IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order : January 28, 2009
Crl. Appeal No. 7/2008
28.01.2009
RAJ KUMAR ..... Appellant
Through : Mr. Jitender Khanna, Advocate
VERSUS
THE STATE (G.N.C.T. OF DELHI) .....Respondent
Through : Mr. Pawan Sharma, APP
Crl. Appeal No. 195/2008
CHANDER SHEKHAR ..... Appellant
Through : Mr. S.B. Dandpani, Advocate
VERSUS
THE STATE (G.N.C.T. OF DELHI) .....Respondent
Through : Mr. Pawan Sharma, APP
CORAM :-
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes.
(3) Whether the judgment should be reported
in the Digest ? Yes.
PRADEEP NANDRAJOG, J.(Oral)
1. Heard learned counsel for the parties.
2. The appellants were charged of having kidnapped Mohit and having
demanded ransom for his release. According to the prosecution not only was
Mohit wrongfully confined, but was fed with some liquid which was found to be a
stupefying drug and additionally was intimidated.
3. The charge faced by the appellants was of having committed
offences punishable under Sections 363/34 IPC; 506 Part II/34 IPC, 328/34 IPC,
341/34 IPC, 343/34 IPC and 364A/34 IPC.
4. The case put up by the prosecution was that on 27.6.2004, Mohit
PW-1, aged about 8 years, had accompanied his parents for a wedding to a
Dharamshala at Bhagwati Vihar, Uttam Nagar, Delhi and around 12 midnight,
proceeded alone to spend the night with one Shama, his sister, who was residing
near the Dharamshala. The appellants who were at the venue of the marriage
followed Mohit and kidnapped him. After having kidnapped Mohit a ransom demand
in sum of Rs.2 lacs for releasing Mohit was raised on his father. It was the
case of the prosecution that Mohit was forced to drink a sour and bitter water
containing drugs; he was kept in unlawful custody and was prevented from moving
around. The prosecution claimed that on receipt of a secret information, the
police team reached village Burari and saw appellant Raj Kumar with the child.
The child was recovered and Raj Kumar was arrested at 2.30 PM on 30.6.2004 Soon
thereafter appellant Chander Shekhar came to the spot and was arrested at 3.00
PM.
5. Mohit PW-1, the child who was stated to be kidnapped, his father
Keshav Kumar PW-2, Pushpa PW-4 the maternal aunt of Mohit, are the star
witnesses of the prosecution and deposed about Mohit attending the marriage and
being found missing. PW-2 father of Mohit and PW-4 the maternal aunt of Mohit,
deposed about ransom being demanded from the father of Mohit.
6. The factum of arrest and the manner in which the investigation
was conducted was sought to be proved through the testimony of ASI Arjun Singh
PW-10 and HC Devender PW-9.
7. With reference to the testimony of PW-1, PW-2 and PW-4, the
learned trial judge has concluded that the charge of Mohit being kidnapped for
ransom and illegally confined, as also intimidated has been successfully
established by the prosecution.
8. In view of the testimony of Dr. Bhatia PW-6, who had examined
Mohit on 30.6.2004 and had opined that nothing could be detected where from it
could be gathered that the child had been given a stupefying substance, the
charge punishable under Section 328 IPC has been held not having been
established.
9. The principal grievance of the learned counsels for the
appellants urged at the hearing of the appeal today is that the learned trial
judge, in a short and a cryptic decision penned in 10 pages, has referred to the
deposition of the witnesses as made during examination-in-chief; the cross-
examination of the witnesses has been ignored. It is urged that the inherent
improbabilities in the versions given by the witnesses has been ignored and that
the witnesses have contradicted themselves on material facts has been ignored.
It is urged that tell-tale circumstances have been ignored. It is urged by the
learned counsels for the appellants that it is settled law that at a criminal
trial, evidence has to be evaluated keeping in view the broad circumstances and
the probabilities of the case.
10. The involvement of the police is to be traced to Ex. PW-7/A,
when on a written complaint made by Keshav Kumar PW-2 before the duty constable
at Police Post, East Uttam Nagar, on 28.6.2004, a DD entry was recorded to the
effect that Keshav Kumar has reported at the police post that Keshav Kumar along
with his family had attended a marriage at V-93, Sector A, Bhagwati Vihar, Uttam
Nagar on 27.6.04 and that his son named Mohit aged 8 years was missing since 12
in the night. The DD entry was recorded and attempts were made to locate the
where-about of Mohit. On 30.6.2004, statement Ex. PW-2/B, of Keshav Kumar was
recorded, in which, with reference to his earlier complaint, he stated that his
child was missing and had not been found. He stated that he suspects the
involvement of appellant Chander Shekhar son of Raja Ram, resident of A Block,
Vijay Nagar, Ghaziabad, U.P. He gave the reason for his suspicion being that
Chander Shekhar was found missing from the venue of the marriage soon after
Mohit was found missing and had attended the marriage uninvited.
