Mohd. Wasim vs State
2012 Latest Caselaw 6142 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRIMINAL APPEAL No. 1008/2011

                                               Reserved on:       23rd August, 2012
%                                              Date of Decision: 12th October, 2012

MOHD. WASIM                                                  ....Appellant
                           Through Mr. R.M. Tufail, Mr. Farooq Chaudhary
                           & Mr. Vishal Sehijpal, Advocates.

                           Versus

STATE                                                       ...Respondent

Through Ms. Richa Kapoor, APP for the State.

                          CRIMINAL APPEAL No. 1180/2011


MOHD. SHAHNAWAZ @ TARIK                      ....Appellant
            Through Mr. Rashid Hashmi, Advocate.

                           Versus

STATE                                                       ...Respondent
                          Through Ms. Richa Kapoor, APP for the State.


                          CRIMINAL APPEAL No. 1245/2011


MOHD. TANVEER                                  ....Appellant
             Through Mr. S.B. Dandapani, Advocate.

                           Versus

THE STATE (GOVT OF NCT)                      ...Respondent
              Through Ms. Richa Kapoor, APP for the State.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P. GARG

 SANJIV KHANNA, J.:

Mohd. Shahanwaz @ Tarik, Mohd. Wasim and Mohd Tanveer have preferred these three appeals against the common judgment dated 21st July 2011, passed by the Sessions Court in Case No. 125/2006. The three appellants have been sentenced to Rigorous Imprisonment for life for the offence under Section 364A/34 IPC (Indian Penal Code, 1860) for kidnapping of Master Himanshu, aged 11 years, from West Patel Nagar, Delhi. Under Section 357 Cr.P.C. the victim has been awarded compensation of Rs 2 lac. In the same judgment, Mohd. Taqi, Rehana and Kamaal Ahmed have been acquitted. The State has not filed any appeal against the said acquittal.

2. The prosecution case is that Himanshu (PW-2) had come from Ludhiana to visit his maternal grandfather Khairati Lal (PW-3) in West Patel Nagar, New Delhi for his vacations. On 28th March 2006, at about 4.30 P.M. when he had gone to play at the rock garden, he was allegedly kidnapped for ransom by the three accused- Mohd. Wasim, Mohd. Shahanwaz @ Tarik and Mohd. Tanveer. Subsequently, ransom call was made to Mr. Vipin Ahuja (PW-1), victim‟s father, and Rs 25 lacs were demanded for his release. The victim was allegedly kept in various places till he was finally rescued in the intervening night of 28th/29th March, 2006.

3. In order to appreciate the evidence better, witnesses produced by the prosecution can be divided into three categories. Firstly, we have witnesses Vipin Ahuja (PW-1) father of Himanshu, Himanshu (PW-2) the victim of kidnapping himself, Khairati Lal (PW-3) maternal grandfather of Himanshu and Master Jai (PW-7) friend of Himanshu.

These are material public witnesses. Second category of witnesses is the police officers, who were members of the raiding party and had rescued Himanshu (PW-2). These are Constable Renu (PW-4), Head Constable Labh Singh (PW-8), SI R.S. Meena (PW-12) the Investigating Officer, Constable Harmeet Singh (PW-13) and Head Constable Mahesh (PW-14). In addition to the aforesaid two set of witnesses, we have Vishnu Pratap (PW-5) Parking Assistant, R.K. Singh (PW-6) Nodal Officer of Bharti Airtel Limited, Rama Bajaj (PW-10) PCO Operator and two official witnesses Constable Vinod (PW-9) and Inspector Shambhu Dayal (PW-11).

4. There is ample, incontrovertible evidence that Himanshu (PW-

2), then aged about 11 years, was staying with his maternal grandfather Khairati Lal (PW-3) in West Patel Nagar, Delhi on the date of occurrence i.e., 28th March, 2006. According to PW-3, on the said date, Himanshu had gone outside the house to play with Jai, another small boy living in the neighbourhood. Jai returned at 5.45 P.M. but without Himanshu. Khairati Lal (PW-3) made enquiry from Jai about Himanshu. Jai revealed that initially Himanshu was with him, at the rock garden, but had left after some time. Since Himanshu did not return home, till around 8.15/8.30 P.M., PW-3, the maternal grandfather, called the police on No. 100. The PCR van left the house assuring that the local police would be informed and requested the family to communicate with the police in case Himanshu returns. In the cross-examination PW-3 has stated that Himanshu had left with Jai to play at about 4.30 P.M. Himanshu (PW-2) in his statement has affirmed the said facts i.e. that he had gone to play in the garden with Jai, at around 4.30 P.M. on 28th March, 2006. Jai, who appeared as PW-7, has stated that Himanshu was almost of his age and he knew

Himanshu since his relatives were living on the ground floor of the same house, where he was residing on the second floor. He had gone to the rock garden, to play with Himanshu, at about 4.30 P.M. on 28th March, 2006. Himanshu remained with him for some time but thereafter disappeared. He thought that Himanshu had probably gone back to his house. However, at about 5.45 P.M., when Jai returned to his house, he came to know that Himanshu had not returned.

5. On the question of abduction and kidnapping of Himanshu, we have referred to the statement of Khairati Lal (PW-3) that Himanshu did not return home and was untraceable till 8.15/8.30 P.M. on 28th March, 2006. PW-3 has further stated that, at about 10.30 P.M., they received a telephone call from Vipin Ahuja (PW-1), father of Himanshu, from Ludhiana, who enquired about Himanshu. PW-3 informed him that Himanshu was missing and the police had been intimated. Vipin Ahuja then conveyed that he had received a telephone call from an unknown person stating that Himanshu had been kidnapped and Rs.25 lacs was demanded as ransom, for his release. The callers had threatened to kill Himanshu. PW-3 thereafter made a report to the police (Exhibit PW-3/A).

