Shaukat vs State
2013 Latest Caselaw 5433 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
%                             CRL.A. 1094/2010
+                                      Date of Decision: 25th November, 2013


#      SHAUKAT                                                 ..... Appellant
!                                       Through: Mr. J.S. Kushwaha, Advocate

                                          versus

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

                                   &

%                             CRL.A. 597/2012

#      MEERA @ MILAN                                           ..... Appellant
!                                       Through: Mr. Sumeet Verma, Advocate

                                          versus

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

     CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN
      HON'BLE MR. JUSTICE V.P. VAISH


                            JUDGMENT

P.K. BHASIN, J:

The appellants along with another accused Feroz were convicted for the commission of the offences punishable under Sections 120-B

and 364-A of the Indian Penal Code('IPC' for short) by the learned Additional Sessions Judge vide judgment dated 2nd July, 2010 and vide order dated 7th July, 2010 they were sentenced to undergo imprisonment for life and also to pay fine of Rs.500/- each, in default of payment of fine were ordered to undergo further simple imprisonment of six months under Section 364-A IPC. They were also sentenced to undergo rigorous imprisonment for ten years and fine of Rs.500/- each, in default to undergo additional simple imprisonment of three months under Section 120-B IPC. Both the substantive sentences of imprisonment were ordered to run concurrently and benefit of Section 428 Cr.P.C. was also extended to them. Feeling aggrieved by the judgment of conviction and sentence awarded to them the three convicted accused had filed separate appeals.

2. During the pendency of the appeal filed by accused Feroz(being Crl.Appeal No.73/2011) he moved an application that he was a juvenile and so he was entitled to the benefits available to the juveniles accused of the commission of any offence under the Juvenile Justice(Care and protection of Children) Act,2000. This Court conducted an enquiry into his age and he was found to be a juvenile. But thereafter Feroz did not challenge his conviction and since he had already spent more than eight years in jail, which period was much more than for which he could be detained as a juvenile, he was directed to be released from jail by this Court vide order dated 8th

July,2011. That appeal was disposed of accordingly. Though similar plea was then raised by accused-appellant Shaukat also but after medical report was received from the All India Institute of Medical Sciences, New Delhi about his age and when that aspect was being considered the learned counsel for Shaukat gave up the plea of juvenility and requested for hearing of his appeal on merits.

3. Thereafter the appeals of accused Shaukat and Meera @ Milan were heard together and are now being disposed of by this common judgment.

4. The relevant facts leading to the conviction of the two accused- appellants are as follows:

(a) PW-1 Pushpa and PW-2 Raj Kumar were a working couple in the year 2003 having one child of about 7 years of age, PW-17 Puneet. To take care of their son during the period they were away to their work places PWs 1 and 2 had employed accused-appellant Meera @ Milan as a domestic help. On 13th January,2003 PWs 1 and 2 as usual left for their work places in the morning leaving their son Puneet in the care and custody of accused-appellant Meera @ Milan, who had been employed with them for some months only. When PWs 1 and 2 came back home in the evening around 8.30 p.m. that day they found only accused-appellant Meera @ Milan at home and not their son Puneet. Upon asking Meera @ Milan about Puneet she informed them that

Puneet had been taken by her known person Shaukat by allurement(behla phusla ke). During the night search was made for Puneet by PWs 1 and 2 but he could not be found. In the morning of 14.03.2003 at about 11.21 a.m. when PW-2 Raj Kumar was going to Noida where accused Shaukat was residing, as was told to him by accused Meera, somebody claiming himself to be Shaukat called up PW-2 on his mobile phone having the number 9811625599 from telephone no.01412681090(which number was found to be of some STD booth in Rajasthan but the owner of the STD booth did not support the prosecution during the trial), and the caller told him that his son was with him in Delhi and demanded ten lacs of rupees as ransom for the release of the child.

(b) On receipt of the above call PW-2 went to the police station and narrated the aforesaid facts in his statement which then formed the basis of registration of FIR of the case under Section 364-A IPC and the police then started investigation and the hunt for the kidnapped son of PWs 1 and 2 as also of the kidnappers.

