Puran @ Shankar vs State
2013 Latest Caselaw 2539 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       Crl. Appeal No. 1112/2012
                                                   Reserved on: 6th May, 2013
%                                               Date of Decision:29thMay, 2013

PURAN @ SHANKAR                                   ....Appellant
              Through
     Versus

STATE                                      ...Respondent
                      Through         Mr. Sanjay Lao, APP

+                        Crl. Appeal No. 855/2012

DHARMENDER @ DHARMU                  ....Appellant
              Through Ms. Prerna, Advocate.

                Versus

STATE                                      ...Respondent
                      Through         Mr. Sanjay Lao, APP

+                        Crl. Appeal No. 241/2013

SATYAWAN KATHERIA AND ORS.           ....Appellant
               Through Mr. Ravish Roshan, Mr. Manoj Bansal and
                       Mr. Yunush Advocates.
     Versus

STATE                                      ...Respondent
                      Through         Mr. Sanjay Lao, APP

+                        Crl. Appeal No. 394/2013

RANI @ MANJU                                            ....Appellant
                       Through        Ms. Rakhi Dubey, Advocate.

                Versus
STATE                                      ...Respondent
                      Through         Mr. Sanjay Lao, APP

Crl.Appeals 1112/12, 855/12, 241/13, 394/13                  Page 1 of 32
 CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE VED PRAKASH VAISH

SANJIV KHANNA, J.

These four appeals by Puran @ Shankar, Dharmender @ Dharmu,

Rani @ Manju, Satyawan Katheria and Reshma, arise out of a common

judgment dated 3rd April, 2012 by which the appellants have been

convicted under Sections 343, 364A, 365 of the Indian Penal Code 1860

(IPC, for short). The appellants have also been convicted under Section

120B IPC. By order of sentence dated 11th April, 2012, they have been

sentenced as under:

(1) Section 343 IPC Simple imprisonment for one year and fine of

Rs. 2,000/-, and in default of the payment of fine, each appellant will

undergo simple imprisonment for two months.

(2) Section 364A IPC Rigorous imprisonment for life and fine of

Rs.10,000/- and in default of payment of fine, simple imprisonment for

two years.

(3) Section 365 IPC Rigorous imprisonment for five years and fine

of Rs.5,000/- and in default of payment of fine, simple imprisonment

for a period of one year.

(4) Section 120B IPC Rigorous imprisonment for three years and

fine of Rs.3000/- and in default of payment of fine simple imprisonment

for a period of six months.

Section 428 of the Code of Criminal Procedure, 1973 is

applicable.

2. The prosecution version which has been accepted by the Trial

Court is that Chirag @ Chinky aged about 3½ years was

kidnapped/abducted for ransom, from the guardianship of his father

Pankaj Jain, pursuant to criminal conspiracy hatched by the appellants.

He was confined in village Sikanderpur, Distt. Mainpuri, U.P. before he

was rescued by the police. There was a threat to Chirag's life, and

Pankaj Jain, Chirag @ Chinky's father, were threatened that if ransom

was not paid, Chirag would be physically harmed.

3. We record that Mohd. Imran was prosecuted as co-conspirator

but he has absconded and has been declared a proclaimed offender.

Hari Om was convicted by the same judgment. Subsequently he was

declared to be a juvenile on the date of the offence. His conviction and

sentence was set aside and his case was transferred for adjudication to

the Juvenile Justice Board.

KIDNAPPING OF CHIRAG @ CHINKY

4. Pankaj Jain, father of Chirag has deposed as PW-1. He has

averred that on 20th March, 2007 at about 7.30 PM, his son Chirag was

weeping, therefore, he sent him with his employee Akash (PW-8) to

market. Akash (PW-8) was given Rs.10/- to get toffees for Chirag. Akash

returned within ten minutes and told him that on the way an unknown

person came and asked him to purchase pani puri for Rs 10/-, as this

was ordered by PW-1 for a person sitting with him. On this Akash had

handed over Chirag to the said person in order to purchase the pani

puri and get back. Akash returned and was questioned. Since child had

not returned home, PW1 went to market to search for Chirag but he

could not be located. Neither was the unknown person who had

approached Akash traceable. PW1 called the police control room and

the police reached within 10 minutes. Local police also came at the

residence of PW1. The same day, at about 9.00 P.M., PW-1 received a

telephone call that Chirag had been taken out of Delhi and

Rs.70,00,000/- should be paid as ransom for his release. The said call

was received on PW-1's mobile no. 9213285013, when he was at the

police station. Police noted down the said number from which the call

was received. The caller had stated that he would make another

telephone call on the next day. The complaint made by PW1 was

marked as Ex. PW1/A. He was informed that the ransom call was made

from a number located at Bhopura, Ghaziabad. Another call from the

abductor was received on the next day. PW1 was asked to arrange

money and the caller informed him that he would again call him on the

following day. PW1 has deposed about several calls made by the

abductor, the threats and the money demanded for releasing Chirag.

