Jai Singh vs State
2009 Latest Caselaw 612 Del

*                       IN THE HIGH COURT OF DELHI

                                   Judgment reserved on : February 18, 2009
%                                  Judgment delivered on : February 20, 2009

+                                     CRL.A. 85/2001

         JAI SINGH                                          ..... Appellant
                        Through:      Mr. Salman Khurshid, Sr. Adv.
                                      Mr. Imtiaz Ahmed, Adv.
                                      Mrs. Naghma Imtiaz, Adv.

                                            versus

         STATE NCT OF DELHI                               ..... Respondent
                   Through:           Ms.Richa Kapoor, Advocate

                                       CRL.A. 166/2001

         SONE LAL & ORS.                                    ..... Appellants
                   Through:           Mr. Salman Khurshid, Sr. Adv.
                                      Mr. Imtiaz Ahmed, Adv.
                                      Mrs. Naghma Imtiaz, Adv.

                                            versus

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

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MS. JUSTICE ARUNA SURESH

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

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.

1. The appellants were charged for the offence

punishable under Section 364-A IPC read with Section 120-B IPC.

2. The gravamen of the allegation was that pursuant to

a criminal conspiracy hatched by the appellants to kidnap for

ransom, Umesh son of Jaipal, on 21.8.1999 Umesh Kumar aged

3 years was kidnapped from outside House No.G-53, Gali No.3,

Shastri Park, Delhi and a ransom in sum of Rs.10,00,000/-

(Rupees Ten Lacs) was demanded from Jaipal for releasing

Umesh Kumar.

3. Vide judgment and order dated 16.12.2000

appellants Jai Singh, Sone Lal and Shripal have been found guilty

of the offences punishable under Section 364-A and Section 120-

B IPC. Appellant Santosh Kumar has been found guilty of the

offence punishable under Section 364-A read with Section 368

IPC. For the offences punishable under Section 120-B IPC the

said appellants have been awarded imprisonment for life and to

pay a fine of Rs.2,000/-. For the offence punishable under

Section 364-A sentence imposed is of imprisonment for life and

fine of Rs.3,000/-. Santosh Kumar has been awarded the

punishment to undergo imprisonment for life for the offences

punishable under Section 364-A read with Section 368 IPC.

4. Learned Trial Judge has held that the evidence does

not establish that Santosh Kumar had entered into a conspiracy

to kidnap the young boy but knowing that the young boy had

been kidnapped, wrongfully concealed the young boy in his

house, and hence same intention as that of the co-accused had

to be imputed to him by virtue of Section 368 IPC.

5. As per the prosecution, at 5:00 PM on 21.8.1999,

Basant (PW-1) informed Jaipal (PW-8) that he had seen his child

Umesh Kumar, aged 3 years, in the company of some person.

Jaipal proceeded to search for his child and also informed the

police at the number 100. The information was received at PS

Seelam Pur vide DD No.17-A, entry whereof was made by HC

Umender Kumar PW-6 to said effect. The police went to the

house of Jaipal and recorded his statement Ex.PW-8/A pursuant

whereto a FIR under Section 363 IPC was registered at around

8:25 PM by HC Umender Kumar PW-6.

6. On 24.8.1999 Jaipal received a telephone call from an

unknown person who demanded ransom in sum of

Rs.10,00,000/- (Rupees Ten Lacs) for the return of the child

informing Jaipal that if he wanted the child safely back he should

pay the ransom amount between 4 to 6 PM at Mohamddabad

Bridge on 26.8.1999. Said information was conveyed by Jaipal

to the police which was duly noted. Jaipal's telephone bearing

No.2194096 on which the ransom call was made was put under

observation.

7. On 26.8.1999 another call was received at the said

telephone by the wife of Jaipal. On 27.8.1999 he i.e. Jaipal

received another call at the said telephone and the caller

enquired as to why he had not reached the designated place on

26.8.1999. He told the caller that he did not have

Rs.10,00,000/- (Rupees Ten Lacs) with him. The caller reduced

the demand to Rs.5,00,000/- (Rupees Five Lacs) and told him to

deliver the same on 29.8.1999 at Fateh Garh Chowk between 10

AM or 11 AM. He expressed the inability to pay said amount.

