Rafiq And Anr. vs State
2008 Latest Caselaw 155 Del

JUDGMENT

B.N. Chaturvedi, J.

1. Instant appeal is directed against a judgment of conviction dated 17th December, 2005 under Sections 363/364A read with Section 120B IPC and order of sentence dated 17th December, 2005 awarding life imprisonment and fine of Rs. 5,000/- each and SI for one year on failing to pay the amount of fine.

2. Material facts, stated briefly, leading to prosecution of appellants and two others are that on 14th September, 2001 about 7.30 pm one Mohd. Izhar aged about six years and ten months went missing which was discovered by his parents after about an hour. A search for him by all concerned did not yield any result. Mohd. Ikrar, father of missing child eventually reported the matter to the police. Initially a DD No. 40 B (Ext. PW 9/A) was recorded on 15th September, 2001. On the following day i.e. 16th September, 2001 on child remaining untraced, a FIR under Section 363 IPC vide Ex. PW 3/A was registered at PS Gokalpuri, Delhi. Initially, on 15th September, 2001 a blank call was received at the house of the child on telephone No. 2263029. Later, it was followed by a ransom call for Rs. 5 lacs which was subsequently brought down to Rs. 3 lacs on father of child pleading his inability to satisfy the ransom demand of Rs. 5 lacs. The factum of receiving ransom calls on his telephone was brought by the father of the child to the notice of the police. The telephone of Mohd. Ikrar was placed under surveillance by the police. Mohd. Ikrar was, in terms of the ransom call received on 17th September, 2001, asked to reach on 18th September, 2001 at an appointed place in Gajrola, U.P. at a given time with ransom money for payment thereof in return of release of the kidnapped child. Mohd. Ikrar, accompanied by a raiding party, comprising police officials, acted accordingly. Nobody, however turned up from the side of kidnapper/s. A similar ransom call was received by Mohd. Ikrar on his telephone on 19th September, 2001 morning with instructions to reach a different place in Gajrola at the given time, for delivery of ransom money which he complied with in the same manner as on previous occasion but again there was no positive development. Yet again on 20th September, 2001 pursuant to another phone call, Mohd. Ikrar and the police party reached the appointed place at the given time where a person was to get in touch with Mohd. Ikrar to take him to the kidnapper/s for payment of ransom money before release of his child from captivity. A person did approach Mohd. Ikrar but somehow seeing that person, he (Ikrar) got frightened and started crying which attracted the attention of the police officials, and they emerged from hiding in the fields. On noticing the presence of the police officials in the nearby fields the person who was to take Mohd. Ikrar to the kidnapper/s took to heels and disappeared in sugarcane fields. The police officials resorted to combing operation with a view to apprehend that person and in the process they heard the cries of a child which led them to a garden where they came across with the kidnapped child. The child was thus recovered.

3. On questioning the child regarding his kidnapper/s Izhar disclosed the name of appellant Rafiq as the one who had taken him along and handed over to his co-appellant Hasmukh @ Hasmat who in turn took him away to a village in Gajrola where he was kept in a house. The police on the basis of lead provided by the child located the particular house in the village which happened to be that of one Tehsin, who, on a joint trial with the appellants, stands acquitted by the learned trial court. On 21st September, 2001 on a visit with the police to the house of appellant Rafiq, the child noticed a photograph of appellant Hasmukh @ Hasmat lying there and he was able to identify him in that photograph as the one who had taken over his custody from co-appellant Rafiq after his kidnapping. Both the appellants as well as Tehsin and one Akhtar were eventually arrested.

4. Conviction of the appellants on the charge of kidnapping for ransom is primarily based on the statement of Mohd. Izhar the kidnapped child supported by the testimony of his father Mohd. Ikrar, PW-4 and police officials including the Investigating Officer who were members of the raiding party at the time of recovery of the child from a garden. Learned Counsel for the appellants argued that the conviction of the appellants is solely based on the statement of the kidnapped child and that there being no corroboration to his statement the impugned conviction and sentence cannot be sustained and are liable to be set aside. In support of his plea in this regard he referred to a decision of the Supreme Court in Bhagwan Singh and Ors. v. State of M.P. 2003 Crl. L.J. 1262. It was further contended that in the absence of any evidence regarding threat to the life or body of the kidnapped child, in the event of ransom money being not paid, Section 364A IPC could not be held attracted and the learned trial court was thus not justified in recording the finding of conviction in relation to the appellants under Section 364A IPC and sentencing him therefore. It was further argued that appellant Hasmukh @ Hasmat owed an amount of Rs. 7,000/- to Mohd. Ikrar, father of the kidnapped child, which he could not repay and that it was on that account that he was, Along with his brother Rafiq co-appellant, falsely implicated in the present case.