PW-1 was asked whether he had arranged for the money upon which

PW1 had replied that he was making necessary arrangements.

Abductor informed him that he had come to know of the police report

lodged by PW1 and as such he had chopped off both thumbs of Chirag.

Abductor further stated that his son had been taken to the forests of

Madhya Pradesh and the money should be paid by Friday of that week.

When PW-1 expressed his inability to pay the amount, he was

threatened that if he was unable to arrange the money, he should

forget about his son. Thereafter, abductor demanded Rs.15,00,000/-

as ransom in the denomination of Rs.1000/- each. Abductor gave him

an option that if Rs.15,00,000/- was paid Chirag would be returned in

eight hours and if Rs 70,00,000/- was paid Chirag would be returned

immediately. PW-1 was further asked to arrange for a vehicle as he

would be required to travel for about 1000 kms. An old lady was

supposedly to meet PW-1 on the way, with a Rs 10 note and a specific

currency number which was told to PW-1. The ransom money was to be

paid to this lady who, the abductors said, was not connected with the

case. The abductor called him at bus stand or tonga stand of Kanpur city

on the Friday of that week. Entire information was relayed to the police

by PW-1. On 24th March, 2007, at about 6.30 AM, Chirag was brought to

his house by the police. PW1's brother-in-law Sushil Jain (PW-2) had

gone with the police for recovery of his son. PW1 had made a complaint

with SHO, P.S. Krishna Nagar requesting that his another number

9212751277 should be put under surveillance. On 21st /22nd March,

2007 PW-1's employee Dharmender and his wife Rani were arrested by

the police. PW-1 identified Dharmender and Rani in the court.

5. In PW-1's cross-examination, he has averred that he was not

taken to Tihar Jail for identification. The abductor had made calls on his

mobile phone around 8-10 times. These calls were from different

numbers and no specific number was given by the abductor. In further

cross examination PW1 has averred that when he went to the Police

Station, Krishna Nagar for the first time, Akash (PW-8) accompanied

him but he could not recollect whether Akash's statement was

recorded. At the time of abduction, Dharmender was present in the

factory. Dharmender had worked for him for two and a half months

prior to the date of the incident. After the abduction, his employees

were summoned by the police. He had seen Rani @ Manju in the Police

Station on the day Chinky was recovered. Rani too had worked with

PW-1 prior to the occurrence. It is highlighted that PW1 in cross-

examination has averred to the effect that the appellant Dharmender

was arrested on 21st/22nd March, 2007 i.e. before Chirag was rescued

and produced before him at 6.00 AM/7.00 AM of 24th March, 2007.

This aspect will be discussed below.

6. Akash PW-8, servant to PW-1, has supported the testimony of

PW1. PW-8 has deposed that he was working as a servant on 20th

March, 2007. At about 4.30 PM, he had taken Chirag in his lap to the

market to purchase eatables. Here, it should be pointed out that PW-8

has not been able to correctly recollect the timing of the incidence. The

incidence actually occurred at 7.30 P.M. and not 4.30 P.M., as has been

correctly deposed by PW-1 Pankaj Jain, and recorded in the FIR (Ex. PW-

12/A). There one person wearing spectacles came to him and told him

that PW-8 had been directed by PW1 to fetch panipuri. The said person

took Chirag with him. PW-8 delivered panipuri on returning to the

house. PW1 told PW-8 that he had not asked for any panpuri and

questioned him about Chirag. PW-8 narrated the incident and gave

description of the person who was wearing red trousers and a T-shirt.

PW-8 has deposed that the skin colour of that person was shallow and

he could identify the said person, if shown to him. In the cross-

examination PW-8 has stated that he had accompanied PW1 to the

police station.

7. The factum about kidnapping is further corroborated by PW-2

Sushil Jain, maternal uncle of the victim, in his deposition which we

have elaborated upon, below. The said facts are corroborated by the

contemporaneous enteries in the police records. In the present case,

DD entry 48B dated 20th March, 2007 marked Ex. PW15/A was proved

by HC Pratap Singh (PW15). On the basis of the said DD entry which

was recorded at 8.35 PM, FIR No. 129/07, P.S. Krishna Nagar was

recorded at 10.00 PM. The FIR records the time of occurrence as 7.30

PM on 20th March, 2007 and the FIR (Ex. PW-12/A) itself was recorded

at 9.45 PM. The FIR mentions that a ransom call was received from the

abductor at 9.00 PM.

