JUDGMENT : ABHAI KUMAR, J. 1. This jail appeal has been preferred by the appellant from jail against the judgment and conviction dated 28.2.1996 passed by Additional Session Judge, Court No.VI in S.T. No.12 of 1994 (State of U.P. v. Iqram) arising out of Case Crime No.185 of 1991, under Section 364 I.P.C., Police Station Kairana, District Muzaffar Nagar, whereby the appellant was convicted for 10 years rigorous imprisonment along with fine of Rs. 5,000/- and in case of none payment of fine, he will further undergo one year additional rigorous imprisonment. 2. Brief facts of the case are as follows: On 30.10.1991 an FIR was lodged at Police Station Kairana, District Muzaffar Nagar in the night at 11.30 P.M. showing the incident of same day, wherein it has been stated that the brother of complainant Pradeep was at his shop along with his brother Arjun and one Madan Lal, then one person came to the shop for purchase of cigrate whereas his associates remained outside the shop. The person who was there to purchase the cigrate asked the name of brother of complainant and when the brother of complainant apprise his name as Pradeep, then it was inquired whether brother of complainant sales bombs and crackers and when node is given by brother of complainant, it is stated by that person that daroga ji is calling you and brother of complainant came out of the shop, three persons kidnapped Pradeep out of them one person with the help of gun point asked for silence from the rest of the person present there and they escorted the brother of complainant and went away from there. There was light of bulb and accuseds were clearly identified by the persons, who were in the shop. After two days of the incident, the police recovered the victim Pradeep from the field of sugarcane but could not arrest any of the accused on spot. The victim Pradeep was given in custody of complainant after recovery and in the statement of victim Pradeep, the complicity of the appellant is being shown. The victim was injured at the time of recovery. He was also medically examined after recovery. After investigation, the complicity of the appellant was found true by the investigating officer and accordingly he submitted the charge sheet against the appellant. 3. The victim was injured at the time of recovery. He was also medically examined after recovery. After investigation, the complicity of the appellant was found true by the investigating officer and accordingly he submitted the charge sheet against the appellant. 3. During trial, the charge under Section 364 I.P.C. was framed against the appellant from which he denied and claimed trial. The prosecution in support of its case produced 5 witnesses, PW1 Mukut Kumar, who is complainant of the case but he is an eye witness of incident and at the time of incident he was in Jhijhana town and after receiving information regarding kidnapping from his brother Arjun and villagers, he got the FIR lodged. PW2 is victim Pradeep Kumar who has supported the case of the prosecution and specifically stated that it was appellant who kidnapped him and kept him in sugarcane field, from where he was rescued by the police and during rescue operation fire was exchanged between the accuseds and police. The accused persons including the appellant fled away from the place of incident leaving behind the victim in the field. PW3 Arjun, the brother of victim, who also supported the case of the prosecution and has corroborated the story of kidnapping and has clearly stated that he saw the appellant when he came to the shop of his brother Pradeep. This witness is also identified the appellant in the court. PW4 Hariram initially investigated the case, whereas later on charge sheet is being submitted by the inspector Rameshwar Dayal, the investigation done by the witnesses is being proved by him and in the statement it has been stated that inspector Rameshwar Dayal was posted with him and he has seen him writing and also recognizes his signature and handwriting of Rameshwar Dayal. PW5 Dr. Naresh Kumar Sharma who conducted the medical examination of victim after he was recovered on 1.11.1991 and found as many as six injures are upon the victim. As per his statement, the injuries could have been caused by the butt of the gun as well as by friction. The injuries were said to have been caused 1 to 3 days ago. After the prosecution evidenced, the statement of appellant under Section 313 Cr.P.C., 1973 is being taken wherein a false implication due to enmity is being claimed but no oral or documentary evidence is being given. 4. The injuries were said to have been caused 1 to 3 days ago. After the prosecution evidenced, the statement of appellant under Section 313 Cr.P.C., 1973 is being taken wherein a false implication due to enmity is being claimed but no oral or documentary evidence is being given. 4. The trial court after hearing the parties and after perusal of record, came to the conclusion that prosecution has succeeded in proving the guilt against the appellant beyond all reasonable doubt and convicted him accordingly. 5. During the appeal as appellant did get his counsel engaged so Ms. Mridual Tripathi, Advocate is appointed as Amicus Curiae to assist the Court from the side of the appellant to decide the matter. 