Raghubir Singh vs State
2009 Latest Caselaw 3574 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved On: 2ndSeptember, 2009
                    Judgment Delivered On: 4th September, 2009

+                        CRL.A. 418/2001

       RAGHUBIR SINGH                             ..... Appellant
                Through:       Mr. Sumeet Verma, Amicus Curiae.

                               versus

       STATE                                  ..... Respondent
                    Through:   Ms.Richa Kapoor, A.P.P.

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

1.     Whether the Reporters of local papers 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.

1. Six persons; namely, Ram Chander, Raghubir,

Daulat Ram, Subhash Chand, Radha Devi and Rajender were

accused of having entered into a conspiracy to kidnap for

ransom, Harbans aged 4 years and extract ransom from his

father Munna Lal. It was the case of the prosecution that

Radha Devi and Subhash Chand took Harbans from the lawful

custody of his parents i.e. kidnapped him. The young child was

confined in the house of Rajender. Ram Chander, Daulat Ram

and Raghubir were instrumental in transporting the child and

demanding ransom. The child was recovered from the house

of Rajender and at that time Raghubir and Daulat Ram were

present in the house. The whereabout of the house and the

child were provided by Ram Chander.

2. Rajender was declared a proclaimed offender and

thus trial qua him was segregated.

3. Vide impugned judgment and order dated

28.7.2000, Ram Chander, Daulat Ram, Subhash Chand and his

wife Radha Devi have been acquitted. Appellant Raghubir has

been convicted. He has been sentenced to undergo

imprisonment for life.

4. Harbans went missing from his house on 20.11.1996

and while informing the police of Harbans being missing it was

stated by Munna Lal PW-2, the father of Harbans, that his son

had gone out to purchase biscuits and had not returned. Six

months thereafter, on 11.4.1997, Memsri PW-5, the mother of

Harbans, for the first time told the police, as recorded in her

statement under Section 161 Cr.P.C. that accused Radha Devi

wife of Subhash Chand had come to her house on the day her

son went missing and asked her son to go outside and play.

Since the only incriminating evidence against Radha Devi and

her husband Subhash Chand was the testimony of Memsri PW-

5, as afore-noted, both of them have been acquitted. The

reason given by the learned Trial Judge is that the facts

disclosed by Memsri after five months inspired no confidence

and specially in view of the fact that in the statement Ex.PW-

2/A made by her husband to the police on the day Harbans

went missing, no such fact was stated. On the contrary, it was

stated that Harbans had gone out to purchase biscuits. Finding

returned is that Memsri could not be believed.

5. Master Harbans was recovered from the house of

Rajender in Etawah U.P. and at that time Raghubir and Daulat

Ram were in the house of Rajender. No other evidence was

brought on record against Daulat Ram. Wife and children of

Rajender were present in the house when Master Harbans was

recovered. Holding, that from the mere fact that Daulat Ram

was in the house of Rajender when Harbans was recovered, it

could not be said that the involvement of Daulat Ram in the

conspiracy was conclusively established, Daulat Ram has been

acquitted.

6. Qua Ram Chander, on whose disclosure statement

the investigating officer reached the house of Rajender where

Harbans was recovered, learned Trial Judge has held that the

evidence produced by the prosecution did not rule out the

possibility of Harbans being recovered from the house of

Rajender and Daulat Ram and Raghubir being arrested, before

the disclosure statement of Ram Chander was recorded. There

being no other evidence against Ram Chander, even he has

been acquitted by giving the benefit of doubt. The reasoning

of the learned Trial Judge pertaining to the finding in favour of

Ram Chander is in para 9 of the impugned decision, which

reads as under:-

"9. So far as accused Ram Chander is concerned the case of prosecution is that he was interrogated at Ferozabad and thereafter he led the police after making a disclosure statement, to Etawaha and got the child recovered while being in possession of accused Rajender and where Raghubir and Daulat Ram were also present. However, so far as arrest of accused Raghubir is concerned PW-1 had stated that Ram Chander was arrested from Jalkari Nagar Ferojabad from his house the information regarding which was given by accused Subhash in the hospital and that too on the next morning when such an information was given. On the other hand, PW-7 IO Satpal had stated that accused Ram Chander was present in the hospital itself, where Subhash Chand was admitted and he was interrogated and thereafter he led the police part to Etawaha resulting in the recovery of the child. Surprisingly both the IO and PW- 1 as well as PW-8 (where not at all stated about the presence of Ram who had at Jarkari Nagar, or at hospital) had admitted that even accused Ram Chander was arrested at Etawah and his disclosure statement along with other accused persons namely Raghubir, Rajinder and Daulat Ram was recorded at Etawah. Now if the disclosure statement itself is recorded after the arrest of accused Rajinder, Daulat Ram and Raghubir who were arrested after the recovery of child, it cannot be said that from the disclosure statement of accused Ram Chander some new facts were discovered by the police and since the disclosure statement of Ram Chander has not led to discovery of fact the same will be inadmissible in

