Surender Kumar vs State
2012 Latest Caselaw 1222 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                       Decided on : 23.02.2012
+                     CRL.A.548/2000 & CRL.A.561/2000

       CRL.A.548/2000
       SURENDER KUMAR                                ..... Appellant
                   Through: Mr. K.T.S. Tulsi, Sr. Advocate with
                   Mr. Pawan Sankhla, Mr. Padam Sankhla,
                   Mr. Lalit Sankihla and Mr. Ravinder.

       CRL.A. 561/2000
       PARKASH CHAND                                          ..... Appellant

                             Through: Mr. Bharat Sharma, Advocate.

                                        versus

       STATE                                                  ..... Respondent in

both the Appeals

Through: Ms. Richa Kapoor, APP on behalf of State in both the Appeals.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE S.P.GARG

MR. JUSTICE S.RAVINDRA BHAT %

1. The two appellants in the present case, Surender Kumar and Prakash Chand were convicted for committing the offence of kidnapping for ransom under Section 364-A IPC, by the Learned Additional Sessions Judge, through judgment

Crl.A. Nos. 548 & 561/2000 Page 1 dated 29.7.2000 in SC No. 239/96. They were sentenced to undergo imprisonment for life and fined ` 10,000/-each. In case of default in the payment of fine, each had to further undergo simple imprisonment for a period of three months, this through the order on sentence dated 31.8.2000. It is against this judgment and order on sentence, that the present two appeals are made.

2. The prosecution had alleged that on 22.1.1995, at about 9 P.M., when Vikas Arora and Rajiv Chhabra were sitting in a Maruti Car (No. DBG 7811), near the Auto Stand at Nehru Nagar, the Appellant Prakash Chand , accompanied by Surender Kumar , the second appellant in this case, asked him for a lift, following which they entered the car forcibly. They then made him drive the car to Ashram, and when Vikas Arora asked them to get off, he threatened them with death. He was made to drive till Suraj Kund, where they stopped, near a dhaba. It was alleged that Prakash took the car keys from him and took them to an empty room in the Dhaba. There he demanded that Vikas Arora tell them the telephone number of his father so that they could convey this ransom demand to him, threatening them with death if they did not comply. He also told them that if their father did not give the money, they would be killed. It was alleged that the threat was overheard by someone who informed the Police. The Police arrived within some time, and took Parkash and Surinder with them. The car keys were taken from Prakash and given back to Vikas Arora. The appellants were taken to police station Okhla, where they were handed over to SI Amrit Kumar. On the basis of these allegations, the FIR was registered. The Appellants were arrested. After conclusion of investigations, they were charged with committing the offences. A charge under Section 364A IPC was framed against both the accused. They denied guilt, and claimed trial.

Crl.A. Nos. 548 & 561/2000 Page 2

3. In the trial, the prosecution examined 8 witnesses and the Court recorded the statements of the accused under Section 313 Cr.P.C. After perusing the evidence brought on record, the impugned judgment found the appellants guilty of the crime under Section 364A IPC.

4. It was argued on behalf of the Appellants that the Trial Court fell into grave error, since the prosecution witnesses, primarily the victims, did not conform to the statements recorded during investigation under Section 161, Cr. PC, and even failed to identify the accused, during the trial. In this context, it was submitted that PW-1, the prime witness, contradicted himself about previous acquaintance with Prakash. It was pointed out that though the witness mentioned about abduction, yet, in several material particulars, the prosecution version was contradicted. It was argued that Rajiv Chabbra, PW-2, was also discrepant in his evidence. He did not support the evidence of PW-1 of happening to come to the spot by chance. He made no mention at all of this fact. He stated that the two abductors had threatened to beat them up if they did not go inside the Dhaba but did not corroborate PW-1 that the abductors had threatened to kill them. He also did not mention of the fact that the accused demanded Vikas Arora's father's telephone number for the purpose of demanding ransom, for his release. Thus, the Trial Court could not have returned a conviction, based on such contradictory and unreliable evidence.

5. Learned counsel for the Appellants also submitted that both the witnesses, who were alleged victims, completely refused to identify the accused as their kidnappers. In these circumstances, the Trial Court could not have returned a conviction, based only on the testimony of police witnesses, which itself was shady and suspicious. In both the cross examinations, the witnesses stated they could not

Crl.A. Nos. 548 & 561/2000 Page 3 identify the two accused as their kidnappers. They denied the suggestion (put to them by the prosecution with leave of the Court) that they were refusing to identify the accused as they were trying to protect them.

