Delhi High Court
Kanta Prasad vs The State on 12 May, 2014
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :06.05.2014
Judgment delivered on :12.05.2014.
+ CRL.A. 477/2003
KANTA PRASAD ..... Appellant
Through Appellant with his counsel Mr.
R.P. Luthra, Adv.
versus
THE STATE ..... Respondent
Through Ms. Fizani Hussain, APP
+ CRL.A. 33/2004
JAI PARKASH @ GUDDU ..... Appellant
Through Appellant with his counsel Mr.
R.P. Luthra, Adv.
versus
THE STATE OF NCT DELHI ..... Respondent
Through Ms. Fizani Hussain, APP
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 There were six persons who were charge-sheeted in the present
FIR. There are two appellants before this Court. Jai Parkash @ Guddu
and Kanta Prasad. They had both been convicted under Section 363 and
366 read with Section 120 B of the IPC and each of them had been
sentenced to undergo RI for a period of 10 years and to pay a fine of
Rs.5,000/- in default of payment of fine to under RI for 2 years for each
of the offences under Section 366 & Section 120-B of the IPC. No
separate sentence had been awarded to them for the offence under
Section 363 of the IPC.
2 Nominal rolls of the appellants have been requisitioned. They
reflect that as on the date the appellant Jai Parkash was granted bail he
had suffered incarceration of about 5½ years; Kanta Prasad had suffered
incarceration of about 5½ months only.
3 The version of the prosecution was unfolded in the complaint of
Girender Singh (PW-18) the father of two victims namely „R‟ examined
as PW-1 and „S‟ examined as PW-6. This complaint had been made on
11.01.1996 alleging that his daughters had gone to school on 10.01.1996
but had not returned back till 11.1.1996 on which date this complaint
was lodged. PW-18 (complainant) had learnt that Ram Sagar and
Mukesh living in their locality were also found missing and he
suspected their role in the missing of his daughters. The victims were
finally recovered after about six months in August, 1996.
4 The statement of the victims was recorded under Section 164 of
the Cr.P.C. by Mr.Sanjay Sharma learned M.M. examined as PW-12
which was one day after the date of their recovery on an application
filed by the investigation officer on 12.8.1996.
5 On oath PW-1 (R) had detailed the incident. She had deposed
that on 10.01.1996 she along with her sister „S‟ (PW-6) was going to the
school where outside the school at about 7.15 a.m. accused Mukesh,
Ram Sagar, Jai Parkash, Dinesh and Sunil were present; Dinesh who
was her cousin gave them some „prasad‟ and after consuming the
„prasad‟ her sister „S‟ (PW-6) became unconscious. The accused
persons took the victims to Shahdara Mandi on a rickshaw and from
there they boarded a bus. At the bus stand Guddu @ Jai Parkash had
handed over a paper containing the address of Raj Bahadur (PW-7) in
Fazilka to Ram Sagar asking Ram Sagar and Mukesh to take both the
sisters namely PW-6 and PW-1 to Fazilka. Further role attributed to
Guddu @ Jai Parkash being that he along with Dinesh and Bhure had
handed over a sum of Rs.200/- to Ram Sagar and Mukesh as expenses;
stating that further money would be sent to them at Fazilka. Further
deposition of PW-1 is that on reaching Fazilka Raj Bahadur (PW-7) and
Pravesh (PW-8) did not allow the accused persons to stay with them.
Accordingly, Mukesh and Ram Sagar took PW-1 and PW-6 to
Ferozabad where Ram Sagar kept PW-1 in a separate room and Mukesh
kept PW-6 in another room. At Feroz Pur Ram Sagar and Mukesh were
plying their rickshaws to earn their livelihood. PW-1 and PW-6 stayed
there for one month. Thereafter Mukesh and Kanta Prasad (father of
Mukesh) took PW-6 to Jeera. Further deposition of PW-1 that during
her stay with Ram Sagar he used to forcibly rape her and established
physical relations with her against her wishes. He also tried to sell her
2-3 times. At that point of time PW-1 along with Shanker (who was
then landlord at Ferozabad) went to Jalandhar and from Jalandhar with
the help of Shanker she wrote a letter (Ex.PW-1/A) to her parents. At
that point of time PW-1 was also pregnant. Police were informed; they
came in search of PW-1. Address of PW-6 who was living at Jeera had
also become known to Shanker. PW-6 was recovered from there.
