Sri Om vs State
2009 Latest Caselaw 661 Del

*                       IN THE HIGH COURT OF DELHI


                                   Judgment reserved on : February 19, 2009
%                                  Judgment delivered on : February 26, 2009



+                                    CRL.A. 685/2006

         SRI OM                                            ..... Appellant
                        Through:     Mr. Sumeet Verma, Advocate

                                           versus

         STATE OF NCT OF DELHI                   ..... Respondent
                   Through:  Mr. Pawan Sharma, Advocate



                                      CRL.A. 125/2001

         KALIM AHMED                                     ..... Appellants
                   Through:          Mr. Sumeet Verma, Advocate

                                           versus

         STATE OF NCT OF DELHI                   ..... Respondent
                   Through:  Mr. Pawan Sharma, 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. Written submissions have been filed by learned

counsel for the appellants. After narrating the facts of the case,

the legal submissions made have been penned in paras 6 to 17

of the written submissions. We reproduce the same. They read

as under:-

"6. It is respectfully submitted that the alleged demand of ransom has not been satisfactorily proven by the prosecution in this case and in the absence of the ransom demand (or any direction to do or abstain from doing any act, which is not the case here) the alleged offence would come out of the rigors of Section 364A IPC and would be punishable under Section 365/363 IPC for which the maximum prescribed sentence is 7 years.

7. Admittedly, there is no Ransom Note in this case. No ransom was demanded from the father either on phone or even when he had gone to the Kanth Bus stand. Admittedly the father of the child (PW-1) did not even take the allegedly demanded sum of Rs.50,000/- to recover his child from the kidnappers.

8. The prosecution has not led any evidence whatsoever that there was no telephone connection or mobile phone in the residence of PW-1 or that it was out of order at the relevant time.

9. That PW-2, who was residing in a different gali near the house of PW-1, admittedly did not identify the voice of the caller to be of any accused persons. The prosecution has miserably failed to link the accused persons with the alleged telephone call since neither the telephone number nor the place from where the alleged call was made has been established by the prosecution. Reliance is placed upon the judgment in Netra Pal Vs. The State (NCT of Delhi) [2001 (2) JCC (Del) 27] wherein in paras 10 and 11 this hon‟ble court

followed the Division Bench of Bombay High Court in Mohammad Rashid Ansari Vs. State {II (1998) CCR 608 (DB) as follows:-

"11. In that case the minor boy was kidnapped and it was alleged by the prosecution that a telephone call came from an anonymous person at the place of business of the uncle of the kidnapped boy.

It was disclosed through telephone conversation that the kidnapped boy Gururaj was taken to Agra and that a ransom amount of Rs.2,50,000/- was demanded on telephone from the uncle of the kidnapped boy. Court after going through the record concluded that the ransom theory and that of telephone call were not established. There was no corroborative piece of evidence to establish that there was an anonymous call and that ransom demanded. It was in this background the Court observed that:-

"16. What we are therefore left with is the mere possibility amounting almost to certainty as to there being some motive for the entire exercise. However, what may be there cannot be raised to level of „must‟, unless there is material warranting the conclusion."

10. It is respectfully submitted that in the Mohammad Rashid Ansari‟s case supra, the alleged telephonic ransom demand was not only traced but the same was tape-recorded as well with the aid of Telephone department. However, the said evidence was considered not worth reliance since the voice of the person who allegedly talked at the other end of the telephone when the conversation came to be taped, was not before the court and therefore, it was held that the necessary proof to link the voice recorded and the person whose voice it was supposed to be was missing.

11. It is most humbly and respectfully submitted that in the present case but for a bald

statement of PW-2 who happened to reside near the house of PW-1, there is no evidence worth its name that any telephonic demand was made and from which telephone or which place it was made. Needless to mention again that admittedly PW-2 did not even allege the voice of the caller to be of any of the accused persons.

It is submitted that in the absence of any evidence whatsoever, it is virtually impossible to link the appellants with the alleged telephonic demand at the residence of PW-2 and the law laid down in the two judgments mentioned above is squarely applicable to the facts of this case.

12. That it may not be out of place to mention the dictum in Netra Pal‟s case holds good till date and the very fact that the hon‟ble Apex Court in Malleshi Vs. State of Karnataka [(2004) 8 SCC 95], has distinguished the same on facts, means that the law laid down therein was acceptable to the hon‟ble Apex Court.

13. That the learned trial court erroneously held in para 33 of the impugned judgment (Page 69 of the paper book at 4th line from the bottom) that A-1 in his statement u/s 313 Cr.P.C. did not deny the recovery of the child from the custody of A-2 in pursuance of his disclosure statement, which is factually incorrect as is born out from appellant‟s answers to Questions 15 to 20 at page 44 to 46 of the paper book.