6. Heard learned Amicus Curiae Ms. Mridual Tripathi as well as learned A.G.A. for the State and perused the record. 7. Learned Amicus Curiae has raised same questions, which were being raised before the trial court concerned. The first submission of learned Amicus Curiae is regarding the identification of appellant and it is vehemently argued by the learned Amicus Curiae that appellant, as per prosecution story, was know to the witnesses including the victim and appellant was also arrested when the victim is being rescued, identification parade ought to have been conducted from the prosecution side and in absence of identification parade, the complicity of the appellant is doubtful. It is next contended by the learned Amicus Curiae that statement of victim was taken after 20 days of his recovery and there is no explanation regarding the delay in recording the statement of victim by the investigating officer. On the basis of delay in recording the statement of victim, the story of the prosecution is vitiated and cannot be accepted. It is next contended by the learned Amicus Curiae that there is no motive of the incident and only in the fag end of examination-in-chief in the court the victim stated that accused persons were talking that in case ransom is being given, they would kill the victim. It is next submitted that nothing was recovered from the place of recovery, which can prove that victim was kept there for 2 days. It is next submitted that except for PW2 Pradeep the victim, no other witness of recovery is being produced. None of the police persons of raiding party is being produced to prove the recovery. 8. It is next submitted that nothing was recovered from the place of recovery, which can prove that victim was kept there for 2 days. It is next submitted that except for PW2 Pradeep the victim, no other witness of recovery is being produced. None of the police persons of raiding party is being produced to prove the recovery. 8. Per contra, learned A.G.A. has submitted that prosecution has proved its case beyond all reasonable doubt. The kidnapping is being proved by the victim himself as well as by PW3 Arjun, the brother of victim. The recovery is also being proved by the victim himself coupled with injury report, which is being proved by the doctor. 9. The point of kidnapping is being proved by the victim himself as well as by his brother PW3 Arjun. Both have clearly stated that one of the accused persons came to the shop of victim Pradeep and asked for cigarate and then asked the name of victim and when victim nodded positively then he was taken outside the shop from where he is being kidnapped. PW3 has also clearly stated that he along with one another person, namely, Madan were in the shop did raise any alarm as one of the accused persons has threatened them on the point of gun. It is stated by this witness that appellant was known to him, but identification of the appellant is being conducted by the investigating officer, though this witness did identify the appellant in the court during his statement as PW3. The point of identification will be discussed later on. 10. The statement of PW3 is corroborated by the victim himself. Except for the minor contradictions, there is nothing untoward in the statement of PWs 2 and 3, which can belie their truthfulness and it can be said that statement of PW2 ably supported the statement of PW3. The trial court also observed like that and also came to the conclusion that kidnapping from the shop is being proved from the statement of PWs 2 and 3. 11. So far as the recovery of victim is concerned, only the statement of victim is there and in the circumstances, his statement is liable to be scrutinized minutely in case his statement is clear and cogent and his veracity is being breached by the defence side. His solitary statement can very well be sufficient for the conviction. 11. So far as the recovery of victim is concerned, only the statement of victim is there and in the circumstances, his statement is liable to be scrutinized minutely in case his statement is clear and cogent and his veracity is being breached by the defence side. His solitary statement can very well be sufficient for the conviction. 12. It is worthwhile mentioning here that defence side has utterly failed to prove any enmity with the complainant or complainant side. Although some suggestions are being given to the witnesses that prosecution side is having enmity with uncle of appellant and appellant was known to the victim very well. Even if it is presumed that appellant was known to the victim prior to the incident, then enmity of victim with the appellant is being proved by any cogent evidence. Except for few suggestions to the witnesses, defence side has come forward with straightforward explanation regarding enmity. At no point of time it is being suggested to the witnesses that certain incidents took place and that is why enmity was there. Except for suggestions that such and such person is living in the village and due to enmity with them, the appellant is being falsely implicated in the matter. It was incumbent upon the appellant and he ought to have produced certain positive evidence in this regard. In the statement recorded