LexBADSHAH AND ORS. versus STATE OF U.P.
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A B [2008] 2 S.C.R. 766 BADSHAH AND ORS. II. STATE OF U.P. (Criminal Appeal No. 554 of 2005) FEBRUARY 12, 2008 [S.B. SINHA AND HARJIT SINGH BEDI, JJ.] Penal Code, 1860: · s. 364 - Abduction in order to murder -Accused heavily armed took away the victim stating tha-tthey c would kill him - Thereafter victim not seen alive by any person - Held: Case under s.364 is made out - In terms of s. 118 of Evidence Act, _he is presumed to be dead but in absence of proof of death, a charge under s.302 could not be made. ,.. The prosecution case was that one 'S' was sleeping D alongwith PW-3 and .others in the field when appellant and anothEtf accused reached there with guns and caught hold of 'S' and bodily lifted him. When the other persons present there resisted to such an act, they resorted to firing thereby creating panic amongst them. They also said E that 'S' was abducted for being killed. On hearing hue and cry, PW-1, brother of 'S' reached the place of occurrence. Search was rriade for 'S' but he was not found. An FIR was lod'1ed wherein apprehension was expressed as regards da-Rgetio the life of 'S'. Trial Court found appellant guilty of commission of offence under s.364 IPC and F sentenced him to undergo rigorous imprisonment for 7 years, which was_ upheld by the High Court. Hence the present appeal. Dismissing the appeal, the Court G HELD: 1. The intention for which a person is kidnapped must be gathered from the circumstances at~ending 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 H 766 ... ~ BADSHAH AND ORS. v. STATE OF U.P. 767 -~ intent he has been kidnapped. [Para 11] [771-F] A 2. The fact that the parties were inimically disposed of towards each other is not disputed. Earlier two criminal cases were instituted against the prosecution witnesses. It has been established that 'S' had been looking after the B said criminal cases. The fact that the appellants were present at the place of occurrence also stands -i established. Appellant, not only picked up 'S' but also " bodily lifted him away and when some resistance was put, they also resorted to firing in the air. Indisputably, 'S' has not been seen thereafter. He has not been heard of. c Nobody in his family has heard from 'S' for the last 27 years. In terms of s.118 of the Evidence Act, he is presumed to be(Jde~d. But in absence of any proof of death having been caused to him, a charge under s.302 IPC could not be made. Fact remains that he has not been heard or seen D • from the date of the incident, the law presumes him to be dead. [Paras 12 and 13] [771-G; 772-A, 8, C] 3. Appellants could not be arrested immediately. Warrant of attachment of sale of their property was issued. E It is also significant that PW2, in his deposition, categorically stated, that the appellant had given out that they were taking 'S' 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. F . -)I Testimonials of the said prosecution witnesses have been relied upon by the two courts below. There is no reason to differ therewith. The fact that there had been a deep- rooted enmity between the accused persons and 'S', stands established. They came to the place of occurrence G --4 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, is sufficient to arrive at a conclusion that a case under s.364 IPC has been made out. [Paras 14, 15] [772-C, D, E, F, G] H 768 SUPREME COURT REPORTS (2008] 2 S.C.R. A Murlidhar and Ors. v. State of Rajasthan (2005) 11 SCC +-· 133; Ram Gu/am Chaudhary and Of$. v. State ofBihar (2001) 8 SCC 311; Sucha Singh v. State of Punjab (2001) 4 SCC 375 - referred tQ. 4. In the event of murder of an abducted person, either . B by direct or presumptive evidence, an inference of murder can safely be drawn in respect whereof, it would not be · nece~sary to prove the corpus delicti. The fact of the matter ~ together with the precedents lead to the conclusion that a different view from that of the High Court is not C warranted. [Paras 19, 20] [D, E, G] Ramjee Rai and Ors. v. State of Bihar (2006) 8 SCALE 440 - referred to. CR
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