Delhi High Court

Surender Kumar @ Raja vs State on 6 January, 2010

Author: Pradeep Nandrajog

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : 6th January, 2010

+                        CRL. A. No. 738/2003

        SURENDER KUMAR @ RAJA                 ..... Appellant
                     Through: Mr. Rajesh Mahajan, Advocate

                      versus

        STATE                                    ..... Respondent
                           Through: Mr. M.N. Dudeja, APP

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                            Yes
     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J. (Oral)

1. With reference to the testimony of Ram Chander PW-1,

Mukesh PW-2 and Raj Kumar PW-3, the learned trial Judge has

returned a finding that the prosecution has successfully

established that the appellant has committed the offence

punishable under Section 364-A IPC. For the offence held

committed by the appellant, he has been sentenced to

undergo imprisonment for life and pay fine in sum of

Rs. 1000/-; in default of payment of fine it has been directed

that the appellant shall undergo RI for further six months.

2. Conceding that there is no blemish in the testimony of

PW-1 and PW-2, learned counsel for the appellant points out a

serious procedural infirmity during conduct of trial which has

considerable bearing on the testimony of Raj Kumar PW-3 and

the commission of the offence punishable under Section 364-A

IPC.

3. To appreciate the submissions urged at the hearing of

the appeal by Sh.Rajesh Mahajan learned Amicus Curie who

has been nominated by the Delhi High Court Legal Service

Committee to argue the appeal on behalf of the appellant, it

may be noted that Ram Chander PW-1 who is the father of the

child kidnapped; namely Mukesh PW-2, while deposing in Court

has not uttered any word of any threat conveyed to him

pertaining to the kidnapped child of causing death or bodily

injury to the kidnapped child. There is no reference in the

testimony of Ram Chander of any conduct of the accused

where from an apprehension would arise in the mind of Ram

Chander that if ransom was not paid, his child would be hurt or

killed. We note that Ram Chander has simply stated that when

he received a call from the appellant he was told to bring

money. He categorically stated that no specific amount to be

paid as ransom was conveyed to him.

4. The kidnapped child i.e. Mukesh PW-2 has simply stated

that the appellant had kidnapped him and when he wept he

was beaten.

5. Raj Kumar PW-3, who runs a milk dairy in front of the tea

shop belonging to Ram Chander stated that at his telephone

number 2634918 when ransom call was received by him to be

conveyed to Ram Chander, he was categorically informed that

the police should not be told anything, otherwise the

kidnapped child would be killed.

6. In the back drop of the evidence afore-noted, submission

made by learned counsel for the appellant is that, as held in

the decision reported as JT 2007 (5) SC 48 Vishwanant Gupta

Vs. State of Uttranchal (as held in para 6), an essential

ingredient of the offence of kidnapping for ransom i.e. Section

364-A IPC is threat to cause death or hurt to the victim or

conduct which gave rise to a reasonable apprehension that the

kidnapped person would be hurt or killed.

7. Counsel submits that neither PW-1 nor PW-2 have

deposed any such fact. With reference to the testimony of

PW-3, learned counsel points out that PW-3 was examined on

08.08.2002 and was partially cross-examined on said date.

Counsel submits that as recorded by the learned trial Judge,

since no further time was left on 08.08.2002, further cross-

examination was deferred. Order sheet shows that the matter

was listed for further evidence on 28.10.2002. On said date,

recording in the order sheet that till 3:35 PM the accused could

not call his counsel, opportunity of further cross-examination

was given to the accused who failed to cross-examine PW-3.

Learned counsel points out that the appellant was in custody

on 29.10.2002 and was produced before the Court from the

police lock-up in the Court premises when the case was called.

Counsel wonders as to how could the appellant go in the Court

complex to search for his lawyer. Not only that. With

reference to the record, counsel draws our attention to the

order dated 30.10.2002 which records that the accused told

the Judge he was a poor man and that his counsel was not

appearing and he be provided with the service of a counsel at

the State expense. On the same date Sh.Sanjiv Goel,

Advocate was appointed as Amicus Curie. Learned counsel

further points out that the Amicus Curie moved an application

to recall PW-1 and PW-3 for further cross-examination pointing

out to the Court that PW-1 and PW-3 could not be examined

because counsel for the accused did not appear on

29.10.2002. Vide order dated 30.10.2002 the application was

allowed and it was directed that PW-1 and PW-3 would be

summoned for further cross-examination.

8. At this stage, we may note that PW-1 was not cross-

examined on 29.10.2002 i.e. the date fixed for his cross-

examination for the reason counsel for the accused was

absent. We further note that the examination-in-chief of PW-1

was completed on 09.08.2002, meaning thereby, that the

accused had not cross-examined either PW-1 and PW-3 till

31.10.2002.