14. That as regards the Role alleged against accused Sri Om, the prosecution case is that the kidnapped child was recovered from the roof of his house at village Bhitya Poki when he was sleeping with the child at around 3 a.m. in the midnight of 4 th and 5th May, 2002.

15. Admittedly, no independent witness was associated with the alleged recovery of the child. According to the deposition of the I.O. PW-8 (at page 26 of the paper book) the villagers had

already collected at the spot when accused Sri Om was arrested, however none was associated with either the arrest or the recovery of the child. The I.O. PW-8 as well as PW-1 Anand Prakash Mishra admitted that they had not taken the local police before reaching at the village of the accused and that they did not contact the any village pradhan and sarpanch of the village there.

Both the I.O. as well as PW-1 have deposed that they were not aware of the name of Sri Om while leaving from Delhi.

16. That appellant Sri Om has taken an unequivocal stand in his statement u/s 313 Cr.P.C. wherein in answers to questions 21 and 29 he has categorically stated that he had not made any disclosure statement to the police and that he was lifted from his house in the morning hours and that no child was recovered from his house or at his instance. He stated that his villagers and pradhan also protested before the police about his false implication and that he had no concern or nexus with the kidnapping of the said child in any manner.

17. That appellant Sri Om did not fall short only asserting his stand in his statement u/s 313 Cr.P.C. and went to the extent of proving the same through leading evidence of his neighbours DW-1 and DW-2 in his defence. Both DW-1 and DW-2 have categorically deposed that accused Sri Om was lifted from his house by the police and that no child was recovered from his house."

2. The appellants have been convicted for the offence

punishable under Section 364A IPC. They have also been

convicted for the offence punishable under Section 120-B IPC.

Sentences imposed is to undergo imprisonment for life and pay

a fine of Rs.5,000/-. The sentences awarded for the two

offences have been directed to run concurrently.

3. Briefly stated, case of the prosecution is that the

appellants entered into a conspiracy to kidnap Master Abhishek,

aged about 3 years, as appellant Kalim Ahmed who was an ex-

employee of Abhishek‟s father knew that Abhishek was the only

son of his parents and could fetch a price. In furtherance of the

conspiracy, they kidnapped Master Abhishek and demanded

ransom in sum of Rs.50,000/- to release him. At the designated

time and place where ransom amount had to be paid, appellant

Kalim Ahmed was apprehended from the place pre-designated

where he came to collect the ransom. On interrogation he made

a disclosure statement that Master Abhishek was in the house of

the co-accused Sri Om. He led the police party to the house of

Sri Om where Master Abhishek was recovered.

4. Indeed, from the arguments advanced evidenced

from the written submissions filed, contents whereof have been

noted hereinabove, main thrust of learned counsel for the

appellants was to urge that the demand for ransom has not

been proved and hence the appellants cannot be convicted for

the offence punishable under Section 364-A IPC. The plea

pertaining to the role of Sri Om as per paras 14 to 16 of the

written submissions would be dealt with by us after discussing

the evidence led by the prosecution.

5. Briefly noted the prosecution stated in the charge

sheet that Master Abhishek aged 3 years was found missing

from his house at around noon on 3.5.2002. He could not be

found and at around noon 3:30 PM his father had lodged a

complaint that his son was missing. The child could not be

traced and at 9:30 PM his father went back to the police station

and made a statement, Ex.PW-1/A, informing:-

"I reside at the aforesaid address along with my family and do plastic work. Today my son Abhishek aged 3½ years of fair complexion, wearing white vest and under-wear had gone missing since 11.00 AM and I had lodged a missing-report about him vide DD No.21 A. Now I have come to know that my servant Kalim Akhtar alias Bablu s/o Nisar Ahmed r/o Mohalla Madan Pura, P.S. Bhalura, Distt. Banaras, U.P., who was working with me about a year back and has not been working with me at present, has taken away my son by way of enticing him. Legal action may be taken against him."

6. Based thereon a FIR was registered. The same night

at around 12:15 midnight, Laxmi Shankar Dwivedi, foster

brother of Anand Kumar Mishra the father of the kidnapped

child, who resides nearby the residence of Anand Kumar Mishra

received a telephone call from an unknown person who informed

that Master Abhishek was with him and if his family wanted his

safe custody, Rs.50,000/- should be paid in cash and that the

kidnapper would receive the money at Kanth Bus Stand, District

Shahjahanpur U.P. at 7:00 PM on 4.5.2002. Accordingly, a

raiding party which inter-alia consisted of Const.Jai Karan PW-3

and SI K.P.Sah PW-8, left immediately for Shahjahanpur by hiring

a private vehicle (Tata Sumo) owned by Pradeep Kumar

Aggarwal PW-7. They reached village Kanth by around 4:30 PM.

