Rakesh vs State Of Delhi
2009 Latest Caselaw 284 Del

*                     IN THE HIGH COURT OF DELHI

                                 Judgment reserved on : January 22, 2009
%                                Judgment delivered on : January 28, 2009

+                                 CRL.A. 491/2005

       RAKESH                                   ..... Appellant
                      Through:    Mr.Bhupesh Narula, Advocate.

                                  versus

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


                                  CRL.A. 618/2005

       SURESH                                         ..... Appellant
                      Through:    Mr.Rajesh Mahajan, Advocate.

                                  versus

       STATE OF DELHI                           ..... 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. Appellants were alleged to have conspired to kidnap

Angad, aged 7½ years for ransom and in furtherance of the

conspiracy they kidnapped Angad on 12.9.2000 and demanded

for his release, firstly a sum of Rs.4 lakhs and thereafter Rs.2.5

lakhs. They were charged for committing offences punishable

under Section 363; Section 364-A and Section 120-B IPC. The

appellants have remained in judicial custody since the time of

their arrest which took place in the month of October 2000.

They have remained behind bars for over 8 years.

2. Vide impugned judgment and order dated 24.2.2005,

the learned Trial Judge has held them guilty of having

committed offences punishable under Section 120-B and Section

364-A IPC. Vide order dated 26.2.2005, sentence to undergo

rigorous imprisonment for life and to pay a fine of Rs.1,000/-

each; in default to undergo rigorous imprisonment for further

period of one year each has been imposed.

3. The order on sentence reads as under:-

"1. I have heard Addl. PP for State and the counsel for accused persons on the point of sentence.

2. The accused have been found guilty of conspiracy and kidnapping for ransom. No physical harm was however caused to the kidnapped child by the convicts. He returned safely to his parents. Therefore, it is not a case where the convicts deserve the extreme penalty of death. They are sentenced to undergo Rigorous Imprisonment for life and to pay Rs.1,000/- each as fine. In default of payment of fine, they will undergo Rigorous Imprisonment for further period of one year each.

ANNOUNCED IN THE OPEN COURT ON 26-2-05."

4. In convicting the appellants, the learned Trial Judge

has held that the evidence of PW-13 Shri Harshvardhan,

Sr.Scientific Officer, FSL, Haryana, who proved his opinion given

in the report Ex.PW-13/A, to the effect, that the letters Ex.P-1, P-

2 and P-3 are written by the same person who had written the

specimen writings Ex.PW-12/C-12 to Ex.PW-12/C-19; specimen

writings being those of accused Rakesh are sufficient to prove

that the three letters containing demand for ransom have been

written by accused Rakesh. Believing testimony of Sant Raj PW-

3, father of Angad, as also the testimony of Angad examined as

PW-10, coupled with the testimony of the investigating officer

Inspector Kulbhushan PW-7, SI Inderpal PW-4 and SI Sanjeev

Verma PW-12, the learned Trial Judge has held that their

testimonies establish that Angad was recovered from the

custody of accused Suresh, who on interrogation, made

disclosure statement Ex.PW-4/A and thereafter pointed out the

house of co-accused Rajesh at village Dhakia Shobha near

Tilhan, District Shahjahanpur, UP. Noting additionally the

testimony of Angad and holding it to be worthy of acceptance

the learned Trial Judge has held that the evidence establishes

the involvement of the two appellants in the commission of the

crime.

5. Briefly stated, case of the prosecution was that

Angad who had gone to his school did not return home on

12.9.2000 and his father Sant Raj PW-3 came to the police

station to lodge a missing person report, pursuant where to FIR

Ex.PW-3/A was registered under Section 363 IPC on 12.9.2000.

