Mukesh Kumar vs State
2009 Latest Caselaw 5219 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                    Judgment Reserved on : 09th December, 2009
                   Judgment Pronounced on:15th December, 2009


+                        CRL. APPEAL No.192/2006


        MUKESH KUMAR                          ..... Appellant
                          Through : Mr.Amit Kumar, Advocate.

                   versus


        STATE                             ..... Respondent
                          Through : Ms. Richa Kapoor, APP.


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT


     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?                         No

     3. Whether the judgment should be reported in the Digest?
                                                             No

PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 3.6.2005,

the learned Trial Judge has convicted the appellant Mukesh

Kumar for the offences punishable under Section 363 IPC and

364-A IPC read with Section 34 IPC. For the offence punishable

under Section 363 IPC, appellant has been sentenced to

undergo rigorous imprisonment for 3 years and to pay a fine in

sum of Rs.1,000/-. For the offence punishable under section

364-A IPC, he has been sentenced to undergo imprisonment

for life and to pay a fine in sum of Rs.5,000/-.

2. Briefly stated, the case of the prosecution is that at

about 10.00 AM, on 29.6.2004, Roshan aged 3 years was

playing in the street near C-24, Suraj Park, Delhi with his elder

brother Ravi aged 6 years, co-accused Manohar @ Mannu @

Chikna (juvenile offender) enticed Roshan away by offering to

buy him some snacks. After doing so, Manohar @ Mannu @

Chikna handed over the child to appellant Mukesh Kumar, who

made a telephone call at the factory where Bade Babu PW-1,

father of Roshan was working. The call was received by Vikas

Garg PW-3, the owner of the factory. The caller told Vikas

Garg to inform Bade Babu that if he wanted his child back

safely, he should pay Rupees Five lakhs as ransom. On

learning this, Bade Babu informed the police. The police

traced that the ransom call was made from an STD booth at

Pataudi Road, Gandhi Nagar, Gurgaon and reached said place.

When appellant along with Roshan visited the STD booth again

on 30.6.2004 to make another call to Bade Babu, police

apprehended him and recovered the child Roshan.

3. Process of criminal law was set into motion when at

around 5.00 PM, on 29.6.2004, Bade Babu PW-1 visited PS

Samay Pur Badli, where SI Satpal Singh PW-7 recorded his

statement Ex.PW-1/A wherein he stated that at around 10.00

AM that morning, his sons Ravi and Roshan went to play in the

street. But, Roshan aged 3 years did not return home.

Despite best efforts to search Roshan in the neighbourhood,

he could not be traced. His son Ravi aged 6 years told him

that a person whom Ravi had earlier seen in the factory had

picked Roshan in his arms and took him towards the jhuggis.

4. On basis of the statement an FIR Ex.PW-5/B for the

offence punishable under Section 363 IPC was registered. SI

Satpal Singh took over the investigation of the case and

inspected the factory at C-24 Suraj Park. At the factory, SI

Satpal Singh met Vikas Garg PW-3 and recorded his statement

Ex.PW-3/A under Section 161 Cr.P.C., wherein he stated that

he received a call on his telephone bearing number 27850036

installed in his factory informing him about the kidnap of

Roshan and demanding a ransom of Rupees Five lakhs for the

release of Roshan from Bade Babu. He stated that there was a

caller ID installed on the factory telephone and from that he

knew that the call was made from a telephone bearing number

0124-2314488.

5. On basis of the number disclosed by Vikas Garg, SI

Satpal traced the location of the phone bearing said number to

a STD booth situated at shop No.84, Pataudi Road, Gandhi

Nagar, Gurgaon. Two police teams headed by SI Satpal Singh

along with Bade Babu PW-1 reached said location at around

midnight, the same day. No progress could however be made

till around 12 noon on 30.6.2004 when appellant Mukesh

accompanied by the child Roshan visited the STD booth to

make another ransom call. Immediately, SI Satpal Singh and

his team arrested the appellant and recovered Roshan.