(c) On 18.03.2003 PW-2 received another ransom call(which call also was found to have been made from a STD booth in the State of Jharkhand but the owner of that STD booth also did not support the prosecution case regarding the identity of the caller) and the place of delivery of the money was fixed for 20.03.2003 in Kodarma area in Jharkhand. The police accordingly formed a trap team to apprehend

the kidnappers and alongwith the complainant went to Kodarma. Accused Feroz was found outside a dhaba in suspicious circumstances and so he was apprehended. He made a disclosure statement in police custody accepting the kidnapping of Puneet and offered to get him recovered. He also informed the police about the presence of his co- conspirator Shaukat at a place which was at a distance of about one kilometer from the place from where he was apprehended. The police team then was taken by Feroz to that place from where accused Sahukat was also apprehended on the pointing out of Feroz. Shaukat also made a disclosure statement in police custody and he also offered to get the kidnapped son of the complainant recovered from some place in Rashidabad where he had been kept in confinement. From there they all were taken by Feroz and Shaukat to one room in village Rashidabad and Feroz provided the key of that room and in that room Puneet was found confined. He was identified by his father.

(d) During further investigation one Mohd. Qasim, who had provided and driven the Maruti Van used for carrying the kidnapped child, was also arrested and his Van no. DL 3 CL 2949 was also recovered from Etawah. The domestic help of PWs 1 and 2, accused- appellant Meera @ Milan was arrested on 22.01.2003.

5. After completion of investigation all the four arrested accused persons were charge-sheeted by the police and in due course the case was committed to Sessions Court where they were charged and tried

for the commission of offences punishable under Sections 120-B, 364- A r/w 120-B and 368 r/w 120-B IPC.

6. In order to establish its case the prosecution had relied upon the evidence of the kidnapped child PW-17 Puneet and his parents PWs 1 and 2 as well as the police officials who had apprehended the accused persons and recovered the kidnapped child and accepting their evidence the learned Additional Sessions Judge convicted accused Shaukat, Feroz and Meera @ Milan under Sections 120-B and 364-A IPC. Accused Mohd. Qasim was, however, acquitted. As noticed already, accused Feroz had given up his challenge before this Court to his conviction on being found to be a juvenile by this Court.

7. We now straightway proceed to notice and examne the evidence of the material prosecution witnesses which was read out by the learned counsel for the appellants Shaukat and Meera @ Milan whose appeals are now to be disposed of by this common judgment.

8. PW-1 Pushpa is the mother of the kidnapped child PW-17 Puneet. In her examination-in-chief she had deposed as under:

"Previously I used to work in Priya Boutique. On the day when my son was kidnapped I was worked in IDPL, Gurgaon. My son Puneet was aged about 7/7½ years old. Meera accused presen in court was my maid servant during those days. On 13.1.2003 I was living in H.No.9-A CPWD Colony, Vasant Vihar alongwith my family. The child was present in the house and Meera was looking after him. I and my husband went to our job. We came back at about 8.30 p.m. my son Puneet was missing but Meera was present. Initially she told me that my son had gone to Priya for having a stroll. She assured me he would be coming after some time. She

searched my son but he was not available. Then Meera told me that her friend Shoukat who was her friend had taken him to Noida and he would bring back the child in the next following morning. My child did not come back. We went to the house of Meera situated at Bhikaji Cama Place in Mohdpur village. We could find nothing. Then we came back to our house. We waited till morning. We waited for some time and when Meera refused to disclose further, we lodged a report with the police.

On 14.1.2003, we went to the address given by Meera at Noida. My husband was with us. My husband received a call on mobile phone that our child was with Shoukat. The caller also demanded an amount of Rs.10 lakh as ransom amount for the release of the child. I do not remember the time of receipt of telephone call. My husband was threatened by the caller. My son was recovered from Jharkhand on 20.01.03..............................."