In spite of efforts, Angad could not be traced and that on

20.9.2000 Sant Raj came to the police station and handed over

a letter, Ex.P-1, containing a demand for ransom; upon which

the offence punishable under Section 364-A IPC was added in

the FIR. Sant Raj received another letter, Ex.P-2, demanding

ransom on 29.10.2000 followed by another letter, Ex.P-3,

received by him on 4.10.2000, in which the date and the place

where ransom money was to be delivered was informed. The

letter, Ex.P-3, informed Sant Raj to reach Tilhan Station on

7.10.2000 and proceed to village Kurtakpur where the child

would be returned on receipt of Rs.2.5 lakhs. Accordingly, a

raiding party was constituted which consisted of SI Inderpal

Singh PW-4, Inspector Kulbhushan PW-7, SI Sanjeev Verma PW-

12, and a few police constables who reached Village Tilhan on

5.10.2000 and on the date notified in the letter, Ex.P-3, for

delivery of ransom amount i.e. 7.10.2000, and at 10:00 AM took

position near the place where money was to be delivered and

waited for the kidnappers to come but none came. Dejected,

the raiding party as also the father of Angad were returning

when at the bus stop of village Tilhan, Sant Raj saw his child

Angad in the lap of accused Suresh who was apprehended and

on interrogation disclosed vide disclosure statement Ex.PW-4/A

that he was staying with co-accused Rajesh at village Dhakia

Shobha near Tilhan and led the raiding party to the house of the

co-accused where he stated that Angad was kept as hostage

and pointed out to the house, vide pointing out memo Ex.PW-

4/B. Rakesh could not be apprehended by the police and

surrendered in Court. On learning about Rakesh having

surrendered, an application was filed before the learned

Metropolitan Magistrate seeking police remand. The accused

was remanded to police custody for three days where on

interrogation he made a disclosure statement Ex.PW-5/C and

while in the custody of the police at the police station, gave

specimen handwriting on sheets Ex.S-1 to S-11 and inland

letters Ex.S-12 to S-19.

6. During Trial, Sant Raj father of Angad examined as

PW-3, deposed that his son Angad, a student of class 2 at Nagar

Nigam Prathmik Vidyalaya, did not return home on 12.9.2000

and he went to the police station and lodged a missing person

report on basis whereof the FIR Ex.PW-3/A was registered. That

he received a letter Ex.P-1 on 20.9.2000 in which ransom in sum

of Rs.4 lakhs was demanded. He handed over the letter to the

police vide seizure memo Ex.PW-3/B. On 29.9.2000 he received

another letter, Ex.P-2, demanding ransom in sum of Rs.2.5 lakhs

which he handed over to the police vide seizure memo Ex.PW-

3/C. He deposed that on 4.10.2000 he received another letter,

Ex.P-3, which he handed over to the police vide seizure memo

Ex.PW-3/D. He deposed that as directed in the letter, Ex.P-3, he

along with the police raiding party left for Village Shobhapur

Dhatia in District Shahjahanpur, UP on 5.10.2000 and reached

there on 6.10.2000 and that the accused Suresh met them at

village Shobha Dhatia ahead of Tilhan and that Angad was with

him i.e. Suresh. He immediately identified Angad at which

accused Suresh was immediately apprehended and his son was

recovered.

7. On being cross-examined, he stated that he knew the

accused Suresh for about 10 years and that it was correct that

Suresh belonged to his native place and was on visiting terms in

his house. He denied the suggestion that he was running into

losses and had concealed his son in the house of his brother

Nandlal and had falsely implicated the accused. He denied

knowledge of one R.P.Malik having a factory, or Vinod, Amar,

Ajay and Rajesh being employed by R.P.Malik. On being cross-

examined whether they reported to the local police station in UP

for making an entry in the record of the local police of the

raiding party from Delhi being present in the jurisdiction of the

local police station, he stated that he did not remember doing

so.