6 This was the gist of the version of PW-1. She was subjected to a
lengthy cross-examination. She stuck to her stand; she reiterated that
Dinesh her distant cousin had offered „prasad‟ at the time when they
were going to school; on consuming this „prasad‟ her sister had become
unconscious; both the sisters were forcibly taken in a rickshaw and then
by bus to Fazilka where they were not allowed to stay in the house of
either PW-7 or PW-8; they were then taken to Feroz Pur where Ram
Sagar kept PW-1 in a separate room and Mukesh kept Sangita (PW-6) in
another room. After about one month Mukesh and his father Kanta
Prasad took PW-6 to Jeera where she stayed for about six months, from
where she was finally recovered. Version of PW-1 remained cogent,
credible and coherent in her entire narration.
7 PW-1‟s statement was corroborated by statement of her sister „S‟
who was examined as PW-6. She has deposed on the same lines as
PW-1. She had deposed that after Dinesh had given both the sisters
some „prasad‟ to eat; they were then taken to a bus stand where Ram
Sagar, Mukesh and Guddu @ Jai Parkash and Bhure were all present;
they were asked to board a bus; Ram Sagar stayed in a separate room
with Rekha and Mukesh used to forcibly commit rape upon PW-6
against her wishes. Initially they were taken to Fazilka but thereafter
they went to Ferozpur where she was kept for one month. One month
later Mukesh and his father Kanta Prasad took her to Jeera; her sister
stayed back at Ferozpur; PW-6 was kept in Jeera for six months. She
had heard Kanta Prasad telling Mukesh that he had asked for
Rs.15,000/- from PW-6‟s father; Mukesh had also told PW-6 that he
was taking revenge on behalf of his father.
8 This witness was also cross-examined at length but she stuck to
her stand; she reiterated her statement which she made on oath in her
examination-in-chief.
9 Both the victims PW-1 and PW-6 were medically examined by
their respective doctors. Dr. Vinita PW-2 had examined Rekha
confirming the fact that she was pregnant. Dr.Poonam Yadav had
medically examined PW-6. She had also confirmed the fact that PW-6
was pregnant at the time of her examination.
10 The father of the victims was Girender Singh examined as PW-
18. He had lodged the missing report about the missing of his daughters
as both his daughters did not return from school on 10.01.1996; he
lodged the missing report on 11.01.1996. He suspected role of Ram
Sagar and Mukesh as they were also living in the same locality and were
also found missing from that date. PW-18 had further deposed that
Kanta Prasad who was the father of Mukesh ( a tantrik) had once treated
his daughter-in-law (wife of the son of the complainant namely Usha);
Kanta Prasad had misbehaved with his daughter-in-law pursuant to
which Kanta Prasad was beaten by his son Mukesh (son of the
complainant); this was the bone of contention for Mukesh (son of Kanta
Prasad) and Kanta Prasad to have kidnapped his daughters.
11 This version of PW-18 has been corroborated in the testimony of
PW-6 which has been noted supra and wherein PW-6 has confirmed that
she had been told by Mukesh that he was taking revenge on behalf of his
father (Kanta Prasad).
12 The son and the daughter-in-law of PW-18 had also been brought
into the witness box; they have been examined as PW-14 (Mukesh) and
PW-15 (Usha). PW-14 the son of PW-18 had on oath deposed that his
wife had been treated by Kanta Prasad as Kanta Prasad was a Tantrik
and he had tried to misbehave with his wife pursuant to which he had
beaten Kanta Prasad. Statement of PW-15 Usha (wife of PW-14) had
also corroborated this version.
13 Thus the versions of PW-1, PW-6, PW-18, PW-14, and PW-15
are all corroborative of the fact that Kanta Prasad had once treated the
daughter-in-law of PW-18 when he tried to misbehave with her; he had
been beaten up by PW-14 which was a grudge which Kanta Prasad was
nursing against the family of PW-18 and he had taken revenge through
his son Mukesh by kidnapping the daughters of PW-18.
14 Further part of the deposition of PW-18 reveals that after the
complaint was made by him he had handed over a letter Ex.PW-18/A to
the police which was purportedly written by Kanta Prasad making a
demand of Rs.15,000/- each from PW-18 for the return of his daughters.