5. Ms. Fizani Hussain, learned Addl. P.P. on the other hand contended that as far as involvement of the appellants in kidnapping of Mohd. Izhar is concerned only kidnapped child, could have been in a position to testify in that regard and no corroboration in that respect could be expected unless there was someone who could claim to have had seen the child being with them. She at the same time sought to contend that there is sufficient evidence to prove that Mohd. Izhar was kidnapped by appellant Rafiq and that the child was recovered by the police from a garden and he had immediately, on being asked in that regard, disclosed the name of appellant Rafiq, who had taken him away before handing him over to his brother co-appellant Hasmukh @ Hasmat. Countering the plea of false implication, learned Addl. P.P. argued that where appellant Hasmukh @ Hasmat owed an amount of Rs. 7,000/- to the father of the child and failed to repay the same a false implication in the case would rather foreclose the prospect of the amount being realized.

6. We have heard Mr. Ashwini Bhardwaj, Adv. for the appellants as also Ms. Fizani Hussain, learned Addl. P.P. for State.

7. From the evidence on record it is clearly proved that on 14th September, 2001 at about 7.30 pm Mohd. Izhar, a six and half year old child went out of his house but did not return. The factum of his disappearance came to the notice of the father of the kidnapped, child around 8.30 pm. All concerned kept on searching for the missing child and on failing to trace him, Mohd. Ikrar lodged a missing report with the police which was recorded as DD No. 40 B dated 15th September, 2001 at PS Gokalpuri, Delhi. Search for the child continued even after reporting the matter to the police and on father of the child expressing suspicion of his child being kidnapped, a FIR vide Ext. PW 3/A under Section 363 IPC was registered. Various ransom calls as testified by Mohd. Ikrar, PW-4 for release of the child were received by him on his phone between 16th of September, 2001 and 20th September, 2001 which he kept on bringing to the notice of the police. According to prosecution these ransom calls were made by one Tehsin from a STD booth at Gajrola. Ikramuddin, the booth owner examined as PW-1 though confirmed that certain calls were made from his telephone booth on the phone No. 011-2263029, which happened to be land line phone number of Mohd. Ikrar, he did not support the prosecution case that these calls were made by said Tehsin, his neighbour. Ext. PW 1/A produced by Ikramuddin, PW-1 carries the details of calls made from his booth to Mohd. Ikrar's phone number. Thus even though it is proved that some phone calls were made to Mohd. Ikrar, PW-4 from the STD booth at Gajrola during the aforesaid period, the prosecution fails to establish the identity of the person making those calls.

8. Recovery of the child from a garden on 20th September, 2001 during combing operation is also established in view of statements of Mohd. Ikrar, PW- 4 and police officials constituting the raiding party, in addition to the statement of kidnapped child himself. From the date of his kidnapping on the evening of 14th September, 2001 and before his recovery from the garden, the place or places where the kidnapped child was held captive is/are not ascertainable for lack of evidence in that regard. As far as appellant Rafiq is concerned, he being related to the father of the child and having stayed at his house for sometime in the past he was well known to the child prior to the date of his kidnapping. The statements of Mohd. Ikrar, PW-4 and Investigating Officer to the effect that immediately after his recovery from the garden the child had clearly named appellant Rafiq as the one who had taken him away, leave no scope for any doubt in regard to his involvement in kidnapping the child, Mohd. Izhar. As far as co-appellant Hasmukh @ Hasmat is concerned the child had known him by the name of Sardar and it was on 21st September, 2001 when the police went to his house in search of co-appellant Rafiq and the child had an occasion to look at Hasmukh's photograph lying in his house that he was able to identify him to be the same person who was being named by him as Sardar.

