Raj Kumar @ Raju vs State
2009 Latest Caselaw 3645 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 9th September, 2009

+                              CRL.A. 584/2001

         RAJ KUMAR @ RAJU                   ..... Appellant
                  Through : Ms. Nilofar Qureshi, Advocate

                                      versus
         STATE                                  ..... Respondent

Through : Mr. M.N.Dudeja, Advocate

CRL.A. 438/1997

HARBIR @ MACHCHAR ..... Appellant Through : Ms. Nilofar Qureshi, Advocate

versus STATE ..... Respondent Through : Mr. M.N.Dudeja, Advocate

CRL.A. 281/1998

RAMBIR ..... Appellant Through : Ms. Nilofar Qureshi, Advocate

versus STATE ..... Respondent Through : Mr. M.N.Dudeja, Advocate

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.(Oral)

1. Vijender @ Sonu took his breakfast and left his

house in early morning on 7th June, 1995. He had failed his

exams in class 6th and his parents had required him to

undertake remedial teaching during the summer vacations.

His destination was the tuition center down the street in which

he resided. His mother Harro PW-1 employed as a safai

karamchari with the Municipal Corporation of Delhi returned

home from duty at 10:30 AM. She became inquisitive on not

seeing Sonu in the house. She passed on the information to

her husband Tejpal PW-2, who in turn contacted his brother

Kiran Pal PW-4 and cousin Rakesh Kumar PW-8 since both were

his close relations. They all searched, but Sonu could not be

traced.

2. The next day i.e. on 8.6.1995 Rakesh Kumar PW-8

went to the local police station i.e. PS Shahdara and lodged a

missing person's complaint Ex.PW-8/A which was recorded by

HC Satish Verma PW-14 who made an endorsement Ex.PW-

14/A beneath the statement and had the information flashed

to the missing person's squad.

3. In the complaint Ex.PW-8/A Rakesh informed that

Sonu son of Tejpal and a resident of House No.1/5845, Gali

No.1, East Rohtash Nagar had left his house at about 8:00 AM

on 7.6.1995 for taking tuition at the tuition center in the street

nearby. He did not reach the tuition center and did not return

home. All day on 7.6.1995 the family members of Sonu kept

searching for him but could not locate him. That Sonu was

aged 13 years and was 3½ - 4 feet tall. He was of thin built

and had a round face and wheatish complexion. That Sonu

was wearing a blue coloured pant and a shirt having checks

and stripes thereon and his footwear were a pair of hawai

chappals.

4. Attempts to find the missing boy turned futile.

Certain momentous events took place on 13.6.1995,

apparently unrelated, but with considerable doubt to the same

being unrelated. We shall unfold the same as we proceed with

our narratives.

5. Information was received at PS Partapur, District

Meerut U.P. as recorded in DD No.25 on 13.6.1995 about a

dead body in a well. SI Jai Narayan Singh PW-20 left the police

station to investigate and on the way at the check post Delhi

road requested Const.Tejpal and Const.Daya Singh to

accompany him to village Dhindhala i.e. the village where a

dead body was seen in a well. He fished out a dead body from

the well which was in the fields of one Maharaja Singh.

Villagers who had gathered to witness the event could throw

no light on the identity of the body which was that of a young

boy. Panchnama Ex.PW-20/A was prepared and vide

application Ex.PW-20/B the body was sent for post-mortem to

Medical College Meerut.

6. On 13.6.1995 Smt.Harro PW-1, the mother of Sonu,

went to PS Shahdara and made a statement Ex.PW-1/A which

was recorded by the duty constable at the police station, as

per which statement, Smt.Harro stated that she was residing

at House No.1/5845/15, East Rohtash Nagar and was

employed as a safai karamchari in the Municipal Corporation of

Delhi. On 7.6.1995 in the early morning she gave breakfast to

her children and left for duty and returned at 10:30 AM. She

asked a boy named Amit as to where her son Sonu @ Vijender

was, to which Amit replied that her son had gone to purchase

hens with his uncle (phufa) Rambir. Her husband came home

at 1:00 PM and she informed her husband that Sonu was

missing since morning. When attempts to locate Sonu failed

they once again asked Amit as to where Sonu was. Amit told

them that he had seen Sonu in a rickshaw with Rambir and

Raju @ Raj Kumar. That she suspected Rambir and Raju @ Raj

Kumar of having a hand in the disappearance of her son and

desires a proper investigation to be conducted. As recorded in

the endorsement Ex.PW-15/A made beneath the statement

Ex.PW-1/A; the endorsement being in the hand of ASI Sri Niwas

PW-15, the endorsement was made at 12:45 PM on 13.6.1995.