The caller reduced the amount to Rs.3,50,000/- (Rupees Three

Lac Fifty Thousand) and demanded the same to be paid on

29.8.1999 at Fateh Garh Chowk between 10 AM to 11 AM.

8. Accordingly, a raiding party was constituted which

consisted of Inspector Rajender Gautam PW-3, HC Satya Prakash

PW-4, Const. Rajesh Gaud PW-10, SI Anwar Khan PW-12 and SI

Vinod Kumar Meena PW-15. On 28.8.1999, the police team left

Delhi and reached Fateh Garh Railway Station on 29.8.1999 at

about 8/8:15 AM and reported to the police post at Fateh Garh

Railway Station. Const. Suresh Chand Yadav PW-14, employed

with the railway police at Fateh Garh Railway Station and

attached to the police post at the railway station under

jurisdiction of PS Farukhabad, joined the raiding party.

9. Jaipal was left by himself and the other police officers

disguised themselves and hid themselves. Everybody waited till

1:30 PM. Accused Jai Singh came near Jaipal and asked whether

he had brought the money at which Jaipal gave a pre-designated

signal by raising his hand to his head at which the police officers

immediately pounced upon and apprehended accused Jai Singh.

He was interrogated at the spot and made a disclosure

statement Ex.PW-4/B as per which he told that the kidnapped

child was with accused Sone Lal.

10. Personal search of accused Jai Singh resulted in the

recovery of a slip of paper on which telephone No.2194096 i.e.

the telephone number of Jaipal as also telephone number of his

neighbour Pehlwan Shakil, being No.2177832, was written. The

said slip was taken into possession by the police vide memo

Ex.PW-4/A.

11. Accompanied by accused Jai Singh the police team

and Jaipal left for village Munder at a distance of 20 kms from

Farukhabad to go to the house of Sone Lal. Sone Lal was

apprehended and upon interrogation made a statement Ex.PW-

4/D informing the police that the young child was in the custody

of accused Santosh at his house in Farukhabad. Everybody

returned to Farukhabad and went to the house of accused

Santosh who was arrested in his house and the kidnapped child

Umesh, was recovered by the police as per the memo Ex.PW-

4/G. Accused Sone Lal named accused Shripal as an

accomplice. He was also apprehended and as per the police,

the telephone number 2194096 and the telephone number

2177832, written on the slip of paper recovered from accused Jai

Singh vide seizure memo Ex.PW-4/A, were in the handwriting of

Shripal, whose role was to keep a watch on the family of the

kidnapped child and inform the co-accused as to what was the

family doing. Accordingly, the police obtained the specimen

handwriting Ex.PW-9/B and Ex.PW-9/C of Shripal and sent the

same for expert opinion. The report Ex.PY reported that no

specific opinion could be given. The police seized the telephone

bill pertaining to telephone number 2177832, being Ex.PW-2/A.

12. At the trial, Jaipal father of Umesh, appeared as PW-8

and deposed the facts pertaining to Basant informing him that

his child Umesh Kumar was seen by him at 5:00 PM on

21.8.1999 in the company of unknown person and he having

informed the police thereof as recorded in DD No.17A. He

deposed that Ex.PW-8/A was his statement recorded by the

police at 8:25 PM. He deposed that he received a ransom call

on 24.8.1999 at his telephone number 2194096 and that

another call was received by him on 27.8.1999. He deposed of

the facts noted hereinabove pertaining to the raiding party

reaching Fateh Garh Railway Station and accused Jai Singh

being apprehended followed by Sone Lal and Santosh being

apprehended and his son being recovered from the house of

Santosh. He deposed about the disclosure statements recorded

in his presence.