9. PW-2 Raj Kumar is the complainant and father of the kidnapped child. In his examination-in-chief he deposed as under:

"On 13.1.03, I alongwith my wife had gone to out and returned at about 7/8 P.M. My son Puneet who was aged about 6 years at that time was left with our maid servant namely Meera, the accused present in the court today. We did not find the child when we returned home in the evening. Meera was working in our house as domestic servant for the last 2/3 months prior to 13.1.03. When we enquired from Meera about our child, she initially told us that the child may be playing outside the house and come back soon, but the child did not return. When we again enquired from Meera about the child, she told us that the child perhaps had been taken by Shoukat. We kept on searching for the child, but did not find the child anywhere. We went to the house of Meera in vill. Mohdpur, but find no clue. Next day, we took the address of Shoukat, who was residing in Noida those days. On the way to Noida, I received a telephone call on my mobile phone No.9811625599 and the caller told me that my son was in his custody and the caller also demanded a sum of Rs.10 lakhs as ransom, for the release of my son. I immediately went to P.S. Vasant Vihar and lodged a complaint

with the SHO. My complaint is Ex.PW2/A and bears my signature at point A on it. I provided a photograph of my child to the police, which was taken into possession by them vide memo Ex.PW2/B, which also bears my signature. Photo Ex.P1 is of Puneet, my son. I remained with the police through out right from lodging the report and till the child was recovered, who was recovered on 20.1.03. Police seized call records about my conversation with the caller vide memo Ex.PW2/C & D. Accused Shoukat was arrested on 20.1.03 and he made a disclosure statement Ex.PW-2/E. Accused Firoz was also arrested on the same day and too made a disclosure statement Ex.PW-2/F in my presence. Accused Mohd. Firoz had opened the house with a key and the child was recovered from inside the house on 20.1.2003................................................"

10. PW-8 Inspector Rajinder Sharma in his examination-in-chief had deposed as under:

"On 18/1/03, I was posted as SHO at PS Vasant Vihar. On that day I alongwith SI Dilip Singh, SI Ravinder Tyagi, ASI Amar Singh and the complainant namely Raj Kumar went to Kodarma, Jharkhand. We reached Kodarma on 19/1/03 and on 20/1/03, we all went to Barmassia Mod, Distt. Kodarma. It is a small place bordering distt. Giridih. Accused Firoz present in Court was found outside a dhaba in suspicious circumstances. ASI Amar Singh pointed out towards accused Firoz. He was carrying a photograph of the accused. Firoz was apprehended. At the pointing of Firoz, accused Shaukat present in Court was apprehended at a distance of about 1 km. from the dhaba. Accused Firoz first disclosed that the kidnapped child had been kept at village Rashidabad. Accused Shaukat confirmed this. Then we went with both the accused to village Rashidabad. A room in the village was opened with a key given by Firoz and the kidnapped child was found in that room...."

11. PW-10 Sub-Inspector Dilip Kumar had deposed as under:

" On 18/1/03, I had gone to Kodarma alongwith Inspt. Rajender Sharma, SI Ravinder, ASI Charan Singh, Ct. Ram Khushal and Ct. Rajaram. We reached Kodarma on 19/1/03. The complainant Raj Kumar had also gone with us. He had been asked to deliver the ransom amount at Barmasiya Mod on 20/1/03. On 19/1/03, we had gone to see the place where the money was to be delivered and after inspection of that place we returned to Kodarma. On 20/1/03, in the morning, we went to Barmasiya Mod. We reached there around 10:45 am and we took position near a tea shop where the money was to be given. At about 12 p.m. accused Firoz present in Court (correctly identified) came there. His photograph was already with us. His activity also suggested that he was waiting for someone. He was overpowered. He was interrogated and he disclosed that his associate Shaukat was waiting at some distance and that the kidnapped child had been kept in his village Rashidabad. His disclosure statement was recorded which is Ex.PW2/F. Then accused Firoz took us in the direction of jungle to a distance of about 1½ km. Accused Shaukat present in Court was found there. He was overpowered at the pointing of Firoz. He was interrogated and he also disclosed that the kidnapped child had been kept in the house of Firoz in village Rashidabad. Disclosure statement of Shaukat was recorded. The same is Ex.PW2/E. Then accused Shaukat and Firoz took us to village Rashidabad. There we were taken to a room which was locked. Accused Firoz took out a key from a door frame and the lock was opened with that key. The kidnapped child Prince was found in that room and he was identified by complainant Raj Kumar who was with us........................................................................."