6. SI Satpal Singh interrogated appellant and recorded

his disclosure statement Ex.PW-1/G wherein appellant

disclosed the involvement of another co-accused Manohar @

Mannu in the kidnapping of the child. At the instance of the

appellant, SI Satpal Singh arrested Manohar @ Mannu, who

worked in the same factory where Bade Babu worked. SI

Satpal also collected the bill Ex.PW-6/A raised by the service

provider pertaining to a telephone having STD facility installed

at the booth of Aditya Kumar as also printouts of bills Ex.PW-

6/B having two entries at point marked 'A' and 'B' on Ex.PW-

6/D showing that on 29.6.2004 at 4:46 PM a call was made

from the telephone installed at the booth to the number

27850036 at Delhi and the next day i.e. on 30.6.2004 at 11:53

AM a second call was made to the same number.

7. The accused were put to trial. Accused Manohar @

Mannu @ Chikna being a juvenile, was tried separately before

the Juvenile Board. At the trial of appellant Mukesh, in all the

prosecution examined seven witnesses. The testimonies of

the relevant ones are being noted below.

8. Bade Babu PW-1 deposed that he was employed in

a factory manufacturing polythene bags situated at C-24 Suraj

Park, Samay Pur Badli. At about 10.00 AM on 29.6.2004, two

of his sons namely Ravi aged 6 years and Roshan aged 3 years

went to the street to play. At about 1.00 PM, he learnt that

Roshan was missing. His son Ravi told him that a boy working

in the factory where he worked, had taken Roshan away

towards the jhuggis. He looked for his son, but could not trace

him. At around 4.00 PM, he lodged a report with the police.

After sometime, Vikas, the son of the owner of the factory,

informed him that a telephone call was received informing that

Roshan was in the custody of the caller. The caller demanded

Rs.5 lacs as ransom for release of Roshan. Subsequently, a

caller ID was got installed at the telephone in the factory, and

from the same it was learnt that the call was received from

Gurgaon. A police team was formed to go, and he

accompanied them to Gurgaon. They reached Gurgaon at

around midnight and the child was recovered from the custody

of appellant Mukesh at around 2 or 3 AM. Co-accused

Manohar was also arrested from the factory in the evening of

the day of incident.

9. On being cross-examined he stated that appellant

was arrested when he identified his son coming with the

appellant towards the STD booth in Gurgaon. Accused

Manohar was arrested on basis of the disclosure of appellant

Mukesh. Appellant was arrested at around 6-7 AM.

10. Vikas Garg PW-3 deposed that he was the son of

the owner of the factory situated at C-24 Suraj Park. At around

2.00 PM on 29.6.2004, when he was present at the factory, he

received a telephone at the phone bearing number 27850036

installed in the factory. The caller inquired about Bade, and

when he told the caller that Bade was not available, the caller

asked him to inform Bade that the son of Bade was in the

custody of the caller and Bade should pay Rupees Five lakhs

for the safe release of the child. After this call, he installed a

caller ID on said phone. On being cross-examined by the

learned APP he admitted that in his statement Ex.PW-3/A

recorded by the police, he gave the telephone number from

which the call was received with reference to the caller ID

facility.

11. Sohran Singh PW-6 deposed that his son Aditya

Kumar was running an STD booth at shop No.84, Pataudi Road,

Gurgaon and that Ex.PW-6/A and Ex.PW-6/B were handed over

by him to the investigating officer.

12. SI Satpal Singh PW-7 deposed that at about 5.00 PM

he recorded statement of Bade Babu and after making an

endorsement thereunder, got an FIR registered under section

363 IPC. While investigating the case, he inspected the factory

at C-24 Suraj Park and from Vikas Garg learnt about a ransom

call. From the caller ID installed on the telephone in the

factory, the number was traced to Gurgaon. From the

Gurgaon telephone exchange, the location of the telephone

from which the call was received was found out. Two police

teams and Bade Babu PW-1 went to the concerned STD booth

in Gurgaon and at around 12 noon on 30.6.2004, when

appellant visited the STD booth with the child to make another

ransom call, appellant was arrested. At the instance of the

appellant, co-accused Manohar was also arrested. Later on he

collected the call records of the ransom calls made from the

STD booth at the telephone installed in the factory, from

Sohran Singh PW-6.

13. Vide impugned judgment and order dated 3.6.2005,

the learned Trial Judge convicted the appellant Mukesh for the

offences punishable under Sections 363 IPC and Section 364-A

IPC read with Section 34 IPC. While doing so, Learned Trial

Judge relied upon the testimonies of SI Satpal Singh PW-7, HC

Yashpal Singh PW-4 and Bade Babu PW-1 to hold that the child

Roshan was recovered from the possession of the appellant

when he was arrested. With reference to the testimony of

Vikas Garg PW-3, the learned Trial Judge has held that it was

established that ransom was demanded for the safe release of

Roshan.