8. SI Inderpal PW-4, deposed that he joined the

investigation on 4.10.2000 and since the letter Ex.P-3 had been

received directing that the ransom money should be paid at

village Kurtakpur near village Tilhan, District Shahjahanpur, UP,

the raiding party proceeded to Tilhan and reached Tilhan on

5.10.2000 itself. Upon making local inquiries they learnt that

village Kurtakpur was at a distance of 4 - 5 km from village

Tilhan. The raiding party stayed overnight at Tilhan. He

deposed that on 6.10.2000 they surveyed the place where the

kidnappers had written in the letter, Ex.P-3, for ransom to be

delivered and returned to village Tilhan and stayed over night

on 6.10.2000. On 7.10.2000 at 10:00 AM the police officials

took position near the place where the kidnappers were to

receive the ransom and waited till 2.00 PM. None came. They

returned to village Tilhan and when they reached the bus stand

of village Tilhan, accused Suresh was spotted with Angad and on

seeing him, Sant Raj immediately pointed out that his son Angad

was with accused Suresh, who was apprehended and on

interrogation made a disclosure statement Ex.PW-4/A. He

deposed that thereafter Suresh led the raiding party to a house

at village Dathia Shobhapur and pointed out that said house

belonged to Rajesh and Angad was kept as a hostage in the said

house.

9. Inspector Kulbhushan PW-7, stated that on 4.10.2000

he was posted SHO PS Sarai Rohilla and when letter Ex.P-3 was

handed over to the police, a raiding party was constituted which

included him. That the raiding party left Delhi on 5.10.2000 and

reached Tilhan the same evening. He stated that they stayed

at village Tilhan and next day i.e. 6.10.2000 proceeded to

village Kurtakpur to survey the area because the operation was

to take place the next day. They returned to Tilhan, and on

7.10.2000 went to village Kurtakpur and took positions. They

waited till evening but nobody turned up. In the evening,

everybody returned to Tilhan and when they reached the bus

stand of village Tilhan, Sant Raj saw Angad in the lap of Suresh

who was arrested. On being cross-examined he admitted that

no memo was prepared recording recovery of Angad from the

custody of Suresh.

10. PW-12 SI Sanjeev Verma, deposed that he was

posted at PS Sarai Rohilla on 14.10.2000 and that on missing

person report lodged by Sant Raj the FIR was registered. He

deposed having seized Ex.P-1, Ex.P-2 and Ex.P-3 when Sant Raj

came to the police station to hand over the said letters to him.

He deposed that on receipt of Ex.P-3 a raiding party was

organized which included himself. The raiding party left for

Tilhan on 5.10.2000 and reached Tilhan at about 8.30 PM where

they stayed over night. On 6.10.2000 a survey of the place

mentioned in Ex.P-3 was conducted. After survey they returned

to Tilhan and on 7.10.2000 took up positions near the place

where the ransom amount was to be delivered as disclosed in

the letter Ex.P-3. Nobody turned up. The raiding party returned

to Tilhan and while they were returning, the complainant i.e.

Sant Raj spotted Angad in the lap of Suresh. That Suresh was

overpowered and Angad was recovered. He deposed that

accused Rakesh surrendered in Court on 2.11.2000. He was

remanded to police custody for 3 days and that on interrogation

made a disclosure statement Ex.P-5/C and that he took

specimen handwriting of Rakesh Ex.PW-12/C-1 to Ex.PW-12/C-19

when Rakesh was in police custody.

11. Angad was examined as PW-10. He deposed that

Suresh took him from the school by enticing him for eating

popcorn and in a car took him to Shahjahanpur and kept him

there for 27 days where 2 women and Rakesh were also

present. On being cross examined he denied that Suresh and

Rakesh were not in village Shahjahanpur.

12. The accused examined Rajesh DW-1 and Amar Singh

DW-2 as witnesses in defence to prove that there was a family

feud pertaining to land between the family of Sant Raj and the

family of DW-1 Rajesh and the accused Suresh. And that Suresh

and accused Rajesh were falsely implicated. DW-1 deposed that

there was a dispute over land between his family and family of

Sant Raj and that Suresh was working in a factory at Sarai

Rohilla on 7.10.2000 when police officers from PS Sarai Rohilla

came to the factory and took him i.e. the witness, Rakesh along

with 3 or 4 employees to the police station and gave beating to

all. Illegal gratification of Rs.25,000/- was demanded from all.