under Section 313 Cr.P.C., 1973 only this much has been stated by the appellant that his uncle (mama) Badlu and Umardeen was having dispute with Pradeep and that is why a false case is being made. 13. The defence side has utterly failed to prove the enmity with the victim and victim has also claimed any enmity with the appellant and in the circumstances, false implication of the appellant is ruled out. 14. In the light of the above facts, if the statement of victim is being considered, then it is found that the statement of victim is straightforward to the point and there is no twist and turn in the statement. He has categorically stated that he is being kidnapped from his shop then taken to the sugarcane field where he was kept for two days and police recovered him from there. He has categorically stated that he is being kidnapped from his shop then taken to the sugarcane field where he was kept for two days and police recovered him from there. Exchange of fire is also stated by him and it is also his statement that accused persons did ask him to accompany while fleding away from the sugarcane field. The statement of victim is natural and trustworthy and there is nothing which belie the truthfulness. Although from the place of incident, nothing is being recovered from which it can be inferred that food items are being prepared there. This fact does go to the root of the matter and cross-examination on this point is being elaborately made. It is asked from the witness as to how food is being provided to him for two days or whether no food is being given to him at all. In absence of any cross-examination on this point, no adverse inference can be drawn against the prosecution. The injuries to the victim also support the statement of victim. PW5 doctor as stated that these injuries could have been caused by friction as well as by butt of gun. Even after careful scrutinization of the statement of victim PW2, no adverse inference can be drawn and it cannot be said that victim PW2 is narrating the correct facts or he is lying. The statement of victim regarding recovery, coupled with injury report and amply supported by PW3 Arjun regarding kidnapping, on the basis of solitary statement regarding recovery by the victim, the case of kidnapping is being proved against the appellant. Although the appellant was known to the victim, but he has stated that inside of sugarcane field, the accused persons were taking the name of each other by which he came to know the name of the appellant. 15. The submission of learned Amicus Curiae is that the statement of victim was taken after twenty days of the incident and there is no explanation in this regard. The delay in taking the statement of victim is fatal for the prosecution. In support of her contention the learned Amicus Curiae has relied upon following judgments of Hon'ble Apex Court: 1. Jagjit Singh Alias Jagga v. State of Punjab, 2005 SCC (Criminal) 893. 2. Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and others, 2004 SCC (Criminal) 2032. 3. The delay in taking the statement of victim is fatal for the prosecution. In support of her contention the learned Amicus Curiae has relied upon following judgments of Hon'ble Apex Court: 1. Jagjit Singh Alias Jagga v. State of Punjab, 2005 SCC (Criminal) 893. 2. Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and others, 2004 SCC (Criminal) 2032. 3. Jai Pal and others v. State of U.P., 2003 SCC (Criminal) 1737. 16. In the above referred case laws, the Hon'ble Apex Court has clearly observed that delay in recording the statement of witnesses can be fatal to the prosecution in case the delay is being explained. This point was also raised before the trial court, but trial court did accept the contention on the ground that immediately after recovery of victim the investigating officer went to the place of victim, but did find him there and that is why he could record the statement of victim immediately after his recovery. From the statement of investigating officer PW4 of the case, it can be inferred that he did try to meet the victim immediately after knowing his recovery on 1.11.1991, but the victim was available and after that he was busy in getting the accused persons traced out. The delay in taking the statement of PW2 by the investigating officer is being explained from the prosecution side. On this point also, no elaborate cross-examination is being done. 17. In absence of any clear-cut picture regarding non recording of statement of witness during investigation from prosecution side, it cannot be said that same was deliberate. The medical examination of the victim was conducted on the same day when he was recovered and as such it cannot be said that the delay in recording the statement was deliberate and any benefit could have been gained due to delay in recording the statement of victim. So the contention of learned Amicus Curiae in this regard is sustainable and no benefit can be accorded to the defence side on the basis of delay in recording the statement of victim. 18. The last contention of learned Amicus Curiae is regarding the identification of the appellant. 19. The learned Amicus Curiae fortified her contention by placing law propounded by the Hon'ble Apex Court in the following cases: 1. Jadunath Singh and another v. State of U.P., AIR 1971 SC 363 (V 58 C 88). 