6. It was submitted that when the bottom of the prosecution case had been knocked out during the trial, the court could not have, on the basis of hearsay testimony of the police witnesses, in the absence of any public witness, concluded that the Appellants were guilty for the offences they were charged with. It was argued that the prosecution was unable to prove that the appellants were abducted, or forced to leave against their will, or that they or their families were threatened that they would be killed or subjected to cruelty, nor was any demand for money or ransom mentioned. In the absence of all these elements, their involvement in the offence punishable under Section 364-A IPC had not been proved.

7. The learned APP argued that although the victims did not fully support the prosecution version, the police witnesses who deposed during the trial proved that the victims had been rescued, from the accused, and had also produced the articles. The police witnesses were consistent during their testimony during the trial, and as a result, the impugned judgment was based on sound reasoning. It was argued that the fact that the victims, as a result of either fear, or later inducement, resiled from their basic version, recorded immediately after their rescue, during the course of investigation, should not deter the court from reaching the correct conclusion.

8. The incident of kidnapping, demand for ransom and rescue is spoken to by various witnesses, in differing and conflicting content. Vikas Arora, PW-1, in his examination in chief stated that at around 8/9 PM, when his friend Rajiv Chabbra PW-2, was driving their car (DBG 7811) in Nehru Nagar, two boys forced them

Crl.A. Nos. 548 & 561/2000 Page 4 to stop the car by standing in front of it. This statement is in contradiction to his statement to the police under Section 161, (Ex PW-1/A) where it was recorded that his car had been parked near the Auto Stand , Nehru Nagar, when the two accused came up to his car. He also denied that he had known that the accused Parkash was a person of bad character. The Trial Court however, seems to have paid more heed to these facts recorded in the Section 161 statement than his deposition before the Court itself, despite his denial of these facts. In the Court, he said that one of the boys, who he had seen earlier in Nehru Nagar Colony, asked him for a lift to the bus stand. Initially he refused, but they forced him to drop them. When they reached the bus stand, they asked him to drop them a little way ahead, and when he drove to that spot they asked him to drive down further. This went on till they drove up to Badarpur. They stopped the car in front of a Dhaba where they seized the car keys from him. They were taken inside the dhaba where they were told that they would take ransom money from their parents for their release. He states that after some time, a friend of Rajiv, accompanied by about 8-10 boys came there by chance. He says that an auto driver standing nearby overheard everything and informed the Police, who came there after some time and recorded his statement.

9. PW-1's deposition was corroborated by his friend Rajiv Chabbra, PW-2, on all material aspects except for three facts; first, of his friend happening to come to the spot by chance. He did not mention this fact at all. Second, he stated that the two abductors had threatened to beat them up if they did not get inside the Dhaba with them. He did not mention that they threatened to kill them. Third, he did not mention that the accused demanded Vikas Arora's father's telephone number. A suggestion was given to PW-1, in his cross examination, that the two accused had

Crl.A. Nos. 548 & 561/2000 Page 5 pointed out Nehru Nagar Bus Stand to the Police as being the spot from where they had been taken. He denied having any knowledge of this fact.

10. In PW-2 Rajiv Chabbra's cross examination, he admitted that they had been made to bend like Murgas. He stated that he could not remember whether they had been threatened with death, if they raised an alarm. He stated that he could not remember if the accused Parkash had told them that Vikas Arora's father was a wealthy man and could easily afford to pay Rs 10 Lakhs; neither could he remember if they demanded the father's telephone number.

11. Both Vikas Arora and Rajiv Chabbra, in their examination before the Court, did not identify the two accused Parkash Chand and Surinder Kumar. In both their examinations-in chief, they stated that they could not identify them due to lapse of time. In their cross examinations, the witnesses again stated they could not identify the two accused as their kidnappers. They even denied the suggestion that they were refusing to identify the accused as they were trying to protect them.

12. Rajiv Chabbra, however did state that the persons, who had kidnapped them, had been nabbed by the police that day, but denies that the two persons present in court were the same people who threatened them.

13. PW-3 HC Amarpal Singh stated that on 22.5.1995, he was on PCR duty in the duty van at M.B. Road T Point Suraj Kund. At around 11.30 PM, a person informed him that one Maruti car DBG 7811 was parked in front of the foreign Liquor Shop, and that some persons, inside a room in the dhaba, were demanding ransom. He immediately went to the spot in the PCR Van, and on entering the room of the dhaba, he found that two boys were being made to bend down and two

Crl.A. Nos. 548 & 561/2000 Page 6 persons were standing there. On seeing him, these two, tried to flee, but he threatened to shoot them. They were then apprehended by his staff. He identified the two accused present in Court, as being the very same persons who had tried to run away on seeing him. On enquiry, he found out that their names were Parkash Chand and Surender Sigh. One of the two boys, had been made to bend, told him that these two persons had brought them to this spot forcibly and wanted the telephone number and address of their houses, and that they were making a demand of ` 10 Lakhs as ransom.

