Ram Baran vs State
2009 Latest Caselaw 2954 Del

*                      IN THE HIGH COURT OF DELHI


%                                Judgment reserved on: 27.07.2009
                                Judgment delivered on: 31.07.2009


+                         CRL. APPEAL 772/2005

       RAM BARAN                              ...Appellant
               Through : Mr.V.K.Raina, Advocate.

                                       versus

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


                           CRL. APPEAL 849/2005

       RAM BARAN                         ...Appellant
               Through : Mr.V.K.Raina, Advocate.

                                       versus

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


                            CRL. APPEAL 32/2006

       SURENDER KUSHWAHA                 ...Appellant
               Through : Mr.V.K.Raina, Advocate.

                                       versus

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


                           CRL. APPEAL 886/2005

       SURENDER                                  ...Appellant
                       Through : Mr.V.K.Raina, Advocate.

                                       versus

Crl.A. 772/05, 849/05, 32/06, 886/05                      Page 1 of 19
        STATE                                    ...Respondent
                       Through : Ms.Richa Kapoor, Advocate.


CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

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

2. To be referred to the Reporter or not?                 Yes

3. Whether judgment should be reported in Digest?          Yes

: PRADEEP NANDRAJOG, J.

1. Appellants Ram Baran and Surender Kushwaha as

also the third co-accused Megh Raj who has since died and for

said reason appeals filed by him have been disposed of as

having abated, suffered trial in two FIRs being FIR No.30/2002

PS Vikaspuri and FIR No.36/2002 PS Keshav Puram. Pertaining

to the first FIR No.30/2002 Ram Baran and Surender Kushwaha

have been convicted vide impugned judgment and order dated

30.4.2005 for the offence punishable under Section 364A/34

IPC and the offence punishable under Section 365/34 IPC.

Pertaining to FIR No.36/2002 they have been convicted vide

impugned judgment and order dated 10.8.2005 for the offence

punishable under Section 364A/34 IPC and for the offence

punishable under Section 395/34 IPC. The sentences imposed

are to undergo imprisonment for life in both cases for the

offence punishable under Section 364A IPC. They have been

sentenced to undergo rigorous imprisonment for five years for

the offence punishable under Section 365/34 IPC and Section

395/34 IPC. Needless to state, the sentence to undergo

rigorous imprisonment for five years in each case has been

directed to run concurrently.

2. The four appeals are being disposed of by a

common judgment for the reason the prosecution alleges

against the appellants that they along with co-accused Megh

Raj had abducted Anil Suri pertaining to whom FIR No.30/02 is

the concerned FIR and had also abducted Suraj Bhan and his

son Manoj Kumar pertaining to whom FIR No.36/02 is the

concerned FIR. According to the prosecution this fact dawned

when Suraj Bhan was set free to arrange the ransom amount

to secure the freedom of his son Manoj and he told the police

that the appellants and their co-accused had abducted not

only him and his son but even Anil Suri.

3. Appellant Ram Baran was the first accused to be

arrested on 3.2.2002 and thereafter appellant Surender

Kushwaha along with the co-accused Megh Raj were arrested

on 3.2.2002 itself.

4. It is thus apparent that except for the evidence

pertaining to missing person complaints being lodged; ransom

calls being demanded and the two FIRs being registered, there

is complete commonality of evidence for the reason Suraj

Bhan and his son Manoj who claim to have been abducted by

the appellants and their co-accused Megh Raj have deposed

that when they were in the custody of the captors even Anil

Suri was held captive by them.

5. Unfortunately, the whereabouts of Anil Suri are still

not known. It appears that in all probability he has been killed.

We note that as per the prosecution, a fact which could not be

proved for the reason it stands recorded in the confessional

statements of the appellants the custody of Anil Suri was

handed over to a gang of dacoits known as 'Satpal Gang'

operating in the jungles of District Etawa, U.P.