FIR No.242/1995 for an offence under Section 363 IPC was

registered.

7. On 13.6.1995, as noted in the seizure memo Ex.PW-

2/A, Tejpal PW-2, the father of Sonu, handed over a ransom

note Ex.P-1 to ASI Sri Niwas PW-15. The ransom note contains

a demand in sum of Rs.70,000/- and directs that the money be

paid at a place near a petrol pump (Koria Pul), Hindon (UP).

8. The investigating officer apprehended Rambir and

Raj Kumar @ Raju on 15.6.1995 from near Tikona Park Loni

Road. Both made disclosure statements Ex.PW-6/A and Ex.PW-

6/B; the former being the disclosure statement of Raj Kumar

and the later being the disclosure statement of Rambir. Soon

thereafter Haribir @ Machchar was arrested and his disclosure

statement Ex.PW-15/B was recorded.

9. On 16.6.1995 Rambir got recovered Rs.20,000/-

lying buried in the Tikona Park Loni Road after digging the soil,

which money was seized vide memo Ex.PW-4/A.

10. Rambir and Harbir @ Machchar thereafter led the

investigating officer to the well where the dead body of a boy

was recovered by the police at Meerut on 13.6.1995 and

pointed out that they had dumped Sonu in the well. From near

the wall, a pair of chappals Ex.P-2 was seized as recorded in

the memo Ex.PW-8/1. On 25.6.1995 at the instance of Harbir

Rs.18,000/- was recovered from the house of Ajesh brother-in-

law of Harbir as noted in the memo Ex.PW-7/A.

11. We note that two more accused; namely, Ashok and

Pappu @ Prakash were also apprehended, for reasons which

we cannot fathom. Suffice would it be to note that not a

witness uttered even a word qua Ashok and Pappu save and

except that Ashok and Pappu were also arrested and made

accused. Since Ashok and Pappu have been acquitted by the

learned Trial Judge, we have noted the fact of the said two

persons being made an accused, to complete the narratives.

12. Armed with the aforesaid material gathered during

investigation and the statements of various persons recorded

under Section 161 Cr.P.C. Rambir, Harbir @ Machchar and Raj

Kumar @ Raju along with Ashok Kumar and Pappu were sent to

trial. The charge sheet filed was for having kidnapped Sonu

for ransom and having murdered Sonu. We note that no

charge for the offence of conspiracy was framed.

13. To a reader of our decision it is apparent that the

prosecution hinged its case on proof of the fact that Rambir

and Raj Kumar @ Raju were last seen in the company of the

deceased on 7.6.1995 i.e. the day when Sonu went missing;

the recovery of Rs.20,000/- at the instance of Rambir pursuant

to his disclosure statement and the recovery of Rs.18,000/- at

the instance of Harbir pursuant to Harbir's disclosure

statement and lastly the pointing out of the well by Rambir

and Harbir from where the dead body of Sonu had been

already recovered on 13.6.1995 and the recovery of a pair of

chappals belonging to the deceased from near the well.

14. Vide impugned judgment and order dated

6.11.1997 the learned Trial Judge has held that the

prosecution has successfully proved the case against Rambir,

Harbir and Raj Kumar. Though no evidence was led by the

prosecution on the issue and nor was it alleged by the

prosecution that the ransom note Ex.P-1 is in the handwriting

of Raj Kumar @ Raju, after obtaining the specimen signatures

of Raju @ Raj Kumar, the learned Trial Judge has recorded a

finding that a visual comparison of the signatures of Raj Kumar

obtained in Court and the writing on the ransom note

probablizes that the ransom note is in the hand writing of Raj

Kumar @ Raju.