6. Vipin Ahuja (PW-1), father of Himanshu, has testified that on 28th March, 2006 at 10.30 P.M. he had received a call on his landline number. The caller had informed him that Himanshu was with them and had demanded Rs.25 lacs by 11 A.M. next day for releasing Himanshu. He abused PW-1 and threatened that Himanshu would be killed by them. Thereafter, he received three more telephone calls by 12 midnight. Two calls were made on the landline and one call was made on his mobile No. 9872247494. After receiving the first ransom call, he had called his in laws, i.e., PW-3 at Patel Nagar, to confirm the

facts and was apprised that Himanshu was missing and a complaint had been made to the Police. PW-1 informed his in- laws that he had received a ransom call and the caller had stated that Himanshu was with them.

7. Himanshu, who appeared as PW-2, has stated that, while he was coming back from the rock garden, someone had closed his eyes by using hands and asked who he was. Another person caught hold of his legs and the two took him inside a nearby parked car. Himanshu was made to lie at the car‟s foot rest. The third boy started driving the car. The car was driven very fast. He was abused. He was threatened that he must disclose the telephone number of his father, if he wanted to save himself. Initially he pretended not to know the number but, after much vituperation, at about 6.30 P.M. he disclosed the landline telephone number of his father, installed at Ludhiana. After few attempts at dialing, the kidnapper had stated that the landline number was not working and demanded the mobile number from Himanshu. At about 11.30 P.M., he revealed the mobile telephone number of his father. All the while, he was still in the car.

8. R.K. Singh (PW-6), Nodal Officer, Bharti Airtel Limited, has stated that mobile No. 9872247494 was released in the name of Rajender Ahuja, 2722, Sunder Nagar, near 1st line connection Ludhiana. He had also produced this number‟s call records from the period 1st March, 2006 to 31st March, 2006 (Exhibit PX-5). The details of call records have been referred to in the subsequent portion of this judgment.

9. PW-1 has stated that next day, i.e. on 29th March, 2006, he received a call, on his mobile, from the kidnappers and PW-1

expressed difficulty in arranging Rs.25 lacs. Before the call, at about 8 A.M., Delhi Police Officers had already reached PW-1‟s residence at Ludhiana. He made arrangement of Rs.1 lac and, along with this money, came to Delhi.

10. PW-1 reached Delhi at 4.00/4.30 P.M. and went to Police Station, West Patel Nagar. The police had prepared a team. After about one hour, he left the police station in his white Zen car with a police team. At about 5.30/6.00 P.M. he received a call on his mobile phone and the caller inquired about PW-1‟s present location. PW-1 answered that he was near Karnal by pass and the caller instructed him to reach ISBT, Delhi and to make a call from a PCO booth situated there. As per the instructions, PW-1 made a call from PCO booth, ISBT. Thereafter, numerous phone calls were received by PW-1, from time to time, with instructions as to the place he should reach. He was asked to first approach Seelampur Metro Station and then not to take a bridge but turn towards Jafrabad. He was again asked to take a U turn and return towards Seelampur Metro Station. Again he was asked to veer and take a road towards Jafrabad. Finally he was asked to park the car on the roadside towards Brahmpuri and take a rickshaw to Brahmpuri. He was told that his son was there, and after placing the money bag, he could take him. PW-1 was warned that he was under a constant watch. PW-1 asked the caller to permit him to talk to Himanshu on the phone. Acceding to his request, Himanshu spoke to his father and conveyed that he was not being given anything to eat and the kidnappers were dangerous people who were beating him. At that time PW-1 observed that one motorcycle, with two boys, was taking round of his car while he was driving. Thereafter, he followed the instructions of Delhi Police and after 3-4 hours, Himanshu was

recovered from the house of the accused. He could not give elaborate details of the house since he was not familiar with geographic locations of Delhi. He could not identify the two boys who were on the motor cycle, stalking his car. However, he proved the mobile phone and the landline phone bill as Exhibits PX-1 and PX-2, which were submitted to the police. Himanshu was rescued vide memo Exhibit PW-1/A. Two-three mobile phones were also seized from the accused and chilli power was seized. He did not recollect motor cycle‟s number but accentuated that he and the police had reached Himanshu by following the motorcycle.

11. PW-1 was extensively cross-examined but has stuck to his expatiated statement. He affirmed that Himanshu was recovered at night time, which could be any time after 10 P.M., but he did not remember the exact time. He has stated that he was upset and scared, as one naturally would be. He was along with the police team which consisted of about 5-6 police men. Neighbours were not joined in the recovery raid at late night. He has stated that police had arrested one women and five men (should be 4 men but this is not material as far as the appellants are concerned) from the same place and he had signed arrest paper of all the accused. He had travelled with the police party for about 20-25 kilometers in the car. He had noticed that the calls received by him were from different mobile numbers. PW-1 has confirmed that a mobile phone was recovered from Mohd. Wasim vide memo Exhibit PW-1/K. In further cross-examination on 29th January, 2007, he has stated that he could not recollect from his memory whether any phone call was made from mobile No. 9312336801 found with the accused. This again is not material as one can forget a

telephone number. After recovery of Himanshu he returned in the car with police officers, to the police station.

12. PW-1 was confronted with the statement under Section 161 Cr.P.C. (Exhibit PW-1/DA) wherein it was not mentioned that the police officers had come to Ludhiana at his house. We note that SI R.S. Meena (PW-12), Investigating Officer had stated in his cross- examination that a sub-inspector was sent to Ludhiana, Punjab. He has also given that Inspector‟s name as Manoj. Therefore, there is no force in this contention. Procedural irregularity does not cause or create any doubt about the testimony of PW-1 or other witnesses.