6. Pertaining to the abduction of Anil Suri, process of

law was set into motion when his wife Smt.Suman Suri went

personally to PS Vikaspuri on 19.1.2002 at 1:10 PM i.e. in the

afternoon and told the duty constable Rajesh that her husband

Anil Suri had gone to Agra with one Sonu to purchase articles

on 17.1.2002 and had not since returned home. A missing

persons complaint was recorded vide DD No.23-B. SI Sita Ram

was entrusted with the job of investigating as to what

happened to Anil Suri whose whereabouts could not be

ascertained till 25.1.2002. On said date SI Sita Ram recorded

a statement of fact to the effect that whereabouts of Anil Suri

could not be traced and an offence of kidnapping required to

be registered. On receipt of the statement of fact, HC Vijender

Singh the duty constable at PS Vikaspuri registered FIR

No.30/02 under Section 365 IPC. SI Sita Ram appears to be a

wise man. His gut feeling told him that in all probability Anil

Suri was abducted for ransom and since a telephone having

number 5545271 was installed in the house of Anil Suri, he

anticipated that if his gut feeling proved to be correct, the

abductor would in all probability demand ransom by making a

call over the phone. He immediately put the said telephone

under observation. His gut feeling proved to be correct. On

26.1.2002 a call was received which was answered by

Smt.Suman Suri. The caller demanded ransom in sum of Rs.18

lakhs to release Anil Suri. The detail of the call showed that

the telephone from where the call was made was somewhere

in District Etawa in the State of Uttar Pradesh.

7. Before the location of the telephone number from

where the ransom call was made could be pinpointed, on

28.1.2002 another call was received which was responded to

by Neelam, the sister of Anil Suri. The caller disclosed his

name as Ram Baran and told that ransom in sum of Rs.18

lakhs should be delivered in village Toda near railway station

Etawa.

8. Suman Suri received a letter dated 23.1.2002 on a

date subsequent thereto, the exact date not having come on

record, addressed to her mother-in-law Vimla Suri stating that

Anil Suri was in the custody of the sender and that

Rs.13,51,000/- should be paid for the release of Anil Suri. SI

Sita Ram seized the said letter.

9. On 28.1.2002, SI Sita Ram left for Etawa and was

accompanied by Const.Vikram Singh, Const.Amar Singh and

Const.Sharan Dutt. The three police officers reached Etawa

the next day.

10. On 28.1.2002, the process of law pertaining to FIR

No.36/2002 was put into motion. Sushila wife of Suraj Bhan

went to police station Keshav Puram and told the duty officer

that her husband Suraj Bhan and her son Manoj Kumar and

another boy also named Manoj had left from their residence

being House No.360, Rampura, Harijan Basti on 27.1.2002 at

10:00 AM to purchase cosmetics and that till 7:00 PM on

28.1.2002 her husband and her son had not returned. ASI

Harjit Singh on duty as the duty officer recorded said

statement vide DD No.17-A. SI Sukhram Pal at PS Keshav

Puram was entrusted to investigate the matter.

11. On 30.1.2002 a telephone call was received at the

telephone number 7157792 installed in the house of Om

Prakash, the elder brother of Suraj Bhan. The caller informed

him that Suraj Bhan and Manoj were in his custody and would

be released if ransom of Rs.25 lakhs was paid. A threat was

extended that the two would be killed if the ransom was not

paid. Om Prakash was instructed to pass on the information to

the wife of Suraj Bhan and was told that the caller would ring

up within an hour. Om Prakash immediately contacted Sushila

who reached his house. Indeed, another call was received

which was responded to by Sushila. The caller told her to

arrange Rs.25 lakhs and that the money should be paid in the

jungles of Gwalior, the time and place where the same has to

be delivered would be told later on. Sushila passed on said

information to SI Sukhram Pal who recorded her statement and

made an endorsement beneath the statement and handed

over the same to HC Savitri, the duty officer at PS Keshav

Puram who registered the FIR No.36/02 for an offence

punishable under Section 364 IPC. SI Sukhram Pal not only

placed the telephone number 7157792 under observation but

even found out from the local telephone exchange as to where

from the ransom call was made and learnt that the telephone

number where from the call was made was in District Etawa,

Uttar Pradesh.

12. SI Sita Ram who was investigating FIR No.30/2002

PS Vikas Puri went to Etawa and from the telephone exchange

found out the place where the telephone number 51155 was

installed. He did so for the reason said telephone was the one

wherefrom calls were being made to the telephone number

5545271 installed in the house of Anil Suri and his wife Suman

Suri. The subscriber of the said telephone was one Rajiv Gupta

who had obtained a connection for a public PCO/STD booth

and the number was used by the public for making local and

outstation calls. The STD booth was near Numaish Chowk,

Etawa. Rajiv Gupta handed over the copies of three bills to SI

Sita Ram which showed that from telephone number 51155

calls were made to the telephone numbers 5545271 and

7157792 at Delhi.

13. The help of local police was taken by SI Sita Ram.

SI Kanwar Pal in-charge special operation group, Etawa was

associated to crack the case. Const.Vikram and Const.Sharan

Dutt from Delhi Police were stationed at Etawa to keep a watch

on persons making telephone calls from the STD booth where

the telephone number 51155 was installed.