Anand Prakash Mishra stood at the bus stop and the police

personnel hid themselves. At 7:30 PM, Kalim Ahmed came and

on Anand Prakash Mishra giving the pre-determined signal the

police personnel apprehended him. He was interrogated and

disclosed to the police that Master Abhishek was in the house of

Sri Om at village Bethia Poki. They left for the said village and

reached there at about 2:00 in the night where Master Abhishek

was recovered from the possession of Sri Om.

7. To prove the charge, PW-1 Anand Prakash Mishra

father of Abhishek deposed that his son was found missing at

12:00 noon on 3.5.2002. He lodged the complaint mark „X‟ with

the police. His son could not be found till night and he

suspected Kalim Ahmed‟s involvement who had worked with

him a year ago. Accordingly, he went back to the police station

and made the statement Ex.PW-1/A. That at 12:20 in the night,

his foster brother Dr. Laxmi Shankar Dwivedi, came to his house

and informed him of having received a telephone call and the

caller demanding Rs.50,000/- for safe return of his son. He

deposed that the caller had informed his foster brother that if

they had to save the life of his son the sum demanded should be

paid at the bus stop at village Kanth, District Shahjahanpur by

7:00 PM. That he and his foster brother went to the police

station where the police recorded the statement of his foster

brother and arranged a vehicle so that they could immediately

reach village Kanth. That they reached village Kanth at 4:30 PM.

He stood near the bus stop. At about 7:30 PM, Kalim Ahmed

came. He gave a signal to the police who apprehended Kalim

Ahmed. That Kalim Ahmed tried to run away but was over

powered. He was interrogated and informed the police that the

child was with Sri Om who was residing in village Bethia Poki.

They went to the said village where his child was recovered from

the house of Sri Om.

8. On being cross examined he stated that no

conversation took place between him and Kalim Ahmed when

Kalim Ahmed reached the bus stand. He admitted that Kalim

Ahmed did not enquire from him whether he had brought the

money; but stated that when he saw Kalim Ahmed who was

about 20-25 yards away, he gave a signal to the police who

immediately pounced upon Kalim Ahmed and arrested him.

9. Laxmi Shankar Dwivedi PW-2, the foster brother of

PW-1 deposed that around 12:15 midnight on the intervening

night of 3/4.5.2002 he received a telephone call at his residence

and the caller told him to inform PW-1 that if he i.e. PW-1

wanted the safe return of his son he should reach Kanth bus

stop, District Shahjahanpur and pay Rs.50,000/- to the caller.

He deposed that he informed said fact to PW-1 and that the

police was immediately informed.

10. On being cross examined he stated that he did not

enquire the name of the caller nor could he identify the voice of

the caller.

11. PW-3 Const. Jai Karan, deposed that on the

intervening night of 3/4.5.2002 he along with SI K.P.Sah, Const.

Billu Singh, Const. Jai Inder Singh and Const. Davinder along

with PW-1 left the police station for District Shahjahanpur at

around 1:00 AM. Pradeep PW-7 was the driver of the vehicle.

They reached Kanth at about 4:30 PM. The police team

organized a „nakabandi‟. At 7:30 PM, SI K.P.Sah signalled the

police personnel to chase a man who was over powered and

disclosed his name as Kalim. He identified Kalim (accused)

present in Court; and went to depose that on interrogation,

Kalim disclosed that the kidnapped child was in the custody of

his friend Sri Om and informed the police that Sri Om resides in

village Bethia Poki. They left for village Bethia Poki and reached

there at about 3:30 AM and that the child was recovered from

the house of Sri Om who was present in his house and was

immediately arrested.

12. Pradeep Kumar Aggarwal PW-7 deposed that in the

night of 3rd and 4th May 2002, his vehicle, a Tata Sumo, was

requisitioned by the police to go to Shahjahanpur U.P. He drove

the vehicle and reached village Kanth at 4:00 PM. He remained

in the vehicle. The police left. They returned at around 9:00 PM

with accused Kalim. That thereafter they went to village Bethia

Poki. Police brought another accused Sri Om and a child with

them. He deposed that there after everybody returned to Delhi.

13. SI K.P.Sah PW-8 deposed in harmony with the

deposition of Const. Jai Karan. He proved the arrest memo of

the appellants as also their disclosure statements.

