Mahesh Kumar vs State
2010 Latest Caselaw 1152 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: 2nd March, 2010

+                    CRL.APPEAL NO.777/2001

       MAHESH KUMAR                                   ..... Appellant
               Through:              Mr.S.D.S.Rathore, Advocate.

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


                CRL.APPEAL NO.980/2001
       RAM ASHISH                        ..... Appellant
                Through: Mr.Ikrant Sharma, Advocate.

                                     versus

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

       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. Vide judgment and order dated 17.9.2001,

acquitting Accused No.2 Somnath for the reason no

incriminating evidence surfaced against him, appellant Mahesh

has been convicted for the offences punishable under Section

363/364-A IPC. Appellant Ram Ashish has been convicted for

the offence punishable under Section 368 IPC. Vide order on

sentence dated 21.9.2001 both have been sentenced to

undergo imprisonment for life.

2. In returning a verdict of guilt against appellant

Mahesh Kumar, the learned Trial Judge has held that the

ransom notes Ex.PW-1/C and Ex.PW-1/D have been proved to

be in the handwriting of Mahesh Kumar. The second piece of

incriminating evidence used against Mahesh Kumar is the

finding returned that the prosecution has successfully

established that it was he who came to collect the ransom

amount. Lastly, the learned Trial Judge has held that the

prosecution has successfully proved that pursuant to his

disclosure statement the kidnapped child was recovered from

the house of co-accused Ram Ashish.

3. Qua Ram Ashish the evidence is the recovery of the

kidnapped child from his house pursuant to the disclosure

statement of Mahesh Kumar.

4. As regards the incriminating evidence that the

ransom notes Ex.PW-1/C and Ex.PW-1/D were in the

handwriting of Mahesh Kumar, we note that his sample

writings were obtained when he was in police custody and the

provision of Section 5 of the Identification of Prisoners Act

1920 has not been complied with. In view of the decisions

reported as AIR 1980 SC 791 State of U.P. vs. Ram Babu

Mishra, 1994 (5) SCC 152 Sukhvinder Singh & Ors. vs. State of

Punjab and AIR 2003 SC 4377 State of Haryana vs. Jagbir Singh

& Ors., we have to eschew reference to said incriminating

evidence.

5. Whether the kidnapped child was recovered

pursuant to the disclosure statement made by Mahesh Kumar

or otherwise has become a matter of debate for the reason

PW-1, the father of the kidnapped child has not fully supported

the case of the prosecution.

6. With reference to how his daughter was recovered,

he deposed that on the day when ransom had to be paid, he

reached the spot where the ransom had to be paid and waited

till 2:00 AM (night). Nobody came to collect the ransom. He

deposed that next day around 10:00 PM in the night Mahesh

Kumar came to him and disclosed that he was not only the

author of the ransom notes but also that he had confined his

daughter. He took them to Uttam Nagar from where his

daughter was recovered.

7. Being declared hostile by the learned APP he denied

being a witness to any disclosure statement recorded in his

presence. He denied that pursuant thereto appellant Mahesh

Kumar took the police to the house of Ram Ashish in Uttam

Nagar and got the girl recovered. However, he admitted his

signatures on the recovery memo Ex.PW-1/H which records

that after Mahesh Kumar picked up the money, he was

apprehended and the money was recovered from him. He was

confronted with the portion in his statement recorded by the

police where it was recorded that the disclosure statement of

Mahesh was recorded in his presence. He admitted that his

signatures were at point 'A' on the disclosure statement

Ex.PW-1/J of Mahesh. Having denied that he accompanied the

police when his daughter was recovered, he admitted his

signatures at point 'A' on the recovery memo Ex.PW-1/K

wherein recovery of his daughter has been shown from the

house of Ram Ashish.

8. As against that, the two police officers involved in

the investigation, namely, Const.Satish Kumar PW-4 and SI

Deen Dayal PW-5 have deposed that Mahesh Kumar came to

collect the ransom amount. When he picked up the ransom

amount which was kept at a spot as per his directions in the

ransom note, he was arrested. He made a disclosure

statement and pursuant thereto led the police to the house of

Ram Ashish wherefrom Sonam was recovered.

9. We note that Sonam, the kidnapped child, was

examined as PW-2. She deposed that Mahesh Kumar had

taken her away from her house but failed to answer the

question as to where Mahesh had kept her.

