Dalip Singh vs The State
2008 Latest Caselaw 2298 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRL.M.B. No.222/2008 in Crl. APPEAL No.110/2008

%                         Date of Decision: 19.12.2008

Dalip Singh                                         .... Appellant
                      Through Mr.R.N. Mittal, Sr. Advocate with
                              Mr.Manoj Kumar, Advocate.

                                  Versus

The State                                          .... Respondent
                      Through Mr.M.N. Dudeja, APP for the State
                              along with SI Satvinder Singh and ASI
                              Gopi Chand, P.S. Malviya Nagar.
                              Mr.Chandra Shekhar, Advocate for the
                              complainant.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE V.K. SHALI

1.   Whether reporters of Local papers may be                   Yes
     allowed to see the judgment?
2.   To be referred to the reporter or not?                     No
3.   Whether the judgment should be reported in                 No
     the Digest?


ANIL KUMAR, J.

*

1. The appellant/applicant seeks suspension of his sentence during

the pendency of the appeal and his release on bail on the ground that

he has been in custody since 31st October, 2000 and he has a good

prima facie case in his favour and the balance of convenience also lies

in his favour and there is likelihood of his success in the appeal. It is

also contended that according to the various pronouncements of the

Supreme Court and this Hon‟ble Court, in cases of life convicts, if such

a convict is in custody for a period of more than five years then he

deserves to be released on bail.

2. The appellant is stated to be a permanent resident of Gurgaon,

Haryana having roots in the society and, therefore, it is contended that

there is no likelihood of his fleeing from justice.

3. The applicant had also filed an application for interim suspension

of his sentence on the ground that the wife of the applicant is suffering

from angina and she had to undergo angiography in Criminal M.B

No.343/2008 which was allowed by order dated 7th March, 2008 and

the applicant‟s sentence was suspended upto 24th March, 2008 and he

was directed to be released on interim bail on furnishing personal bond

for Rs.25,000/- with one surety of the like amount to the satisfaction of

the trial Court. The interim bail granted to the applicant was somehow

extended on same terms and conditions by order dated 24th March,

2008 upto 11th April, 2008. On 11th April, 2008 the matter was

adjourned to 23rd April, 2008 and interim bail was extended on the

same terms and conditions. On 23rd April, 2008 the matter was again

adjourned to 7th May, 2008 and the interim bail was extended till 7th

May, 2008. On 7th May, 2008 the regular bench did not assemble.

Therefore, the matter was adjourned to 13th May, 2008 and interim bail

was also extended till 13th May, 2008. On 13th May, 2008 the matter

was ordered to be listed before another bench as one of the Hon‟ble

Judge had recorded the evidence of prime witnesses as Additional

Sessions Judge and, therefore, the matter was adjourned to 20th May,

2008 and the interim bail was extended. On 20th May, 2008 the matter

was again adjourned to 4th August, 2008 and the interim bail was

extended till 4th August, 2008. On 4th August, 2008 the counsel for the

complainant appeared and pleaded that he has a right to be heard and

oppose the bail application and at his request the matter was renotified

for 5th November, 2008 and the interim bail was extended. On 5th

November, 2008 adjournment was sought by the counsel for the State

and, therefore, the matter was adjourned to 28th November, 2008 and

the bail was extended. On 26th November, 2008 an application was filed

before 28th November, 2008 for adjournment on account of bereavement

in the family of the learned counsel for the applicant and, therefore,

28th November, 2008 date was cancelled and the matter was adjourned

to 16th December, 2008 and the interim bail was extended. The matter

has been heard on 16th December, 2008, 18th December, 2008 and 19th

December, 2008 and interim bail was extended till today.

4. The learned counsel for the applicant has contended that the

angiography had been completed. The interim suspension of the

sentence was granted on account of angioplasty which was to be done

on the wife of the applicant which has already been done and, therefore,

there are no grounds to further extend the interim suspension of

sentence and interim bail of the applicant.

5. The learned counsel for the applicant has sought regular

suspension of sentence during the pendency of the appeal and his

release on bail primarily on the ground that the applicant has already

undergone 7 years of sentence. The learned counsel has taken us

through the evidence in detail and has pointed out certain alleged

contradictions. He has contended that though the applicant was alleged

to have driven the car no finger prints were picked up from the car.

Great emphasis has been alleged by the learned counsel on the fact that

though the mobile was used to convey the ransom calls, however,

neither any mobile was recovered nor any record of service provider has

been established to show that the calls were made nor it has been

established that the phone was in the name of the applicant.