15. Pertaining to the writing on Ex.P-1 being in the hand

of Raj Kumar, the learned Trial Judge, at pages 42-43 of the

impugned decision, has observed as under:-

"The handwriting of the accused Raj Kumar was not obtained by the police during the investigation. It may be on account of the injuries received by the accused Raj Kumar that his writing could not be taken by the police. However, this court directed that accused Raj Kumar on 16.7.97 to give some writing on the paper but the accused replied that he could only put his signatures and he cannot write anything more than putting signatures so consequently accused Raj Kumar @ Raju appended his signatures on a sheet/paper in the court itself. The accused Raj Kumar @ Raju appeared to have deliberately not given his writing in detail before the Court in order to avoid the same being compared with the writing in the ransom letter. I have seen the ransom letter Ex.P-1 and I have compared the alphabets of ransom letter Ex.P-1 with the signatures given by the accused in the court and find some similarity between the words of Ex.P-1 and the alphabets of the signatures of the accused could not be sent to the handwriting expert for comparison but if one compares the alphabets of the signatures with the writing of ransom one can find the similarity of the alphabets. Although it cannot be definitely said that letter Ex.P-1 was written by accused Raj Kumar but I find some similarity in the signatures of accused Raj Kumar with the alphabets of the ransom letter."

16. The learned trial judge has held that from the

testimony of Amit PW-13 and the testimony of Harro PW-1 it

stood established that the deceased was last seen in the

company of Raj Kumar and Rambir. From the testimony of

the investigating officer it stood established that Harbir and

Rambir pointed out the well from where the dead body of the

deceased had been recovered by the UP police on 13.6.1995

and a pair of chappals belonging to the deceased was

recovered on 15.6.1995 from near the well, which facts

inculpated Rambir and Harbir. Lastly, Rs.20,000/- recovered

at the instance of Rambir and Rs.18,000/- recovered at the

instance of Harbir have been held to be part of the ransom

booty. The learned trial judge has also held that the conduct

of Rambir who was related to the kidnapped child in eating

away the ransom amount by falsely gaining the confidence of

PW-1 and PW-2 was also an evidence indicating his guilt. We

hasten to add that the learned trial judge has not listed

aforesaid circumstances after discussing the evidence, but at

various stages of the judgment, aforesaid findings can be

gathered.

17. Before proceeding to note the contentions of

learned counsel for the parties we wish to emphasize that a

well written judgment where there are more than one accused

requires the learned Judge to list the incriminating evidence

against each accused separately for the reason such a well

written judgment throws clarity as to what has actually

weighed in the mind of the learned judge.

18. Learned counsel for the appellants urges that the

reasoning of the learned Trial Judge pertaining to the ransom

note Ex.P-1 being in the hand of Raj Kumar is the ipse dixit of

the learned Trial Judge and thus, counsel requests us to

compare the signatures of Raj Kumar obtained in Court with

Ex.P-1 and form an independent opinion. Learned counsel

points out that the signatures of Raj Kumar show the faulting

and halting hand in which the signatures have been penned,

suggestive of the fact that Raj Kumar had literacy levels just

about adequate, enabling him to write his name. The

signatures are not more than a person writing his name.

Drawing our attention to the writing on the ransom note Ex.P-

1, learned counsel urges that even the writing on the ransom

note shows that the writer has authored the letter in a halting

and faulting hand, suggestive of the illiteracy of the writer of

the letter. But, counsel urges that under such circumstances it

becomes difficult even for an expert to give a definite opinion

on the handwriting, for the reason, existing literature on

handwriting analysis suggests that the identification of

distinctive features with reference to the formation of letters is

the sine qua non to render an opinion, whether the suspect

writing is in the hand of the person who has given the sample

writing.

19. Learned counsel urges that the learned Trial Judge

has ignored certain very important features and circumstances

emanating through the testimony of the witnesses of the

prosecution. Counsel urges that if considered in the

perspective of the conduct of a reasonable person even with

low literacy levels, the said features completely demolish the

case of the prosecution. The aforesaid broad submission is

crystallized into sub-heads as under:-

(a) As per Harro PW-1, Amit PW-13 had told her by 2:30

PM that he had seen her son Sonu in the company of Rambir.

