enemically disposed of towards each other is
beyond any doubt or dispute. Two criminal cases were instituted against the
prosecution witnesses. It has been established that Suraj Pal Singh had been
looking after the said criminal cases. The fact that the appellants were
present at the place of occurrence also stands established.
not only picked up Suraj Pal Singh but also bodily lifted him away and when
some resistance was put, they also resorted to firing in the air.
Indisputably, Suraj Pal Singh has not been seen thereafter. He has not been
heard of. Nobody in his family has heard from Suraj Pal Singh for the last 27
years. In terms of Section 118 of the Indian Evidence Act, he is presumed to be
dead. But in absence of any proof of death having been caused to him, a charge
under Section 302 of the Indian Penal Code could not be made. Fact remains that
he has not been heard or seen from the date of the incident, the law presumes
him to be dead.
Although the First Information was lodged on 24.5.1988, the Investigating
Officer did not find the appellants in their house. They could not immediately
be arrested. Warrant of attachment of sale of their property was issued. Mulaim
Singh was arrested only on 28.6.1988.
also significant that PW-2, in his deposition, categorically stated that the
accused No.1, Badshah, had given out that they were taking Suraj Pal Singh away
in order to kill him. Similar are the statements of PW-2 and PW-3. PW-2
categorically stated that appellants had furthermore given out that if they
wanted to save their lives, they should run away.
Testimonials of the said prosecution witnesses have been relied upon by the two
courts below. We do not see any reason to differ therewith. The fact that there
had been a deep-rooted enemity between the accused persons and Suraj Pal Singh,
it will bear repetition to state, stands established. They came to the place of
occurrence in the night heavily armed, took the deceased away stating that they
would kill him and thereafter he has not been seen alive by any person which,
in our opinion, is sufficient to arrive at a conclusion that a case under
Section 364 of the Indian Penal Code has been made out.
The question as to on whom the onus lies would depend upon the facts of each case.
We may at this juncture notice a few decisions operating in the field.
& Ors. v. State of Rajasthan [(2005) 11 SCC 133], this Court proceeded on
the basis that the prosecution while taking upon itself the burden of proving
the murder of the abducted boy by introducing eye- witnesses, the provisions of
Section 106 of the Indian Evidence Act would have no application. Several
circumstances which were sought to be proved by the prosecution were held to
have been not proved. It was in the aforementioned fact situation, Section 106
of the Evidence Act was held to have no application.
However, in Ram Gulam Chaudhary & Ors. v. State of Bihar [(2001) 8 SCC 311], this Court
upheld the conviction of the appellants therein who were alleged to have
brutally assaulted the boy. Finding him still alive, a chhura blow was
inflicted on his chest and then he was carried away. The Court, opining that
the burden to prove was on the accused, stated :
otherwise, in our view, this is a case where Section 106 of the Evidence Act
Chaudhary was brutally assaulted and then a Chhura blow was given on the chest.
Thus Chhura blow was given after Bijoy Chaudhary had said "he is still
alive and should be killed". The Appellate then carried away the body.
What happened thereafter to Krishnanand Chaudhary is especially within the
knowledge of the Appellant.
Appellants have given no explanation as to what they did after they took away
the body. Krishnanand Chaudhary had not been since seen live. In the absence of
an explanation, and considering the fact that the Appellants were suspecting
the boy to have kidnapped and killed the child of the family of the Appellants.
It was for the Appellant to have explained what they did with him after they
took him away. When the abductors withheld that information from the Court
there is every justification for drawing the inference that they had murdered
the boy. Even though Section 106 of the Evidence Act may not be intended to
relieve the prosecution of its burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to cases like the present, where
the prosecution has succeeded in proving facts from which a reasonable
inference can be drawn regarding death. The Appellant by virtue of their
special knowledge must offer an explanation which might lead the Court to draw
a different inference. We, therefore, see no substance in this submission of
Sucha Singh v. State of Punjab [(2001) 4 SCC 375], Section 106 of the Evidence
Act was held to be applicable to cases where the prosecution had succeeded in
proving facts for which a reasonable inference can be drawn as regards
existence of certain other facts unless the accused by virtue of special knowledge
regarding such facts failed to offer any explanation which might drive the
court to draw a different inference.
the event of murder of an abducted person, either by direct or presumptive
evidence, an inference of murder can safely be drawn in resepct whereof, it
would not be necessary to prove the corpus delicti.
Rai & Ors. v. State of Bihar [2006
(8) SCALE 440], this court observed :
is now a trite law that corpus delicti need not be proved. Discovery of the
dead body is a rule of caution and not of law. In the event, there exists
strong circumstantial evidence, a judgment of conviction can be recorded even
in absence of the dead body."
The fact of the matter together with the precedents as noticed hereinbefore, in
our opinion, lead to the conclusion that a different view from that of the High
Court is not warranted.
This appeal is, therefore, dismissed.