12. PW-17 Puneet is the kidnapped child. The trial Judge had before recording his testimony questioned him generally to find out whether he was capable of understanding the questions or not as he was 14 years old. After being satisfied that he would be

able to depose before the Court his statement was then recorded. In his examination-in-chief PW-17 deposed as under:

" I was around 6/7 years old at the time of incident....... I do not know the name of maid servant, but two persons namely Firoz and Shaukat who were known to the maid servant took me away from my house at Vasant Vihar. These persons took me away in a van. I do not remember the colour of van. They took me away saying that they will show me the market. From there, they took me to a station and said that since the tyre has got punctured they shall drop me by train and thus, they took me in a train. Then they took me to a village in Jharkhand. They kept me there for some days but I have no idea that for how many days they kept me there. The accused persons kept me in a vacant room and sometime they also used to beat me. I do not remember specifically that who gave me beatings. I cannot identify the accused persons now. I have forget their faces. I also cannot identify my maid servant. My father along with police officials came there and rescue me. The persons who had taken me away were also present there at the time when I was rescued. They were 3/4 persons who had taken me away out of whom I have only known the name of Shaukat and Firoz. Now I recalled that in fact I was taken away from A-1/181, Malviya Nagar, New Delhi.............................................................................."

13. From the testimony of PWs 1, 2 and 17 the learned trial Judge had come to the conclusion, and in our view rightly so, that PW-17 Puneet was kidnapped from his house on 13.01.2003. In the cross- examination of these three witnesses it was not even suggested to them that they were deposing falsely about the kidnapping part of the prosecution case and even the learned counsel for the appellants did not even make any attempt before us to show that PW-17 was not kidnapped from his house on 13.01.2003. They had, however,

seriously contended that the prosecution had miserably failed to establish that the two accused-appellants alongwith third convicted accused Feroz had kidnapped Puneet in pursuance of a pre-planned conspiracy. Counsel for accused Meera @ Milan had also submitted that she had been convicted only because of the statements of PWs 1 and 2 that they had first been told by Meera that their son had gone out for a stroll and would come back soon and later on she had changed her version and told them that Puneet had been taken by her acquaintance Shaukat to Noida but when these witnesses were confronted with their police statements it was found that they had not told the police that accused Meera had first told them that Puneet had gone out for playing and then had said that Shaukat had taken away Puneet. So, counsel submitted, PWs 1 and 2 had made a material improvement in Court and with which improved statements the trial Judge had got influenced and solely for the reason that Meera had given two different reasons for the absence of Puneet from home had found her guilty. Learned counsel for accused Shaukat had also submitted that his identity as one of the kidnappers was not established since the kidnapped child had not identified him as his kidnapper while deposing before the trial Court. Alternatively, it was also contended by the learned counsel for the two appellants that in any event even if PW-17 is found by this Court also to have been kidnapped by the accused-appellants and Feroz even then their

conviction under Section 364-A IPC is totally unsustainable since the prosecution had failed to establish that the demand of ransom made to the father of PW-17 Puneet was accompanied by any threat from the kidnappers that Puneet would be killed or subjected to hurt in case of non-fulfilment of their demand of ransom. In support of this submission regarding the non-applicability of Section 364-A IPC learned counsel cited two judgments of different Division Benches of this Court, one of which is reported as 149(2008) Delhi Law Times 306 and the other one is unreported one rendered on 09.12.2009 in Crl. Appeal No. 980/2005.

14. On the other hand, learned Additional Public Prosecutor fully supported the trial Court's judgment holding the three accused guilty of the offence of kidnapping for ransom punishable under Section 364-A IPC as well as the sentence of imprisonment for life awarded to the accused-appellants. Regarding the applicability of Section 364-A two judgments of the Supreme Court reported as AIR 2004 Supreme Court 4865 and (2007) 5 Supreme Court Cases 634 were also cited in support of the contention that even when there is a demand of ransom only by the kidnapper after kidnapping someone Section 364- A gets attracted though it was also submitted by the learned Additional Public Prosecutor that in the present case the kidnapped child was actually given beatings also by the kidnappers.