Tejpal PW-2 husband of Harro admitted in his testimony that

when his son was found missing a complaint was lodged with

the police on 8.6.1995 by his brother Rakesh PW-8. Rakesh

PW-8 deposed that since Sonu could not be found till about

8:00 AM on 8.6.1995 he lodged the missing person's report

Ex.PW-8/A and during cross examination admitted that before

lodging the complaint he had talked with his brother Tejpal

and his sister-in-law Harro. Counsel urges that if Amit had told

Harro that her son was with Rambir, Harro would have told

said fact to her husband and Rakesh Kumar and the natural

conduct of Rakesh Kumar would have been to so inform the

police. With reference to the complaint Ex.PW-8/A lodged by

Rakesh Kumar on 8.6.1995 learned counsel points out that no

such fact stands disclosed therein.

(b) With reference to the testimony of Tejpal PW-2,

Kiran Pal PW-4 and Rakesh Kumar PW-8, all of whom said that

along with Rambir, a relative of theirs, they searched for Sonu

and that even when the ransom note Ex.P-1 was received, he

i.e. Rambir went along with them to pay the ransom amount to

the kidnappers and that they took a bag containing

Rs.45,000/- which was handed over by Tejpal to Rambir to be

paid to the kidnappers and Rambir returned empty handed,

counsel urges that it is impossible that all family members of

Sonu would be going about taking the help of Rambir in

locating Sonu if indeed Amit had told them that he had seen

Sonu in the company of Rambir and Raj Kumar @ Raju on

7.6.1995 i.e. the day when Sonu went missing.

(c) Counsel urges that it is strange conduct of the

family members of Sonu in handing over Rs.45,000/- to Rambir

and accepting his return without the child and even without

the money. Counsel states that as per PW-2, PW-4 and PW-8,

Rambir took the money to hand over the same to the

kidnappers but returned without the child. Counsel urges that

it is against human conduct, howsoever humble or illiterate a

person may be that the family members who had given

ransom money to a co-family member would accept his return

empty handed and without their child. Besides, counsel

urges, that Tejpal has simply deposed that everybody left for

the place where the ransom had to be paid as per Ex.P-1 with

Rs.45,000/-. Rambir had accompanied them and on return he

was told that Rs.45,000/- was given to the kidnappers who told

that Sonu would be left at Koria Pul. They all went to Koria Pul

but Sonu could not be found. Kiran Pal PW-4, deposed that he

i.e. Kiran Pal along with Rambir, Ballu, Pappu and Rakesh went

to deliver Rs.45,000/- to the kidnappers and reached near

Hindon Nadi. Ballu and Rambir were handed over the money

which was to be paid to the kidnappers. They left and

returned after 15 minutes. Rambir said that Sonu would be

released near Kauriya Pul at around 7/8 AM. They reached

Kauriya Pul but Sonu never came. Rakesh PW-8 did not

depose about going to pay the ransom money to the

kidnappers. Thus, counsel urges that there is most inchoate

evidence of Rambir secreting Rs.45,000/- which had to be paid

to the kidnappers.

(d) The next submission urged by learned counsel is

that on 13.6.1995 when Harro's statement Ex.PW-1/A was

recorded and as noted in the narratives hereinabove, the same

was recorded at around 12:30 PM, it was not stated that in the

morning the family members had left with Rs.45,000/- to be

paid to the kidnappers and that Rambir had mislead the family

members, in that, after reaching Hindon, Rambir went with the

money to be paid to the kidnappers and returned empty

handed.

(e) Drawing attention to the fact that the dead body of

Sonu was recovered from the well in the field of one Maharaj

on 13.6.1995, counsel urges that pointing out of the same well

two days after i.e. on 15.6.1995 by Rambir and Harbir has to

be viewed with suspicion for the possibility of the Delhi Police

being informed of the dead body of Sonu being recovered in

the well in question by their counterparts i.e. the police at

Meerut cannot be ruled out. Counsel submits that pointing out

a place of crime would assume significance if the police had no

knowledge of the said place before it was pointed out by the

accused. Learned counsel urges that even otherwise, pointing

out a place would be evidence of conduct, admissible under

Section 8 of the Evidence Act and is weak evidence.