8. Learned counsel for the appellants submitted that it is possible

that Akash PW8 was involved and his deposition that he handed over

the child to a stranger who had given him Rs.10/- for purchasing

papri/pani puri is unbelievable. PW-8's deposition was recorded on 25th

March, 2009 and mentions his age as about 16 years. Thus, at the time

of occurrence he would have been about 14 years of age. He was a

small boy who may not have understood and realized responsibility and

consequences. It is on record that PW-1 had many persons working

there and the person who approached PW-8 had taken PW-1's name.

PW-8, it seems, had been duped into giving the child. The abductor

took full advantage. PW8's testimony reveals that he was a simple boy

who did not visualize or see through the plan. He believed the person

who had approached him because he took the name of Pankaj Jain, his

employer and being obedient and gentle accepted. Chirag was

abducted. On being questioned by Pankaj Jain, he realized that

somebody had abducted/kidnapped the child Chirag.

Leads and the Arrest of Appellant Imran

9. Sushil Jain (PW-2) has stated that on 20th March, 2007 PW1, who

is his brother-in-law, had informed him that his son Chinky had been

kidnapped/abducted. PW-2 went to P.S. Krishna Nagar with PW1 to

lodge report. On 21st March, 2007, he went to Itawah with the police

team headed by Insp. Anil Sharma (PW-18). The said team consisted of

six police officers who, on reaching Itawah, checked 6 to 8 STD booths.

From one STD booth near bus stand Itawah, Imran was overpowered

while he was talking to PW1 in Delhi. Imran was interrogated and he

confessed that Chirag was in village Sikanderpur. We shall refer to PW-

2's testimony regarding recovery of the child from the particular house,

subsequently.

10. Inspector Rajender Gautam (PW21) was posted at P.S. Krishna

Nagar as Inspector (Investigation) on 20th March, 2007, and was

entrusted with this case. He recorded the complaint Ex. PW1/A

pursuant to which FIR was registered. He also interrogated Akash

(PW8). Thereafter, PW-21 constituted six member police team and

sent them to different locations. Sketch of the suspect was drawn.

PW21 has deposed that he had moved an application before the mobile

operator/service provider for keeping the phone of the complainant

under surveillance. On this basis they came to know that the

kidnappers had made calls from Itawah. Accordingly he sent a team

headed by Inspector Anil Sharma to Itawah. On 24th March, 2007, Insp.

Anil Sharma informed that they had rescued the child Chirag and

arrested Imran, Puran, Hari Om (who has been declared

juvenile), Satyawan and Reshma. On perusal of telephone data

records, it was ascertained that appellant Dharmender and his wife

Rani were involved and both of them were arrested vide memo nos. Ex.

PW11/B and PW11/C on 24th March, 2007, from Gandhi Nagar, New

Delhi. We shall refer to the statement of PW21 once again

subsequently, when we examine and refer to voice samples and

telephone records.

11. Insp. Anil Sharma PW18 has stated that on 21st March, 2007, he

was posted as Addl. SHO, P.S. Krishna Nagar. During investigation they

came to know that ransom call was made from Itawah and he along

with S.I. J.K. Singh, HC Vijay Shankar proceeded to Itawah with Sunil Jain

(PW-2) in a private vehicle. They reached Itawah on 22nd March, 2007

at about noon time. There they received a call from Investigating

Officer that the kidnappers had made a call for ransom from Itawah

from telephone no. 05688-251271. On verification, they came to know

that the said telephone was installed in a PCO booth "Kamlesh

Telecom", near old bus stand, Itawah. There they spoke to a girl aged

about 12-13 years who informed them that a boy aged 27-28 years had

come and made the said call and paid Rs.40/-, though the call charges

were much less. The boy was in a hurry. Thereafter, on 23rd March,

2007, at about 7.45 PM, he again received another call from Delhi that

the caller/kidnapper was making a call from telephone number 05688-

251072. This number belonged to "Hello Telecom" on Railway Road,

Itawah. The said PCO booth was being operated by Aizaz Ahmed. PW18

had already verified from the said PCO as kidnappers had used the

same PCO number on 21st March, 2007 to make a call. At 7.45 PM

when the call was received, by chance the police team headed by PW18

was near the said spot i.e. "Hello Telecom" Booth. They immediately

went to the said booth and were informed that the caller had just left.