evidence and prosecution version that it is at the instance of accused Ram Chander that the boy was recovered is not proved."

7. Convicting appellant Raghubir, the evidence

discussed by the learned Trial Judge and the reasoning

thereon, is in para 11 of the decision, which reads as under:-

"11. So far as accused Raghubir is concerned from his possession diary Ex.PW-1/H containing the addresses of Munna Lal as well as other half counter part of note of Rs.1 denomination was recovered. The other half was sent and so received by Munna Lal along with the letter Ex.P-2 received by him on 4.12.1996 in the envelop Ex.P.3 from his possession another envelope Ex.P-1 was recovered which bears the address of Munna Lal. From his possession, an identity card Ex.PW-1/K was recovered on the reverse of which the address namely Subhash Chand, Shiv Durga Vihar, Gali No.11, Phase-I, House No.6A is mentioned and visiting card Ex.PW-1/K was recovered bearing the address of Munna Lal which corresponds to the address mentioned on envelope Ex.P-3 and Ex.P-5 in which ransom letters Ex.P-2 and Ex.P-4 were sent containing demand of Rs.30 lakhs and Rs.15 lakhs respectively. From the possession of Raghubir Singh copy Ex.PW-1/N was also recovered having pages exactly similar in nature, which fact can be observed by merely glancing and looking at the copy, along with one slip wherein phone numbers of Subhash Chand as well as Munna Lal were mentioned. The recovery of these articles along with the opinion of PW-9 vide report Ex.PW-7/B who had compared with the specimen handwriting S-1 to S-4 i.e. letters Ex.P-6, P- 7, P-8 and P-9 had opined that the author of specimen handwriting and the author of letter Ex.P-2 which has been marked Q-2 by the expert and letter Ex.P-4 marked Q-4 by the expert and envelope Ex.P-5 marked Q-3 by the expert are the same i.e. to say that the envelope that both the ransom letters Ex.P-2 and Ex.P-4 are in the handwriting of Raghubir Singh and the writing on envelope Q-2 containing letter Ex.P-2 is also of Raghubir Singh."

8. Learned counsel for the appellant urged that the

specimen writings S-1 to S-4, exhibited as Ex.P-6, P-7, P-8 and

P-9, of the appellant were obtained by the investigating officer

during the period the appellant was in custody of the police.

Thus, counsel urges that the opinion Ex.PW-7/E of the

handwriting expert was inadmissible in evidence because

Section 5 of the Identification of Prisoners' Act was violated.

Counsel urged that as held in the decisions reported as AIR

1980 SC 791 State of U.P. vs. Rambabu Mishra, 1994 (5) SCC

152 Sukhwinder Singh & Ors. vs. State of Punjab and AIR 2003

SC 4377 State of Haryana vs. Jagbir Singh & Ors. since no

permission of the Court empowered to try the offence was

obtained, the report had to be ignored. Second submission

made is that the half portion of the one rupee note i.e. Ex.PW-

1/M stated to have been recovered from the diary Ex.PW-1/H

has not been entered in the seizure memo Ex.PW-1/G which

records the seizure of the diary, the slip Ex.PW-1/L and the two

visiting cards Ex.PW-1/I and Ex.PW-1/J. Thus, counsel urges

that the said half counter part of the one rupee note bearing

No.83B 612044 has obviously been planted. Consequently,

counsel urged that it cannot be linked to the half one rupee

note received by Munna Lal along with the ransom letter Ex.P-

2, as recorded in the seizure memo Ex.PW-2/B. Counsel urged

that ignoring aforesaid two pieces of evidence, the only

evidence on record would be the apprehension of the appellant

from the house of co-accused Rajender when the kidnapped

child was recovered from the house of Rajender and the

recovery of the diary Ex.PW-1/H, recovery of the slip Ex.PW-1/L

and the recovery of the visiting card Ex.PW-1/I and Ex.PW-1/J

and the recovery of the envelope Ex.P-3 from the appellant.