13. Himanshu (PW-2) in his statement has affirmed that, till about 11.30 P.M. on 28th March, 2006, he was kept in the car which was constantly driven. Thereafter he was taken to somebody‟s house in Seelampur and was introduced as a brother of one of the accused. He revealed to the kidnappers that his uncle‟s name was Pradeep. One of the accused pretended that he knew his uncle. He was assured that his uncle Pradeep would be coming to take him and thereafter he slept. Next day he was taken out of the house, by two kidnappers, and made to roam around. The kidnappers got him in touch with his father but had snatched the phone before he could talk. Instead, one of the accused spoke on the phone. Thereafter, on suggestion from one of the accused, he was taken to a cinema theatre and made to watch the film „Rang De Basanti‟ and thereafter another film. PW-2 repeatedly requested the kidnappers to be allowed to talk to his father but they snubbed him. Their reply was always that his father would be coming to take him. After the second movie, he was taken to play videogames, by one of the accused, and was reassured that his father would come by about 8.00 P.M. That night he was taken, in a rickshaw, to another

unknown house. The occupants of the house were informed that PW-2 had come from Meerut and his father would be coming next day to collect him. The same day, at about mid night, police came to the house and he was rescued and handed over to his father. After recovery, he was taken in the car with the police officers.

14. Learned counsel for the appellants have stated that testimony of Himanshu (PW-2) is unreliable and full of material contradictions. It was pointed out that Himanshu (PW-2) had ample opportunities to protest to several persons that he had been kidnapped or to raise alarm or run away, during the time he was with the appellants. Himanshu was fairly lucid and confident in his statement in the court and therefore it was surprising to allege or imagine that he had acquiesced throughout with the kidnappers. It was argued that the story that he was taken to two movie theatres and then to play videogames showed that the alleged kidnapping for ransom was make belief and false. It was highlighted that Himanshu (PW-2) had stated that he was left alone for some time in the movie theatre, by the kidnappers, and it was implausible that a confident child, like PW-2, would have remained quiet and not remonstrate and taken help of third persons around.

15. We have considered the said contention but do not find any merit in the same. Date of birth of Himanshu (PW-2), as stated by him in the cross-examination, is 17th January, 1995. Although he was examined without oath but, before his statement was recorded, several questions were put to him, to verify and satisfy whether he was mature enough to understand questions and respond to them. He has answered questions, which were put to him, quite logically. At the same time we have to be cautious and take due notice of the fact that PW-2, being a small boy, would have had apprehensions about speaking to strangers

and unknown people. It is also apparent, from the statement of PW-2, that the kidnappers had taken care of him and he was taken to watch movies and play videogames. The kidnappers had pretended and had made believe that they wished well for him and that they knew his uncle. They constantly reassured him that he would be taken home soon. He was allowed to sleep the first night and then taken to another house, on the second night, at the place from where he was ultimately rescued. Mere fact that he was left alone for 14-15 minutes in the cinema hall, when one of the boys had gone out to talk on the mobile phone, does not establish that the statement made by PW-2 is concocted or false. The fact that PW-2 did not have courage or confidence to talk to unknown people, including persons whose house he visited on the first or the second night, reflects the sense of insecurity, tentativeness and apprehension he had. It is not, in anyway, a reflection on credibility or truthfulness of his statement. His statement on the main and core aspects should be believed and accepted. For a child, just aged about 11-12 years, he has shown incredible and commendable presence of mind to be able to recollect and state facts. Minor discrepancies or contradictions, which have been highlighted and pointed out, do not in any way affect the credibility of PW-2 on the crucial and core aspects. As noticed and reflected in the impugned judgment, PW-2‟s statement is objective. He did not implicate and attribute role or incriminating acts to all accused and wherever he was in doubt or was unable to recollect, he has stated so.

16. This brings us to the question of identity of the kidnappers. As noticed above, in addition to the three appellants, Mohd. Taqi, Rehana and Kamaal Ahmed were also prosecuted. The last three have been

giving benefit of doubt and acquitted by the impugned judgment. The question raised herein is whether the three appellants, Mohd. Shahnawaz, Mohd. Wasim and Mohd. Tanveer, were the kidnappers of Himanshu (PW-2) and had demanded ransom, for his release?

17. PW-2 has described that one boy had put his hands on his eyes, while the second boy had lifted him, from his legs, and he was taken inside a car. The third boy drove the car. He identified the three boys as Mohd. Shahnawaz, Mohd. Wasim and Mohd. Tanveer. PW-2 delineated that Mohd. Shahnawaz was the person who was driving the car, Mohd. Wasim was the one who had closed his eyes and Mohd. Tanveer was the person who was with him throughout the period of kidnapping. He identified Kamal Ahmad as the person at whose house, in Seelampur, he was kept the first night. He identified Rehana and Mohd. Taqi to be there in the house from where he was rescued.

18. It was submitted that eyes of PW-2 were closed and, therefore, it was not possible for him to have identified the person who had closed his eyes. We do not agree. After PW-2 was abducted, he was taken inside a car, where he had occasion to look at the persons who had abducted him and hear them talk. It is also not possible to agree with the counsel for the appellants that PW-2 did not or could not have seen the persons who were present in the car as he was made to sit on the foot rest of the car and clothes had been put on him. Statement of PW-2 shows that he had the opportunity to see and hear the three appellants who continuously interacted with him. He was repeatedly asked for telephone numbers of his father and had remained in the car for a long time. He categorically stated that Mohd. Shahnawaz was driving the car, Mohd. Wasim had closed his eyes and Mohd. Tanveer had beaten him in the car and had put his hand on his mouth to ensure