This letter (PW-18/A) has been vehemently highlighted by learned
counsel for the appellants to support a submission that the report of the
FSL is negatived qua the hand writing in this letter and this scientific
evidence negatives the version of the prosecution that this letter is in the
hand writing of accused Kanta Prasad. However the buck does not stop
here. In the statement of the accused Kanta Prasad recorded under
Section 313 Cr.P.C. on a specific question put to him about Ex.PW-
18/A; he admitted that this letter had been written by him although it
was stated that the police had asked him to write this letter.
15 The trial judge had examined this position and had noted that this
lame explanation that he was asked to write this letter by the police is
clearly belied. This was evident from narration given in the letter
which was admittedly in the hand writing of Kanta Prasad and wherein a
demand of Rs.15,000/- each for the return of PW-1 and PW-6 had been
made from PW-18 also reciting the place where the money was to be
forwarded in order that the girls could be returned back to PW-18. In
this background, the trial Judge rightly concluded that it was difficult to
believe the argument now propounded by the learned defence counsel
that this letter had been written under pressure.
16 In another part of his deposition PW-18 admitted that he had
received a letter Ex.PW-1/A from his daughter PW-1 which had led the
police personnel to reach the place at Jalandhar from where PW-1 was
recovered; the recovery memo had been proved as Ex.PW-1/C. PW-1
had disclosed the address of PW-6 at Jeera from where she was
recovered and recovery memo qua the recovery of PW-6 had been
proved as Ex.PW-18/B. PW-18 had also been subjected to a lengthy
cross-examination but he did not deviate from his stand. He denied the
suggestion that he had falsely implicated Kanta Prasad only because he
is the father of Mukesh and he has no other role to play.
17 In the course of investigation another letter had surfaced. This
letter was purportedly bearing the address of PW-7 at Fazilka, Punjab
where as per the version of the prosecution Ram Sagar and Mukesh had
been told by Jai Parkash @ Guddu to stay. In this context testimony of
PW-7 is relevant. PW-7 had deposed that 4-5 months prior to 11.6.1996
(which would be approximate time of incident) Ram Sagar and Mukesh
had come to his house with two girl „S‟ and "R" stating they had been
sent by Guddu and they should be permitted to stay there for 7-8 days.
PW-7, however, did not permit them to stay there. Further deposition of
PW-7 being that after two months of this incident which was sometime
in March Guddu and Kanta Prasad came to his house and they enquired
from him regarding two boys and two girls.
18 This statement of PW-7 has been corroborated by PW-8 (Parvesh)
who was also a resident of Fazilka. He has also reiterated that in the
month of January, 1996 Mukesh and Ram Sagar had come with two
girls to stay at his house but did not permit them to stay in his house.
19 Ex.PW-7/A becomes relevant as this bore the address of PW-7
and was admittedly in the hand writing of Jai Prakash @ Guddu. Not
only has this factual position been admitted by Jai Parkash @ Guddu in
his statement recorded under Section 313 Cr.P.C. when a specific query
had been put to him qua this letter Ex.PW-7/A (wherein he had admitted
that this was in his hand writing); even the scientific evidence on this
score i.e. the report of the FSL (Ex.PW-27/A) which was proved
through PW-27 (Deepa Verma) on the examination of the specimen and
the questioned handwriting of Jai Parkash @ Guddu opined that Ex.PW-
7/A was in the handwriting of Jai Parkash. PW-1 had also stated that Jai
Parkash @ Guddu had asked Mukesh and Ram Sagar to take PW-1 and
PW-6 at this address.
20 The investigating officer Inspector Preet Singh was examined as
PW-26. He had recorded the statement of the victims. He had seized
Ex.PW-7/A as also the letter Ex. PW-1/A as also the documents Ex.
PW-18/A; all have been discussed supra.
21 The documents about the date of birth of the victims had also
been collected; PW-16 (Omwati Goel) TGT, working in Government
Sr. Secondary School has brought the record containing the date of birth
of both PW-1 and PW-6. PW-16 had deposed that as per the record
PW-1 was born on 10.01.1982 and PW-6 was born on 15.02.1983
meaning thereby on the date of the incident which was in January 1996
PW-1 was aged about 14 years and PW-6 was aged about 13 years. In
the lengthy cross-examination of PW-16 it had been admitted that this
date of birth is as per the record which she had brought from the school.