14. On 3.2.2002 at about 6:35 PM accused Ram Baran

went to the STD booth and made a call to the number

5545271 i.e. to the house of Anil Suri and Suman Suri. This

was the number under watch and the job of the police was to

nab the caller who rang up said number. Const.Vikram and

Const.Sharan Dutt immediately apprehended Ram Baran and

informed SI Sita Ram of having caught the elusive fish. SI Sita

Ram immediately reached the STD booth and seized the print

out of the bill showing that on 3.2.2002 a call was made at

6:35 PM from the telephone number 51155 to the telephone

number 5545271 at Delhi.

15. Ram Baran was interrogated by SI Sita Ram and his

disclosure statement was recorded as per which he informed

that he was associated with a gang of Satpal @ Satola who

was specializing in kidnapping for ransom. He told that Anil

Suri was a captive with the said gang. He further informed

that two more persons, namely, Suraj Bhan and Manoj were

also held captive by the gang and he could take the police

team to the place where some members of the gang of Satpal

@ Satola were staying. He informed that the members of the

gang included Megh Singh, Surender Khuswaha, Dilasa and

one more person whose name he did not know. He led the

police team headed by SI Sita Ram to a jhuggi in Ashwapur

Kachchar in Etawa from where Surender and Megh Singh were

arrested and other members managed to escape. Surender

and Megh Singh were interrogated. Their statements were

recorded. They confessed being members of Satpal gang.

The three accused namely Ram Baran, Surender and Megh

Singh were arrested and brought to Delhi.

16. So bold were the remaining gang of Satpal gang

that notwithstanding Ram Baran, Surender and Megh Singh

being in police custody, Suran Bhan was set free and was told

to return with the ransom amount in sum of Rs.25,00,000/-

under threats of danger to the life of his son Manoj Kumar.

Suraj Bhan was threatened that if he told anything to the

police or did not return with the ransom money, his son Manoj

would be killed. Notwithstanding the threat given to Suraj

Bhan that his son Manoj would be put to death if he told

anything to the police, Suraj Bhan told the police that he was

at Delhi and should be provided protection. He handed over to

SI Shiv Raj Singh the railway ticket evidencing his journey from

Agra to Delhi as also two slips of paper and informed SI Shiv

Raj Singh that one slip of paper contained the handwriting of

one of the kidnapper on which in Devnagri script was written:

16.2.2002 February Din Shukarwar. On the other in Devnagri

the address: 678, Vikas Kunj, New Delhi - 18 District Centre

Telephone 5545271 was written.

17. Since in his disclosure statement Ram Baran had

informed that two more persons namely Suraj Bhan and Manoj

were in the custody of the kidnappers and the print out of the

calls made from the telephone number 51155 at Etawa

showed calls made not only to the telephone number 5545271

installed in the house of Anil Suri and Suman Suri, which

number was already in the knowledge of SI Sita Ram, calls

were even made to the telephone number 7157792, SI Sita

Ram made inquiry pertaining to the said number and learnt

that ransom calls were being made at said number demanding

ransom to release Suraj Bhan and Manoj.

18. SI Sita Ram learnt that FIR No.36/02 was registered

at PS Keshav Puram pertaining to the abduction of Suraj Bhan

and his son Manoj. He immediately contacted the

investigating officer of said case and learnt that Suraj Bhan

had been released with a direction that he should arrange the

ransom money to be paid so that his son Manoj could be

released and that Suraj Bhan had informed that even Anil Suri

was in the custody of Satpal gang.

19. The water which was flowing in two channels

hitherto fore pertaining to FIR No.30/02 PS Vikas Puri and FIR

No.36/02 PS Keshav Puram, henceforth started flowing in a

single channel for the reason it became apparent to the

investigating officers of the two FIRs that they were cracking

two cases involving abduction of Anil Suri, Suraj Bhan and his

son Manoj Kumar and that the kidnappers were the same.

20. On 10.2.2002 another letter dated 2.2.2002 was

received by Suman Suri addressed to her mother-in-law Vimla

Suri specifying that the ransom of Rs.13,51,000/- be delivered

on 15.2.2002 in the evening between 8:00 PM to 5:00 AM at a

place 2 kms towards the east of a pakka pul on the river

Yamuna in Etawa. SI Sita Ram seized the said letter.