(g) With reference to the pair of chappals recovered

near the well in the field of Maharaj on 15.6.1995, learned

counsel urges that the pair of chappals was not put either to

Harro PW-1 or Tejpal PW-2 when they appeared as witnesses

of the prosecution and none of them have identified the pair of

chappals as that of Sonu. Thus, counsel urges that it has not

been established that the pair of chappals belonged to the

deceased.

(h) With reference to the testimony of Ajesh PW-7 from

whose house Rs.18,000/- was ostensibly recovered at the

instance of Harbir, learned counsel points out that the

testimony of Ajesh demolishes the recovery of Rs.18,000/- at

the instance of Harbir.

(i) As regards the recovery of Rs.20,000/- at the

instance of Rambir, learned counsel points out that the

recovery is from an open field, though shown as having been

recovered after digging the soil.

(j) Counsel terminates her submissions by urging that

if the last seen evidence against Rambir and Raj Kumar is

demolished and no value is put to the identification of the well

from where the dead body of the deceased was recovered two

day prior to the day when the well was pointed out by Rambir

and Harbir, the only incriminating evidence left against Rambir

would be of recovery of Rs.20,000/- at his instance which

evidence, even if it stands, would be insufficient to convict

Rambir for the reason it is settled law that in a case of

circumstantial evidence the chain of circumstances have to be

complete wherefrom the only inference which can be drawn is

that of the guilt of the accused and innocence ruled out.

Counsel further submits that assuming this Court were to

accept the testimony of the family members of the deceased

that Rambir acted suspiciously when attempts were made to

search for Sonu in said event there would be only two pieces

of incriminating evidence against Rambir. Firstly his conduct

of attempting to participate in the recovery of Sonu and taking

Rs.45,000/- to be paid to the kidnappers and eating away the

said money and Rs.20,000/- being recovered from him. Both

of which would be insufficient wherefrom the only inference

which can be drawn is that of the guilt of Rambir. Qua

appellant Harbir, learned counsel points out that recovery of

Rs.18,000/- at his instance stands disproved by the testimony

of Ajesh Kumar PW-7 and the pointing out of the well from

where the dead body of the deceased was recovered two days

prior to the pointing out is inconsequential evidence and hence

there is no evidence against Harbir. Qua Raj Kumar, counsel

urges that the testimony of Raj Kumar being last seen with the

deceased in the company of Rambir being the only evidence,

stands demolished and that the finding returned by the

learned trial judge that Ex.P-1 appears to be in the hand of Raj

Kumar is a perverse finding.

20. Indeed, Smt.Harro PW-1 while deposing in Court has

stated that Amit told her on 7.6.1995 at around 2/2:30 PM that

he had seen her son in the company of Rambir. She deposed

that she lodged the complaint Ex.PW-1/A on 13.6.1995.

21. Amit PW-13 deposed that at around 7.00 or 8.00 AM

he saw Sonu in the company of his uncle (phupha) Rambir and

one Raju i.e. accused Raj Kumar. He heard them telling Sonu

that they would purchase chicken hatchlings for him.

22. Rakesh Kumar PW-8 deposed that he learnt of

Sonu, his nephew, being missing since morning when he

returned from his duty on 07.6.1995. He helped the parents of

Sonu and his uncles to search the boy and when the search

failed, he lodged the report Ex.PW-8/A with the police at 8.00

AM on 08.6.1995. He deposed during cross-examination that

before lodging the report he had talked with his brother and

his sister-in-law Harro. He stated that he did not know the

name of the culprits when he lodged the report, but went on to

immediately contradict himself, by stating that he had named

the culprits to the police. We note that in his report Ex.PW-

8/A, Rakesh has named none, much less doubted the

involvement of anyone.

23. Tejpal PW-2 deposed that his brother Rakesh had

lodged a report with the police. That the ransom letter Ex.P-1

was received by him on 12.6.1995 and that he handed over

the same to the police as recorded in the memo Ex.PW-2/A

on 13.6.1995. He stated that as against ransom demand in

sum of Rs. 70,000/- he arranged Rs.45,000/- out of which

Rs.20,000/- was his contribution and he borrowed Rs.20,000/-

from his aunt Ramkali and that on 13.6.1995 he i.e. Tejpal,

Rakesh, Rambir, Billa, Kiran Pal left to pay the ransom money.