that he did not raise any alarm. Observation abilities of PW-2 are apparent. PW-2 has been clear and forthright and did not hide any facts or try to falsely implicate and make a case or conjure allegations against the accused. He clearly stated that Kamal Ahmed was the person at whose house at Seelampur, he was kept for one night. He also identified Rehana and Mohd. Taqi as persons at whose house he was taken by Mohd. Tanveer. He was not sure about the presence of Mohd. Shahnawaz at the house of Rehana and Mohd. Taqi and has stated that Mohd. Wasim was not there, i.e., at the house of Rehana and Mohd. Taqi where he was kept in the intervening night of 28/29th March, 2006. He has also mentioned when he was taken to a PCO booth to talk to his father, he was made to tell his father that he was being kept hungry and was being given beatings. He recollected that Shahnawaz had come to the house where he was kept and affirmed that he had read Seelampur on the sign boards. In the cross-examination, he has stated that the name of the second movie was „Malamal‟ and that he was taken to the cinema hall in an autorickshaw. He clarified that he had not seen Kamal Ahmad on the night of 28/29th March, 2006. He was extensively cross-examined on 27th January, 2007 by counsel for accused Shahnawaz, counsel for accused Rehana, Taqi and Tanveer and counsel for Kamal Ahmad. Counsel for Mohd. Wasim, however, prayed for an adjournment. The trial court had recorded that PW-2 had been extensively cross-examined and it was already 3.30 P.M. Himanshu was crying by that time. He was further cross- examined on 29th January, 2007 by the counsel for Mohd. Wasim. He denied that he had identified the accused in the court at the instance of the Investigating Officer. He has stated that he knew about demand of Rs 25 lac in PCO Booth and that, at the behest of APP or his father, he

had made a statement regarding playing of videogame. He denied the suggestion that he had recognized accused Mohd. Wasim because the accused was shown to him at the police station or in the court. Whether accused Shahnawaz and Mohd. Wasim were present at the house, at the time of recovery, has been examined subsequently.

19. Learned counsel for Mohd. Wasim pressed on the following statement made by PW-2 in the cross-examination:

"I do not remember if Mohd. Wasim, was present in the court today to whom I identify, was present or not to the house at Seelampur when I was taken there on the first night."

The said statement does not assist or help Mohd. Wasim. PW-2 had stated that he did not remember if Mohd. Wasim was present in the house on the first night. The first night refers to 28 th and 29th March, 2006 and not the night of recovery, i.e., 29/30th March, 2006. It does not absolve or state that Mohd. Wasim was not involved in the kidnapping.

20. It was submitted before us that PW-2 had identified the car, in which he was kidnapped, as a Ford Icon make but this was not stated by him in his statement under Section 161 Cr.P.C. (Exhibit PW-2/DA). The make of the car was certainly recorded in the Court but it was not stated in his statement Exhibit PW-2/A, but we do not think that this can be regarded as a substantial improvement. Boys in the age group of 11-12 years are generally fond of cars, and the shape and model of the car got imbibed and sketched in the mind of the PW-2. Therefore, he was able to remember that the car was Ford Icon, when he was examined in the court. Prosecution has been able to prove and establish that Ford Icon car bearing registration No. 4421 was parked

in Delhi Gate parking lot. Vishnu Pratap (PW-5) was working in the said parking and had issued the parking token for this car. He has stated that, on 29th March, 2006, the car was parked by the son of the car‟s owner and they generally used to park the car there. He identified Mohd. Shahnawaz as the boy who parked the car at Delhi Gate parking. On 30th March, 2006, the car was seized, vide memo Exhibit PW-5/A, from MCD parking, Delhi Gate. Statement of PW-5 corroborates, the statement made by PW-2, that the car in question was a Ford Icon and Mohd. Shahnawaz was the driver of the car. Mohd. Shahnawaz was identified by Vishnu Pratap (PW-5) as the person who had parked the car and who was the son of the car owner.

21. Supreme Court has elaborated upon the credibility of child witnesses in State of M.P. v. Ramesh (2011) 4 SCC 786 and took note of its earlier decisions to explain the law relating to evidentiary value of the statements of child witnesses. It has been observed:-

7. In Rameshwar v. State of Rajasthan [ AIR 1952 SC 54 : 1952 Cri LJ 547] this Court examined the provisions of Section 5 of the Oaths Act, 1873 and Section 118 of the Evidence Act, 1872 and held that (AIR p. 55, para 7) every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the court considers otherwise. The Court further held as under: (AIR p. 56, para 11) "11. ... it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think,

be gathered from the circumstances when there is no formal certificate."

8. In Mangoo v. State of M.P. [ AIR 1995 SC 959 : 1995 Cri LJ 1461] this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

9. In Panchhi v. State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561 : AIR 1998 SC 2726] this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that

"The evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring" (SCC p. 181, para 11).

10. In Nivrutti Pandurang Kokate v. State of Maharashtra [(2008) 12 SCC 565 : (2009) 1 SCC (Cri) 454 : AIR 2008 SC 1460] this Court dealing with the child witness has observed as under: (SCC pp. 567-68, para 10) "10. „... 7. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his

conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.‟ [Ed.: As observed in Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7, at SCC pp. 67-68, para 7.] "

11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross- examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. (Vide Himmat Sukhadeo Wahurwagh v.State of Maharashtra [(2009) 6 SCC 712 : (2009) 3 SCC (Cri) 1 : AIR 2009 SC 2292] .)

12. In State of U.P. v. Krishna Master [(2010) 12 SCC 324 : (2011) 1 SCC (Cri) 381 : AIR 2010 SC 3071] this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any

person. Therefore, there must be something on record to satisfy the court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

13. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109] .)

14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.