He i.e. DW-1 Rajesh paid the illegal gratification and was

released.

13. In cross examination DW-1 stated that the land in

respect whereof there was a dispute between the two families

was in village Pakrol.

14. Amar Singh DW-2 deposed that he, along with

accused Suresh and accused Rajesh were employed in a factory

at Anand Parbat and that the police detained all of them at the

police station Sarai Rohilla and demanded illegal gratification for

being released. He paid Rs.25,000/- and was released but the

accused could not arrange said amount and were falsely

implicated.

15. The rival versions have to be decided with reference

to the evidence aforenoted.

16. But, we intend to note certain inherent features of

the three ransom notes i.e. the inland letters Ex.P-1, Ex.P-2 and

Ex.P-3; the seizure memos Ex.PW-3/B, Ex.PW-3/C and Ex.PW-

3/D; and the arrest memo of accused Suresh. The letters Ex.P-1

and Ex.P-2 do not bear the seal of the delivery post office. The

seal of the post office wherefrom the letters were posted are

affixed on the inland letters. The date when the post office

affixed the seal on Ex.P-1 cannot be deciphered as the imprint is

pale. The imprint of the seal of the post office where Ex.P-2 was

posted is legible and shows the date 27.9.2000 and that the

post office is in New Delhi. The name of the post office is not

legible. The seal of the post office wherefrom Ex.P-3 was posted

is illegible. The seal of the delivery office on Ex.P-3 shows it

being delivered from Delhi, but the name of the post office is not

legible. The three seizure memos Ex.PW-3/B, Ex.PW-3/C and

Ex.PW-3/D have been written with the same pen evidenced by

the ink used and the nib/tip of the pen used. Sant Raj has

signed on all three seizure memos using the same pen which

has been used to scribe the three seizure memos. Const.

Satender is the witness to the three seizure memos. He has

appended his signatures on the three seizure memos with the

same pen evidenced by the ink used and the nib/tip of the pen

used. The pen used by Satender Singh is different than that

used to write the contents of the three seizure memos. Further,

on seizure memo Ex.PW-3/B, at the top it has been recorded

that the same relates to FIR No.337/2000 dated 14.9.2000 under

Section 364-A IPC with an overwriting on the numeral 4 (364)

and scoring of the letter A resulting in Section 364-A being

corrected as a result of overwriting to Section 363. The arrest

memo of Suresh bears the signatures of DW-1 Rajesh.

17. As per the testimony of PW-3 and PW-12, the ransom

note Ex.P-1 was received on 20.9.2000. The FIR in question was

registered on 14.9.2000 since for 2 days after 12.9.2000, Angad

had not reached home; the FIR was registered under Section

363 IPC. Till Ex.P-1 was brought to the notice of the police and

seized by the police the FIR would obviously continue to be for

the offence punishable under Section 363 IPC. The offence

punishable under Section 364-A IPC had to be added only after

the information pertaining to a demand of ransom was given to

the police and had to be so added after recording receipt of

information that a demand for ransom has been made. Thus,

when the seizure memo Ex.PW-3/B was received it could not be

recorded that the FIR pertained to an offence punishable under

Section 364-A IPC.

18. Prima facie, the cumulative effect of the features on

the three seizure memos noted hereinabove shows the

possibility of all three being scribed simultaneously and

signatures of Satender Singh being obtained later on; casting a

doubt on the seizure effected. The overwriting on the seizure

memo Ex.PW-3/B to correct the Section of the IPC for which the

FIR was registered is very important. It shows that the scribe

scribed the seizure memo on a date after 20.9.2000 and hence

mentioned the Section as 364-A but later on corrected himself.

19. DW-1 Rajesh has deposed of being present when

accused Suresh was taken into custody by the police and has

deposed that this happened in the factory at Sarai Rohilla where

all worked. The signatures of Rajesh DW-1 on the arrest memo

of Suresh assumes significance because Suresh, as per the

prosecution, was apprehended from the bus stand at village

Tilhar UP and Rakesh was not present at the time of the arrest.