9. After his kidnapping by appellant Rafiq, states Izhar, he was handed over to his co-appellant Hasmukh, who had taken him along and kept in captivity until his recovery by the police from the garden. Even on the day of his recovery, apart from appellant Rafiq, his co-appellant Hasmukh was also present in the garden with the child and both of them had run away on noticing the presence of police there. The child thus continued to be kept in confinement from the date of his kidnapping up to 20th September, 2001 when he was eventually recovered from the garden. The child stayed in captivity for a sufficient time to be able to correctly identify appellant Hasmukh, which he did before the court in the course of making of his statement. The identity of both the appellants and their involvement in kidnapping of the child thus stand clearly proved beyond doubt. No doubt the testimony of child witness needs to be evaluated carefully before accepting the same and it is not prudent to act upon his sole testimony without other corroborative evidence, in the case of kidnapping where there is no witness to such kidnapping no corroborative evidence regarding identity of the kidnappers is to be insisted upon if the statement of the kidnapped child is otherwise creditworthy and he is found to be in a position to clearly identify his kidnappers without mistake. Leaving apart child's statement related to period of his being held in captivity the fact that he was kidnapped on the evening of 14th September, 2001 and went missing thereafter until his recovery from the garden on 20th September, 2001 and that he had immediately named appellant Rafiq in the presence of police officials and his father as the one who had kidnapped him, stand proved from the testimony of other witnesses including father of the child. Nature of statement made by the child before the court gives no impression of his statement suffering from the vice of tutoring. Bhagwan Singh's case (supra) cited by learned Counsel for the appellants was one involving a different set of facts where the statement of the child witness per se lacked conviction and required corroboration for its acceptability for recording conviction against the accused. The learned trial court keeping in mind the law laid down by Supreme Court in Ratansinh Dalsukhai Nayak v. State of Gujrat 2003 IX AD (SC) 113, on examining the statement of Izhar accepted the same as truthful account of the incident. In the said case relied upon by the learned trial court it was ruled :

...The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.

Thus insistence for corroborative evidence to a child's testimony is not an invariable rule to be applied in all eventualities irrespective of facts and circumstances of a given case. On close scrutiny of the statement of the child, Izhar PW-2 in regard to identity of the appellants, there is no reason not to accept the same as a basis to convict them for his kidnapping. defense plea that as the appellant Hasmukh was unable to repay the amount he owed to the father of the child he Along with his co-appellant Rafiq was got falsely implicated in the case has no basis to find acceptability.

10. Another submission made on behalf of the appellant was that no threat to cause death or hurt to the kidnapped child had been extended nor the appellants by their conduct gave rise to a reasonable apprehension that the kidnapped child could be put to death or hurt, to make Mohd. Ikrar to pay ransom, conviction and sentencing of the appellants under Section 364A IPC cannot be sustained. An argument in this respect was advanced before the learned trial court also but the same was held unacceptable. In this context it may be noticed that though there is evidence of ransom calls being received by the father of the kidnapped child on his phone, the identity of the person making such ransom calls could not be proved. That apart, a mere demand of ransom amount for release of a kidnapped person, is not sufficient to attract application of Section 364A IPC unless it is also proved that the kidnapped person was threatened with death or hurt or that the conduct of the kidnappers was such which could raise a reasonable apprehension that he could be put to death or hurt if the ransom amount was not paid. In the present case the child did not state that the appellants had at any point of time threatened to cause his death or hurt. Even the father of the child at no place in his statement testifies that the person making ransom calls had on any occasion threatened to kill the kidnapped child or cause hurt to him. The appellants at no stage by their conduct gave rise to a reasonable apprehension to the father or any member of his family that in the event of ransom amount being not paid, the kidnapped child would be put to death or hurt. The learned trial court in the impugned judgment while finding that the appellants from their conduct gave rise to reasonable apprehension that the kidnapped child would be put to death or hurt, did not spell out their particular conduct which could have given rise to the reasonable apprehension as aforesaid. There being total absence of evidence in regard to any threat to cause death or hurt to the kidnapped child and also for lack of evidence in regard to the appellants conducting themselves in a way that could give rise to a reasonable apprehension that the child would be put to death or hurt, the ransom demands simplicitor could not have brought the offence within the ambit of Section 364A IPC.

11. Learned Counsel for the appellants pleaded that even if the appellants are held guilty for kidnapping of the child they are liable to be convicted and punished under Section 363 IPC only.

12. It is to be noticed that according to prosecution case the kidnapping of the child was for ransom. Now since the case is found to be not covered under Section 364A IPC and Section 365 IPC has no application as the kidnapping was not committed with an intent to secretly and wrongfully confine the child, the case would fall under Section 363 IPC only. Interestingly, the learned trial court convicted and sentenced the appellants under Section 364A IPC as also under Section 363 IPC. Simultaneous conviction under both the provisions was unwarranted. Anyway now, since the conviction and sentence under Section 364A IPC is found unsustainable and is thus liable to be set aside, maintaining the conviction under Section 363 IPC, each appellant is sentenced to 7 years RI and a fine of Rs. 5,000/- in default of payment of fine SI for one year. The conviction and sentence under Section 364A IPC shall stand set aside.

13. The appeal is accordingly allowed partly to the aforesaid extent.