No suggestion has been given to this witness that this date of birth is
incorrect. There is no dispute that a radiological examination of the
victims had also been conducted through Dr.Raj Pal (PW-4) but the trial
judge had rightly relied upon legal proposition as emanating in the ratio
of the judgment of the Apex Court in AIR 1989 SC 1329 Bhoop Ram
Vs. State of U.P. (para 26 of the impugned judgment) holding that the
ossification report would pale into insignificance as the date of birth of
the prosecutrix has been established through their school record which
was a cogent evidence establishing the factum that both the victims were
minors on the date of the offence.
22 On behalf of the appellants arguments have been addressed in
detail. Written submissions have also been filed.
23 It is stated that no role is attributed to Kanta Prasad at all except
for the fact that he is the father of Mukesh and for this reason alone he
has been roped in. Submission being that even in the statements of the
victims recorded under Section 164 of the Cr.P.C. (which was their first
statement recorded after their recovery) neither of them had attributed
any role to Kanta Prasad and in fact this part of their statements under
Section 164 Cr.P.C. had been confronted to both PW-1 and PW-6 who
have admitted Kanta Prasad did not figure in their first statement.
Second submission qua the role of Kanta Prasad being that both PW-7
and PW-8 have admittedly stated that Kanta Prasad had come along
with Guddu @ Jai Parkash looking for his son but that was just a
innocent search and merely because he had gone to find out the fate of
his son from PW-7 and PW-8 does not mean that he was involved in the
crime in any manner. Last submission qua the role of Kanta Prasad
being that Ex.PW-18/A although admitted to be in the hand writing of
Kanta Prasad but it was got written by the police under pressure and this
has been the stand of Kanta Prasad even in his statement under Section
313 Cr.P.C. Thus on no count can the conviction of Kanta Prasad be
sustained; he is entitled to an acquittal. Qua the role of Jai Parkash @
Guddu, it has been pointed out that his role is also minimal; attention
has been drawn to the version of PW-1 and PW-6 wherein in one part of
their cross-examination they had stated that they did not know Jai
Parkash; submission being that this part of the cross-examination of
PW-1 and PW-6 cannot be ignored and Jai Parkash @ Guddu has also
been falsely roped in. On the quantum of sentence it is pointed out that
that out of 10 years RI which has been imposed upon Jai Parkash which
is on the higher pedestal he has already undergone 5½ years and even if
this court is not inclined to interfere in his conviction his sentence be
reduced to the period already undergone by him.
24 Arguments have been refuted by learned public prosecutor. It is
pointed out that on no count does the impugned judgment call for any
interference. It is submitted that the conspiracy all of the accused
persons to commit the crime is writ large and the trial judge has
appreciated the evidence in its correct perspective.
25 Arguments have been heard. Record has been perused.
26 PW-1 and PW-6 were the star witnesses of the prosecution. Their
narration has been discussed supra. They have on oath supported the
version given by their father (PW-18) in his complaint and who had
reported the missing of his daughters one day after they had not returned
from school which was 11.01.1996. In his first complaint he had
suspected the role of Ram Sagar and Mukesh as they were living in the
same locality and were also found missing since that date. The victims
were recovered after six months i.e. in the month of August, 1996
pursuant to a letter received by PW-18 written by PW-1 the residence of
Shanker at Jalandhar and which had led the police party to Jalandhar
where the recovery of PW-1 had been effected from the house of
Shanker (PW-7) and thereafter recovery of PW-6 was made from Jeera.
Although in the statement recorded under Section 164 of the Cr.P.C.
PW-1 and PW-6 had both not mentioned the name of Kanta Prasad but
otherwise they had been consistent in their depositions on oath. They
had reiterated that Ram Sagar and Mukesh had taken both the victims to
Fazilka at the house of PW-7; this was after Dinesh their cousin had
given them some „prasad‟ to eat pursuant to which PW-1 became
unconscious; PW-6 was semiconscious; they were also asked to board a
bus; at that point of time co-accused Jai Parkash was also present. It has
also come in evidence that Jai Parkash @ Guddu is a distance cousin of
the victims and even on specific query put to Jai Parkash during the
court hearing he admitted this fact; thus the submission of the learned
defencen counsel on this score that Jai Parkash @ Guddu was not
known to the victims and TIP not having been conducted of Jai Parkash
is an argument bereft of any force.
