JUDGMENT : Amreshwar Pratap Sahi, J. These three appeals arise out of Session Trial Nos.202 of 2011, 203 of 2011 and 322 of 2011 whereby the Additional Sessions Judge, Court No.6, Badaun has proceeded to convict the appellants under Section 364 I.P.C. and has sentenced them to life imprisonment with Rs.40,000/- fine each and in the event of default of payment of fine to undergo one year simple imprisonment. The appellants have however been acquitted of charge under Section 25 Arms Act. 2. The incident as reported by the first informant was through a missing report dated 04.04.2010 wherein it was stated that in the previous night on 03.04.2010, the informant's father Kanhai Lal son of Loki Ram had gone to water his field from a tubewell where he was accompanied by Champat Lal. After the field of Champat Lal was irrigated, Champat Lal came back but Kanhai Lal did not return back home. When he did not return for a considerably long period, then the informant went there along with some villagers but he did not find his father at the tubewell and in spite of making a long search, he was untraceable. He was described as wearing a white Kurta and white Dhoti with no slippers or footwear in his feet, aged about 50 years. 3. This missing report was lodged with the Police Station Incharge, Civil Lines, District Badaun. 4. It appears that an information was received on a mobile phone by a Sub-Inspector of Allapur Police Station, Sachidanand Rai who has deposed as PW-5 from one Akhtar Ali son of Alladin, resident of Village- Khiriya Ratloo, Police Station Allapur, District Badaun that at about 10-20 during day time, certain shots were heard whereupon farmers of the said village, who were working in their fields at the time of the said noise, started withdrawing but some of them collected and they encircled the sugarcane field where the shots had been fired and had also seen one miscreant fleeing away in an injured state along with country-made pistols in his both hands who started running away towards the eastern direction and when an attempt was made to stop him, then he took off his shirt and threw it leaving behind his slippers and escaped. 5. 5. It is at that time only, that another person in an injured state came out from the southern side of the sugarcane field smeared with blood but upon seeing a lot of people having surrounded the area, he went back inside the sugarcane field itself. 6. On this message, the police along with Station House Officer, Police Station Allapur Pradeep Kumar Shukla, Sub-Inspector Sachidanand Rai as well as Constable Mahsher Ali, Constable Subhash Chandra, Constable Gyanveer Singh and Constable Devendra Singh arrived at the spot about 10:45 a.m. and with the help of villagers started combing the sugarcane field from western the side. When they had crossed half the field, they found a plastic sheet smeared with fresh blood, one pair of slippers brown in colour and two Lungis smeared with blood. They also found a steel bowl containing cooked potatoes and also found one Chapati as well as a steel glass, a red coloured towel and a match box. Besides the same, they also found a person lying smeared with blood in a heavily injured state. Upon inquiry, he disclosed his name to be Kanhai Lal son of Loki Ram, resident of Village Rooppur, Police Station Civil Lines, District Badaun. With great difficulty he spoke that he had been carried by four miscreants in the night of 3/4.04.2010 from his tubewell and thereafter he fell unconscious. Recovery memo of the victim further discloses that since he was in an injured state, then the entire incriminating material found besides him was collected and he was immediately rushed to Sadar Hospital, Badaun. This entire episode concluded at about 12:00 noon. 17. After the recovery of the victim in an injured state, the investigation further proceeded and it appears that on 02.05.2010, appellant Veer Singh was arrested at about 3:40 p.m. from the Roadways bus stand. Upon his alleged confessional statement and on his pointing out, recovery of a 315 bore country-made pistol with two cartridges is said to have been made from the place as indicated in the recovery memo. 18. On 20.05.2010, appellant Anand was arrested when he was found lying in a school. This arrest was made at about 11:00 p.m. followed by a recovery of a country-made pistol of 12 bore from him along with two cartridges. 19. Upon completion of the investigation, the police report was filed. 18. On 20.05.2010, appellant Anand was arrested when he was found lying in a school. This arrest was made at about 11:00 p.m. followed by a recovery of a country-made pistol of 12 bore from him along with two cartridges. 19. Upon completion of the investigation, the police report was filed. Two separate charges were framed against the accused one under Section 25 Arms Act and the other under Section 364 I.P.C. On trial, the prosecution introduced three witnesses of fact PW-1 namely Shiv Kumar the informant and son of the victim, Kanhai Lal PW-2 the victim himself and Champat Lal PW-3. Apart from these witnesses of fact, Rajvir Singh who recorded the missing report, Sub-Inspector of Police Sachidanand Rai who conducted the recovery being posted at Police Station Allapur and Mahipal Singh, Investigating Officer who conducted the recovery of firearms were examined as PW-4, PW-5 and PW-6, respectively. 