15. After analyzing the evidence of PWs 1, 2 and 17 we have also no hesitation in accepting the prosecution case, which has been accepted by the learned Additional Sessions Judge, that this is a case of kidnapping for ransom. PW-2 had categorically deposed that on 14.01.2003 he had received a call on his mobile phone from someone who had claimed himself to be Shaukat and had told him that his son was with him. He had also deposed that the caller had demanded ransom of ten lacs of rupees. PW-17 Puneet who was kidnapped had deposed that after being taken away from his home to Jharkhand by some persons, out of whom names of two were Shaukat and Feroz and who were known to their maid, he had been kept in a room where he was beaten also sometimes. Since in the present case there was a demand of ransom made to the father of the kidnapped minor child and hurt was also caused to the kidnapped child by his kidnappers by beating him Section 364-A IPC is clearly made out. So, we need not go into the question if actually no hurt had been caused to the kidnapped child or there was not even any threat either to kill him or cause hurt to him, Section 364-A IPC would not have been attracted, as was the submission of the learned counsel for the appellants.

16. Now, we have to examine if the accused-appellants persons had hatched a conspiracy to kidnap PW-17 Puneet. As far as accused Feroz is concerned his involvement in the kidnapping of PW-17 stands

affirmed already in his appeal since he had given up the challenge to his conviction. As far as accused-appellant Meera @ Milan is concerned she had not challenged the statements of PWs 1 and 2 in their cross-examination that she was their domestic help during the relevant period and also that they used to leave their son Puneet in her custody and care when they were away to their work places. However, during her statement under Section 313 Cr.P.C. when she was put this part of the prosecution evidence she replied " I do not know". In our view, this answer shows her guilty mind and it can be used against her being a false answer.

17. As per the testimony of PW-2 Raj Kumar accused Meera had told them when she was asked about their son that "..... the child perhaps had been taken by Shaukat." Then in his cross-examination PW-2 had stated in answer to a question that "Meera had told us that Shaukat had taken away the child." There was no suggestion put to PW-2 that Meera had not told them like that. Similarly, the statement of PW-1 Pushpa that Meera had told her that " ......her friend Shaukat who was her friend had taken him to Noida and he would bring back the child in the following morning." was not challenged in her cross-examination to be incorrect. Most of the cross-examination of PWs 1 and 2 was confined to elicit from them as to how Meera was employed and what commission was paid to the placement agency through which she was engaged and what was her salary. Then a suggestion was put to PW-1

that Meera had been falsely implicated when she was not paid her salary and she demanded the commission paid to the placement agency. However, no such plea was taken by Meera when she was examined under Section 313 Cr.P.C. and so it was an afterthought and another false statement. Thus, from the evidence of PWs 1 and 2, even after excluding their statements that initially Meera had told them that their son had gone out for playing and which statements according to the counsel for the accused-appellants were improvements in Court, it stands established that accused-appellant Meera had allowed their son Puneet to go with someone not known to his parents and without their permission.

18. The submission of the learned counsel for this accused-appellant that her act of allowing PW-17 Puneet to go with her friend to Noida can be said to be an act of sheer negligence and carelessness on her part but no mens rea could be attributed to her cannot be accepted. If actually she did not know that her friend was taking away the child left in her care and custody by his parents not to be brought back her conduct would have been totally different. She herself would have informed PWs 1 and 2 before their arriving back home that Puneet had been taken by her friend but had not been brought back by him. She informed them only late in the evening when they returned back from work and even at that time she did not claim before PWs 1 and 2 that she had committed blunder by allowing her friend to take away

their son to Noida. So, we are also satisfied that this is not a case of sheer negligence and carelessness on the part of accused Meera in allowing someone not known to PWs 1 and 2 to take away Puneet and which plea she even otherwise never took either before PWs 1 and 2 when they had found their son missing from home on 13th January,2003, but an intentional criminal act on her part. Accused Meera @ Milan had entered into a conspiracy with some one known to her to kidnap her master's minor son who used to be left in her custody and care. Learned counsel for Meera had also contended that the fact that the police did not arrest her for a week after the incident it becomes clear she had been implicated and arrested on 22.01.2003 only on the basis of disclosure statement of Shaukat made on 20.01.2003 after his arrest that day. However, in our view the fact that the police did not straightaway arrest Meera on 14.01.2003 itself will not show her innocence. She had named Shaukat on 14th January itself to be the person who had taken away Puneet and so if she was arrested only after the arrest of Shaukat and the recovery of the kidnapped child Puneet that fact will not have any adverse effect on the prosecution case because the fact remains that Shaukat was arrested after Meera had taken his name and the kidnapped child was also recovered after his arrest only and which development must have fully convinced the investigating officer about her involvement also in the kidnapping of Puneet.