21. SI Sita Ram moved an application before the

learned Metropolitan Magistrate for Test Identification of the

accused and the date 25.2.2002 was fixed for the Test

Identification proceedings to be conducted. Renu Bhatnagar,

Metropolitan Magistrate, Delhi conducted Test Identification

proceedings on said date. Suraj Bhan correctly identified

accused Surender. Ram Baran and Megh Raj refused to

participate in the Test Identification Proceedings.

22. It appears that Satpal Gang went into a disarray

because three of its members were arrested and the police

knew the presence of the remaining in Etawa. Manoj Kumar

managed to escape from the custody of the abductors and

returned to his house on 25.2.2002. SI Sita Ram made

inquiries from him on 28.2.2002. Manoj Kumar told him about

Anil Suri being in the captivity of the abductors. SI Sita Ram

made efforts to trace Anil Suri but failed in his endeavours.

23. Suman Suri received yet another letter dated

5.3.2002 on 8.3.2002. The same was apparently written by

Anil Suri and was addressed to his mother Vimla Suri praying

that she should get him released very soon as the captors

were treating him harshly and were beating him. SI Sita Ram

took possession of the said letter.

24. Specimen writing sample of Ram Baran S-1 to S-4

were obtained and were sent along with the ransom notes

received as also the slip containing the writing: 16.2.2002

February Din Shukravar. The handwriting expert opined that

no definite opinion could be given with regard to one ransom

note but that the other questioned documents were in the

same hand as of the author of the sample writings S-1 to S-4.

25. In spite of all efforts Anil Suri remains untraced.

Presumably, he is dead. Unfortunately, other members of

Satpal gang could not be arrested. The ravines of Etawa and

the adjoining district of Gwalior continue to be infested with

dacoits and kidnappers.

26. Armed with the material afore-noted collected

during interrogation and listing as witnesses the police officers

associated with the investigation as also Suraj Bhan and Manoj

as the eye-witnesses two charge-sheets were filed pertaining

to the two first FIRs. Needless to state, the wife of Anil Suri

was cited as a witness to prove her husband going missing and

not returning and receipt of ransom letters as also ransom

calls by her. Sushila was cited as a witness to prove her

husband and son going missing and the ransom calls received

by her.

27. Needless to state, there is considerable

commonality in the evidence led in the Sessions Trial

pertaining to the two FIRs. The bills pertaining to the STD

calls made from the STD booth of Rajiv Gupta as handed

over by Rajiv Gupta to SI Sita Ram were proved in both cases.

The ransom notes received by Suman Suri were proved in the

Session Trial pertaining to FIR No.30/02. The police officers

associated with the investigation in the two cases after Ram

Baran was arrested on 3.2.2002 were examined in both the

trials. Suraj Bhan and his son Manoj were examined as

witnesses of the prosecution in both the cases. We shall be

referring to the various exhibits proved in both the trials with

reference to the exhibit marks in the Sessions Trial pertaining

to FIR No.30/02 PS Vikaspuri.

28. The bills handed over by Rajiv Gupta to SI Sita Ram

were proved as Exs.PW-1/A, PW-1/B, PW-1/C and PW-1/E in the

Sessions Trial pertaining to FIR No.30/02. Ex.PW-1/E shows

that a call was made at 6:35 PM on 3.2.2002 from the

telephone No.51155 at Etawa subscriber whereof is Rajiv

Gupta PW-1 who deposed that he was the subscriber of the

number and that he handed over the said bills to Inspector Sita

Ram. The same shows a call made to telephone No.5545271

at Delhi, which number, as noted above was installed at the

house of Anil Suri. The other three bills show telephone calls

made from said number at Etawa to the telephone number

5545271 and 7157792. It is thus apparent that the testimony

of Suman Suri as also Sushila of having received ransom calls

at said two numbers stands linked and established. The

testimony of Const.Vikram PW-7 and Const.Sharan PW-10 that

they apprehended Ram Baran at 6:35 PM on 3.2.2002 while he

was making a call stands reassured by the fact that Ex.PW-1/E

shows that the caller was making a call to the telephone

number 5545271 installed in the house of Anil Suri.

29. Thus, qua Ram Baran the prosecution has led

unimpeachable evidence of Ram Baran demanding ransom for

release of Anil Suri. Said evidence alone is sufficient to prove

that he was an abductor or a part of a gang who had abducted

Anil Suri. Qua him the charge of having committed the

offence punishable under Section 364A IPC for the abduction

for ransom of Anil Suri stands proved for the reason Suman

Suri has clearly stated in her testimony that the ransom caller

would threaten physical harm to his husband if ransom was

not paid. His having committed the offence of wrongfully

confining Anil Suri also stands established by said evidence.