(Emphasis supplied)

22. Evidence of child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by others and can be tutored. Secondly, small children can make false identification not because they want to depose and state false facts but because they may not be guided and be fully aware and conscious of the adverse consequences and the effect of making false positive identification. There are some studies which suggest that a child witness is more likely to err than adults by choosing a wrong person in

a target absent line-up. This is probably true because adults take greater caution while making positive identification (See studies by Carole R. Beal, Kelly L. Schmitt and Dawn J. Dekle- Eyewitness Identification of Children, quoted in Law & Behaviour Vol. 19 No.2, 1995.) However, as noticed in the present case, PW-2 has been cautious and careful not to attribute facts and acts which would implicate any accused falsely. His ocular statement makes it clear that he was cautious and careful in identifying the accused and attributing specific acts to each of them. He has not tried to implicate all the accused and since he did not attribute incriminating role to three of the accused, it has resulted in their acquittal. Observation powers of a child above 8-9 years of age can be very perceptive. In our routine life, we often come across instances when discussions amongst adults are quickly grasped by a young child. Perspicacious children question and respond with details and with great understanding, even on matters which do not concern them or are considered beyond their comprehension. Hans Gross et. Al, "Criminal Investigation: A Practical Handbook for Magistrates, Police Officers, And Lawyers", A. Krishnamachari Egmore, Madras (Pub.), on p.93 observes:

„An intelligent boy ...lays hold of everything new, striking, strange, all his senses are on the stretch to assimilate it as far as possible. No one notices a change in the house, no one discovers the bird's nest, no one observes anything out of the way in the fields; but nothing of that sort escapes the boy, everything which emerges above the monotonous level of daily life gives him a good opportunity for exercising his wits, for extending his knowledge, and for attracting the attention of his elders, to whom he communicates his discoveries. ...he is, as a rule, but little influenced by the suggestions of others, and he describes objects and occurrences as he has really seen them."

(Gender, we feel, makes no difference)

23. PW-8, PW-12, PW-13 and PW-14 were members of the raiding party and had rescued PW-2. Their testimonies and statements are relevant on the question regarding whether the appellants herein were involved in the act to kidnap Himanshu (PW-2). This fully supports the prosecution version and corroborates the statement of PW-2.

24. Head Constable Renu (PW-4) had stated that she was the member of the raiding team of SI R.S. Meena (PW-12) and had travelled in the Maruti Zen car with Vipin Ahuja (PW-1). Besides her, SI R.S. Meena and Constable Harmeet Singh (PW-13) were in the car. The second team consisted of two police officials and they were on motorcycle. SI R.S. Meena was driving the car and Vipin Ahuja was relaying the instructions given by kidnappers on the phone. Her statement has been put under considerable challenge before us. Vipin Ahuja (PW-1), in his cross-examination, has stated that there was no lady constable in the police team with him and he did not remember if any lady officer was called at the time of recovery of Himanshu from the house. Himanshu (PW-2) in the cross-examination has, however, stated that a woman police officer was a part of the rescue team. As noticed above, one lady Rehana was arrested from the house but she has been acquitted. There appears to be merit in the contention raised by the appellants that the prosecution has introduced (PW-4) Renu as a member of the raiding party, in the car, though she was not travelling in the car. The doubt also arises because her statement in the examination-in-chief is rather cryptic and vague. It appears that she may have joined the raiding party after it was found that a female accused Rehana was also there, at the house in question. We, therefore, completely disregard her statement and version. However,

this will not affect the statements made by PW-8, PW-12, PW-13 and PW-14.

25. HC Labh Singh (PW-8) has stated that he, along with Constable Mahesh (PW-14), was on a private motorcycle. Constable Mahesh was riding the motorcycle and PW-8 was at the pillion seat. PW-8 and PW- 14 were in civil clothes. He was instructed to be with the Zen car and was told to reach Pratap Bagh where PW-1 went to STD booth for making a call. As instructed, he followed the car to ISBT, Kashmere Gate from where PW-1 again made a second phone call. He then followed the car to Seelampur. During this time, he was in constant conversation with SI R.S. Meena and was told that the ransom amount was settled at Rs.10 lacs. When they reached Gurudwara Seelampur, he observed that two boys on a motorcycle were constantly watching the Zen car. The motorcycle was black Pulsar make with registration No. 1324. The car took a turn to Brahmpuri and the Pulsar motorcycle No. 1324, with two boys, took two rounds of the car. The Zen Car stopped at some distance and the black Pulsar stopped ahead of the Zen Car. Thereafter, the said motorcycle riders drove away. PW-8 and PW-14 chased the motorcycle. SI R.S. Meena (PW-12) in the Maruti Zen car followed them. The motorcycle ultimately stopped in a gali at Bagichi Peerji of Azad Market area and the two boys went inside the house. SI R.S. Meena (PW-12) also reached the spot. Constable Mahesh was directed to remain present at the gate of the house and rest of the police officials rushed inside the house. Himanshu (PW-2) was found sitting on a sofa-cum-bed and one lady and a man were sitting with him. Three boys were also sitting there. Out of these three boys, two boys were ones riding the black Pulsar. Father of Himanshu identified his son and lifted him. The three boys were taken aback and

tried to sneak out. These three boys, Shahnawaz, Mohd. Wasim and Mohd. Tanveer, were identified by PW-8. From accused Mohd. Shahnawaz one mobile phone was recovered (Ex.PW-1/C) but PW-8 did not know whether it had a SIM card or not. From Mohd. Wasim chilli powder was seized (Ex.PW-1/B). Rehana and Mohd. Taqi were also arrested along with the appellants. Arrest memos, Exhibit PW- 1/D to PW-1/H, were prepared. Personal search memos were also prepared and disclosure statements were recorded (Ex. PW 8/C-F). In the cross-examination he has stated that the area was thickly populated but no public person was joined as it was a late night raid. They had reached Bagichi Peerji at around 12 mid night.

