Hazari Lal & Ors. vs State
2010 Latest Caselaw 499 Del

R-67
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision: 29th January, 2009

+                           CRL A 765-67/2005

       HAZARI LAL & ORS.                             ..... Appellants
                Through:            Mr.R.S.Mishra, Advocate
                                    versus

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

       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 the Reporter or not?                  Yes

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

PRADEEP NANDRAJOG, J. (Oral)

1. The appellants have been convicted for the offence

of having entered into a conspiracy to kidnap for ransom

Master Abhishek son of Rakesh and of having given effect to

the conspiracy.

2. Co-accused of the appellants who could not be

apprehended were separately shown in a list appended to the

charge sheet as not having been sent for trial on account of

said persons being declared proclaimed offenders.

3. The case of the prosecution is that Master Abhishek

aged about 3½ years was found missing from his house on

29.5.2000 and since the young child could not be located his

father Rakesh Kumar PW-6 lodged a missing person's

complaint at the local police station entered vide DD No.33 at

10:50 PM. The child could not be traced till 31.5.2000 when

FIR No.256/2000 under Section 363 IPC PS Hazrat Nizammudin

was registered. On 31.5.2000 a letter Ex.PW-3/B was found in

the shed where Rakesh Kumar used to tie his cattle as per

which it was informed to Rakesh Kumar that his child was in

the custody of the sender of the letter and if he desired the

safety of his child ransom in sum of Rs.3,00,000/- should be

paid by him. It was intimated to Rakesh that even his life was

in danger.

4. Letter Ex.PW-3/B was handed over by Rakesh to the

police who received the same and got added the offence of

kidnapping for ransom i.e. the offence punishable under

Section 364 A IPC in the FIR which had already been

registered.

5. By means of a telephone call Rakesh was informed

that ransom should be paid at Rajghat near river Ganga in the

State of UP. The area fell within District Badhu, UP. The police

station within jurisdiction whereof the area fell was PS Rajpura.

6. A team of police officers from Delhi, inter alia,

comprising SI Ajay Kumar Singh PW-5 and SI A.K.Singh PW-14

accompanied by Jaibir PW-3, the younger brother of Rakesh

PW-6 left for District Badhu UP and got in touch with the police

officers of PS Rajpura. A team comprising of local police

personnel, namely Const.Shailender Singh PW-10, HC Rajinder

Singh PW-11, Const.Davinder PW-12 and Const.Ram Singh PW-

13 joined the police officers from Delhi. The naka had to be

set up.

7. An informer informed the local police that 10-12

men on horse back with a child were seen in the forest near

village Rajpura. This information was received in the

afternoon of 6.7.2000. The two aforenoted police officers from

Delhi and the 4 police officers attached to PS Rajpura, names

noted hereinabove, proceeded on a jeep towards the jungle

and stationed their vehicle at the Bridge Hari Baba. They saw

certain persons on horses and a few on foot with a child with

them.

8. The police team divided itself into 3 groups and

took position from different directions and challenged the

persons in the forest informing that they had been surrounded

and should surrender. The child in the company of the said

group was abandoned and the persons in the forest fled.

9. The child Abhishek ran towards Jaiveer PW-3 calling

him 'Papa-Papa' and his recovery was entered in the memo

Ex.PW-3/A.

10. Appellant Hazari Lal had worked with Rakesh the

father of Abhishek and the young child informed that Hazari

Lal had removed him from the lawful custody of his parents.

He informed that he was taken around on horseback.

11. The appellants Bhajan Lal and Hansraj were history

sheeters at PS Rajpura. Badam Singh, Panni Pal, Banwari and

Kripal the stated other persons involved in the offence but who

could not be apprehended, were also known faces to the police

personnel at PS Rajpura. HC Rajinder Singh PW-11,

Const.Davinder PW-12 and Ram Singh PW-13, the police

personnel attached at PS Rajpura claimed to have seen

appellant Bhajan Lal and appellant Hansraj as also aforenoted

persons as within the group of 10-12 persons whom they had

seen in the jungle.

12. Thus, the investigation became complete and the

only job was to apprehend the accused.

13. Appellant Hazari Lal, appellant Bhajan Lal and

appellant Hansraj could be apprehended. Other could not be

apprehended.

14. When in jail appellant Hazari Lal, through his wife

sent a letter Ex.PW-6/B to Rakesh Kumar expressing regret

and volunteering to suffer a punishment in monetary terms for

his misdeeds.

15. It may be noted at the outset that in the letter the

sin for which pardon was sought has not been detailed.

16. Needless to state the case of the prosecution

hinged upon the testimony of Master Abhishek, Jaibir PW-3,

Rakesh Kumar PW-6, SI Ajay Kumar Singh PW-5,

Const.Shailender Singh PW-10, HC Rajinder Singh PW-11,

Const.Davinder Singh PW-12, Const.Ram Singh PW-13 and SI

A.K.Singh PW-14.

17. Master Abhishek PW-2 was examined without oath

in view of his tender age. He stated that accused Hazari a

person in Court whom he correctly pointed out, took him to a

jungle from outside his house. He could not recognize Bhajan

Lal or Hansraj.

18. Jaibir PW-3 stated that he was the younger brother

of Abhishek's father and was present with the police team in

District Badhu when his nephew was recovered. He stated

that they have gone to the jungle where the child was

produced by a Pradhan.

