Raj Kumar vs The State
2009 Latest Caselaw 285 Del

*               HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Order : January 28, 2009

+                               Crl. Appeal No. 7/2008

RAJ KUMAR                                    ..... Appellant
                        Through : Mr. Jitender Khanna, Advocate

                         VERSUS
THE STATE (G.N.C.T. OF DELHI)           .....Respondent

Through : Mr. Pawan Sharma, APP

+ Crl. Appeal No. 195/2008

CHANDER SHEKHAR ..... Appellant Through : Mr. S.B. Dandpani, Advocate

VERSUS THE STATE (G.N.C.T. OF DELHI) .....Respondent Through : Mr. Pawan Sharma, APP

CORAM :-

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

(1) Whether reporters of local paper may be allowed to see the judgment?

(2) To be referred to the reporter or not? Yes.

(3) Whether the judgment should be reported in the Digest ? Yes.

PRADEEP NANDRAJOG, J.(Oral)

1. Heard learned counsel for the parties.

2. The appellants were charged of having kidnapped

Mohit and having demanded ransom for his release. According

to the prosecution not only was Mohit wrongfully confined, but

was fed with some liquid which was found to be a stupefying

drug and additionally was intimidated.

3. The charge faced by the appellants was of having

committed offences punishable under Sections 363/34 IPC; 506

Part II/34 IPC, 328/34 IPC, 341/34 IPC, 343/34 IPC and 364A/34

IPC.

4. The case put up by the prosecution was that on

27.6.2004, Mohit PW-1, aged about 8 years, had accompanied

his parents for a wedding to a Dharamshala at Bhagwati Vihar,

Uttam Nagar, Delhi and around 12 midnight, proceeded alone to

spend the night with one Shama, his sister, who was residing

near the Dharamshala. The appellants who were at the venue

of the marriage followed Mohit and kidnapped him. After having

kidnapped Mohit a ransom demand in sum of Rs.2 lacs for

releasing Mohit was raised on his father. It was the case of the

prosecution that Mohit was forced to drink a sour and bitter

water containing drugs; he was kept in unlawful custody and

was prevented from moving around. The prosecution claimed

that on receipt of a secret information, the police team reached

village Burari and saw appellant Raj Kumar with the child. The

child was recovered and Raj Kumar was arrested at 2.30 PM on

30.6.2004. Soon thereafter appellant Chander Shekhar came to

the spot and was arrested at 3.00 PM.

5. Mohit PW-1, the child who was stated to be

kidnapped, his father Keshav Kumar PW-2, Pushpa PW-4 the

maternal aunt of Mohit, are the star witnesses of the prosecution

and deposed about Mohit attending the marriage and being

found missing. PW-2 father of Mohit and PW-4 the maternal

aunt of Mohit, deposed about ransom being demanded from the

father of Mohit.

6. The factum of arrest and the manner in which the

investigation was conducted was sought to be proved through

the testimony of ASI Arjun Singh PW-10 and HC Devender PW-9.

7. With reference to the testimony of PW-1, PW-2 and

PW-4, the learned trial judge has concluded that the charge of

Mohit being kidnapped for ransom and illegally confined, as also

intimidated has been successfully established by the

prosecution.

8. In view of the testimony of Dr. Bhatia PW-6, who had

examined Mohit on 30.6.2004 and had opined that nothing could

be detected where from it could be gathered that the child had

been given a stupefying substance, the charge punishable under

Section 328 IPC has been held not having been established.

9. The principal grievance of the learned counsels for

the appellants urged at the hearing of the appeal today is that

the learned trial judge, in a short and a cryptic decision penned

in 10 pages, has referred to the deposition of the witnesses as

made during examination-in-chief; the cross-examination of the

witnesses has been ignored. It is urged that the inherent

improbabilities in the versions given by the witnesses has been

ignored and that the witnesses have contradicted themselves on

material facts has been ignored. It is urged that tell-tale

circumstances have been ignored. It is urged by the learned

counsels for the appellants that it is settled law that at a

criminal trial, evidence has to be evaluated keeping in view the

broad circumstances and the probabilities of the case.

10. The involvement of the police is to be traced to Ex.

PW-7/A, when on a written complaint made by Keshav Kumar

PW-2 before the duty constable at Police Post, East Uttam

Nagar, on 28.6.2004, a DD entry was recorded to the effect that

Keshav Kumar has reported at the police post that Keshav

Kumar along with his family had attended a marriage at V-93,

Sector A, Bhagwati Vihar, Uttam Nagar on 27.6.04 and that his

son named Mohit aged 8 years was missing since 12 in the

night. The DD entry was recorded and attempts were made to

locate the where-about of Mohit. On 30.6.2004, statement Ex.