20. The accused got their statements recorded under Section 313 Cr.P.C. whereafter the trial court proceeded to assess the evidence and found on the strength thereof that the recovery of firearm could not be proved, but the incident of kidnapping and demand of ransom with threat being extended for eliminating the victim have been found to be proved. Accordingly, the trial court proceeded to convict the appellants and through a separate order sentenced the appellants for life imprisonment on the same day. 21. Upon filing of these appeals, appellants Shiv Kumar Singh, Amar Singh and Anand were bailed out whereas appellant Veer Singh is still behind bars. 22. Sri Satish Chandra Tiwari, learned counsel for the appellant - Veer Singh, advancing his submissions urged that the prosecution has utterly failed to prove the charge of kidnapping for ransom inasmuch as neither identification of appellant Veer Singh has been carried out in accordance with law nor his recognition by the victim is substantiated by his deposition made before the trial court. The testimony of the victim is absolutely unreliable and is full of discrepancies, embellishments and improvements which alters the basis of the original case of the prosecution. 23. He further submitted that the allegations of injuries that have been received were not proved by any evidence that is admissible in terms of the Indian Evidence Act, 1872 and further testimony of the formal witnesses also does not corroborate any of the allegations made against the accused-appellant. 23. He further submitted that the allegations of injuries that have been received were not proved by any evidence that is admissible in terms of the Indian Evidence Act, 1872 and further testimony of the formal witnesses also does not corroborate any of the allegations made against the accused-appellant. He contends that the timing as indicated about lifting of the victim and manner of transportation is unbelievable inasmuch as the testimony of PW-2 is absolutely false as he was not in a position to see or witness any such transportation having been allegedly carried out by the miscreants. Thus, he submitted that neither the appellant nor any of the accused were recognized by him at the dead of night and his deposition before the trial court about recognition is not only false but also is contrary to the circumstances as narrated by him in his deposition. 24. He contends that PW-2 in his statement has embellished the entire account of his having been transported and subjected to any threat or demand of ransom. The story of ransom was nowhere indicated in the information tendered where the case set out was that he had been kidnapped for being murdered. The allegations that the accused were talking among themselves for realizing the ransom never manifested itself in any such overt act by demand being raised from the family members or any other person through any message so as to establish that ransom was the cause of the aforesaid act on the part of the accused including the appellants. He submits that in the absence of any such specific and cogent evidence relating to demand of ransom, theory of the prosecution that the appellant Veer Singh along with the other co-accused had committed the offence does not stand established at all. 25. He further submits that PW-5 Sub-Inspector of Police who prepared the recovery memo of the victim in his statement of a specific question being raised by the defence has categorically stated that he does not know as to whether injuries were caused to the victim or not. He, therefore, submits that in the absence of medical evidence and in view of the testimony of Sub-Inspector of Police who carried out the recovery nowhere establishes any injury on the victim. He, therefore, submits that in the absence of medical evidence and in view of the testimony of Sub-Inspector of Police who carried out the recovery nowhere establishes any injury on the victim. Consequently, the trial court rightly did not proceed to convict the appellant and other co-accused for possession of firearms or having caused injuries to the victim with any such weapon at all. Consequently, this also demolishes the creditworthiness of the prosecution witnesses. 26. Sri Tiwary, then contends that the blood smeared clothes which were alleged to have been recovered, were nowhere reported to be containing human blood and further there was no evidence so as to corroborate the nature of injuries or its cause as narrated by PW-2 in his statement while describing the incident of kidnapping. He further submits that the fact that PW-2 could not recognize any of the appellants is further proved by his statement when he allegedly states having recognized two of the appellants namely Veer Singh and Anand whereas he could not recognize the other two appellants who were said to be associated in the commission of the offence. 