Aizaz Ahmed identified the caller from his back. The team apprehended

him and on enquiry, the boy disclosed his name as Imran. From Imran

two PCO booth slips of Hello Telecom and that one of Kamlesh Telecom

Itawah Ex. PW13/X, PW13/Y and PW13/Z were recovered. Imran was

arrested vide arrest memo Ex. PW13/A. Imran made a disclosure

statement Ex. PW13/C. Thereupon the police team proceeded to

village Sikanderpur, Distt. Mainpuri, U.P., where they also took local

police assistance from P.S. Civil Lines, Mainpuri.

12. Almost similar statement has been made by SI J.K. Singh (PW29)

and H.C. Vijay Shankar (PW13). PW13 has clarified that they had gone

to Itawah Telephone Exchange to get the details of telephone/STD

booths. They had got in touch with Aizaz Ahmed and interrogated him

to ascertain identity and physical description of the person who had

made the call. He has deposed about their visit to Kamlesh Telecom

and then their visit to STD booth of Aizaz Ahmed on 22nd March, 2007

and how they overpowered Imran on 23rd March, 2007 just after he had

made a telephone call from the said booth. He identified telephone

slips Ex. PW13/X, PW13/Y and PW13/Z, which were taken into

possession from Itawah vide seizure memo PW13/D. There is nothing

in the cross-examination to dent or cause doubt about the deposition

made by PW13 viz. the facts stated above. PW29's statement as

noticed above is on identical lines as he has deposed that they had

gone to STD booth of Aizaz Ahmed where they were told that the boy

who had gone out had made the call. The said boy disclosed his name

as Imran on interrogation. Thereafter, they went to P.S. Civil Lines and

after taking police assistance they went to village Sikanderpur.

Therefore, we find that there is hardly any contradiction of statement

of PW13, PW18 and PW29 on core or material aspects relating to arrest

of Imran.

13. This position is further fortified by Aizaz Ahmed who appeared as

PW9 and has fully corroborated the prosecution version leading to the

arrest of Imran. He has deposed that in 2007, Delhi police officers had

come to his booth and overpowered a person who had come there.

They had also taken the call bills, which PW9 could not identify because

of lapse of time. However, in the cross-examination by the Addl. Public

Prosecutor he has accepted that a telephone call was made to Delhi on

23rd March, 2007, and earlier too, on 21st March, 2007, the same person

had made a call from his STD booth.

Rescue and Recovery of the victim

14. Next in the chain of facts is the raid leading to arrest of

appellants and rescue of Chirag from village Sikanderpur, Distt.

Mainpuri, U.P. by the police team which included PW13, PW18 and

PW29. Head Constable Vijay Shankar (PW13) has stated that Imran

took them to the house of Satyawan in night hours of 23rd March, 2007.

Satyawan was questioned and he disclosed that Chirag, confined in

another house, was in custody of Hari Om and Reshma. Satyawan then

led them to the other house at some distance. Insp. Anil Sharma

(PW18) gained entry in that house by scaling the wall. PW-18 then

opened the bolt of the door from inside for others to enter. Two

persons were sleeping on a cot with a sheet on their legs. The sheet

was removed and Chirag was found sleeping between legs of Puran and

Hari Om. Reshma who was present there claimed that Chirag was her

child, while Sushil Jain identified the said child as Chirag and they

arrested Puran, Hari Om, Satyawan and Reshma vide memos Ex.

PW13/E, PW13/F, PW13/G and PW13/H. Thereafter they returned to

Delhi on 24th March, 2007.

15. Anil Sharma (PW-18) has averred that at the instance of Imran,

they entered in a house in Village Sikenderpur. One lady with a small

baby in her lap came before them and disclosed that the baby was hers.

Sushil Jain PW2 confirmed that that the said baby was not Chirag. On

enquiry, the said lady disclosed that a child was kept in a nearby house.

She led them to the said house which was bolted from inside. PW18

climbed and after scaling and jumping the wall entered the house. In

the courtyard, he found one cot. On removing the sheet, two persons

were found sleeping on it and one boy, aged 3 years, was found

sleeping between them. By this time, the police team with Sushil Jain

(PW2) entered the house. Sushil Jain (PW2) identified the child as

Chirag. The said persons in the house were Puran and Hari Om. He has

averred that Satyawan came from the room from where the child was

recovered. Aforesaid four persons were arrested vide arrest memos

mentioned above.

16. PW-29 SI J.K. Singh has averred that Imran led them to the house

of Satyawan. One lady i.e. Reshma came out of the house, who on

interrogation disclosed that the kidnapped child was in another house.

She took them to the other house. The house was bolted from inside.

The Investigating Officer entered the house climbing the wall and

opened the door. Two persons namely Puran and Hari Om were found

sleeping in the courtyard and the kidnapped child was sleeping

between their legs. In the meanwhile, another person namely

Satyawan came out from inside the house. The said four persons were

arrested.