19. Now, we shall examine as to with whom accused Meera @ Milan had conspired to kidnap PW-17 Puneet. PWs 1 and 2 had deposed that Meera had told them Puneet had been taken out by her friend Shaukat. PW-17 also took the names of two of the persons who had taken him away as Shaukat and Feroz and that they were known to their maid servant. Meera had not claimed during the cross- examination of PWs 1, 2 and 17 that her co-accused Shaukat was not known to her or that she had not told PWs 1 and 2 that this accused had taken away Puneet. So, it is clear that accused Meera had entered into a conspiracy with persons by the names of Shaukat and Feroz. As far as accused Feroz is concerned he has already accepted the trial Court's verdict that he was a party to the conspiracy with Meera and others to kidnap Puneet.

20. Whether accused-appellant Shaukat is the same person whose name had been taken by PWs 1, 2 and 17 in their statements to be the other person who had also conspired with his co-accused persons Meera and Feroz to kidnap Puneet is the question which now needs to be considered by us.

21. Accused Shaukat had also not challenged the statements of PWs 1,2 and 17 in their cross-examination that he was known to accused Meera. Evidence the police officials, PWs 8 and 10, has already been re-produced. They were the members of the trap team which had

gone alongwith the father of the kidnapped child to Jharkhand to apprehend the kidnappers since as per PW-10 ransom money was to be delivered there to the kidnappers. According to the evidence of these two police witnesses accused Feroz was first apprehended there and he stated in his disclosure statement made in police custody that he could get the kidnapped child recovered then at his instance accused Shaukat(who as per PW-12 during those days was living in Noida and which fact was not disputed by Shaukat in cross- examination of PW-2) was was also arrested from that area and even the kidnapped child PW-17 was also recovered. The evidence of these police witnesses could not be demolished in cross-examination and we find no reason to reject the same on the ground that they being interested in the success of the prosecution case could do everything to implicate innocent persons also, as was the submission of the learned counsel for the appellants. Shuakt had claimed in his statement under Section 313 Cr.P.C that he was arrested from his house. However, this plea remained unsubstantiated. Nor was it put to any of the trap team members, PWs 8, 10 and 2. The prosecution had also examined as PW-13 the Judge from Jharkhand who had given transit remand of Shaukat and Feroz to the police. Even PW-2 Raj Kumar had also deposed about the arrest of accused Shaukat and Feroz from Jharkhand and recovery of his son from one room which was locked from outside and the key of the lock was provided by

Feroz. His evidence also could not be successfully challenged in cross- examination. No enmity was attributed to PW-2 because of which these accused could be falsely implicated by him by deposing against them that they were arrested from Jharkhand and his son was kept confined in a room key of which room was provided by accused Feroz.

22. Learned counsel for the accused Shaukat had then contended that the kidnapped child did not identify Shaukat to be one of his kidnappers while deposing in Court and so he deserves to be acquitted. We do not agree with this submission since the identity of Shaukat is fully established as one of the kidnappers. PW-17, who was only about seven years old on the date of his kidnapping was deposing in Court in the year 2010 had no doubt stated that he had forgotten the faces of the culprits but that would not mean that the identity of Shaukat had remained unestablished. He had very clearly deposed that two of his kidnappers were present alongwith the police and his father when he was got released from custody of his kidnappers. Since we have already accepted the prosecution case that accused Shaukat was arrested from Jharkhand and he was also present at the time of recovery of PW-17 Puneet the identity of Shaukat as one of the kidnappers cannot be in any doubt at all. Since PW-17 had claimed that he had forgotten the faces of his kidnappers it is clear that he was not a tutored witness as also the submission of the learned counsel for accused Shaukat.

23. It thus stood established beyond any doubt that the conspirators for the kidnapping PW-17 Puneet for ransom were accused-appellants Shaukat, Meera @Milan and Feroz. We do not find any reason to interfere with the judgment of conviction as well as the order on sentence of the learned trial Court.

24. These appeals are accordingly dismissed. Both the appellants being in jail be informed of this judgment through the concerned Jail Superintendents.

P.K.BHASIN, J

V.P.VAISH, J

November 25, 2013