10. It is true that PW-1 has dented the case of the

prosecution by turning hostile on material points. But, PW-4

and PW-5 have fully supported the case of the prosecution.

That the disclosure statement of Mahesh Kumar bears the

signature of PW-1, a fact which he has admitted, that the

recovery memo of the girl bears the signature of Mahesh

Kumar, a fact which he has admitted, supports the case of the

prosecution as proved by PW-4 and PW-5.

11. It may be true that Sonam has not stated anything

as to where she was kept. But, the same appears to be due to

the reason she comes from a poor background and was aged 7

years when she deposed in Court. She was about 4½ years

old when the incident took place. Obviously, the young girl

would not remember much.

12. It would also be of interest to note that whereas the

accused chose to cross-examine PW-5, PW-4 was not even

subjected to any cross-examination. Thus, we confirm two

findings returned by the learned Trial Judge qua Mahesh. The

first is of Mahesh Kumar being apprehended at the spot when

he came to collect the ransom money and after he picked up

the ransom note he was apprehended at the spot. The

prosecution has also successfully proved that after Mahesh

Kumar made the disclosure statement he led the investigating

officer to the house of Ram Ashish from where the young girl

was recovered.

13. But, as held by a Division Bench of this Court in the

decision reported as 149 (2008) DLT 306 Rafiq & Anr. vs. State

the proof of a threat to the life or body of the victim, either to

the victim or to the person from whom money is sought to be

extracted is an essential ingredient of the offence punishable

under Section 364-A IPC. Same view has been taken by the

Supreme Court in the decision reported as JT 2007 (5) SC 48

Vishwanath Gupta vs. State of Uttranchal.

14. If we peruse the two ransom notes we find that in

the first ransom note it has been stated that if PW-1 desires

the return of his daughter he must pay the ransom in sum of

Rs.15,000/-. In the second ransom note it has been conveyed

that if the ransom is not paid his daughter would be sold.

15. It is obviously not a case where any threat was

extended either to the victim or to her father of causing death

or causing injury to the kidnapped child. We note that Kumari

Sonam has not stated that she was maltreated by either

accused.

16. Thus, the offence made out against Mahesh Kumar

does not attract Section 364-A IPC. He has committed the

offence punishable under Section 363 IPC as also the offence

punishable under Section 367 IPC.

17. Qua Ram Ashish, a question would arise, whether

he simply helped Mahesh in kidnapping the child or shared the

same intention or knowledge as that of Mahesh.

18. Now, we have already returned a finding that the

intention of Mahesh Kumar was to sell the girl if ransom was

not paid.

19. Save and except the evidence of the kidnapped

child being recovered from the house of Ram Ashish we find no

evidence where from his intention or knowledge can be

gathered.

20. Noting that the young girl has spoken not a word

about Ram Ashish we are of the opinion that his conviction

under Section 368 IPC by making him vicariously liable for the

offence punishable under Section 367 IPC may not be

sustainable. Accordingly, we hold that Ram Ashish is guilty of

the offence punishable under Section 363/34 IPC.

21. The maximum sentence for the offence of

kidnapping is 7 years. The maximum sentence of the offence

punishable under Section 367 IPC is 10 years.

22. Noting that Mahesh has already undergone an

actual sentence of 6 years and 1 month when he was released

on bail and had earned remissions of 1 year and 11 months,

we are of the opinion that the ends of justice would be met if

Mahesh is sentenced to undergo imprisonment for the period

already undergone for both offences.

23. As regards Ram Ashish we note that by the time he

was admitted to bail he had already undergone a sentence of

about 1 year and 6 months. But, considering the fact that his

role was subsidiary and that he has no prior criminal record,

further noting that he was aged 19/20 years when he

participated in the commission of the crime with Mahesh

Kumar, we feel that the ends of justice would be met if he is

also sentenced to undergo imprisonment for the period

already undergone.

24. In view of the instant decision, the appellants need

not surrender or suffer any further sentence and hence the

bail bond and surety bonds furnished by them are discharged.

                                        (PRADEEP NANDRAJOG)
                                                JUDGE



                                            (SURESH KAIT)
March 02, 2010                                  JUDGE
dkb