The signatures of Rajesh DW-1 on the arrest memo Ex.PW-3/DA

of Suresh probablize the version of Rajesh DW-1 that Suresh,

Rajesh DW-1, accused Rakesh and a few other persons were

taken to the police station Sarai Rohilla by the police from the

factory at Anand Parbat. We note that the police may also have

an explanation for the signatures of DW-1 Rajesh on the arrest

memo because according to them he was the person disclosed

as the near relative of Suresh and that they obtained signatures

of Rajesh on the same after informing him about Suresh being

apprehended. But, the benefit of doubt must go to the accused

if two versions are equally possible.

20. The letter Ex.P-2 has been posted from a post office

at Delhi on 27.9.2000. As per the deposition of Angad during his

entire period of detention he was kept at Shahjahanpur and both

accused persons and two other women used to be in the house

where he was kept. If accused Rakesh is the author of Ex.P-2 he

would presumably be in Delhi on 27.9.2000 because only then,

after writing the letter demanding ransom could he post the

same from Delhi. The probability of his writing the letter at

Shahjahanpur and getting the same posted from somebody else

at Delhi is too remote. Now, if two more women were in the

house where Angad was illegally detained, they would also be

accomplices and it is surprising that said two women have not

been impleaded as accused. We may incidentally note that

even in the statement of Sant Raj recorded under Section 161

Cr.P.C. on 20.9.2000 the FIR in question has been shown as

relatable to the offence under Section 364-A IPC. We clarify we

are just recording the same as a matter of fact without treating

the same as evidenced because of the reason neither Sant Raj

nor PW-12 have been cross examined with respect to the

statement of Sant Raj recorded by the police under Section 161

Cr.P.C.

21. Let us revisit the testimony of Sant Raj, SI Inder Pal,

Inspector Kulbhushan and SI Sanjeev Verma. According to Sant

Raj on receipt of Ex.P-3 the raiding party left for village

Shobhapur Dhatia in District Shahjahanpur UP on 5.10.2000

because he was directed to pay the ransom near said village on

7.10.2000. He has categorically stated that they reached village

Shobhapur Dhatia on 6.10.2000 and met accused Suresh ahead

of village Tilhan and he saw Angad with accused Suresh. On his

identifying Angad the police recovered Angad from the custody

of Suresh and apprehended Suresh at the spot. But, SI Inder

Pal, Inspector Kulbhushan and SI Sanjeev Verma deposed with

material variation. According to them they reached Tilhan on

5.10.2000 itself and the next day i.e. 6.10.2000 surveyed the

place where the kidnappers had written in Ex.P-3 for ransom

money to be delivered and that they took positions at the spot

the next day on 7.10.2000. PW-3 has not deposed about any

survey being made on 6.10.2000 or the raiding party taking

positions on 7.10.2000; according to PW-3 his son was

recovered on 6.10.2000 itself. Further, there are variations in

the depositions of SI Inder Pal and Inspector Kulbhushan.

Whereas SI Inder Pal categorically deposed that on 7.10.2000

they waited till 2:00 PM at the place where kidnappers were to

receive the ransom and then returned to village Tilhan but

Inspector Kulbhushan has deposed that they remained at the

spot where ransom had to be delivered till the evening.

22. There is another interesting feature in the testimony

of PW-3. He speaks about going to village Shobhapur Dhatia

because according to him this was the village where he was

directed to deliver the ransom as per Ex.P-3. But, the letter

Ex.P-3 directs to reach village Tilhan and proceed to village

Kurtakpur.

23. Pertaining to the deposition of Angad, we note that

his deposition is very cryptic. Though he has named the

accused as the offenders but the possibility of Angad being

tutored cannot be ruled out. Angad was aged nearly 12 years

when he deposed on 13.10.2004. He was entering his teens.