27. He then submits that it was not possible at all and does not appear to be probable, that if injuries were being caused either for the sake of ransom or committing murder, then why would the victim be detained for four days without any demand being communicated, and further if the idea was to eliminate him then there was no reason to station the victim in a sugarcane field for days together. He, therefore, concluding his submissions urged that the entire story set up by the prosecution could not be proved beyond reasonable doubt, therefore, the appellant Veer Singh deserves acquittal. 28. Sri Prajapati, appearing for the appellants Shiv Kumar Singh and Amar Singh has urged that they have been falsely implicated. They were neither identified as per law nor their presence is established at the time of recovery. 29. Supplementing the said submissions, Sri Devesh Kumar Maurya, learned counsel for the appellant Anand contends that he was arrested from the place which clearly indicates that it was a false arrest having been shown in order to implicate him inasmuch as no trace of the appellant Anand can be found to be linked with the chain of events as described by PW-2. He further submits that his false implication is for the reason as pointed out by learned A.G.A. that there was a criminal history. There was every possibility to implicate him in another case. He submits that he being allegedly recognized by the victim as stated by him in his testimony is absolutely false inasmuch as no such identification was carried out so as to establish the presence of the appellant nor any effort was made to adduce any evidence except false recovery of the weapon on the pointing out of the appellant on which charge he has been acquitted. Sri Maurya further contends that implication of the appellant has been made on account of some enmity. 30. All the counsel for the appellants advancing their submissions have cast a doubt on the recovery of the victim on the ground that if 200 villagers had surrounded the sugarcane field then it does not appeal to reason as to why not even a single villager was produced as a witness to identify the appellants and prove the incident. The person who informed the police on the mobile phone was also not produced and consequently, the entire prosecution story set up with regard to the recovery of the victim from the sugarcane field is not believable. 31. Sri Ajeet Ray and Sri Jai Narain, learned A.G.As. for the State have urged that the prosecution was consistent through its evidence of the victim having been lifted by four miscreants who were identified when the victim was brought to the police station to recognize the accused. Not only this, they were also recognized during their testimony when the trial was held. In such circumstances, there was no dispute with regard to the identification of the accused and even otherwise with regard to the injuries. 32. The defence neither cross examined the concerned police Sub-Inspector nor the Investigating Officer on the recording of injury report in the case diary nor any effort was made to belie or contradict the statement of PW-2 who was categorical about the injury received by him. They contend that even though the trial court has proceeded to acquit the appellants of the charge on the recovery of firearms, the recovery of the victim from the sugarcane field establishes the links of the entire chain about the victim having been picked up and brought to the sugarcane field for realizing ransom. 33. They contend that even though the trial court has proceeded to acquit the appellants of the charge on the recovery of firearms, the recovery of the victim from the sugarcane field establishes the links of the entire chain about the victim having been picked up and brought to the sugarcane field for realizing ransom. 33. For this the statement of PW-2 has been relied on to urge that the entire narration is complete in the statement of PW-2 which does not suffer from any infirmity to establish that PW-2 was kidnapped for the purpose of ransom. They, therefore, submit that this part of story of the prosecution has been established by leading evidence that injury was evident from the entries contained in the case diary and the presence of the appellant Veer Singh along with the victim is also established. They contend that the corroborating statement of Champat Lal PW-3 reinforces the time of the incident as such the argument advanced that the timings are contradictory deserves to be rejected. 34. They urged that if the ingredient of ransom coupled with injury and recovery of the victim is established then the appellant cannot escape the conviction and sentence awarded to them by the trial court. It is urged that the appellants having been found to be guilty on the basis of evidence on record consequently, none of the arguments deserve to be entertained so as to reverse the judgment of the trial court. 