6. The learned counsel has also emphasized that seven persons

namely PW.1 Sh.Rajinder, PW.2 Sh.Gajraj Singh, PW.5 Sh.Dharam Vir,

PW.6 Sh.Ratti Pal, PW.7 Sh.Jagmal Singh and PW.10 Sh.Ramesh have

not supported the version of the prosecution. The learned counsel has

also contended that non production of the driver who was abducted

along with Subhash Batra is fatal to the case of the prosecution.

7. The learned counsel has also referred to the testimony of PW.8

Sh.Shyam Sunder brother of Sh.Subhash Batra who was allegedly

kidnapped by the applicant and has stated that even he has not

supported the prosecution version. The learned counsel has taken us

through the testimony of PW.4 Sh.Subhash Batra who was allegedly

kidnapped and has contended that his testimony is not in consonance

with his statement under Section 161 of the Code of Civil Procedure and

hence, he cannot be termed as reliable witness for conviction of the

applicant.

8. Mr.Mittal, learned senior counsel has also contended that there

was no test identification parade and an application filed on 16th

November, 2008 few days after the alleged incident was not allowed by

the Court and consequently adverse inference has to be taken.

According to him nothing has been recovered.

9. The learned counsel has also emphasized that taking into

consideration the testimonies of the some of the witnesses, which

include pw4, pw9 and pw17 and the version stated in the FIR, no case

under Section 364A of the Indian Penal Code is made out as there were

no threats for any bodily harm to Sh.Subhash Batra which is an

essential ingredient of Section 364A and in absence of the same, if any

case which could be made out against the applicant, it could only be of

Section 363 of the Indian Penal Code and in the circumstances

continuous incarceration of the applicant is contrary to law. The

learned counsel has also asserted that at the time Sh.Subhash Batra

was recovered from the Haveli the premises was not even bolted and in

the circumstances it is not reasonable to infer any threat to such

person. Difference in the ransom demands as in the FIR the amount of

ransom is not stipulated whereas there are different versions regarding

the amount of ransom being Rs.28 lakhs and Rs.35 lakhs have been

given, which casts doubts about the veracity of the prosecution case

and in the circumstances the applicant has a prima facie case. The

learned counsel has also referred about the revolver which was

recovered and which was deposited, however, the same has been

missing.

10. The learned counsel for the appellant has also relied on 2003

Crl.Law Journal 1262, Bhagwan Singh and Ors Vs. State of M.P to

contend that on account of failure to hold a test identification parade,

the applicant cannot be saddled with the offence alleged to have been

committed by him. Reliance has also been placed on 149(2008) DLT

306 (DB), Rafiq & Anr Vs. State to contend that in absence of evidence

in regard to any threat to cause death or hurt to the kidnapped person

and only simple ransom demands made, will not bring the offence

under Section 364A of IPC and the case will only fall under Section 363

of the Indian Penal Code. The learned counsel for the appellant has also

relied on 2007 (1) JCC 216, Lal Ram Vs. State (GNCT) of Delhi; Madan

Gopal Vs. The State (Govt. of NCT of Delhi), 2006 (1) JCC 461; 133

(2006) DLT 315 (DB), Ajay & Anr. V. State of NCT of Delhi; 97(2002)

DLT 776 (DB), Id.Mohd Vs. State; Sudhir Aggarwal & Anr. V. State of

NCT of Delhi, 2005(2) JCC 1049; 2001 (2) JCC (Delhi) 181, Priya Swami

v. The State (N.C.T of Delhi); 2000 Crl.L.J. 4619, Dadu alias Tulsidas v.

State of Maharashtra and AIR 1977 SC 2147, Kashmira Singh v. State

of Punjab to contend that the applicant is entitled for suspension of his

sentence and his release on bail in the facts and circumstances.