11. The Police claims, as per the testimony of the Investigating
Officer, ASI Arjun Singh PW-10, that on a secret information received the police
party went to Burari, accompanied by father of Mohit and saw Mohit with Raj
Kumar. The child was recovered and Raj Kumar was arrested and after 15 minutes
accused Chander Shekhar was also noticed in the area and was apprehended.
12. In his testimony, Mohit PW-1, the child kidnapped, deposed that
on 27.6.2004 he had come to Delhi from Ghaziabad with his parents to attend a
marriage in a Dharamshala and the same night he left for the house of his Didi,
Shama, who lived nearby and that just outside the house of his Didi, the accused
caught him and pressed his mouth; telling him that they would leave him at the
house of his ?Badi Mummy?. He deposed that he was forcibly removed in a vehicle
and was threatened to keep shut. He was made to drink a sour and bitter water.
He was fed half roti a day. He deposed that after four days when both the
accused were roaming by holding his finger at an unknown place, his father along
with the police reached, and he was rescued.
13. Being relevant, we may note that Mohit has categorically
deposed that the accused persons had been feeding him and that both accused
persons had jointly, in concert, kept him under an illegal confinement. He has
not stated of any other person being present at the place where he was illegally
confined. On cross-examination, he categorically stated: ?I remained with
accused persons for four days?.
14. Keshav Kumar PW-2, deposed about having attended a marriage in
Uttam Nagar. He affirmed having made the statement Ex. PW-2/B to the police
pursuant where to the FIR was registered. He deposed that accused Chander
Shekhar and Raj Kumar were his neighbours. He deposed that since his son could
not be traced, he made the statement Ex.PW-2/B which bore his signatures at
point B in which he disclosed his apprehension of Chander Shekhar being the
suspect inasmuch as he i.e. Chander Shekhar had attended the marriage without
being invited as a guest and had gone missing since the time his son had gone
missing. He went on to depose that on 1.6.2004, at about 5.00 AM, while they
were tracing his son and were present at Sant Nagar Burari, he saw accused Raj
Kumar with his son and soon thereafter accused Chander Shekhar reached there.
He deposed that his son was recovered in his presence. He further deposed that
at 12 midnight, accused Chander Shekhar had demanded a ransom of Rs. 2 lacs from
him. On being cross-examined, Keshav Kumar stated that he had searched for his
son on 28.6.2004, firstly at Uttam Nagar and then at Ghaziabad on 28.6.2004 He
stated that they came back from Ghaziabad on 29.6.2004 He categorically stated:
?Both the accused persons were with me when I was returning from Ghaziabad on
29.6.04?.
15. We may note that the date 1.6.2004 appears to be a typographic
mistake and consistent with his deposition, he appears to have disclosed the
date as 30.6.2004 But the same is irrelevant.
16. Pushpa PW4, the maternal aunt of Mohit, deposed that Mohit was
found missing on 27.6.2004 and an attempt was made to trace him. She deposed
that accused Chander Shekhar was present at the marriage without being invited.
She categorically deposed that: ?The accused had accompanied us to trace my son
and thereafter he had gone to Ghaziabad and disappeared thereafter?. On being
cross-examined she stated that: ?On the third day of the marriage the accused
denied his involvement in this case and requested us not to doubt him. Accused
was made to live with us and was required to sleep with us but he told us that
he is feeling suffocated and he is allowed to go to his home. During night
accused confessed that the child is in the custody of a gang and in case Rs. 2
lacs and one Maruti car is given he can get the child released. Thereafter
accused was handed over to the police at about 2 a.m. in the night.?
17. H.C. Devender PW-9 deposed that the child was recovered from
the custody of Raj Kumar at about 2.45 PM. The date referred by him is
23.6.2004
18. ASI Arjun Singh PW-10 deposed that on receiving a secret
information that the kidnapped child was seen at Burari, he along with HC
Devender, Const. Virender and father of Mohit went to the village Burari and saw
the child in custody of accused Raj Kumar who was apprehended and soon
thereafter Chander Shekhar, who visited the spot was also arrested.
19. We note that as per the arrest memo of Raj Kumar, he has been
shown to be arrested at 2.30 PM and Chander Shekhar has been shown to be
arrested at 3.00 PM. The two arrest memos are Ex. PW-2/D and Ex. PW-2/E
respectively.
20. It is trite that a charge of kidnapping for ransom succeeds if
demand of ransom is proved. In this case the demand of ransom is sought to be
proved through the testimony of PW-2 and PW-4.