13. Unfortunately, the day Jaipal PW-8 was examined i.e.

1.4.2000, the infamous lawyers' strike was on in the District

Courts. The accused were not represented by a counsel. The

learned Judge gave an opportunity to the accused to cross

examine him. Neither accused cross examined PW-8. He was

discharged. An application was filed to recall the witness. The

same was allowed on 28.4.2000. By said date, the witness had

changed residence and in spite of summons being repeatedly

sent on as many as 8 dates, the police could not locate the

whereabouts of Jaipal. On 20.10.2000 an order was recorded

that despite best efforts Jaipal could not be traced. It was

recorded that his deposition would be read in evidence.

14. The police officers, Inspector Rajender Gautam PW-3,

HC Satya Prakash PW-4, Const. Rajesh Gaud PW-10, SI Anwar

Khan PW-12 and SI Vinod Kumar Meena PW-15 as also Const.

Suresh Chand Yadav PW-14 from the police post at Fateh Garh

Railway Station deposed in harmony with the deposition of PW-8

pertaining to the apprehension of accused Jai Singh when he

came to receive the ransom money from PW-8 and further facts

disclosed by PW-8 pertaining to the arrest and the disclosure

statements made by Sone Lal and Santosh as also the recovery

of the child from the house of Santosh.

15. Since no material contradictions were pointed out in

the deposition of the police witnesses whose evidence was

found to be credit worthy and finding corroboration to the

testimony of PW-8, the learned Trial Judge has held that the

prosecution has successfully established the case against all the

accused persons.

16. We note that the accused examined 5 witnesses

namely Rakesh DW-1, Urmila DW-2, Hira Lal DW-3, Gyan

Prakash DW-4 and Ram Lakhan DW-5, all of whom deposed that

on 29.8.1999, Master Umesh was recovered from the house of

one Raghubir who had some dealings with Jaipal PW-8 and that

at the police post some compromise was effected pursuant

whereto Raghubir paid a sum of Rs.25,000/- (Rupees Twenty

Five Thousand) to Const. Suresh PW-14. All of them deposed

that thereafter accused Jai Singh, Sone Lal and Santosh were

illegally arrested from their respective houses and taken by the

police to Delhi.

17. We note that Rakesh DW-1 is the brother of accused

Jai Singh. He admitted that he never lodged a complaint

regarding the arrest of his brother. Smt. Urmila DW-2 is the

sister-in-law of accused Santosh. Even she admitted not having

made any complaint to anyone about Santosh being arrested.

Hira Lal DW-3 is the brother of Santosh. Even he admitted not

having made any complaint to any person about Santosh being

illegally arrested. Gyan Prakash DW-4 is a neighbour of

Santosh. Even he admitted that no complaint was made to any

authority regarding Santosh being illegally apprehended. Ram

Lakhan DW-5 is the brother of Sone Lal. Even he admitted not

having made any complaint to any authority.

18. Mr. Salman Khurshid learned senior counsel for the

appellants urged, that as regards accused Shripal, there is no

evidence save and except a statement made by co-accused

Sone Lal to the police to the effect that Shripal was also a

conspirator and his role was to keep a watch on the family

members of the victim and keep the other co-accused informed

of what was happening.

19. Indeed, we find no evidence against Shripal. The slip

of paper recovered vide seizure memo Ex.PW-4/A containing

telephone number 2194096 and telephone number 2177832 has

not been opined to be containing the handwriting of Shripal.

Further, the telephone bill, Ex.PW-2/A, pertaining to telephone

number 2177832, the telephone of Pehlwan Shakil, the

neighbour of PW-8, merely shows a bill raised for 228 calls. No

call details have been obtained by the police from the service

provider and thus there is no evidence of any calls being made

from said number to any particular telephone number. There is

no evidence of Shripal being in contact with any co-accused.

20. We agree with the submission made by learned

senior counsel for the appellants that there is no evidence

against accused Shripal. Indeed, Ms. Richa Kapoor, learned

counsel for the State could not point out any evidence against

Shripal, save and except his being named as a conspirator by

the co-accused Sone Lal.

21. Pertaining to the other 3 co-accused, namely Jai

Singh, Sone Lal and Santosh, learned counsel for the appellants

urged that there was no reason to disbelieve DW-1 to DW-5 that

Master Umesh was recovered from the house of Raghubir and

that a deal was struck with the help of PW-14 pursuant whereto

Raghubir paid Rs.25,000/- and was let off and Jai Singh, Sone Lal

and Santosh were illegally arrested.