The possibility of his father guiding him to speak what he did is a

possibility. Be that as it may, while considering his i.e. Angad‟s

testimony the other circumstances of the case which have a

bearing as also the other evidence brought on record has to be

kept in mind. It has also to be noted that the police did not take

the precaution of getting Angad‟s statement recorded soon after

the incident before a Magistrate under Section 164 Cr.P.C.

24. There are clouds over the evidence of the

prosecution creating doubts which have not been dispelled.

25. It is not in dispute that the specimen writings of

accused Rakesh were obtained in the police station by PW-12

without seeking any permission from the Court. Not only that,

at the time when the alleged specimen writings were obtained,

no case was pending in any Court. The case was still under

investigation.

26. In the decision reported as 1994 SCC (Crl.) 1376

Sukhvinder Singh & Ors. Vs. State of Punjab, in the course of

investigation the police, after obtaining the permission from the

Court of the Tehsildar- Executive Magistrate obtained specimen

writings and thumb impression of Sukhvinder Singh and sought

to prove certain documents seized by the police purportedly

executed and written by Sukhvinder to link him with the offence.

Holding that evidence pertaining to the opinion of the finger

print and handwriting expert had to be discarded and

notwithstanding the accused admittedly having given the

specimen handwriting and finger prints, with reference to

Section 73 of the Evidence Act it was observed as under:-

"18. Under the Indian Evidence Act, two direct methods of proving the handwriting of a person are:

a) by an admission of a person who wrote it;

b) by the evidence of some witness who saw it being written by that person.

Apart from these, there are some other methods of proof of handwriting by opinion. They are:

1) by the evidence of a handwriting expert (Section

45).

2) by the evidence of a witness acquainted with the handwriting of the person who is said to have written the disputed writing (Section 47).

3) opinion formed by the Court itself on comparison made of the disputed writings with the admitted or specimen writings (Section 73).

We are concerned here primarily with the third mode.

19. A subsequent writing of an accused taken under the direction of the court is in substance a specimen

writing obtained for comparison of the disputed writing with it. Though, Section 73 does not specifically say as to who could make such a comparison but reading Section 73 as a whole, it is obvious that it is the Court which has to make the comparison and it may form the opinion itself by comparing the disputed and the admitted writings or seek the assistance of an expert, to put before the Court all the material, together with reasons, which induce the expert to come to a conclusion that the disputed and the admitted writings are of one and the same author so that the court may form its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. The function of a handwriting expert is to opine after a scientific comparison of the disputed writing with the admitted (specimen) writing with regard to the points of similarity and dissimilarity in the two sets of writings.

20. The second paragraph of Section 73 (supra) enables the court to direct any person present before it to give his specimen writing "for the purpose of enabling the court to compare" such writings with writings alleged to have been written by such person. The obvious implication of the words "for the purpose of enabling the court to compare" is that there is some proceeding pending before the court in which or as a consequence of which it is necessary for the court to compare such writings. The direction is therefore required to be given for the purpose of "enabling the court to compare" and not for the purpose of enabling an investigating or a prosecuting agency to obtain and produce as evidence in the case the specimen writings for their ultimate comparison with the disputed writings. Where the case is still under investigation and no proceeding are pending in any court in which it might be necessary to compare the two writings, the person (accused) cannot be compelled to give his specimen writings. The language of Section 73 does not permit any court to give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other competent court. Section 73 of the Evidence Act in

our opinion cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the enquiry or the trial court before which proceedings are pending requires the writing for the purpose of „enabling it to compare‟ the same. A court holding an enquiry under the Code of Criminal Procedure is indeed entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the court by which he may be subsequently tried to compare it with the disputed writings. Therefore, in our opinion the court which can issue a direction to the person to give his specimen writing can either by the court holding the enquiry under the Code of Criminal Procedure or the court trying the accused person with a view to enable it to compare the specimen writings with the writings alleged to have been written by such a person. A court which is not holding an enquiry under the Code of Criminal Procedure or conducting the trial is not permitted, on the plain language of Section 73 of the Evidence Act, to issue any direction of the nature contained in the second paragraph of Section 73 of the Evidence Act. The words "any person present in the court" in Section 73 has a reference only to such person who are parties to a cause pending before the court and in a given case may even include the witnesses in the said cause but where there is no cause pending before the court for its determination, the question of obtaining for the purposes of comparison of the handwriting of a person may not arise at all and therefore, the provisions of Section 73 of the Evidence Act would have no application.