19. PW-5, PW-10, PW-11, PW-12, PW-13 and PW-14, the

6 police officers who had organized the naka deposed that

they had surrounded the forest at around 4:00 PM on

5.7.2000. They saw 10-12 person on horses. On being

challenged, the said persons ran away leaving behind the

child. The child rushed towards his father crying 'Papa-Papa'.

20. Rakesh Kumar PW-6 deposed that he lodged the

missing person's complaint on 29.5.2000 when his son was

found missing and that he received the letter Ex.PW-3/B

demanding ransom which he handed over to the police. He

stated that his brother Jaibir had accompanied the police to UP

where the ransom had to be paid. It may be noted here that

while deposing as PW-6, Rakesh Kumar, the father of Abhishek

has stated that his son used to call his uncle Jaibir as 'Papa'.

He deposed that the letter Ex.PW-6/B was handed over to him

by the wife of Hazari Lal when he was in jail. He deposed that

Hazari Lal was working in his dairy.

21. HC Rajinder Singh PW-11 deposed that he could

recognize Hansraj, Badam Singh, Banwari, Karan Singh and

Bhajan Lal in the group of persons whom they had seen in the

forest as they belonged to his Ilaqa.

22. Const.Ram Singh PW-13 likewise deposed that he

had seen appellant Bhajan Lal and Hansraj in the group.

23. Likewise Const.Davinder PW-12 stated that Bhajan

Lal and Hansraj were present in the group and he recognized

them and a few other persons as they were from his Ilaqa.

24. All the police officers deposed pari-materia that

they had gone to the forest area near the village as a secret

informer had informed that 10-12 persons on horseback with a

child were seen in the jungle. All deposed that when they

challenged the group of 10-12 men who had the child with

them, they left the child and ran away. The child in question

was Abhishek.

25. Needless to state, the appellants have been

convicted with reference to the testimony of Master Abhishek

who has inculpated appellant Hazari Lal and on the testimony

of PW-3 and the police officers with reference to the role of

appellants Bhajan Lal and Hansraj.

26. It is urged by learned counsel for the appellants

that the shaky testimony of Master Abhishek is insufficient in

quality to sustain the conviction of Hazari Lal.

27. We do not agree. Master Abhishek was aged 4½

years when he deposed in Court on 7.12.2001. He was an

infant when he deposed. He stated that he knew accused

Hazari who took him on a horse to a jungle from outside his

house.

28. It assumes importance to note that when Master

Abhishek was recovered from the jungle he was with a group

of persons who were on horses. The child has thus correctly

stated that he was taken to jungle on a horse, but a young

infant is bound to state facts as have been stated by Master

Abhishek.

29. The letter Ex.PW-6/B also indicates a guilty trouble

mind of Hazari Lal and it being addressed to Abhishek's father

is indicative of a wrong committed by Hazari Lal and his desire

to come clean.

30. The golden opportunity for Hazari Lal to come clean

and throw light was when he was examined under Section 331

Cr.P.C. and throw light on his letter Ex.PW-6/B. He has chosen

to deny the said incriminating circumstance. He has chosen

not to explain the same.

31. Accordingly, we hold that there is sufficient

evidence wherefrom guilt of Hazari Lal can be inferred.

32. Qua appellant Bhajan Lal and Hansraj it is to be

noted that neither SI Ajay Kumar Singh PW-5 nor SI A.K.Singh

PW-14 from Delhi Police recognized them as a part of the gang

in the forest who were having with them Master Abhishek. The

reason is obvious, the two police officers could not have

recognized any person in the forest for the reason as deposed

to by Const.Davinder PW-12 they had seen the group of men

on horse back from a distance of 250 meters.

33. Experience tells us that if a person sees an

unknown person at a distance of 250 meters the viewer would

not be able to remember the features of the person seen.

34. The persons who have identified appellant Bhajan

Lal and Hansraj as a part of the group in the jungle are police

officers of PS Rajpura who saw the group of men from a

distance of 250 meters. It needs to be highlighted that the

said police officers have given a justification for having

recognized Bhajan Lal and Hansraj on the ground that Bhajan

Lal was a history sheeter and hence known to the local police

and hence Hansraj was an inhabitant of their Ilaqa.

35. Unlike cities where police personnel may not know

by name and face the persons residing within the area of their

police station, in rural areas police personnel do know by name

and face the persons residing in the area falling within the

jurisdiction of their police station.

36. Experience guides us that if one sees a known face

at a distance of 250 meters, the viewer instantly recognizes

the person concerned.

37. It be highlight that the day when Abhishek was

recovered was 6.7.2000 and the time was around 3/4 PM. In

the month of July, in the Northern and Central part of India

there is good sunlight between 3 and 4 PM. The place where

the child was recovered is District Badhu in the State UP.

38. It is true that while deposing in Court Jaibir PW-3

has said that the child was handed over by the Pradhan of the

village in District Badhu, but all other witnesses to the

recovery of the child have deposed unanimously that Master

Abhishek was recovered by them on being abandoned in the

forest when the group of men in whose custody he was were

challenged by the police and upon seeing that they were

surrounded by the police the said men fled from the forest

leaving behind Master Abhishek.

39. The ingredient of a threat to the life of Master

Abhishek is to be found in the ransom note Ex.PW-3/B.

40. We find no reasons to interfere with the impugned

decision.

41. The appeal is dismissed.

42. 3 copies of the present decision are directed to be

sent to the Superintendent Central Jail Tihar for the reason the

appellants are still in jail. The Superintendent Central Jail Tihar

shall make available a copy each to the appellants.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

JANUARY 29, 2010 mm