17. On the other hand, deposition of PW-2 Sushil Jain on the arrest of

Satyawan and Reshma and the role assigned to them is clearly different.

He has stated that Imran took them to village Sikanderpur near

Mainpuri Town. House of Satyawan was raided. Satyawan and Reshma

were present there. He identified both of them in the court. Chirag

was not there. However, the appellants Satyawan and Reshma were

apprehended. Thereafter, Imran led them to another house in the

same village. The said house was bolted from inside. PW21 along with

one more person scaled the boundary wall and opened the door from

inside. Two boys were sleeping on a cot and Chirag was lying between

their legs. The said persons were Hari Om and Puran. Appellants

Satyawan and Reshma were not aware about anything.

18. In the cross-examination by counsel for Hari Om, PW2 has

deposed that in the second house except for Hari Om, Puran and

Chirag, none else was present i.e. Satyawan was not present there.

PW2, in his examination in chief, has categorically, without hesitation,

and clearly stated that the appellants Satyawan and Reshma were not

aware about anything and it was Imran who had led them to the house

from where Chirag was recovered. To this extent, therefore, there is

marked contradiction on the involvement of Satyawan and Reshma.

PW-2 who is uncle of the victim Chirag has completely exonerated and

not implicated them. The police officers PW13, PW18 and PW29 have

however implicated both of them. We have noticed the difference in

versions of PW13 on one side and PW18 and PW29 on the other side.

As per PW13, Satyawan was present in his house and Reshma was

present in the house from where Chirag was recovered, whereas PW18

and PW29 have stated that Satyawan was not present in the first house,

where he was staying with his wife Reshma, and had come out from the

second house where Chirag was recovered. Normally such

discrepancies are ignored or treated as non-fatal as they can occur

because of lapse of time and failure to meticulously remember details

which is common human error. But in the present case, the said

discrepancies are relevant in view of the court testimony of PW2.

There is no reason or cause to doubt or debate the deposition of PW2

who had no interest in falsely implicating or protecting the appellants

Reshma and Satyawan. Being a relative of the victim who had been a

part of the raiding team and had gone to the spot itself i.e. Village

Sikanderpur, U.P., he was a witness to the entire episode which

resulted in recovery and rescue of Chirag. PW2's statement, therefore,

should be accepted. Statement and exoneration of Satyawan and

Reshma by PW-2 cannot be reconciled with the testimonies/court

statements of police officers PW-13, PW-18 and PW-29. The assertions

made by police officers themselves qua Satyawan and Reshma are

contradictory and at variance. This enures to the benefit of Satyawan

and Reshma. We note that there is no other evidence against Satyawan

and Reshma. The appellants Reshma and Satyawan, are thus entitled to

benefit of doubt. Their conviction is accordingly set aside. However,

involvement of the appellant Puran is confirmed in view of the

aforesaid evidence.

Involvement of Dharmender and Rani

19. The next question relates to involvement of Dharmender and

Rani and whether they were part of the criminal conspiracy to kidnap

Chirag for ransom. Dharmender was an employee of PW-1 Pankaj Jain

for about two and a half months before the date of occurrence. Rani

had earlier worked for PW1 but at the relevant time was not working

for him. It is stated that Rani was wife of Dharmender and two of the

other accused Hari Om and Imran were her brothers. Before we dwell

and examine involvement of Dharmender and Rani, we would like to

deal with the contention raised by learned counsel for the appellant

Rani to the effect that there is no evidence and material to show that

Rani was wife of Dharmender. It is argued that Rani is older in age and

no marriage certificate or wedding photographs have been placed on

record to show that they were married to each other. We do not find

any merit in the said contention. As per the charge sheet and the

charge framed, Rani has been shown as wife of Dharmender. In the

statement under Section 313 Cr.P.C., Rani's identity has been described as

wife of Dharmender and this was not object to or contested. Rani has

in fact accepted in her Section 313 Cr.P.C. statement that Hari Om is her

younger brother but claimed that she did not know rest of the accused.

This is ex facie wrong as she had worked for PW1, and therefore, also

knew Dharmender who was working with him. PW-1 has clearly stated

that he knew Rani and had identified her and described her as wife of

Dharmender. He was not cross-examined on the said aspect. Initially

one or the same counsel had appeared for Dharmender and Rani,

before the trial court. PW-1 has deposed that Rani had worked for him

prior to the period relating to the incident but on the date of the

incident, she was not working for him. On 24th March, 2007, he had

come to know that Dharmender and Rani were involved in the case.

20. PW6 HC Maya had stated that she joined the investigation on

24th March, 2007 along with Insp. Rajender Gautam (PW-21) and the

appellant Rani was arrested. On her personal search, apart from other

things, mobile phone was recovered. She proved the arrest memo Ex.