35. Having heard learned counsel for the appellants and the learned A.G.As. for the State, we find that the incident which occurred in the night of 3/4.4.2010 commences with the lodging of a missing report by PW-1 who has proved the same. The missing report has been lodged on the next day i.e. 04.04.2010 promptly. This, therefore, clearly establishes that the victim was lifted in the same night as reported. After lodging of the missing report and in spite of search having been made, corpus of the victim was not recovered for almost three days when an information was received at another Police Station namely Allapur about some gun shot fires having been heard in a sugarcane field in village Khiriya. Two concerned police officials of Police Station Allapur immediately rushed to the spot at about 10:45 a.m. to village Khiriya. On their arrival they found the sugarcane field encircled by about 200 villagers. Two concerned police officials of Police Station Allapur immediately rushed to the spot at about 10:45 a.m. to village Khiriya. On their arrival they found the sugarcane field encircled by about 200 villagers. With their aid, the police headed by PW-5 started combing and searching the cause of the gun shots fires in the sugarcane field and after having crossed half the sugarcane field, the incriminating material as narrated hereinabove was recovered by the police together with the victim on the spot. The police had also been informed about the escape of one of the miscreants with firearms in an injured state. 36. In our considered opinion, this recovery cannot be disbelieved firstly for the reason that the entire operation of recovery of the victim has been carried out by a different police station altogether and its officials on an information received from a villager named Akhtar Ali on mobile phone. The recovery police party of Police Station Allapur for the first time came to know of the identity of the victim PW-2 only upon being found in the sugarcane field. The victim himself disclosed his name and the information of being lifted by four persons and brought to the sugarcane field. This evidence cannot be assumed to be planted or created as it has a complete ring of truth around it. 37. Argument of the learned counsel for the appellants that neither Akhtar Ali nor the villagers were examined will not demolish the factum of recovery which stands corroborated not only by the recovery of incriminating material but also of PW-2 the victim himself who was lifted from the spot and has categorically deposed before the trial court about his recovery from the said place. 38. Learned counsel for the appellants contended that statement of PW-2 cannot be relied on because he has stated that he was blind folded later on and on being injured, he was unconscious particularly when he states in his cross-examination that he regained consciousness at the hospital. In such circumstances, if he was blind folded and unconscious, any description by him is unreliable. 39. We are unable to accept this submission, for the reason that it may be true that he had been blind folded later on but in his examination in chief, PW-2 has categorically stated that he was lifted and carried to the sugarcane field in village Bivipur. 39. We are unable to accept this submission, for the reason that it may be true that he had been blind folded later on but in his examination in chief, PW-2 has categorically stated that he was lifted and carried to the sugarcane field in village Bivipur. The name of the village does not appear to be exact but the fact of his being carried to the sugarcane field has been clearly stated. This would not have been possible if he was blind folded when he was being lifted and carried. Consequently, recovery from the sugarcane field corroborated with the recovery actually having been made by the police officers of Police Station Allapur, cannot in any way be described as a planted recovery or false recovery. The victim being in an injured status is further corroborated by the fact that he was taken to the hospital. This fact has been clearly stated by PW-5 in his statement that he immediately upon his recovery finding him to be in an injured state, he was rushed to the hospital. It is correct that no document pertaining to the injury report of the victim was exhibited nor was the doctor who examined the victim was produced before the trial court but at the same time, the case diary reveals the medical report that has been noted down upon examination of the victim at Sadar Hospital Badaun. This part of the case diary has been proved by the concerned police officer before the trial court. The defence did not proceed to cross examine or even make any suggestion to the contrary on this account. However, at one place in the cross-examination the said Sub-Inspector of Police PW-5 did make a statement that he did not remember as to what was the seat of injury caused to the victim. 40. In our considered opinion, the fact that he was recovered in an injured status and taken to the hospital remains unimpeached. Merely because there is a lapse in the investigation of non-filing of the medical report or producing the medical doctor would not demolish the prosecution story of the victim having been recovered in an injured state as corroborated by the testimony of PW-5. 