26. SI R.S. Meena (PW-12) has stated similar facts as HC Labh Singh (PW-8). He being the Investigating Officer was given the responsibility to investigate into the case after FIR (Exhibit PW-3/A) was registered. As PW-12 narrates, he went to the place from where the child was kidnapped and met Khairati Lal (PW-3). Then on 29th March, 2006, at about 4.30 P.M., Vipin Ahuja came to the police station and the case was discussed. They started investigation by intercepting the phones from which the calls were made to the mobile number 98772247479. At about 5 P.M., two teams were formed. First team consisted of PW-12, PW-1, PW-4 and Ct. Harmeet and second team had Head Constable Labh Singh (PW-8) and Constable Mahesh (PW-14). They left in the Maruti Zen and the other team was on a private motor cycle. As PW-12 narrates, Vipin Ahuja was being instructed by the kidnappers and was constantly in touch with them. The second team, which was on a motor cycle, was instructed to keep a distance of 25-30 meters from the car. At about 9.15 P.M. Vipin Ahuja received a phone call and Himanshu informed him that he was not

being provided food and was given a beating. Subsequently, they noticed that one Pulsar motorcycle bearing No. DL 6 SV 1234, with two persons, was following the car and this made the police suspicious and alert. Head Constable Labh Singh (PW-8) was asked to follow this motorcycle. PW-8 followed the motorcycle which came to the side of ISBT and then proceeded towards Azad Market. Two persons got off from the motorcycle and entered the house. Thereafter, the police team barged into the house with Vipin Ahuja (PW-1). Vipin Ahuja identified the child, Himanshu, who was sitting on a sofa. On seeing the police, the three appellants accused tried to escape but they were overpowered. Himanshu told the police that these three appellants were the persons who had kidnapped him near Patel Nagar in the car. The accused were identified as Shahnawaz, Mohd. Wasim and Mohd. Tanveer. The lady sitting by the side of child was Rehana and the man sitting beside the child was Mohd. Taqi. On personal search of Shahnawaz., one mobile phone of Samsung, silver in colour without SIM, was recovered. From the accused Wasim chilli powder was recovered. Motorcycle No. DL 6 SV 1234 was seized vide seizure memo Exhibit PW-8/A. The accused were arrested by memo Exhibit PW-1/D to H and personal search memos Exhibit PW-1/ I to L. On the basis of disclosure statement one vehicle DL 4 CG 4421 Ford Icon car was seized vide Exhibit PW-5/A, in the presence of parking assistant Vishnu Pratap. On interrogation, they came to know that PW-2 had stayed in the house of Kamal Ahmad in the intervening night of 28/29 th March, 2006. Kamal Ahmad was maternal uncle of accused Wasim. On 18th May, 2006, PW-12 collected a bill from STD PCO booth from which call was made on 29th March, 2006. This booth was owned by Rama Bajaj, who had appeared as PW-10.

27. Constable Harmeet Singh (PW-13) was part of the investigation team and was in the car with PW-1 and PW-12. He confirmed that other team, comprising of HC Labh Singh (PW-8) and Const. Mahesh (PW-14), was on the motor cycle. He has made statement on identical lines as PW-1, PW-8, PW-12 and PW-14. He has affirmed that, when the police team entered the house of the accused, they found one child sitting on a sofa. Accused Rehana and Taqi were present. Shehnawaz, Wasim and Tanveer were also there and were apprehended on the spot. Police also seized the vehicle DL 4CG 4421, though, PW-13 was ambiguous about the date of seizure, in his statement. He has stated that one mobile phone and chilly powder was seized from the accused. In the cross-examination, he could not provide details of the house, for example: the number of floors in the house from where the boy Himanshu was recovered, where exactly the kitchen or toilet was located, whether the door of the house was made of iron or wood etc. The aforesaid cross-examination of PW-13 was recorded on 16th February, 2009 nearly three years after the date of occurrence. Therefore, inability to provide minutest detail cannot be construed as a major discrepancy and cannot affect the credibility of the witness. He affirmed that it was night time and therefore, public witnesses could not join the raid. We may note that in the raid of this nature non- joining of public witnesses cannot lead to adverse inference and is not warranted or required. His detailed cross-examination, on behalf of accused Kamaal and Wasim on 22nd April, 2009, affirms the fact that PW-13 was a part of the raiding team and his testimony is truthful. He reiterated the route taken by PW-1, on instructions of the accused, and the incident when PW-1 got down from the vehicle to go to STD Booth. Learned counsel for the accused has submitted that, according

to PW-13, HC Labh Singh (PW-8) had apprehended Wasim 2-4 ft. away from the main gate, which is contrary to the statement made by other witnesses. This minor discrepancy does not materially affect the prosecution version. The rest of version is clearly established and it is proved that PW-13 was present, at the spot, at the time of the raid.

28. HC Mahesh (PW-14) was on motor cycle with Const. Labh Singh (PW-8). His testimony is on the same line as other witnesses and PW-1. At one point, he has stated that Himanshu was found sitting on a sofa, when PW-14 entered the accused‟s house. This statement is found to be slightly exaggerated as PW-14 remained at the gate, according to his statement. Therefore, it would be difficult to believe that PW-14 had entered and gone inside the house with the accused and the rest of the police. However, the statement of PW-14 that Shehnawaz, Tanveer and Wasim were arrested from the house is relevant. He further stated Shahnawaz and Wasim, who were present in the court, were the persons who were on the motor cycle. Vipin Ahuja (PW-1) identified his son Himanshu. One mobile phone was seized from Shahnawaz and chilly power was also seized. Next day, Ford Icon car was recovered on the basis of disclosure statement by Shahnawaz. He was extensively cross-examination by counsel for the accused but we do not think that the credibility and truthfulness of the said witness has been dislodged. He has stated that the motor cyclists parked the motor cycle and, immediately after parking, entered the house. The Police party entered the house, within 3-4 minutes of the motorcyclists entering the house. When they entered the house, the motor cyclists were without helmets. The fact that helmets were not seized does not dent the prosecution‟s case. HC Mahesh (PW-14) stated that he remained at the gate till the completion of the

investigation. PW-14 further stated that the accused was at the distance of 4-5 feet from the gate, where he was standing, when they were hauled at the spot. He has stated that accused Shahnawaz was found in possession of one mobile phone and there were two mobile phones, another mobile phone was with Taqi. These aspects relating to mobile phones shall be discussed below.