22. We find no substance in the defence, for the reason

each defence witness admitted not having made a complaint to

any superior authority that the Delhi Police had illegally arrested

Jai Singh, Sone Lal and Santosh. In fact Hira Lal DW-3, has

categorically deposed that the Pradhan of the village was

present when the police from Delhi was at village Farukhabad.

It is difficult for us to believe that in the presence of the Pradhan

of the village, 3 innocent men would be apprehended and the

real accused would be let off.

23. The submission of learned senior counsel for the

appellants that no public witness was associated at the time of

the arrest of Jai Singh, Sone Lal and Santosh and thus their

being arrested as claimed by the police has to be looked at with

suspicion, is without any substance for the reason in a case of

kidnapping the trap has to be laid with utmost secrecy and to

involve one too many would endanger the life of the victim.

Further, there is no presumption that the police officers would

always tell a lie. Further, though PW-8 was not cross examined,

but his testimony cannot be ignored and the question arises as

to why would PW-8 let off the real culprit and falsely implicate 3

innocent men.

24. Indeed, no material contradiction, discrepancy or

improvement was shown to us in the deposition of the police

officers and PW-8 to discredit the case of the prosecution vis-à-

vis accused Jai Singh, Sone Lal and Santosh.

25. Accused Jai Singh had with him a slip of paper

containing the telephone number of Jaipal PW-8 i.e. the father of

the kidnapped child. He has not explained as to why was he

having said telephone number with him. This assumes

significance.

26. Though the child was not recovered from Sone Lal,

but his disclosure statement that the child was with co-accused

Santosh and was in the house of Santosh, is admissible evidence

inasmuch as pursuant thereto the child, Umesh, was recovered

from the house of Santosh, meaning thereby, a fact was

discovered by the police, hitherto fore not in the knowledge of

the police, i.e. the kidnapped child being kept in the house of

Santosh. The incriminating evidence against Jai Singh is of

meeting Jaipal at the pre-designated place and asking him

whether he had brought the ransom amount. The incriminating

evidence against accused Santosh is the recovery of the

kidnapped child from his house.

27. A last submission urged by learned senior counsel for

the appellants may be dealt with before bringing the curtains

down.

28. Learned counsel urged that to sustain a charge under

Section 364-A IPC it is not enough to prove that a ransom was

demanded for releasing the kidnapped child. It has to be proved

that there was a threat to cause death or hurt to the kidnapped

child under pain of payment of ransom. Learned counsel urged

that there was no evidence that Jaipal PW-8 was threatened that

his son would be hurt or would be killed if ransom was not paid.

Hence, counsel urged that the charge under Section 364-A was

not established.

29. The submission of learned counsel for the appellants

ignores the expression 'or by his conduct gives rise to a

reasonable apprehension that such person may be put to death

or hurt' in Section 364-A IPC.

30. Implicit in every demand of ransom, as a condition to

release the kidnapped child, is the threat that if the ransom

would not be paid, the child would not be released and would be

harmed. The very act of kidnapping a child and demanding

ransom for his release, by the very nature of the act, would give

rise to a reasonable apprehension that the child would be hurt

or killed if ransom is not paid.

31. In any case, we need not theorize for the reason PW-

8 has categorically deposed that when he received the ransom

call he was told that 'if I wanted to get my child safe, I had to

pay Rs.10,00,000/-'. Thus, the safety of the child was put to the

notice of PW-8, under threat, that if he wanted the safety of his

child he should pay the ransom.

32. Criminal Appeal 85/2001 filed by appellant Jai Singh

is dismissed.

33. Criminal Appeal 166/2001 is allowed pertaining to

appellant Shripal. The impugned judgment of conviction and

order of sentence against him is set aside. Shripal is acquitted

of the charge framed against him.

34. In so far as appellants Sone Lal and Santosh are

concerned, the said appeal i.e. Criminal Appeal 166/2001 is

dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 20, 2009 mm