On return Rambir said that the money was paid and his child

would be left at Kauriya Pul. They left for Kauriya Pul, but the

child never came.

24. We note that the testimony of PW-2 is not clear

inasmuch as he has not stated that he handed over the money

to Rambir. What he has deposed may be reproduced. It

reads:"My brother Rakesh along with some other persons had

gone to the place which was written in the letter with

Rs.45,000/-. My brother-in-law Rambir had also accompanied

with my brother Rakesh. Rambir accused present in Court on

return told me that they had given Rs.45,000/- to the

kidnappers and it was told to me that the child Sonu would be

left at Koria Pul in the morning hours at about 7/7.30 AM. I

along with Billa, Kiran Pal, Rakesh, Rambir accused had gone

in the morning to the Koria Pul to collect the child, but my Son

Sonu was not found there."

25. Ajesh Kumar PW-7 denied that Rs.18,000/- was

recovered from his house, much less at the instance of Harbir.

He stated that his signatures on the recovery memo Ex.PW-7/A

were obtained when the paper was blank. He admitted that

Harbir was his brother-in-law.

26. The plea of learned counsel for the appellants that

the finding returned by the learned trial judge that the writing

on the ransom note Ex.P-1 is in the hand of Raj Kumar is based

on strained reasoning is correct and we agree with the same.

The reasoning of the learned trial judge has been noted by us

in para 15 above. We note that at one stage the learned trial

judge has categorically held that it cannot be definitely said

that the letter Ex.P-1 was written by accused Raj Kumar, but

immediately thereafter, the learned judge has written that he

finds some similarities in the signatures of Raj Kumar with the

alphabets of the ransom letter. Which letters have been found

to be similar remains a mystery as none have been listed by

the learned judge.

27. We have seen Ex.P-1 and the signatures of Raj

Kumar obtained in Court by the learned trial judge. Learned

counsel for the State has also seen the same. Learned counsel

has failed to show us even one alphabet which can said to be

similar. The writing on Ex.P-1 is in broken hand and so are the

signatures of Raj Kumar. Even in the broken hand, no

similarity can be found. Indeed, where a writing is in broken

hand it becomes very difficult to compare the same with a

sample writing. Be that as it may before somebody can opine

that the suspected writing is in the hand of a person who has

given the sample writing, some similarities have to be noted

and listed with reference to the features of the alphabets

containing the two writings and only then can an opinion be

found. We hold that the learned trial Judge has bent

backwards and unnecessarily strained himself to return

inchoate findings qua the writing of the ransom note Ex.P-1

and the signatures of Raj Kumar.

28. Indeed, Harro has deposed that Amit PW-13 told her

at 2.30 PM that he had seen Sonu in the company of Rambir.

Indeed, Rakesh Kumar PW-8 has deposed that before he

lodged the missing person's report Ex.PW-8/A in the morning

of 8.6.1995 he had discussed the issue with the parents of

Sonu. Indeed, in the complaint Ex.PW-8/A nobody has been

named as a suspect. Learned counsel for the State urges that

Harro is a safai karamchari i.e. is a person of humble origin

and her conduct of not telling her husband or her brother-in-

law Rakesh of what Amit told her is not abnormal.

29. Harro PW-1 may be illiterate and of a humble

background but that does not mean that she is a stupid and an

irrational person. One does not require high literacy level to

deal with the ways of the world and encounter problems.

Harro's son was missing for 24 hours when the complaint

Ex.PW-8/A was lodged. As deposed to by her, she searched all

day on 7.6.1995 for her son. It is not possible that she did not

tell her husband and her brother-in-laws that Amit told her that

her son was seen in the company of Rambir. Her not telling

said fact to Rakesh, who in turn never said this fact to the

police on 8.6.1995, probablizes that Amit never told anything

to Harro on 7.6.1995 and that Harro has made a false claim.