14. He stated that he was told by PW-1 that the accused had snatched his car keys. The key was with the accused Parkash and he handed it to the Police. They were taken to P.S. Okhla, and the two victims followed them in their own car. In his cross examination, he stated that he had left the two accused in P.S.Okhla at 12 AM. He even stated that when he went to the Dhaba, there was no one at that time, and it was not in a working condition, as there were no customers and even the owner of the dhaba was not present. He stated that the person who had given him the information had left immediately after conveying it.

15. PW 5 Amrit Kumar is a witness to the fact that the two accused were handed over to the P.S Srinivas Puri, since this case fell under their jurisdiction. There they were handed over to S.I Bansi Dhar. (Pg 12-13)

16. Both the accused denied all the evidence put before them and also denied their involvement in the crime. Parkash Chand stated that he had been falsely implicated and was arrested from his house. Surinder Singh too claimed that he had been falsely implicated

Crl.A. Nos. 548 & 561/2000 Page 7

17. It would be apparent from the above discussion that the two witnesses are inconsistent about whether there was a ransom demand and the threat of death. The second glaring feature in this case is that the Prosecution failed to include the individual who had informed the police of the kidnapping, in its investigation. This is a fatal weakness in their case. There is no explanation for this serious lapse.

18. Both PW-1 and PW-2 do not identify the accused. While there is consistency as to the fact that they had been abducted, both of them do not identify the accused in the Court. However, all the Police witnesses have been consistent in their identification of the two accused persons. Interestingly, the police witness and the two victim-eye witnesses are consistent on the fact that the kidnappers were arrested in their presence.

19. The above state of evidence left the Court to deal with an unbelievable factual situation. The abductors were apprehended in the presence the abductees, and even arrested in their presence, but subsequently, at some point in time, (if PW-1 and PW-2 are to be believed) it seems that these original perpetrators of the crime disappeared into thin air, and were replaced by the present appellants. This is, then, a situation where the prosecution has proved that the victims witnessed the apprehension and arrest of the kidnappers by the police, which ideally means that the prosecution has discharged its onus. But, then the court is confronted by their (the victims) inability to identify their abductors in Court.

20. If the case were entirely circumstantial evidence based, perhaps, one could argue that every step of the sequence of events had been explained. However, the presence of two eye witnesses who were the victims of the crime, who then subsequently do not identify them in Court, creates a problem, since their non-

Crl.A. Nos. 548 & 561/2000 Page 8 identification of the two accused persons knocks out the prosecution case as to the identity of the perpetrators of this crime.

21. The essence of the offence of abduction for the purpose of demanding ransom, involves four basic ingredients. One, abduction or kidnapping; two, use of force or threat of use of force; three, demand for ransom, and four threat of death or bodily harm to the victim, if the amount is not paid. Here, although the victims mention about abduction, there is a discrepancy about the demand for ransom. Most crucially, both victims were completely hostile right from inception of their depositions; they failed to identify the accused, as perpetrators of the crime.

22. Although in certain circumstances, Courts have rejected parts of evidence led by prosecution, particularly, the depositions of hostile witnesses, and chosen to believe the version recorded in the examination in chief, which is consistent with the earliest statement to the police during the investigation, here in this case, the witnesses turned hostile completely as to the identity of the accused. This case is one where there is no evidence, save the police witnesses' deposition against the accused. Given the fact that other witnesses too were available, and could have been produced or joined by the police during the investigation, and later during the trial, the course adopted by the Trial Court in returning a conviction based on the police witnesses' deposition was erroneous. It was doubly so, because the police did not actually witness the demand for ransom, or the incident of kidnapping, and their depositions on those aspects were completely hearsay.

23. In view of the above analysis, this Court is of the opinion that the Trial Court's impugned judgment cannot be sustained. During the pendency of the present appeal, one of the appellants, i.e. Prakash Chand had died; his widow's application to contest the appeal, as a legal representative, was permitted (as he

Crl.A. Nos. 548 & 561/2000 Page 9 was a public servant, and an employee of the Delhi Police, but who had been dismissed after conviction). As a result of the above discussion, the two appeals, Criminal Appeals 548/2000 and 561/2000 are allowed; the appellants' conviction is hereby set aside. The bail and surety bonds furnished to Court are hereby discharged.

                                                         S. RAVINDRA BHAT
                                                                  (JUDGE)


February 23, 2012                                                    S.P. GARG
                                                                       (JUDGE)




Crl.A. Nos. 548 & 561/2000                                                  Page 10