PW-2/B, of Keshav Kumar was recorded, in which, with reference

to his earlier complaint, he stated that his child was missing and

had not been found. He stated that he suspects the

involvement of appellant Chander Shekhar son of Raja Ram,

resident of A Block, Vijay Nagar, Ghaziabad, U.P. He gave the

reason for his suspicion being that Chander Shekhar was found

missing from the venue of the marriage soon after Mohit was

found missing and had attended the marriage uninvited.

11. The Police claims, as per the testimony of the

Investigating Officer, ASI Arjun Singh PW-10, that on a secret

information received the police party went to Burari,

accompanied by father of Mohit and saw Mohit with Raj Kumar.

The child was recovered and Raj Kumar was arrested and after

15 minutes accused Chander Shekhar was also noticed in the

area and was apprehended.

12. In his testimony, Mohit PW-1, the child kidnapped,

deposed that on 27.6.2004 he had come to Delhi from

Ghaziabad with his parents to attend a marriage in a

Dharamshala and the same night he left for the house of his

Didi, Shama, who lived nearby and that just outside the house of

his Didi, the accused caught him and pressed his mouth; telling

him that they would leave him at the house of his "Badi

Mummy". He deposed that he was forcibly removed in a vehicle

and was threatened to keep shut. He was made to drink a sour

and bitter water. He was fed half roti a day. He deposed that

after four days when both the accused were roaming by holding

his finger at an unknown place, his father along with the police

reached, and he was rescued.

13. Being relevant, we may note that Mohit has

categorically deposed that the accused persons had been

feeding him and that both accused persons had jointly, in

concert, kept him under an illegal confinement. He has not

stated of any other person being present at the place where he

was illegally confined. On cross-examination, he categorically

stated: "I remained with accused persons for four days".

14. Keshav Kumar PW-2, deposed about having attended

a marriage in Uttam Nagar. He affirmed having made the

statement Ex. PW-2/B to the police pursuant where to the FIR

was registered. He deposed that accused Chander Shekhar and

Raj Kumar were his neighbours. He deposed that since his son

could not be traced, he made the statement Ex.PW-2/B which

bore his signatures at point B in which he disclosed his

apprehension of Chander Shekhar being the suspect inasmuch

as he i.e. Chander Shekhar had attended the marriage without

being invited as a guest and had gone missing since the time his

son had gone missing. He went on to depose that on 1.6.2004,

at about 5.00 AM, while they were tracing his son and were

present at Sant Nagar Burari, he saw accused Raj Kumar with

his son and soon thereafter accused Chander Shekhar reached

there. He deposed that his son was recovered in his presence.

He further deposed that at 12 midnight, accused Chander

Shekhar had demanded a ransom of Rs. 2 lacs from him. On

being cross-examined, Keshav Kumar stated that he had

searched for his son on 28.6.2004, firstly at Uttam Nagar and

then at Ghaziabad on 28.6.2004. He stated that they came back

from Ghaziabad on 29.6.2004. He categorically stated: "Both

the accused persons were with me when I was returning from

Ghaziabad on 29.6.04".

15. We may note that the date 1.6.2004 appears to be a

typographic mistake and consistent with his deposition, he

appears to have disclosed the date as 30.6.2004. But the same

is irrelevant.

16. Pushpa PW4, the maternal aunt of Mohit, deposed

that Mohit was found missing on 27.6.2004 and an attempt was

made to trace him. She deposed that accused Chander Shekhar

was present at the marriage without being invited. She

categorically deposed that: "The accused had accompanied us

to trace my son and thereafter he had gone to Ghaziabad and

disappeared thereafter". On being cross-examined she stated

that: "On the third day of the marriage the accused denied his

involvement in this case and requested us not to doubt him.

Accused was made to live with us and was required to sleep

with us but he told us that he is feeling suffocated and he is

allowed to go to his home. During night accused confessed that

the child is in the custody of a gang and in case Rs. 2 lacs and

one Maruti car is given he can get the child released. Thereafter

accused was handed over to the police at about 2 a.m. in the

night."

17. H.C. Devender PW-9 deposed that the child was

recovered from the custody of Raj Kumar at about 2.45 PM. The

date referred by him is 23.6.2004.

18. ASI Arjun Singh PW-10 deposed that on receiving a

secret information that the kidnapped child was seen at Burari,

he along with HC Devender, Const. Virender and father of Mohit

went to the village Burari and saw the child in custody of

accused Raj Kumar who was apprehended and soon thereafter

Chander Shekhar, who visited the spot was also arrested.

19. We note that as per the arrest memo of Raj Kumar,

he has been shown to be arrested at 2.30 PM and Chander

Shekhar has been shown to be arrested at 3.00 PM. The two

arrest memos are Ex. PW-2/D and Ex. PW-2/E respectively.