29. It was submitted before us that one person named Sanjay was the prime suspect but the police had deliberately left him out and had foisted the case against Mohd. Wasim and others. Our attention was drawn to the cross-examination of Khairati Lal (PW-3), Vipin Ahuja (PW-1), SI Meena (PW-12) as well as the statement of appellant-Mohd Wasim under Section 313 Cr.P.C. Reliance was also placed upon the statement of (DW-3) Sanjay Failok who was produced as a defence witness. DW-3 has stated that he knew appellant-Mohd. Wasim, who used to dye cloth for him. On 29th March, 3-4 years back, some police officers in plain clothes had come to his house at 12.30/1.00 A.M. and had asked him if he was aware of a particular mobile number. He did not remember the mobile number in question, on the date when the statement was made, but stated that it was of Reliance Communication. It was a mobile number of Mohd. Wasim. He was asked to call up the said mobile number and ask Wasim to come near his shop. He expressed apprehension. On threat by the police officers, he accompanied them to police post and was made to sit there. He made a call to Wasim. He did not remember what happened thereafter but he learnt, the next day, that Wasim was arrested. In the cross- examination, he admitted that he did not lodge any police complaint. He also stated that he did not remember whether he had made a phone call to Wasim through his own number or somebody else‟s number.

The statement of DW-3 has to be rejected as unreliable. There are number of reasons for the same. The statement is not supported by any documentary evidence, i.e., call details of Sanjay Failok or of Mohd. Wasim. Telephone number of Mohd. Wasim has not been brought on record. Statement of Raj Kumar (DW-4), Nodal Officer at Reliance Communications, was produced as a defence witness but he has stated that call details of the relevant period were not preserved, as the Company preserves records only for a period of one year, unless directed by police or court or any other authority. Sanjay Failok (DW-

3) did not produce his telephone bills. It is also difficult to accept that the accused and family members or DW-3 would have remained quiet, in spite of the fact that he was asked to come to police post, without any papers and documents, late into the night at around 12.30/1.00 A.M. The statement of DW-3 is totally contrary to the ocular statements made by PW-1 and PW-2, who are independent witnesses and not police officers. DW-3, it is apparent, was close to the appellant-Mohd. Wasim and knew him very well.

30. The defense counsels have argued that PW-2, in his statement, has not affirmed, with certainty, the presence of either Mohd. Wasim or Shahnawaz, at the time when Himanshu was rescued. We do not find any merit in the said contention. It has come on record, through the statements of PW-1, PW-8, PW-12, PW13 and PW-14, that there were two persons on the motorcycle who were following or watching the Maruti Zen car. PW-8, PW-13 and PW-14 have identified the said persons, who were driving the motorcycle, as Mohd. Wasim and Shahnawaz. PW-2, therefore, was right when he has stated that he had not seen Mohd. Wasim at the house and was doubtful about the presence of Shahnawaz. As noticed above, PW-8, PW-12, PW-13 and

PW-14 had followed the motorcycle and, on that basis, they were able to apprehend the appellants and rescue PW-2. The statement made by PW-2, in the cross-examination, that Mohd. Wasim was not there but probably Shahnawaz was there, in fact indicates that PW-2 was careful not to falsely implicate or make allegations against any of the persons who were facing prosecution. He was truthful and was not tutored or asked to make statement at the behest of either PW-1 or any of the police officers. The aforesaid statement of PW-2 reinforces the credibility and the ring of the truthfulness attached to the statement of PW-2.

31. One of the contentions raised by the appellants relates to failure of the prosecution to investigate and get full call details or seize mobile number with IMEI No. 350721911234250, from which calls were made using SIM card No.9910478632. It is pointed out that the said mobile SIM number was issued to Mukhtar Ansari by Bharti Tele- Ventures Limited, vide application form Exhibit PX-1, but police has not investigated on this aspect. On due examination of the contention, it can be said that this only reflects and points towards a gap in the investigation on certain aspects. The address of Mukhtar Ansari, as mentioned in the application form, was Dhollupura village, Delhi which is a vague and incomplete address. This does not destroy the ocular testimony of PW-1, PW-2, PW-3, PW-8, PW-12, PW-13 and PW-14.

32. The said application was made on 18th March, 2006 and call details of the said mobile SIM number from 1st January, 2006 to 31st March, 2006, have been furnished vide Exhibit PX-3. The number was in operation from 28th March, 2006 22.48 hours to 29th March, 2006 22.33 hours. One of the contentions raised by the appellants was that

Exhibit PX-3 has not been proved in terms of the certificate requirements under sub-section (2) of Section 65-B of the Evidence Act and hence Exhibit PX-3, as well as, PX-5 have to be ignored. Ironically, the appellants have also relied upon the same testimony of R.K. Singh (PW-6), Nodal Officer, Bharti Airtel Limited. It has been clearly pointed out in State (N.C.T of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820 that:

"According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para

276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65."

PW-6 affirmed that Exhibit PX-3 to Exhibit PX-6 were computer originated record verified by him and the documents bear his signatures. Therefore, clearly these exhibits would be admissible in the court, in light of the above judgment.