41. Merely because there is a lapse in the investigation of non-filing of the medical report or producing the medical doctor would not demolish the prosecution story of the victim having been recovered in an injured state as corroborated by the testimony of PW-5. 41. There is yet another argument on behalf of the appellants that PW-2 in his statement has indicated that during a scuffle in the sugarcane field the appellant Veer Singh, the said accused had also sustained injuries which fact was nowhere proved by any such material on record including the medical report. To this extent, learned counsel for the appellants is correct that no such report was produced but the fact remains that the case diary does contain details of medical examination of Veer Singh and, therefore, even though the said fact may not have been proved, the same would not be sufficient to disbelieve the injured status of PW-2. 42. However, when it comes to the charge against the appellants, PW-2 has assigned the role of causing firearm injury to him by Veer Singh only. He in his deposition has described a scuffle after he had almost unwound his feet and hands when he received the injury on his right hand and the same shot is said to have injured the accused Veer Singh. The injury mentioned in the case diary caused to the victim is two fold, one in the occipetal region of the head and the other on the right hand. The deposition of PW-2 is limited to the specific injury on the hand and it says nothing about the head. In the absence of any deposition of the doctor and any medical document on record, the deposition about the injury of the right hand compared with the hand injury in the case diary only reflects a simple injury. The other injury does not get corroborated by the oral testimony of PW-2. Consequently keeping in view the above factors, causing an injury without intention to kill is not established nor can it be termed as a grievous injury likely to cause death. Ocular testimony can prevail in such circumstances to the extent as pointed out by the Apex Court in the case of Ram Bali Vs. State of U.P., 2004 (10) SCC 598 . 43. Ocular testimony can prevail in such circumstances to the extent as pointed out by the Apex Court in the case of Ram Bali Vs. State of U.P., 2004 (10) SCC 598 . 43. The argument of the learned counsel for the appellants is that blood stains were not proved to be human blood said to be on the shirt or on the plastic sheet that were recovered. This is not very much material in the background that recovery was made in broad day light. Notwithstanding the fact that the items were not sent for serological report, the statement of the Investigating Officer about including recovery and that of PW-5 read conjointly nowhere creates any doubt so as to entertain such an argument. 44. However, there is another lapse in relation to the recovery with regard to firearm. The recovery nowhere indicates signature of any public witness or any of the constables who had accompanied the concerned Sub Inspector of Police. This was therefore rightly disbelieved by the trial court. Consequently, the appellants have been rightly acquitted on that score. 45. However, such lapses in the investigation would not demolish the entire story of lifting of the victim and having been kidnapped for something otherwise. This theory therefore has to be now examined on the basis of the deposition which was developed by PW-2 alleging ransom. It is necessary to examine this in order to establish the essential ingredients of Section 364 IPC for which the appellants were charged. 46. It has to be kept in mind that kidnapping with the motive of killing PW-2 was alleged but the opportunity to eliminate the victim, though was available, he was not eliminated for three days which is by itself indicative of fact that elimination of PW-2 - Kanhai Lal - appears to have not been attempted by the accused. It appears that when PW-2 was trying to escape after unfolding himself that a scuffle took place with Veer Singh. 47. In this regard, we may examine the statement of PW-2. The only statement which is coming forth is to the effect that when he was lying in the sugarcane field, all the accused were talking among themselves of receiving money for killing the victim. 47. In this regard, we may examine the statement of PW-2. The only statement which is coming forth is to the effect that when he was lying in the sugarcane field, all the accused were talking among themselves of receiving money for killing the victim. This part of the statement does not appear to be correct, inasmuch as, had this been so and had been an act planned for hired killing, the killers would not have waited for money, and rather would have realized the same much before having proceeded to commit the offence. The fact remains that the victim was not done to death and therefore the miscreants were not hired killers. 