20. It is trite that a charge of kidnapping for ransom

succeeds if demand of ransom is proved. In this case the

demand of ransom is sought to be proved through the testimony

of PW-2 and PW-4.

21. It is interesting to note that as per PW-2, the demand

of ransom was raised on him by accused Chander Shekhar at 12

midnight on 29.6.2004. Had it been so, in his statement to the

Police Ex. PW-2/B made by him on 30.6.2004, he would have

certainly disclosed the said fact. The omission to disclose to the

police, in the statement that the previous night a demand for

ransom in sum of Rs.2 lacs was raised, casts a doubt on the

testimony of PW-2. We note that in the statement Ex.PW-2/B,

PW-2 has stated that he suspects the involvement of accused

Chander Shekhar for the reason that he had not seen Chander

Shekhar since the time his child was missing and that Chander

Shekhar was a gate crasher at the wedding. It is interesting to

note that this version of PW-2 stands belied by his testimony in

Court when during examination-in-chief he stated that the

accused had demanded ransom from him at 12 midnight on

29.6.2004. Obviously, Chander Shekhar had met the witness on

29.6.2004, as per the deposition of the witness. But, what is of

greater significance is the fact that on being cross-examined,

PW-2 stated that when they found their son missing at the night

of 27.6.2004 they searched for the child at Uttam Nagar on

28.6.2004 and then at Ghaziabad at 28.6.2004; they returned

from Ghaziabad on 29.6.2004. He categorically stated: "Both

the accused persons were with me when I was returning from

Ghaziabad on 29.6.04". Obviously, the appellants were helping

out PW-2 in the search of his son. They were accompanying PW-

2 when he went to Ghaziabad on 28.6.2004 and returned with

him on 29.6.2004.

22. This also means that both the accused persons could

not be illegally confining Mohit on 28.6.2004 and 29.6.2004. If

they had indeed kidnapped the child, they would, per-force,

have had to hand over the custody of the child to some other

person because they were supposed to be with PW-2 and

helping him in searching his son.

23. It is important to note that Mohit has nowhere stated

that any other person was present when he was kept in illegal

confinement. On the contrary he has categorically deposed that

during his entire period of illegal detention the accused persons

were present around him. In this connection we may also note

that on further cross-examination, PW-2 stated that the

suspicion on accused Chander Shekhar was roused in his mind

when Chander Shekhar indicated demand of money during the

night of 28.6.2004. This makes the case of the prosecution

even more puzzling, for the reason, if this was true PW-2 would

naturally have rushed to the police and disclosed said

information and get Chander Shekhar apprehended at the spot.

24. The infirmities in the case of the prosecution get

compounded from the testimony of Pushpa PW-4 who has

contradicted the father and the son i.e. Keshav Kumar and

Mohit. According to her, accused Chander Shekhar was required

to sleep with the family and on the third day of the marriage,

during the night confessed that the child is in the custody of a

gang and stated that if ransom in sum of Rs.2 lacs and one

Maruti Car was given, the child would be released. She

categorically stated that the accused was handed over to the

police at about 2.00 AM in the night.

25. Now, the admitted case of the prosecution is that the

marriage took place on 27.6.2004. Three days after the

marriage would be 30.6.2004. Thus, as per Pushpa PW-4, the

accused Chander Shekhar was handed over to the Police at

about 2.00 AM i.e. the intervening night of 30.6.2004 and

1.7.2004.

26. It is unfortunate that the learned trial judge has failed

to note the afore-noted inconsistencies in the deposition of the

witnesses of the prosecution; which needless to state, are

material contradictions.

27. The circumstance of ransom being demanded in the

night of 28.6.2004 or in the night of 29.6.2004 is rendered

extremely improbable because the statement Ex.PW-2/B made

by PW-2 to the police on 30.6.2004 does not refer to any such

demand for ransom being made.

28. We note that in their statements recorded under

Section 313 Cr.P.C. both appellants have stated that they have

been falsely implicated due to enmity. We note that accused Raj

Kumar has stated that he had to pay money to PW-2 and that he

was falsely apprehended when he went to the house of PW-2 to

seek some further time to repay the loan.

29. The possibility of the appellants being falsely

implicated by PW-2 to extract the return of his loan cannot be

ruled out.

30. The appeals are allowed. Impugned judgment and

order dated 10.8.2007 convicting the appellants is set aside.

The appellants are acquitted of all the charges framed against

them. The order of sentence dated 17.8.2007 is quashed.

31. If not required in any other case, the appellants are

directed to be set free forthwith.

32. Copy of the order be sent to the Superintendent,

Tihar Jail, through special messenger.

(PRADEEP NANDRAJOG) JUDGE

(ARUNA SURESH) JUDGE January 28, 2009 jk