9. On 31.10.2002 PW-1 appeared and was cross-examined.

Inspite of being served PW-3 did not appear. Unfortunately,

the learned trial Judge lost sight of said fact resulting in further

witnesses being examined and cross-examined, but PW-3

remained uncross-examined pursuant to the order dated

30.10.2002.

10. What has happened as a result of the afore-noted fact is

that a valuable right of the accused to cross-examine PW-3 on

a very vital aspect of the matter has been violated. The vital

aspect of the matter is the cross-examination of PW-3 with

respect to his testimony in Court that when a call was received

by him at his telephone number the caller told him that if

police was informed the kidnapped child would be killed.

11. Two options are open to us. First is to set aside the

impugned judgment and remit the matter for further evidence

with directions that Raj Kumar PW-3 be summoned and

tendered for further cross-examination. The other is to close

the chapter in the appeal noting that the appellant has

remained in custody since the day he was arrested i.e.

13.08.2001. As of today the appellant has served an actual

sentence of 8 years 4 months and 20 days.

12. Learned counsel for the State urges that the former

course be chartered. Learned counsel for the appellant prays

that latter course be chattered.

13. Learned counsel for the appellant draws our attention to

the statement of Raj Kumar recorded under Section 161

Cr.P.C. Counsel points out that in the said statement Raj

Kumar has nowhere stated that when a call was received by

him at his telephone, the caller said that if police was informed

the child kidnapped would be killed. Learned counsel urges

that if PW-3 directed to be re-summoned for further cross-

examination the accused i.e. appellant would confront Raj

Kumar with his statement under Section 161 Cr.P.C. to

highlight that Raj Kumar has made material improvement

while deposing in Court vis-à-vis his statement recorded under

Section 161 Cr.P.C. Counsel submits that at the remanded

stage, what is going to happen is a foregone conclusion and

thus urges that taking note of the poverty of the appellant and

his continued incarceration the matter may be closed at the

stage of appeal.

14. As held by a co-ordinate Division Bench of this Court, in

the decision reported as 149 (2009) DLT 306 Rafiq & Anr. Vs.

State , an essential ingredient of the offence of kidnapping for

ransom is to give threat for death or hurt to the victim or

evidence of such conduct of the accused as would give rise to

a reasonable apprehension that the victim would be put to

death or hurt.

15. Same view has been taken by the Supreme Court in

Vishwanath's case (Supra).

16. Learned counsel for the State refers to the decision

reported as AIR 2004 SC 4865 Malleshi Vs.State of Karnataka

to urge that to constitute the offence punishable under Section

364-A IPC it is enough to establish that the accused kidnapped

the victim and demanded ransom.

17. This Bench had a occasion to consider the said decision

cited by learned counsel for the State. Our decision is dated

09.12.2009 disposing of Criminal Appeal No. 980/2005 Imran

Ansari Vs. State. In para 13 to 17 of our decision afore-noted

we had held as under :-

"13. It is important to note that in the first segment of Section 364-A IPC, as fragmented hereinabove; 'and threatens to cause death or hurt to such person' is an inseparable part of kidnapping or abduction. It is apparent that the disjunction takes place firstly at the stage the sentence 'or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt'. Further disjunctions take place as afore-noted.

14. It is settled law that a penal statute has to be construed strictly.

15. Learned counsel for the State cites AIR 2004 SC 4865, Malleshi vs. State of Karnataka to urge that to constitute the offence of kidnapping or abduction it is enough to establish that the accused abducted/kidnapped the victim and demanded ransom.

16. We note that the issue which has arisen for consideration in the instant appeal did not arise for consideration in Malleshi's case (supra) and for said reason we do not find that the court has analyzed the various ingredients of Section 364-A IPC.

17. From a perusal of the decision of Supreme Court, it is apparent that what was being urged before the Supreme Court was that the evidence does not show accomplicity of the accused in the abduction of the victim i.e. PW-2, a student of S.J.M. College. We note that the Supreme Court has categorically noted the testimony of PW-2 that after he was put in a Trax jeep and after crossing Challakera gate, he was threatened not to raise his voice, otherwise he will be murdered. There was evidence of threat being given to the victim being put to death. Thus, there was no scope for the issue to be debated for the Supreme Court on the interpretation of Section 364-A IPC."

18. Thus, we hold that PW-3 has made a considerable

improvement vis-a-vis his statement recorded by the police

under Section 161 Cr.P.C. relating to the threat extended to

the life of the kidnapped child. Removing said testimony of

PW-3 as untrustworthy, we are left with the simple testimony

of PW-1 and PW-2 as per whom only ransom was demanded.

No threat whatsoever was extended to the life or the person of

the kidnapped child.

19. It may be noted that while putting the incriminating

evidence to the accused when he was examined under Section

313 Cr.P.C. it has not been put that the accused extended any

threat to the life or person of the kidnapped child when