33. It has come on record in the statement of PW-12 that two mobile phones were recovered from accused Wasim in personal search. PW-

14 states that Shahnawaz was found in possession of one mobile phone and two phones from accused Wasim and one from accused Taqi were taken. PW-8 substantiates that, from the accused persons, about 3-4 mobile phones were recovered in all. However, it appears that seizure memo of only one mobile phone Exhibit PW-1/C, of Samsung make bearing IMEI No.350721/91/649083/9, was prepared. The said IMEI number does not fully tally with the IMEI details of the telephone instrument from which mobile SIM number 9910478632 were operated. This again shows that the investigation was, to this extent, faulty. Telephone calls were certainly made from 9910478632 to the mobile phone 9872247494 which was being used by PW-1. This is clear from Exhibits PX-3 and PX-5. Statement of PW1 gets corroborated from Exhibits PX3 and PX5. It is clear from Ex. PW PX-5 that on 28th March, 2006, between 22.50 hrs to 23.37 hrs, three phone calls were made to telephone no. 9872247494 and then again a call was made on 29th March, 2006 at 11.01 hrs. The said details tally with the calls details of mobile No. 9910478632 (Ex. PX-3). The call details in Ex. PW/PX3, relating to telephone No. 9910478632, show that there were repeated calls between the said number and 9872247494 till 22.32 hrs on 29th March, 2006 starting from 19.40 hrs. Some calls were made even earlier, in the day and on 28th March, 2006 from 9910478632 to Vipin Ahuja (PW-1). The Cell Tower details mentioned in PW X3 show that the telephone number 9910478632 was being used in Main Jaffrabad Road and New Seelampuri (Cell Tower No. 40861 and 40862), Seelampuri (Cell Tower No. 03441), Gautam Puri (Cell Tower No. 02802).

34. Learned counsel for the appellants are right in contending and pointing out to us that, in Ex. PX-5, calls made on 29th March, 2006

after 13:17:20 is missing till 30th March, 2006, 14.50.07 hours. No explanation in this regard has come on record. To this extent there is contradiction between Ex. PX-3 and PX-5, which relates to calls details of telephone No. 9910478632 and telephone No. 9872247494, respectively. This aspect has not been clarified by the prosecution. However, we do not think on this ground the oral testimony and statements of witnesses should be disbelieved and disregarded. S.I. R.S. Meena (PW-12), Investigating Officer has stated that the phone number of Vipin Ahuja (PW-1) 98772247494 was intercepted after obtaining orders from the competent authority at about 1.00 PM on 29.03.2006. A Nodal Officer was informed and the phone calls were diverted on mobile phone belonging to ACP Ram Chander Singh. Thus a third person was intercepting the telephone calls made on telephone no. 9872247494. This appears to be plausible and the right reason why the intercepted calls between this periods from the telephone number 9910478632, were not recorded in the call details of telephone no. 98772247494. The call details of telephone no. 9910478632 (Ex. PX- 3) show that at 18.54 hrs, a telephone call was made to 9910478632 from telephone number in Delhi (011)23699347. After a gap of 5-6 minutes a telephone call was made from telephone no. 9910478632 to telephone no. (011)23699347. Rama Bajaj (PW-

10) has appeared as prosecution witness and stated that she was running a PCO booth at Pratap Nagar in which telephone No. (011) 23699347 was installed and on 29th March, 2006, one person had come to the PCO booth and made a call. He was talking about some monetary transaction. Five minutes after he had left, a call was returned from the same number. The caller enquired about the person, who had just called from the PCO, and whether that person was

accompanied by any police officer. The aforesaid statement confirms the statement of PW-1, who made the said call at the asking of the kidnappers, as well as the statement of R.S. Meena (PW12), the Investigating Officer.

35. It was lastly contended, before us, that ingredients of Section 364A IPC are not made out and it has not been proved that demand or ransom was communicated. We do not agree with the said contention. Even if the phones, which belong to the accused, from which calls were made using the SIM bearing telephone number 9910478632 are ignored and not taken into consideration, statement of Vipin Ahuja (PW-1) clearly establishes that ransom calls were made and there is no other plausible reason for the accused to kidnap PW-2. Threats to cause death or hurt were also extended as per the statement of PW 1. There was reasonable apprehension that Himanshu may be put to death or hurt. Therefore, it is clear that the case was one of kidnapping for ransom, under Section 364A IPC.

36. Thus, kidnapping for ransom is proved from the oral testimony of PW1 Vipin Ahuja, father of Himanshu, PW2 Himanshu, the victim of kidnapping himself, PW3 Khairati Lal, maternal grandfather of Himanshu and PW7 Master Jai friend of Himanshu. The police team that had conducted the raid and rescued Himanshu and arrested the appellants from the spot viz. HC Labh Singh(PW8), SI R.S. Meena (PW-12) the Investigating Officer, Constable Harmeet Singh (PW-13) and Head Constable Mahesh (PW-14), have proved and established the offences. Threat of hurt etc. is established by statement of PW1 and partly by PW2. Identity and involvement of the appellants is also established from the statement of PW1, PW2, PW8, PW12, PW13 and PW14. The statement of these witnesses is corroborated and supported

by the statement of Rama Bajaj (PW-10) PCO Operator and Vishnu Pratap (PW-5) Parking Assistant. There is a lapse in investigation as the mobile phone instrument which was used to make ransom calls was not seized or produced before the court and there are some other small lapses as noticed above, but these do not create or cast doubt about the prosecution case in view of the statements of the witnesses mentioned above.

37. In light of aforesaid reasoning, we find no merit in these appeals and the same are dismissed. The conviction and sentence of the appellants under Section 364A/34 IPC is maintained. Order under Section 357 Cr.P.C. is also maintained.

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(SANJIV KHANNA) JUDGE

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(S. P. GARG) JUDGE October 12th, 2012 VKR/kkb