21. The specimen writings in the instant case of appellant Sukhdev Paul were taken under the directions of Sh. S.P. Garg, Tehsildar-Executive Magistrate, PW13. No enquiry or trial was admittedly pending in the court of the Tehsildar-Executive Magistrate. The enquiry and trial in this case were pending under TADA before the Designated Court only. The direction given by the Tehsildar-Executive Magistrate Sh. S.P.Garg to the appellant Sukhdev Paul to give his specimen writing was clearly unwarranted and not contemplated or envisaged by

Section 73 of the Evidence Act. The prosecution has not disclosed as to at what stage of investigation or enquiry or trial was Sukhdev Paul appellant produced before the Executive Magistrate PW13 to take the specimen writing of the appellant and why the specimen writings were obtained under directions of PW13 and not of the Designated Court. It is a mystery as to how the specimen writings required to be used at the trial against the appellant were directed to be taken by PW13, who was not inquiring or trying the case. To a specific question during his cross- examination, PW13 admitted at the trial, that when he had issued the direction to the appellant there was no document on his file which could go to show as to under whose orders the appellant had been sent to him for taking his specimen handwriting. The manner in which the specimen writing of Sukhdev Paul was taken is totally objectionable and against the provisions of Section 73 of the Evidence Act. The Executive Magistrate PW13 appears to have been too obliging and did not even care to examine the provisions of law before issuing the direction to the appellant. The argument of the learned counsel for the State that since no objection was raised by the appellant when he was called upon to give his specimen writing by PW13 therefore he cannot be permitted to make a grievance now is only an argument of despair and the silence of the appellant, who admittedly on that day, was not even represented by an advocate, cannot certainly clothe PW13 with any jurisdiction to issue the directions as envisaged by Section 73 of the Evidence Act. The specimen writing of Sukhdev Paul could not, therefore, be made use of during the trial and the report of the handwriting expert, when considered in the light of the foregoing discussion, is rendered of no consequence at all and cannot be used against Sukhdev Paul appellant to connect him with the crime."

27. Pertaining to the offence punishable under Section

364-A IPC it has to be established that there was a demand for

ransom. The prosecution has sought to prove the same with

reference to Ex.P-1, Ex.P-2 and Ex.P-3, the three letters

purportedly written by accused Rakesh and the linkage is sought

to be established through the medium of the specimen writings

of Rakesh obtained when he was in police custody with

reference to the FSL report Ex.PW-13/A. Since the specimen

writings cannot be read in evidence, the report of the

handwriting expert has to be ignored. The result is that the

charge under Section 364-A IPC has to fail on said count alone.

28. Before concluding we cannot refrain from noting a

very disturbing feature; being the police officers obtaining

specimen writing of Rakesh on the inland letters Ex.PW-12/C12

to Ex.PW-12/C19. The language of the writing, obviously

dictated at the instance of PW-12 shows that he who wrote on

the said letters has written about ransom money required to be

paid. Could not the police misuse these letters if Rakesh had to

be falsely implicated in some other case? Specimen writings

must be obtained on plain sheets and the content required to be

scribed should not be of a kind which can be possibly misused.

We expect the investigating officers to be careful.

29. The appeal is allowed. Impugned judgment and

order dated 24.2.2005 convicting the appellant is set aside. The

sentence imposed vide order dated 26.2.2005 is also set aside.

30. If not required to be kept in custody in any other

case, the appellants are directed to be set free forthwith.

31.           Copy          of   this   order   be   forwarded    to     the

Superintendent Central Jail Tihar.



                                          PRADEEP NANDRAJOG, J.




                                          ARUNA SURESH, J.

JANUARY 28, 2009
dk/mm