11. Mr.Dudeja, learned APP for the State has refuted the pleas and

contentions raised by Mr.Mittal, learned senior counsel for the

applicant. Relying on AIR 2004 SC 4865, Malleshi Vs. State of

Karnataka; Suman Sood alias Kamal Jeet Kaur Vs. State of Rajasthan,

AIR 2007 SC 2774 para 57 and Vinod Vs. State of Haryana, (2008) 2

SCC 466, it is contended that in order to attract the provision of Section

364A what is required to be proved is that the accused kidnapped or

abducted the person and kept him under detention after such

kidnapping and abduction and that the kidnapping or abduction was

for ransom. He contended that if the evidence on record is analysed in

this background of Section 364A of Indian Penal Code, the inevitable

conclusion is that kidnapping was done with a threat to cause death or

hurt to such person and such conduct gives rise to a reasonable

apprehension that such person can be put to death or hurt. The

learned counsel for the State, Mr.Dudeja has also relied on (2004) SCC

638, Kishori Lal v. Rupa and Ors to contend that only in exceptional

cases suspension of sentence and grant of bail should be granted

during the pendency of appeal in the High Court. He stated that in the

said case direction by the High Court in respect of releasing the convict

on bail merely on the ground that during the trial he had not misused

the liberties was set aside and the order for suspension of sentence of

the High Court was set aside.

12. The learned counsel has also contended that period undergone is

not the criterion for suspending the sentence nor the regular

suspension can be granted on the ground that the appellant/applicant

was on interim bail and during the period of interim bail he has not

exploited the liberty granted to him.

13. Regarding non lifting the finger prints, it is contended that the

driver of the vehicle had given the statement that he had washed the

vehicle and in the circumstances no finger prints could be lifted.

Regarding non performing the TIP it has been pointed out that PW.4

Sh.Subhash Batra has categorically stated that the appellant is a

dismissed constable from Delhi Police and he is a terror in the area and

he runs a notorious group by the name of D.K and he knows the

applicant and the other accused very well since past number of years.

In the circumstances, it is contended that not performing TIP was not

fatal.

14. Perusal of the testimony of PW.4 Sh.Subhash Batra reveals that

he deposed categorically that the applicant with other accused had

confined him and his driver in a farm house for 6-7 hours and then

made him make telephonic calls on his residence at about 5.30 PM and

he talked to his wife from the mobile phone given by the applicant. He

deposed that he had told his wife that he was in problem and his son

should be called and, therefore, the call was again made at about 6.45

PM by the applicant to find out if his son had arrived home or not.

Since his son had arrived the call was again made and he spoke to his

son and told that the applicant with other accused are demanding two

crores and he would be let off only if the demand is met. It was also

deposed by PW.4 that the applicant had told him that in case the

demand is acceptable they should display a white flag at the top of the

house indicating that the ransom demand raised by the applicant

another accused is acceptable to them. The victim has also deposed

that he and his driver were removed to village Badshahpur in a maruti

car in a haveli and they were lodged in a dingy and dark room of the

haveli.

15. We have perused the entire testimony of PW.4. though there are

certain portions of depositions of PW.4 which are not in consonance

with his statement under Section 161 of the Criminal Procedure Code,

however, on considering the entirety of facts and circumstances it

cannot be held that the deposition of PW.4 is unreliable. Similarly, the

deposition of his son and his wife cannot be held to be unreliable prima

facie in the facts and circumstances.

16. The various alleged discrepancies relied on by the learned

counsel, Mr.Mittal does not appear to be such so as to make the

testimonies of the victim, his son and his wife untrustworthy and to be

rejected in totality. They alleged discrepancies in the totality of facts and

circumstances appears to be only embellishments and on account of

imperfection of memory. The allegation that one witness stated that

plain paper was put in the attaché case while the other called it raddi of

newspaper will not be such a discrepancy so as to disbelieve the entire

prosecution case in the facts and circumstances or to hold that prima

facie no case is made out against the appellant.

17. The driver Santosh could not be examined because the summons

sent to him were received back as he was not traceable and had gone to

Nepal. The victim had not only known the applicant for past couple of

years but he had correctly identified them in the Court and his

testimony about the time he was kidnapped and various other factors

have also been corroborated from the testimonies of PW.9 and PW.17.

The decision to put plain paper which can also be termed as raddi

newspaper was taken by the police according to the testimony of the

son of the victim PW.9.

18. It is no more res integra that a decision is only an authority for

what it actually decides. What is of the essence in a decision is its ratio

and not every observation found therein nor what logically follows from

the various observations made in it. The ratio of any decision must be

understood in the background of the facts of that case. It has been said

long time ago that a case is only an authority for what it actually

decides, and not what logically follows from it. It is well settled that a

little difference in facts or additional facts may make a lot of difference

in the precedential value of a decision. In P.S.Rao Vs State, JT 2002 (3)

SC 1, the Supreme Court had held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.