PW6/A and search memo Ex. PW6/B. Search memo PW6/B mentions

mobile telephone number as 9210817093. Recovery of the said mobile

telephone at the time of personal search of Rani was affirmed by

Lalitesh Gautam (PW14) and HC Virender Tyagi (PW11).

21. Virender Tyagi (PW-11) has testified that on 24th March, 2007, he

was posted in Police Station Krishna Nagar and had joined investigation

on that day. On the said date they had gone to the house of

Dharmender in West Kanti Nagar and IO Insp. Rajender Gautam (PW-

21) had interrogated him along with Imran, his brother-in-law. Thus,

Imran was brother or related to Rani. In the meanwhile, his wife Rani

was brought by Lady Constable Maya (PW6) and they were arrested.

From personal search of appellant Rani vide search memo Ex. PW-6/B, a

mobile phone was recovered. In his cross-examination, it was not

suggested to PW11 that Rani was not wife of Dharmender or was not

married to him. On the other hand, suggestion given was that the

appellants Dharmender and Rani were already confined in the police

station beforehand.

22. M.N. Vijayan, Nodal Officer, Tata Tele Services Ltd. (PW10) had

proved on record the subscriber form of mobile number 9210817093

allotted to Harish Chand, Ex. PW10/A. He proved on record call details

of the said telephone as Ex. PW10/B. PW10 also proved the certified

copies of the call records of telephone number 9213285013 (Ex.

PW10/C-1 to PW10/C-4), registered in the name of Pawan Kumar. Here

it is pertinent to mention that though according to PW-10 the number

9213285013 was in name of one Pawan Kumar but the number was in

fact being used by PW-1 Pankaj Jain. In the Court statement PW-1 has

averred that the number belonged to him and ransom calls were

received on this number, even when he was sitting in the Police Station.

He has averred that there was another mobile phone with number

9212751277 but that phone, he later clarified, was being used by his

wife. The FIR (Ex. PW-12/A) mentions that the ransom calls were

received by PW-1 on the said number. Therefore, we have no doubt in

accepting that this number was in fact being used by PW-1.

23. It was submitted before us that the telephone number

9210817093 was not procured and registered in the name of

Dharmender, therefore, the call records do not prove or establish the

prosecution version. It was further argued that the recovery of mobile

phone from Rani should be doubted and not accepted. There is no

merit in the said contentions. Harish Chand appeared as PW4 and has

testified that one Ram Niwas used to reside in his property as a tenant.

Dharmender is younger son of Ram Niwas. He recognized Dharmender

in the court and testified that he (Dharmender) was married to a lady

elder to him in age. Dharmender had asked him (PW4) to give him ID

proof so that he could purchase a mobile phone. PW4 had given

photocopy of his ration card or electricity bill/election card, but had not

signed any documents. We also record that PW4 was not cross-

examined on the aspect that Dharmender was married to a lady elder

to him in age. Dharmender, in his statement under Section 313 Cr.P.C.,

has accepted that he was a tenant of Harish Chand prior to the incident

and had taken identity/residence proof of Harish Chand for telephone

connection. He however denied that he knew co-appellants Reshma,

Satyawan, Puran, Imran or Hari Om. He did not say that Rani was not

known to him. In view of the aforesaid position we should accept the

prosecution evidence that Tata telephone number 9210817093 was

procured and was being used by Dharmender. The telephone

instrument with the said number was found and recovered from Rani,

wife of Dharmender. The call details and the transcripts of the

conversations have been discussed below.

24. The call records of telephone number 9210817093 were proved

by M.N. Vijayan (PW10) and have been marked as Ex. PW10/B. As

already noted above telephone No. 9213285013 belonged to PW1

Pawan Jain and call records of the said number have been marked as

Ex. PW10/C-1 to C-4. A careful perusal of the said exhibits would

reveal that calls were received from Itawah (STD Code 05688) from

telephone numbers 251271 and 251072. This is further deposed to by

PW1 and PW-9 Aizaz Ahmed, the owner of the telephone booth with

number 251072. Call from telephone no. 05688-251072 to telephone

number of PW1 i.e. 9213285013 was made on 21st March, 2007 at

18.23 Hrs and lasted for about 339 seconds. Call from telephone No.

05688-251271 to telephone of PW1 i.e. 9213285013 was made on 22nd

March, 2007 at 15.29 Hrs and the same lasted for about 352 seconds.

The important call after which Imran was arrested is duly reflected in

the call record of PW1 telephone number 9213285013 (Ex. PW 10/C3).

The call was made from telephone number of PCO booth of PW9 i.e.