In this connection it is important to note that the statement of

Amit under Section 161 Cr.P.C. was recorded after 32 days of

the arrest of the accused. Further, on being cross-examined

Amit stated that he left for his school at 1.00 PM. As noted

hereinbefore, as per Harro she received information from Amit

at 2.30 PM. We quote her deposition:"Amit had told me at

about 2/2.30 PM that Rambir accused had taken away the

child Sonu." If Amit went to school at 1.00 PM, where was the

occasion to him to speak to Harro at 2.30 PM! Be that as it

may, non-mentioning of said fact in the complaint Ex.PW-8/A

leads to a strong inference that Amit told nothing to Harro as

claimed by Harro on 7.6.1995. This, coupled with the fact that

Amit's statement under Section 161 Cr.P.C. was recorded

belatedly creates a grave suspicion in our minds and compels

us to hold that said evidence does not inspire confidence. We

thus hold that the prosecution has not successfully established

that the deceased was seen in the company of Rambir and Raj

Kumar on 7.6.1995 i.e. the day on which Sonu went missing.

30. The matter can be looked at from another angle. If

Amit had told Harro on 7.6.1995 that he had seen her son in

the company of Rambir in the morning, Rambir would be a

person whose conduct was suspect and if this be so we find

inconsistency in the conduct of PW-1 and PW-2 in associating

Rambir in the search of their child.

31. Submissions made by learned counsel as noted in

sub-paras (c) and (d) of para 19 above evidence a complete

discord in the testimony of PW-2 and PW-4, with PW-8 not

deposing any fact of Rambir secreting Rs.45,000/-. As per PW-

4 Rambir and Ballu were handed over the money to be paid to

the kidnappers and they returned after 15 minutes. Rambir

informed that the child would be released near Kauriya Pul. If

this be so then Ballu ought to have been produced as a

witness to throw light as to what happened to Rs.45,000/-. As

deposed to by PW-2, which deposition has been noted in para

24 above, he has spoken inchoately as to who went with

Rs.45,000/-. Thus, there is considerable confusion on the

issue.

32. Harro's statement Ex.PW-1/A was recorded at 12.30

PM on 13.6.1995 and it is strange that she has not spoken of

Rs.45,000/- being handed over in the morning to the

kidnappers; money being handed over by Rambir and yet her

child having not returned. Said fact probablizes that nothing

of the kind took place in the morning of 13.6.1995 as was

deposed to by PW-2 and PW-4.

33. Sonu's dead body was recovered from a well in the

field of one Maharaj on 13.6.1995. As deposed to by Si Jai

Narain Singh PW-20 when he left PS Partapur Distt. Meerut,

from the check post Delhi Road he took along with him

Const.Tej Pal and Const.Daya Singh. There is, thus, a

probability that information was available to the police at Delhi

of Sonu's body being recovered from the well in question on

13.6.1995. Under the circumstances Rambir and Harbir

pointing out the well to the investigating officer on 15.6.1995

has to be taken with a pinch of salt. The pair of chappals

recovered from near the well were neither put for identification

to the parents of Sonu i.e. PW-1 and PW-2 and neither has

deposed that the said pair of chappals was of Sonu.

34. The testimony of PW-7 demolishes recovery of

Rs.18,000/- at the instance of Harbir. The recovery of

Rs.20,000/- from Rambir is with a little taint, in that the money

was got recovered from a field. Why should Rambir hide

Rs.20,000/- by digging a pit and putting the money inside the

pit when everybody knows that pre-monsoon squalls of rain in

the month of June can be fairly heavy thereby damaging

currency notes if kept buried in loose soil. If Rambir had the

money, he would have better kept it in his house. That apart,

in view of the inchoate testimony of PW-1 and the conflicting

testimony of PW-4 who deposed that Ballu and Rambir took

the sum of Rs.45,000/- to be paid to the kidnappers, one is not

even sure that Rambir secreted the money.

35. Thus, we allow the appeals and set aside the

impugned judgment and order dated 4.11.1997. The

appellants are acquitted of the charge framed against them.

36. The appellants are on bail. The bail bonds and the

surety bonds furnished by the appellants are discharged.

PRADEEP NANDRAJOG, J.

INDERMEET KAUR, J.

SEPTEMBER 09, 2009 mm