Holding

The facts establish kidnapping with the intent to murder, thereby constituting an offence under Section 364 IPC, and the conviction is upheld.

Summary

The appellants Badshah and others were accused of kidnapping Suraj Pal Singh on 23 May 1980, armed and stating they would kill him. The victim was never seen again, and the prosecution relied on eyewitness testimony that the accused had expressed intent to murder. The trial court convicted them under Section 364 of the Indian Penal Code (kidnapping for murder) and sentenced them to seven years' rigorous imprisonment; the High Court affirmed. On appeal, the Supreme Court examined whether the facts established the requisite intent for Section 364 and whether a conviction could stand without proof of death. It held that the circumstances—armed abduction, explicit statements of intent to kill, and the victim’s disappearance—sufficiently inferred the intent to murder, and the presumption of death under Section 118 of the Evidence Act allowed conviction under Section 364, though a charge under Section 302 could not be made without proof of death. The Court dismissed the appeal, upholding the conviction.

Issues considered

Whether the facts constitute kidnapping in order to murder under Section 364 IPC.
Whether a conviction under Section 364 can be sustained without proof of death or corpus delicti.
Whether Section 106 of the Evidence Act applies to draw an inference of murder in the present case.

Legislation cited

Indian Evidence Act, 1872s. 106, s. 118
Indian Penal Code, 1860s. 302, s. 359, s. 362, s. 364

Subjects

kidnappingmurderSection 364 IPCpresumption of deathcorpus delictiSection 106 Evidence Actcircumstantial evidenceSupreme Court

Judgment

[2008] 2 S.C.R. 766

A BADSHAH AND ORS. ...
II.
STATE OF U.P.
(Criminal Appeal No. 554 of 2005)
FEBRUARY 12, 2008
B
[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
said criminal cases. The fact that the appellants were B
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.
It is also significant that PW2, in his deposition, E
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
in the night heavily armed, took the deceased away
--4 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.
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
D No. 554 of 2005. ·
From the Judgment and final Order dated 5.7.2004 of the _.
High Court of Judicature at Allahabad in Criminal Appear No.
1879/1981.
E Pramod Swarup for the Appellants.
Ratnakar Dash, Sandeep Singh, Anuvrat Sharma and
Chandra Prakash Pandey (N.P.) for the Respondents.
The Judgment of the Court was delivered by
F S.8. SINHA, J. 1. Appellants herein are residents of village k
I
•
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
G 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 belongs to. Two
criminal cases were instituted against the pro'secution witnesses
H by the accused. They were, however, acquitted. Su raj Pal Singh
I ...
BADSHAH AND ORS. v. STATE OF U.P.
[S.B. SINHA, J.]
769

son of Jagal Lal, admittedly, was looking after the said cases. A
2. A 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 B
and ready for thrashing, the appellants herein as also Buddhi.
-1 (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 c
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 D
prosecution witnesses narrated the incident to him. An abortive
search was made for Suraj Pal.
He was not found and as such a First Information Report
was lodged wherein apprehension was expressed as regards
danger to the life of the said Su raj Pal Singh. E
3. The 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 ,,
fo~ seven years. However, accused No.6, Budd hi was acquitted.
F
4. An appeal preferred by the appellants has been
dismissed by the High Court by reason of the impugned
judgment.
5. Mr. Swarup, learned counsel appearing on behalf of the
appellant, submitted that no evidence having been brought on G
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 H
770 SUPREME COURT REPORTS
""'
[2008] 2 S.C.R.

A of the Indian Penal Code has been made out.
6. Mr.Ratnakar Dash, learned senior counsel appearing -
on behalf of the respondent, on the other hand, supported the
impugned judgment.
B 7. 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,
c according to the appellants, also gives rise to a suspicion . It
was furthermore contended that all the prosecution witnesses
are interested.
The learned Trial Judge , however, relied upon the
deposition of PW-1 and PW-2 to hold that all the charges for
D 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
E 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.
8. The learned Trial Judge furthermore found that PW-1
F has rendered sufficient explanation for the delay in lodging the
First Information Report as the kidnapped persons we re
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
G village, no independent witness was available. PW-2, however,
was considered to be an independent witness .
9. The High Court affirmed the said finding by reason of
the impugned judgment.
H 10. Before embarking upon the legal issue, we may notice
.,""'
) "'f
'\
BADSHAH AND ORS. v. STATE OF U.P. 771
~ [S.B. SINHA, J.]
-1
the definition of kidnapping and abduction, as contained in A
Section 359 and 362 of the Indian Penal Code which are in the
.
following terms :
· "359KidnappingKidnapping is of two kinds :
kidnapping from India, and kidnapping from lawful B
guardianship.
362AbductionWhoever by force compels, or by any
deceitful means induces, any person to go from any place,
is said to abduct that person."
c
We may also notice Section 364 of the Indian Penal Code
which reads as under :
"364Kidnapping 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 D
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."
11. Ingredients of the said offence are (1) Kidnapping by E
the accused must be proved; (2) it must also be proved that he
was kidnapped in order to; (a) that such person may be
murdered; or (b) that such person might be disposed of as to
be put in danger of being murdered.
F
The intention for which a person is kidnapped must be
gathered from the circumstances attending prjor 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. G
12. 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 H
y
772 SUPREME COURT REPORTS [2008] 2 S.C.R.

A at the place of occurrence also stands established. Appellant,
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.
13. Indisputably, Suraj Pal Singh has not been seen
B 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 ,A

dead. But in absence of any proof of death having been caused
to him, a charge under Section 302 of the Indian Penal Code
C 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.
14. Although the First Information was iodged on 24.5.1988,
the Investigating Officer did not find the appellants in their house.
D 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.
It is also significant that PW-2, in his deposition,
E 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, th_ey should run away.
F 15. 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 facfthat there had been a deep-
rooted enemity between the accused persons and Suraj Pal
Singh, it will bear repetition to state, stands established. They
G 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.
H 16. The question as to on whom the onus lies would
"'(

BADSHAH AND ORS. v. STATE OF U.P. 773
[S.B. SINHA, J.]
1 depend upon the facts of each case. We may at this juncture A
notice a few decisions operating in the field.
In Murlidhar & 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 . B
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. c
17. However, in Ram Gu/am 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, D
~
opining that the burden to prove was on the accused, stated:
"Even otherwise, in our view, this is a case where Section
106 of the Evidence Act would apply.· Krishnanand
Chaudhary was brutally assaulted and then a Chhura blow E
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. The
.., Appellants have given no explanation as to what they did
F
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 G
---4 . to have explained what they did with him after they took
him away. When the abductors with~ld 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 H
774 SUPREME COURT REPORTS [2008] 2 S.C.R.

A relieve the prosecution of its burden to prove the guilt of r
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 .
B 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 Mr. Mishra."
18. In Sucha Singh v. State of Punjab [(2001) 4 SCC 375],
C 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
D explanation which might drive the court to draw a different
inference.
19. In the event of murder of an abducted person, either by
direct or presumptive evidence, an inference of murder can
.E safely be drawn in resepct whereof, it would not be necessary
to prove the .corpus delicti.
In Ramjee Rai & Ors. v. State of Bihar [2006 (8) SCALE
440], this court observed :
"It is now a trite law that corpus delicti need not be proved.
F 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 c.onviction can be recorded even in absence
of the dead body."
G 20. 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.
21. This appeal is, therefore, dismissed.

H D.G. Appeal dismissed.