05688-251072 on 23rd March, 2007 at 19.41 Hrs. The said telephone

call also matches and gets corroborated with the telephone slips Ex.

PW13/Y and PW13/X which were seized from Imran when he was taken

into custody.

25. The call record details Ex. PW10/B relating to telephone No.

9210817093 of the appellant Dharmender which was recovered from

Rani, further shows that a telephone call was made from telephone No.

05688-251271 on 22nd March, 2007 at 15.26 Hrs for about 125 seconds

i.e. just before call from the same telephone to PW1 on telephone No.

9213285013. This is confirmed by the STD slip seized from Imran, Ex.

PW13/Y. The call details of telephone No. 9210817093 reveals that

other calls were also made to the said number from Itawah during the

period 22nd March, 2007 to 23rd March, 2007 including one call on 21st

March, 2007 at 11.41 Hrs.

26. The prosecution had moved an application before Dr. Archana

Sinha, Metropolitan Magistrate for taking voice samples of Imran and

Rani to be taken by FSL, Lodhi Road for comparison with the taped

conversation. The application was allowed and the permission was

granted vide order dated 20th April, 2007, as recorded on the

application itself. The application is a part of judicial record i.e. the trial

court record. Thereupon their voice samples were taken, as per Ex.

PW1/D and sealed with the seal of RPG. The said seizure memo has

been proved by Inspector Rajender Gautam, PW-21, Constable Jaibir

Singh, PW27 who had witnessed the seizure memo and SI Vinay Yadav

PW26. PW26 has deposed that mobile number of the complainant

PW1 was intercepted by their Cell on the request of the Investigating

Officer and conversations on the telephone No. 9210817093, being

used by Rani, was also intercepted. CD of the said conversation was

prepared and sealed with the seal of RPG. This was done on 4th May,

2007. The transcript of the telephone conversations have been proved

by D.K. Tanwar (PW-19) and have been marked as Ex. PW19/DA. D.K.

Tanwar (PW-19) was working as Sr. Scientific Officer, Gr.I (Physics),

CFSL, CBI, New Delhi and had received two sealed parcels marked Q1

and S1. The parcel Q1 when opened had recorded conversations

purportedly between Imran and Rani. The parcel S1 contained two

audio cassettes which contained voice recordings of Rani and Imran.

After scientifically examining the voice quality of the questioned and

specimen voice recordings, PW19 vide report Ex. PW19/A opined that

the specimen voices of Imran and Rani matched with the questioned

conversations. The conversation between the appellant Imran and Rani

have been examined. During the conversation, Rani has consistently

asked for money, saying that she was penniless. Imran had informed

that he was in Itawah and would be departing for Kanpur. We note here

that Kanpur was the place where PW-1 was asked to come with ransom

money. There is also discussion about Hari Om and whether he should

be further involved or not. Rani and Imran have constantly referred to

each other as brother and sister and Rani was requested not to give his

number to anyone otherwise "all five may face the music".

27. Learned counsel for the appellants Rani and Dharmender have

drawn our attention to the transcript PW19/DA and submitted that

they do not reflect or establish any conspiracy. The contention is

meritless, as on reading of the transcript, it is apparent that Rani was

clearly conscious of the abduction and kidnapping and demand for

ransom. Conspiracy under Section 120B IPC requires an agreement

between co-conspirators. It is a separate offence which can be proved

if the prosecution is able to establish an agreement between two or

more persons to do or cause to be done an illegal act or some act which

may not be illegal but is performed by illegal means. Agreements of

such nature are normally not reduced into writing and prosecution

evidence/case invariably relies upon inferences drawn from the

conduct of the parties, conversations between them etc. Inference as

to existence of conspiracy from circumstances can be drawn when such

circumstances are incapable of any other explanation. On examining

and scrutinizing of the evidence in the present case we are of the

opinion that the charge of the conspiracy under Section 120B and active

involvement of Dharmender and Rani with others stands proved

beyond doubt. There were telephonic conversations between Rani and

Imran.

28. We briefly note here that it transpires that Rani was close to

Imran, even if we presume that she was not Imran's sister. Rani, it is

accepted, is sister of Hari Om. The appellants Imran, Puran and Hari Om

could not have got details and particulars about PW1 Pankaj Jain, his

place of residence, his economic condition, his telephone number, the

fact that he had a child Chirag etc. without help from a person who was

an insider and fully aware of these details. Persons living in Itawah

could not have carried out the said kidnapping and abduction for

ransom in Delhi without logistical details, support and particulars. A

child aged 3½ years could not have furnished and given any such

particulars like phone numbers.

