The Allahabad High Court has set aside the conviction of appellants in a criminal appeal dating back to 1984, ruling that a conviction under Section 365 of the Indian Penal Code (IPC) cannot be sustained in the absence of evidence regarding wrongful confinement or the recovery of the victim’s corpus.
Justice Anish Kumar Gupta allowed the appeal filed by Ram Narain (since deceased) and others against the judgment of the First Additional Sessions Judge, Jhansi, which had convicted them for kidnapping or abducting with intent to secretly and wrongfully confine a person.
Background of the Case
The case stems from an F.I.R. lodged on June 9, 1981, by the informant, Raja Ram. The prosecution alleged that the informant’s son, Shiv Narain, went missing on June 6, 1981. According to the informant, his son was induced by appellant Kammod Kachi to visit the village to settle a dispute with Ram Narain and others, with whom the family had prior enmity.
Witnesses Bhagirath and Lakhan Singh allegedly saw the victim in the company of Kammod. Subsequently, a co-accused, Ram Swaroop, gave a confessional statement under Section 164 Cr.P.C., detailing that the accused persons had killed Shiv Narain, thrown his body in a well, and later retrieved and burned it to destroy evidence.
The Trial Court, vide judgment dated August 21, 1984, acquitted the accused of charges under Sections 147, 148, 302/149, and 201/149 IPC but convicted them under Section 365 IPC, sentencing them to three years of rigorous imprisonment.
Arguments of the Parties
Senior Advocate Sri Amit Daga, appearing for the appellants, argued that no specific role was assigned to appellant no. 2 and others regarding the offence under Section 365 IPC. He submitted that charges under Section 364/365 IPC were not even framed against appellant nos. 1, 2, 3, and 4. The charge was framed only against appellant no. 5, Kammod, yet the others were convicted.
The defense emphasized that the corpus of the victim was never recovered, either dead or alive. It was further argued that no question regarding wrongful confinement was put to the appellants during their examination under Section 313 Cr.P.C., rendering the conviction erroneous.
Sri Pankaj Kumar Shukla, Amicus Curiae, relied on Supreme Court judgments including Sharad Birdhichand Sarda v. State of Maharashtra and State of Rajasthan v. Kashi Ram, arguing that an accused cannot be convicted under Section 365 unless the victim is recovered and provides a statement regarding wrongful confinement.
The State Counsel (AGA) opposed the appeal, submitting that the appellants had a strong motive due to enmity. The AGA argued that the victim was last seen with the appellants and that the confessional statement of the co-accused, coupled with the “last seen” evidence, was sufficient to uphold the conviction.
Court’s Analysis and Observations
The High Court scrutinized the depositions of the three key witnesses: PW1 (the informant), PW2 (Babu Lal), and PW3 (Babu Khan). The Court noted that while there was evidence of the victim being seen in the company of the accused, there was “no iota of evidence to suggest that there was any wrongful confinement.”
Justice Gupta observed:
“For the offence under Section 365 IPC, it is necessary for the prosecution to prove something beyond abduction with regard to the wrongful confinement of the victim.”
The Court referred to the ingredients of Section 365 IPC, stating that the prosecution must prove kidnapping or abduction by the accused and the intent to secretly and wrongfully confine the person. The Court noted that in this case, “neither the corpus of the victim has not been recovered alive or dead. There is no evidence that any remains of the dead body was found or which correlated with the corpus of the victim.”
Regarding the procedural irregularities, the Court pointed out that the charge under Section 364 IPC was framed specifically against appellant no. 5 and not the others.
“The other appellants… have been convicted for the offence under Section 365 without there being any charge for the said purpose and thus without giving them any opportunity to defend the aforesaid charge,” the Court stated.
Furthermore, the Court found that incriminating circumstances regarding wrongful confinement were not put to the accused under Section 313 Cr.P.C.
Relying on precedents, the Court held:
“Unless there is no recovery of the corpus of the victim and there is categorical statement by such victim that he was wrongly confined by the accused person, the offence under Section 365 I.P.C. cannot be said to have been made out against the appellants herein.”
Decision
The High Court concluded that there was no justifiable reason for the conviction. The appeal was allowed, and the judgment and order dated August 21, 1984, were set aside. All appellants were acquitted of the offence under Section 365 IPC. As appellant no. 1 had died during the pendency of the appeal, his case had already abated. The sureties of the surviving appellants were discharged.
Case Details:
- Case Title: Ram Narain And Others Versus State of U.P.
- Case No.: Criminal Appeal No. 2435 of 1984
- Coram: Justice Anish Kumar Gupta
- Counsel for Appellants: Pankaj Kumar Shukla, Amit Daga, Jitendra Kumar Ravat, K.N. Saksena
- Counsel for Respondent: A.G.A.