30. Receiving ransom calls over the telephone and the

threat of physical injury to their kin has been proved through

the testimony of Suman Suri and Neelam, the sister of Anil Suri

as also through the testimony of Sushila, the wife of Suraj

Bhan and the mother of Manoj.

31. Suraj Bhan and Manoj are the victims and hence

eye-witnesses.

32. In the Sessions Trial pertaining to FIR No.30/02 PS

Vikaspuri the father and son appeared as PW-2 and PW-3

respectively. In the Sessions Trial pertaining to FIR No.36/02

they appeared as PW-7 and PW-4.

33. While deposing as the witness of the prosecution in

both the Sessions Trial Suraj Bhan named and identified Ram

Baran, Surender Kushwaha and Megh Raj as the three persons

being part of the gang which had kidnapped him and his son

and had kept them in illegal confinement and had threatened

to kill them if ransom was not paid. He deposed that he was

set free to bring the ransom amount. He deposed that he

handed over Ex.P-2 and P-3 being the slips of paper referred

to in para 16 above and that he handed over the same to SI

Shivraj Singh. He also deposed in both Sessions Trial that

even Anil Suri was a captive with them. Manoj son of Suraj

Bhan named and identified Ram Baran, Surender Kushwaha

and Megh Raj as a part of the gang of abductors who had

abducted him and his father while appearing as PW-4 in the

Session Trial pertaining to FIR No.36/02. He also deposed that

when he and his father were held as captives one Anil Suri was

also held captive by the gang. But, while appearing as PW-3 in

the Session Trial pertaining to FIR No.30/02 he deposed at a

variance stating that appellant Surender Kushwaha was a part

of the gang and used to be seen by him when he was held

captive but categorically denied having seen Ram Baran or

Megh Singh.

34. This is the only flaw in the case of the prosecution

and learned counsel for the appellants was quick to pounce

upon the same during arguments in the four appeals. Learned

counsel urged that since Megh Raj has died, he need not

bother about Megh Raj and neither should this Court trouble

itself with Megh Raj. Counsel urged that the changed

testimony of Manoj proves that Ram Baran is innocent. Qua

appellant Surender Kushwaha learned counsel urged that no

reliance could be placed on the testimony of a witness who

flip-flops.

35. This was the only submission made by learned

counsel for the appellants. The same has hardly impressed us.

36. The reason is obvious. Ram Baran was arrested on

3.2.2002. He was arrested at 6:35 PM from outside the STD

booth of Rajiv Gupta. Ex.PW-1/E shows a telephone call made

from the telephone No. 51155 installed in the STD booth of

Rajiv Gupta to the telephone No.5545271 installed in the

house of Anil Suri. Ex.PW-1/A to Ex.PW-1/C shows prior calls

made from said number at Etawa to the telephone number

5545271 and the telephone No.7157792 installed in the house

of Om Prakash, the brother of Suraj Bhan. Due to the said two

telephones at Delhi being put under surveillance SI Sita Ram

had traced calls being made from telephone No.51155 and had

deputed police personnel to keep a watch at the telephone

STD booth of Rajiv Gupta. Ram Baran being apprehended at

6:35 PM on 3.2.2002 from the STD booth of Rajiv Gupta as

deposed to by Const.Vikram and Const.Sharan Dutt and the

bill Ex.PW-1/E conclusively and unerringly proves the

involvement of Ram Baran.

37. As noted above, the report of the handwriting

expert shows that save and except one ransom letter the

others received by Suman Suri are in the handwriting of Ram

Baran. Even the writing on the slip Ex.P-2 handed over by

Suraj Bhan to the police contains the writing of Ram Baran.

But, in the absence of any evidence that Section 5 of the

Identification of Prisoners' Act was complied with, we ignore

said report.

38. Just because Manoj son of Suraj Bhan has retraced

a part of his testimony while deposing in one out of the two

Sessions Trial does not mean that the testimony of his father

Suraj Bhan has to be thrown to the wind. Suraj Bhan has stood

his ground while deposing twice as a witness in the two

Sessions Trial. He has categorically named both the

appellants as a part of Satpal gang and his, his son's and Anil

Suri's tormentors.

39. The testimony of Suraj Bhan inspires confidence

and establishes that he and his son as also Anil Suri were held

captive by the appellants and their cohorts.

40. We find no merit in the appeals which are

dismissed.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE JULY 31, 2009 dharmender