Counsel urged that the said evidence does not form a complete

chain of circumstances where from the guilt of the appellant

can be inferred.

9. The inadmissibility of the report Ex.PW-7/E of the

handwriting expert is writ large for the reason the specimen

handwritings of the appellant were obtained without the

permission of the Court and in violation of Section 5 of the

Identification of Prisoners' Act. The issue stands concluded by

the decisions of the Supreme Court in Ram Babu Mishra's case

(supra), Sukhwinder Singh's case (supra) and Jagbir Singh's

case (supra). Thus, it cannot be held that the two ransom

notes received by Munna Lal PW-1, the father of the kidnapped

child were written by the appellant. Further, the seizure memo

Ex.PW-1/G pertaining to the recoveries effected from the

appellant do not record that half portion of the one rupee note

bearing No.83B 612044 was recovered from within the pocket

diary of the appellant. Thus, it cannot be said that

incriminating evidence of half note, remaining half portion

which was sent along with the ransom note received by Munna

Lal on 4.12.1996.

10. Excluding aforesaid two pieces of evidence, the

incriminating evidence against the appellant is:-

(a) Presence of the appellant in the house of Rajender

when Master Harbans was recovered.

(b) Recovery of the visiting card Ex.PW-1/J on which the

address of Munna Lal has been written.

(c) Recovery of the postal envelope Ex.P-3 on which the

address of Munna Lal has been written.

11. What was the appellant doing with the postal

envelope Ex.P-3 on which the address of Munna Lal was

written? This fact is in the personal knowledge of the appellant

and the investigating officer had no means to access the same.

Section 106 of the Evidence Act comes into play and requires

the appellant to explain as to what was he doing with the said

postal envelope, which we note bears the postal stamp of Re.1.

The appellant has not explained the same when examined

under Section 313 Cr.P.C. He has denied the recovery from

him. The recovery thereof has been proved through the

testimony of PW-1 and the investigation officer SI Satya Pal

PW-7.

12. A person buys a postal envelope to send a written

communication through the postal authorities. If the name of

the addressee is written on the postal envelope, it is obvious

that the communication proposed to be sent in the postal

envelope is to the addressee.

13. Thus, the recovery of the postal envelope Ex.P-3

from the appellant is highly incriminatory against the

appellant, for the reason the obvious inference would be that

the appellant possessed the postal envelope with the address

of Munna Lal thereon as he had wanted to send a

communication to Munna Lal. The fact that the appellant has

rendered no explanation whatsoever qua the envelope would

justify an adverse inference to be drawn against the appellant

who has no official or personal dealings with Munna Lal and

thus had no justifiable cause to send any communication to

Munna Lal.

14. Why was the appellant having the address of Munna

Lal with him? It was for the appellant to explain the reason

thereof. He has not done so. This is another incriminating

evidence supplying the link against the appellant.

15. Thus, as against the case qua Daulat Ram against

whom no incriminating material has surfaced, save and except

his being present in the house where the kidnapped child was

recovered, appellant being present in the house where the

kidnapped child was recovered and the appellant being in

possession of the envelope Ex.P-3 and the visiting card Ex.PW-

1/J on which the address of Munna Lal was written and no

satisfactory explanation given by the appellant pertaining to

Ex.P-3 and Ex.PW-1/J are sufficient evidence wherefrom it can

safely be gathered that the appellant had a role in the

kidnapping of the young child for ransom. Whereas the

presence of Daulat Ram in the house of Rajender can possibly

be an innocent presence, the presence of the appellant in the

house of Rajender is not innocent because of recovery of Ex.P-

3 and Ex.PW-1/J from him.

16. That instant case attracts Section 364-A IPC would

require a finding that a threat to the life of the kidnapped child

was extended while demanding the ransom or fear of injury to

the child was put to his father from whom the ransom was

demanded. The ransom letters Ex.P-2 and Ex.P-4 contain a

threat that if the ransom was not paid, the child would be sent

to heaven, meaning thereby, would be put to death.

17. We find no merit in the appeal which is dismissed.

The finding of guilt returned by the learned Trial Judge is

affirmed.

18. The bail bond and surety bond furnished by the

appellant are cancelled.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE September 04, 2009 Dharmender