21. It is interesting to note that as per PW-2, the demand of
ransom was raised on him by accused Chander Shekhar at 12 midnight on 29.6.2004
Had it been so, in his statement to the Police Ex. PW-2/B made by him on
30.6.2004, he would have certainly disclosed the said fact. The omission to
disclose to the police, in the statement that the previous night a demand for
ransom in sum of Rs.2 lacs was raised, casts a doubt on the testimony of PW-2.
We note that in the statement Ex.PW-2/B, PW-2 has stated that he suspects the
involvement of accused Chander Shekhar for the reason that he had not seen
Chander Shekhar since the time his child was missing and that Chander Shekhar
was a gate crasher at the wedding. It is interesting to note that this version
of PW-2 stands belied by his testimony in Court when during examination-in-chief
he stated that the accused had demanded ransom from him at 12 midnight on
29.6.2004 Obviously, Chander Shekhar had met the witness on 29.6.2004, as per
the deposition of the witness. But, what is of greater significance is the fact
that on being cross-examined, PW-2 stated that when they found their son missing
at the night of 27.6.2004 they searched for the child at Uttam Nagar on
28.6.2004 and then at Ghaziabad at 28.6.2004; they returned from Ghaziabad on
29.6.2004 He categorically stated: ?Both the accused persons were with me when
I was returning from Ghaziabad on 29.6.04?. Obviously, the appellants were
helping out PW-2 in the search of his son. They were accompanying PW-2 when he
went to Ghaziabad on 28.6.2004 and returned with him on 29.6.2004
22. This also means that both the accused persons could not be
illegally confining Mohit on 28.6.2004 and 29.6.2004 If they had indeed
kidnapped the child, they would, per-force, have had to hand over the custody of
the child to some other person because they were supposed to be with PW-2 and
helping him in searching his son.
23. It is important to note that Mohit has nowhere stated that any
other person was present when he was kept in illegal confinement. On the
contrary he has categorically deposed that during his entire period of illegal
detention the accused persons were present around him. In this connection we
may also note that on further cross-examination, PW-2 stated that the suspicion
on accused Chander Shekhar was roused in his mind when Chander Shekhar indicated
demand of money during the night of 28.6.2004 This makes the case of the
prosecution even more puzzling, for the reason, if this was true PW-2 would
naturally have rushed to the police and disclosed said information and get
Chander Shekhar apprehended at the spot.
24. The infirmities in the case of the prosecution get compounded
from the testimony of Pushpa PW-4 who has contradicted the father and the son
i.e. Keshav Kumar and Mohit. According to her, accused Chander Shekhar was
required to sleep with the family and on the third day of the marriage, during
the night confessed that the child is in the custody of a gang and stated that
if ransom in sum of Rs.2 lacs and one Maruti Car was given, the child would be
released. She categorically stated that the accused was handed over to the
police at about 2.00 AM in the night.
25. Now, the admitted case of the prosecution is that the marriage
took place on 27.6.2004 Three days after the marriage would be 30.6.2004 Thus,
as per Pushpa PW-4, the accused Chander Shekhar was handed over to the Police at
about 2.00 AM i.e. the intervening night of 30.6.2004 and 1.7.2004
26. It is unfortunate that the learned trial judge has failed to
note the afore-noted inconsistencies in the deposition of the witnesses of the
prosecution; which needless to state, are material contradictions.
27. The circumstance of ransom being demanded in the night of
28.6.2004 or in the night of 29.6.2004 is rendered extremely improbable because
the statement Ex.PW-2/B made by PW-2 to the police on 30.6.2004 does not refer
to any such demand for ransom being made.
28. We note that in their statements recorded under Section 313
Cr.P.C. both appellants have stated that they have been falsely implicated due
to enmity. We note that accused Raj Kumar has stated that he had to pay money to
PW-2 and that he was falsely apprehended when he went to the house of PW-2 to
seek some further time to repay the loan.
29. The possibility of the appellants being falsely implicated by
PW-2 to extract the return of his loan cannot be ruled out.
30. The appeals are allowed. Impugned judgment and order dated
10.8.2007 convicting the appellants is set aside. The appellants are acquitted
of all the charges framed against them. The order of sentence dated 17.8.2007
is quashed.
31. If not required in any other case, the appellants are directed
to be set free forthwith.
32. Copy of the order be sent to the Superintendent, Tihar Jail,
through special messenger.
(PRADEEP NANDRAJOG)
JUDGE
(ARUNA SURESH)
JUDGE
January 28, 2009
jk
Crl. Appeal Nos. 7/2008 and 195/2008 Page 1 of 1