29. At this stage, we must deal with another contention raised on

behalf of the appellants Dharmender and Rani. It was highlighted that

PW1 Pankaj Jain has deposed that on 21st or 22nd March, 2007,

Dharmender an employee of PW1 was arrested. It was submitted that

if Dharmender was already arrested, then conversations between Imran

and Rani on 22nd or 23rd March, 2007 are fabricated and unbelieveable.

PW1, in his deposition, was not clear and categorical on the date. He

has mentioned both 21st and 22nd March, 2007. He has also further

stated that after he came to know about kidnapping and abduction of

Chirag, he had informed the police and their investigation started. He

had received several telephone calls from the kidnappers. His

employees were suspected. In his cross-examination, PW1 has stated

that at the relevant time Dharmender was present in the factory

and the entire lot of employees were summoned to the Police Station

next day. They were called to the Police Station on the day of the

incident also. The employees were made to sit outside the Police

Station till the child was recovered. It is apparent that in this context,

PW1 has stated that Dharmender was in police custody since 21st or

22nd March, 2007. He has clarified in the cross-examination on 7th

January, 2008 that he was not aware whether Dharmender and Rani

were allowed to leave the Police Station or not. He has further stated

that after his son Chirag was recovered on 24th March, 2007, he came

to know that Dharmender and Rani were involved. The arrest memo of

Dharmender and Rani Ex. PW6/A and PW11/B records their arrest on

24th March, 2007.

30. Learned Counsel for the appellants have submitted that offence

under Section 364A IPC is not made out. Reliance was placed on

decision of this Court in Surender Kumar @ Raja Vs. State, Criminal

Appeal No.738/2003 decided on 6th January, 2010 and it was

highlighted that essential ingredient of Section 364A IPC is threat to

cause death or hurt to the victim or conduct which gave rise to a

reasonable apprehension that the kidnapped person would be hurt or

killed. It was further submitted that a criminal conspiracy was not

made out and reliance was placed upon decisions of the Supreme Court

in P.K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142 and Sanjiv

Kumar Vs. State of H.P., (1999) 2 SCC 288.

31. Section 364A IPC mandates threat to cause hurt or death to the

kidnapped or abducted person. Conduct which gives rise to a

reasonable apprehension that such person may be put to death or hurt

will also bring the offence of kidnapping or abduction for ransom within

the four corners of Section 364A IPC.

32. In the present case, there were threats that the kidnapped child

Chirag would be harmed. In fact, PW-1 has deposed that he was

informed on telephone that thumbs of his child had been chopped. It

would be relevant here to refer to Shyam Babu & Others Vs. State of

Haryana, 2008 (14) Scale 310 wherein Section 364A IPC was

interpreted and it was held that the wording itself suggests that when

kidnapping is done with the threat to cause death, hurt etc. to the

kidnapped person, the offence is complete. In the present case, the

child Chirag was kidnapped and taken out of Delhi to a remote village in

Sikandrabad. Ransom was repeatedly demanded on telephone by

extending threats that harm would be caused or harm had been caused

to the child. Undoubtedly, offence under Section 364-A has been

committed.

33. Similar view has been taken by the Supreme Court in Malleshi Vs.

State of Karnataka, 2004 (S) SCC 95. Reference can also be made to

Suman Sood Vs. State of Rajasthan, 2007 (5) SCC 634. In the said

decision the Supreme Court also examined Section 120-B IPC and

meaning of the term "conspiracy" and observed that conspiracy is

hatched in secrecy and it may be difficult to adduce direct evidence for

the same. Decisions in Sanjiv Kumar (supra) and P.K. Narayanan

(supra) also deal with the concept/term conspiracy. In P.K. Narayanan

it has been observed that preparation or motive themselves do not

constitute conspiracy and Court should be careful and not accept the

charge of conspiracy on mere suspicion, surmises or inference

unsupported by cogent or sufficient evidence. We have referred to the

clear-cut cogent and reliable evidence before recording our finding that

appellants Dharmender and Rani were part of the conspiracy hatched

by Puran and others. The kidnapping of Chirag in Delhi was not possible

without the appellants Dharmender and Rani being part of the

conspiracy. The telephone conversations are cogent and sufficient

evidence which implicates and confirms their involvement.

34. In view of the aforesaid discussion, we allow the appeals filed by

Satyawan and Reshma and they are acquitted. However, we do not

find any merit in the appeals preferred by Dharmender, Rani and Puran.

Their appeals are dismissed. We also maintain the order of sentence

passed against the said appellants. Satyawan and Reshma will be

released forthwith unless required to be detained in any other case in

accordance with law.

35. The appeals are disposed of accordingly.

(SANJIV KHANNA) JUDGE

(VED PRAKASH VAISH) JUDGE MAY 29, 2013 kkb