14. Appellant Sri Om produced two defence witnesses,

Krishan Pal Singh DW-1 and Raj Kumar DW-3 who deposed that

Sri Om was lifted by the police from his house on 3.5.2002 at

6:00 AM.

15. No discrepancy being pointed out in the testimonies

of the witnesses of the prosecution and holding that the

evidence on record proves the recovery of the child from the

house of Sri Om and that the where abouts of the child and the

house of Sri Om were provided to the police as per the

disclosure statement of Kalim Ahmed, the learned Trial Judge

has held that the charge against the appellants stood

established.

16. From the written submissions noted hereinabove it is

apparent that even in the appeal no serious effort was made to

contradict or point out any infirmity in the evidence led by the

prosecution, save and except pertaining to the accused Sri Om.

Even in relation thereto, no inherent weaknesses in the evidence

led has been urged. The pleas urged are that no independent

person being associated with the recovery of the child discredits

the version of the prosecution; further, local police not being

involved also is a circumstance to be kept in mind. Lastly it was

urged that there was no reason to disbelieve the defence

witnesses.

17. That the witnesses of the prosecution have stood by

each other and have corroborated each other in material

aspects stands established on a perusal of the deposition of the

witnesses of the prosecution. Indeed, the evidence establishes

that Kalim was apprehended at around 7:00 PM at Kanth bus

stop. It is true that he was apprehended before he could ask

whether PW-1 had brought the ransom amount but the reason

thereof is that PW-1 gave the signal to the police when Kalim

Ahmed was seen by him about 20-25 yards away from the bus

stop.

18. A question may arise as to how could police identify

Kalim as the person to be apprehended because presumably

there would be many people at the bus stop. PW-1 could have

identified Kalim Ahmed who was his ex-employee, but not the

police.

19. The answer is to be found in the cross examination of

PW-8 who on being questioned answered that Kanth bus stop

was not a big bus stop; meaning thereby there were not many

people at the stop. It would not be out of place to note that PW-

1 deposed that when he signalled the police Kalim Ahmed

started running. This act of Kalim Ahmed would have attracted

the attention of the police to him.

20. In any case, it is too trivial a circumstance to

discredit the version of the prosecution.

21. That no independent witness was associated when

Sri Om was apprehended after his house was raided is

understandable for the reason, the police reached his house at

around 3:00 AM; a fairly unearthly hour to find public persons in

the street.

22. Pertaining to the apprehension of Sri Om and his

arrest, we note that the arrest memo shows, vide column No.8,

that the police had informed Babloo S/o Ram Rattan R/o Village

Bethia Poki PS Kanth Shahjahanpur about arrest of Sri Om and

obtained his signatures thereon.

23. It is but evident that Sri Om was apprehended at his

house and his relation/co-villager Babloo was duly informed

about said fact.

24. Babloo was the best witness of Sri Om to have

deposed about the arrest of Sri Om. The arrest memo shows Sri

Om being arrested on 5.5.2002; it belies the deposition of the

defence witnesses that Sri Om was arrested by the police on

3.5.2002 at 6:00 AM.

25. Pertaining to the decisions cited by the learned

counsel for the appellants as per para 9 of the written

submissions, suffice would it be to state that in Netrapal‟s case

the demand was sought to be established with reference to a

letter Ex.P-1 recovered from the possession of the accused. It

was held that since the letter was not posted, a demand as per

law could not be imputed.

26. The decision in Mohammad Rashid Ansari‟s case is

also distinguishable for the reason in said case there was

evidence that the accused was a creditor of the complainant and

the Division Bench of the Bombay High Court opined that the

possibility of the accused kidnapping the child of the

complainant to pressurize the complainant to liquidate the debt

could not be ruled out and in said circumstances disbelieved the

evidence of the complainant that a ransom call was made.

27. In the instant case it has to be noted that PW-2 has

categorically deposed that at 12:15 midnight of the intervening

night of 3/4.5.2002 he had received a telephone call and the

caller had told him to convey to Anand Prasad PW-1 that if he

wanted the safe return of his child he should pay Rs.50,000/- to

the caller at Kanth bus stop, District Shahjahanpur.

28. There is no law that a ransom call has to be made to

the parents of the kidnapped child. The demand for ransom can

be conveyed through any medium. As long as the caller intends

that the same should be conveyed to the person concerned and

as long it is proved that it was conveyed to the person

concerned, it would be sufficient to attract Section 364-A IPC.

29. We find no merits in the two appeals.

30. The appeals are dismissed.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

February 26, 2009 mm