In Rafiq v. State, 1980 SCC (Crl) 946 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

19. The judgments relied on by the applicant are clearly

distinguishable. In the case of Rafiq (Supra) relied on by the applicant

the testimony was of a child witness which was not very reliable and

consequently insistence for corroborative evidence to child‟s testimony

was sought as there was absence of any evidence in the child testimony

regarding threat to the life or the body was sought. In contradistinction

the testimony on the record categorically reflects the threats extended

to the victim. PW.4 had told that threats were given to him by the

applicant and other accused that if the amount of ransom is not paid he

would be done to death. The son of the victim has also deposed that the

accused had told "Apney Pitaji Se Pyar Hai to Paisa ka intjam kar lo aur

apne ghar pe safed jhanda laga lo". In considering the entirety of the

testimonies and even the testimonies of those witnesses who are alleged

to have not supported the prosecution version, it cannot be held that no

threats were given to the victim. The testimonies of the witnesses who

have not supported the version of the prosecution cannot be rejected

altogether.

20. In Bhagwan Singh & Ors (Supra) the child witness was vacillating

in the course of his deposition. The child was six years of age and

consistency in his deposition was not expected and therefore it was held

that there was a possibility of the child witness being tutored. In such

circumstances it was held that there should have been a TIP.

Apparently the facts and circumstances of the present case are quite

distinguishable. In Lala Ram (Supra) a Division Bench of this Court had

suspended the sentence in a case under Section 376 of IPC where the

prosecutrix had not even told her mother or anyone else in regard to the

alleged rape committed by the convict and in the circumstances the

sentence of the convict was suspended. In Surender Singh (Supra) a

Single Judge of this Court had suspended the sentence as the

conviction was only on the statement under Section 164 of the Criminal

Procedure Code and the prosecutrix was not even examined in the

Court. In Madan Gopal (Supra) a Division Bench had granted the

suspension of sentence which was denied only on account of the convict

committing an offence under Section 324 read with Section 34 IPC

while he was undergoing his sentence. In Ajay & Anr (Supra) a Division

Bench had suspended the sentence in the facts and circumstances of

the said case without commenting on the merits and consequently, the

ratio of the said case cannot be of any assistance of the applicant.

Similarly, on the basis of the precedents relied on by the applicant, ID

Mohd (Supra), Sudhir Aggarwal & Ors (Supra) and other cases it

cannot be held that the applicant is entitled for regular suspension of

his sentence and his release on bail.

21. At the time of consideration whether the applicant is entitled for

suspension of sentence and his release on bail during the pendency of

the appeal, it is not appropriate to go into meticulous examination of

the evidence which the learned counsel for the appellant wants the

Court to do and to deal in detail with the rival contentions and to

embark on a final determination of the contentions raised against any

such determination, as even tentative determination may influence the

decision in the appeal of the applicant.

22. Mr. R.N.Mittal, learned senior counsel for the appellant, has

contended that the applicant be allowed to withdraw the application for

suspension of sentence and his release on bail, in case this Court is not

inclined to grant the suspension of sentence and release him on bail

during the pendency of appeal. We do not accede to the plea of the

counsel for the Appellant/Applicant. We have considered the rival

contentions and have also gone through the record before us. After

consideration of the contentions and the record and in the entirety of

facts and circumstances of the case that the appellant has already been

convicted of a serious offence under Section 364A IPC and was not on

bail during the course of trial and we are not inclined to suspend the

sentence of the applicant during the pendency of the present appeal.

23. In the circumstances, the application of the applicant for regular

suspension of the sentence and his release on bail is, therefore,

dismissed. We have also held that the applicant is not entitled for

extension of his interim suspension of sentence and his interim bail

which was on account of ill health of his wife. The interim suspension

had been extended from time to time on account of adjournment of the

case. There are no grounds to extend the interim suspension of

sentence in the facts and circumstance. Consequently, the

appellant/applicant who is present in person in Court be taken into

custody and be sent to judicial lock up Patiala House Courts, New Delhi

to be sent to Central Jail from where he was released on interim bail.

With these directions the application is disposed of. It is, however,

clarified that anything stated hereinabove shall not be an expression of

final opinion on the final merits of the appeal.

Crl. M.A. Nos.13987/2008 & 13986/2008

The learned counsel for the applicants/complainant contends

that the applications do not survive and he seeks to withdraw the

applications. Dismissed as withdrawn.

Dasti under the signature of the Court Master.

ANIL KUMAR, J.

December 19, 2008                                       V.K. SHALI, J.
„k‟