14. At the hearing of the appeal, learned Counsel for

the appellant urged that the prosecution had failed to examine

two vital witnesses; namely, Roshan the child who was

kidnapped and Aditya Kumar the owner of the STD booth from

where the ransom calls were ostensibly made. Learned

Counsel further urged that there was no evidence as to where

the child was kept after he was kidnapped. Nor was there was

any evidence as to in what condition the child was kept after

he was kidnapped and there was no evidence of any weapon

being used in the offence. In absence of the same, Counsel

urged that the kidnapping of the child itself appears to be a

myth.

15. Needless to state, the aforesaid contentions require

hardly any consideration for the reason it hardly matters as to

where the child was kept; in what condition he was kept and

whether or not any weapon was used when the child was

kidnapped. Roshan was aged 4 years and was an infant. It

hardly matters whether he was not examined. Similarly, it was

not the case of the prosecution that Aditya Kumar saw the

appellant at his booth and thus there was no need to examine

him.

16. The only worthwhile contention urged was that the

story of the prosecution that the appellant was apprehended

at 12:00 noon as a watch was kept at the STD booth owned by

Aditya Kumar is unbelievable for the reason the call records

noted in Ex.PW-6/B shows that one call was made to the

telephone installed in the factory of the father of Vikas Garg at

4:46 PM on 29.6.2004 and the second call was made the next

day at 11:53 AM. Counsel urged that Vikas Garg deposed that

the caller ID was installed on the telephone of his father after

the ransom call was received, meaning thereby that the police

could not know as to from which number the first call was

made. It was only when the second call was made that with

reference to the caller ID facility could the police know at

11:53 AM on 30.6.2004 that the calls were being made from a

telephone installed in Gurgaon. Counsel submitted that it was

impossible for the police to identify through the telephone

exchange at Gurgaon the place where the telephone was

installed in Gurgaon and reach by 12:00 noon to apprehend

the appellant.

17. As noted above, Vikas Garg PW-3 admitted that his

statement Ex.PW-3/A was recorded by the police and as noted

in the statement he gave the telephone number from which

the call was received with reference to the caller ID facility

installed at the number fo the telephone at the factory of his

father. Ex.PW-3/A is the statement of Vikas Garg recorded by

the investigating officer on 29.6.2004 and the same notes that

the call was received from the telephone number 0124-

2314488.

18. It is apparent that Vikas Garg forgot the correct

facts while deposing in examination-in-chief, but on being

cross-examined by the learned Public Prosecutor, corrected

himself.

19. We note that Vikas Garg deposed in Court on

1.12.2004 and the incident took place on 29.6.2004. It is

apparent that deposing to a fact after five months, Vikas Garg

incorrectly stated the date when the caller ID facility was

activated. His statement Ex.PW-3/A recorded

contemporaneously by the investigating officer has cleared the

doubt.

20. We thus conclude by holding that with reference to

the caller ID facility available on the telephone installed at the

factory of Vikas Garg's father, when he received the ransom

call he noted the number from where the call was made and

informed the investigating officer of said number. This

happened on 29.6.2004. The claim of the police that they

checked the telephone at Gurgaon from where the call was

made under surveillance and when the appellant revisited the

booth and made another call at 11:53 AM on 30.6.2004, he

was apprehended and was having with him the kidnapped

child.

21. The last submission urged that there was no threat

to the child and hence an essential ingredient of Section 364-A

IPC i.e. extending threat to the life or causing injury to the

person of the victim or a conduct which gives rise to such

apprehension is missing, is noted and rejected for the reason

Vikas Garg has categorically deposed that the caller told him

that Bade Babu should be informed that if he wanted his child

safely back, ransom in sum of Rs.5 lakhs should be paid. It is

apparent that the call for ransom contained a threat to the

safety of the child.

22. We find no merit in the appeal.

23. The appeal is dismissed.

24. Copy of this order be sent to the Superintendent,

Central Jail, Tihar for being made available to the appellant

who is still in jail.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE December 15, 2009 Dharmender