48. Insofar as the second statement of PW-2, that they were heard talking that if the victim wants to stay alive he should get a sum of Rs.5 lakhs, is concerned, then examining this statement closely, we find that the statement indicates as if money was being demanded from the victim himself. This clearly contradicts the statement with regard to killers hired for eliminating the victim. Had it been ransom then in our considered opinion, the same would have been manifested by the sending of a message to the family members of the victim or through some third person in the village or through some contact inasmuch as the victim remained in the sugarcane field for almost three days without any evidence of outside communication. No such evidence is forthcoming in the statement of any of the witnesses namely PW-1 or PW-3 or any such material on record to indicate that during the detention of PW-2, there was a demand of ransom. The demand of ransom from the victim without any communication from outside to establish the same during the intervening days of his confinement in the sugarcane field is illogical inasmuch as the victim was not carrying anything with him nor was there any recovery of a mobile or something of that sort including a written chit so as to link any demand of ransom by or from anybody. The victim nowhere states that upon a demand by the accused, he had sent any communication to anyone or through any one informing anybody about making arrangements for payment of ransom. The statement of the Investigating Officer nowhere discloses that ransom was the cause of such kidnapping. The victim nowhere states that upon a demand by the accused, he had sent any communication to anyone or through any one informing anybody about making arrangements for payment of ransom. The statement of the Investigating Officer nowhere discloses that ransom was the cause of such kidnapping. In such circumstances, the theory of the prosecution that the victim had been kidnapped for murder or realizing ransom does not appear to have been established by any clinching evidence nor the case relating to ransom had been proved beyond reasonable doubt. 49. In our considered opinion, the kidnapping may have taken place either for any revenge or it may be a case of mistaken identity, the probabilities whereof cannot be ruled out but the fact remains that all the four accused have been recognized by the victim, two of the appellants Veer Singh and Anand clearly by name and the other two were recognized by faces. In such circumstances, the first part of the story of the prosecution that the victim had been lifted and kidnapped and taken to the sugarcane field by all the four appellants is clearly established which stands concluded by the recovery of the victim from the sugarcane field itself. The testimony of PW 2 to this extent, therefore, clearly corroborates the prosecution story with the other evidence discussed above. 50. We are, therefore, prepared to believe this part of the prosecution version in order to convict the appellants for wrongful confinement but not for demand of ransom or murder. 51. The trial Judge misread the evidence and erroneously recorded a conviction under Section 364 IPC, which finding of conviction is not sustainable in the eye of law, instead the conviction under Section 364 IPC is liable to be modified. 52. 51. The trial Judge misread the evidence and erroneously recorded a conviction under Section 364 IPC, which finding of conviction is not sustainable in the eye of law, instead the conviction under Section 364 IPC is liable to be modified. 52. In such circumstances and in view of evidence brought on record, we partly allow the appeals and hold the appellants to be guilty for kidnapping and wrongful confinement of the victim and modify the conviction of the appellants by the trial court for kidnapping for murder to one that of kidnapping or abducting with intent secretly and wrongfully to confine a person in terms of Section 365 I.P.C. We accordingly commute the sentence to the extent that all the appellants shall suffer three years rigorous imprisonment with a fine of Rs.20,000/- each and in case of default in payment of fine they would have to suffer additional imprisonment for three months. 53. It is informed that the appellant Veer Singh has already suffered incarceration right from the inception and has remained in jail for eight years. If he has undergone imprisonment as awarded and modified by us in this judgment, he shall be set at liberty forthwith. In case he has served out the sentence even beyond the period above so as to cover the period of default in payment of fine, he shall not be required to deposit any fine. However, he shall ensure compliance of Section 437A Cr.P.C. 54. The appellants namely Shiv Kumar Singh, Amar Singh and Anand shall surrender and serve out the sentence for the balance of period and any period undergone by them either during trial or pendency of the appeals after conviction shall be adjusted. The fine shall be deposited by these three appellants within one month and in default they shall undergo further three months rigorous imprisonment. 55. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.