2. 18. The last contention of learned Amicus Curiae is regarding the identification of the appellant. 19. The learned Amicus Curiae fortified her contention by placing law propounded by the Hon'ble Apex Court in the following cases: 1. Jadunath Singh and another v. State of U.P., AIR 1971 SC 363 (V 58 C 88). 2. Gopal and others v. State of U.P., 2003 SCC (Criminal) 1539. 20. On the basis of law propounded by Hon'ble Apex Court, it is submitted by learned Amicus Curiae that test identification becomes necessary for investigating officer when eye witness questioned by him had given the identification/identity of assailants. It is further observation of the Apex Court that when details of name of assailants in the FIR itself is given, then test identification is necessary. The trial court also considered this point and came to the conclusion that victim remained with the appellant for two days, then there was no necessity of the test identification. 21. Certainly, the point of identification is an important aspect especially when accused persons are named in the FIR, but in case specific identification is being given by the witnesses during trial, then it was upon the investigating officer to get the test identification done or not. 22. In the present case as observed by the trial court that victim remained with the appellant for two days and as such all the points of identification could have revealed by the witnesses to the investigating officer and, in the circumstances, if no test identification is being conducted, then same cannot be said to be adverse. As already said that witnesses are being cross-examined elaborately on all aspects of the incident and similarly on the point of identification, no specific questions are being asked from the witnesses. The questions are being asked from PW2 regarding the identification of the appellant. Similarly no question is being asked from the investigating officer PW4 whether witness gave any details of the accused persons or not. In the circumstances, test identification on the part of PW3 was required as he saw the appellant only at the time of kidnapping. The explanation in this regard is being put forward by the trial court that PW3 identified the appellant in the court and same can also be accepted as proper identification can be taken into consideration for convicting the appellant. The explanation in this regard is being put forward by the trial court that PW3 identified the appellant in the court and same can also be accepted as proper identification can be taken into consideration for convicting the appellant. Similar is the case of PW2, who also identified the appellant in the court while his statement is being taken and, accordingly, it cannot be said that due to non conducting the test identification during the investigation is fatal. 23. The point regarding identification test is being raised from the side of defence is also superfluous. The case put forward by the defence side regarding enmity is also adverse to the defence side. It is being claimed by the defence side during cross examination of witnesses that appellant was very well known to the victim and he used to come to the village of the victim as uncle of the appellant is resident of village of victim. The deffence side itself is claiming that appellant was very well known to the victim, then question of identification was immaterial and even if any identification would have been done, it could have been a formality, although the prosecution side is claiming any such enmity or knowing the appellant prior to the incident. This court is of the view that non conducting of identification parade is very material in the facts and circumstances of the case and same cannot be made basis for acquittal. 24. On the basis of forgone conclusions, this Court is of the view that defence side has utterly failed in proving any infirmity or ambiguity in the conviction order made by the trial court. 25. In view of the above observations, the appeal fails and is liable to be dismissed. It is, accordingly, dismissed. 26. The learned Amicus Curiae Ms. Mridul Tripathi will be paid Rs. 10,000/- for conducting the case on behalf of appellant and for assisting this Court in deciding the present appeal. 27. Office is directed to initiate the payment to the Amicus Curiae within two months from today. 28. From one of the report upon record from Jail Superintendent, Muzaffar Nagar, it can be inferred that appellant absconded from police custody on 17.1.1997 from the court premises and it has not been verified whether the appellant has been readmitted to jail or not. 29. 28. From one of the report upon record from Jail Superintendent, Muzaffar Nagar, it can be inferred that appellant absconded from police custody on 17.1.1997 from the court premises and it has not been verified whether the appellant has been readmitted to jail or not. 29. Trial court is directed to ensure that in case the appellant has not completed his punishment then he be apprehended and sent to jail for serving out his remaining punishment. 30. Lower court record with the copy of judgment be sent back immediately for necessary action.