27 Further deposition of PW-1 and PW-6 being that Jai Parkash had
given a sum of Rs.200/- to Ram Sagar and Mukesh as interim expense
and promised to pay further money once they reached Fazilka. PW-7
and PW-8 have confirmed the fact that in January 1996 Ram Sagar and
Mukesh had come with two girls namely „R‟ and „S‟ seeking permission
to live in their house for 7-8 days but since they were with two girls they
were not permitted to live in their house. It has also been proved in
evidence that a slip of paper Ex.PW-7/A containing the address of PW-7
has been handed over by Jai Parkash to Ram Sagar to enable them to
reach the house of PW-7. This document is admittedly in the
handwriting of Jai Parkash and this has been admitted not only by Jai
Parkash in his version under Section 313 Cr.P.C. but has also been
established by scientific evidence i.e. through the report of the FSL
proved as Ex.PW-27/A.
28 PW-7 and PW-8 had further deposed that Jai Parkash @ Guddu
along with Kanta Prasad had come looking for both Ram Sagar and
Mukesh and the two victim girls to their houses.
29 In the statements of the victims recorded under Section 164 of
the Cr.P.C. the name of Kanta Prasad did not figure. Both of them while
giving their separate statement before the M.M. (PW-12) had stated that
after they had remained in Firozpur for one month PW-6 was taken by
Mukesh to Jeera where she stayed for another six months but PW-1 was
left behind with Ram Sagar. On oath in court both victims had stated
that when PW-6 was taken by Mukesh to Jeera it was in the company of
the father of Mukesh namely Kanta Prasad. Even presuming that this
argument of the learned defence counsel is accepted and this court takes
the view that there is no evidence that Kanta Prasad accompanied his
son Mukesh at that point of time when PW-6 was shifted from Firozpur
to Jeera this by itself would not be sufficient to rule out the complete
complicity of Kanta Prasad.
30 Testimony of PW-7 and PW-8 cannot be ignored. They have
both on oath deposed that Kanta Prasad along with Jai Parkash had
come their house looking for Mukesh and Ram Sagar as also the two
girls i.e. PW-1 and PW-6. This testimony of PW-7 and PW-8 clearly
establish that Kanta Prasad was well aware of the fact that his son
Mukesh and Ram Sagar had eloped with these two girls and they were
looking for shelter and that is why they had come looking for these
persons at the house of PW-7. It was not an innocent search by Kanta
Prasad as has been sought to be vehemently argued by learned counsel
for the appellants. This is especially so keeping in view the letter
Ex.PW-18/A which is a letter sent by post at the address of the
complainant (PW-18) and received through the postal communication at
the address of PW-18 and which letter clearly recites that a sum of Rs.
15,000/- for each girl was being demanded by Kanta Prasad from PW-
18 for their release. This letter recited that a total sum of Rs.30,000/-
has to be paid by PW-18 if he wants the release of his daughters; in case
of non-payment of the money he will suffer dire consequences. The
time and place of payment has also been indicated in this letter.
31 PW-18 on oath deposed that while he had gone in search of his
daughters in the village after about 15 days/one month of their missing,
a boy of his village had handed over a letter to him i.e. the in-land letter
(Ex.PW-18/A) which was received by post; this boy has not been
summoned as a witness but this does not wash away the letter Ex.PW-
18/A which in normal course through a government postal
communication had been received at the address of PW-18. Ex.PW-
18/A recites the name and address of PW-18 in clear and categorical
terms. That apart in the statement of the accused Kanta Prasad recorded
under Section 313 Cr.P.C. he had admitted that his letter is in his hand
writing. This admission cannot be lost sight of.
32 There is no doubt to the legal proposition that the prosecution has
to stand on its own legs and has to prove all evidence but a admission
made by the accused in the court of law before the Presiding Officer
cannot be ignored. The submission of the learned defence counsel that
the statement of the accused under Section 313 Cr.P.C. was qualified by
a rider which had stated that this letter was written under pressure from
the police was rightly rejected by the trial judge as the narration in this
letter which is almost one full page reflects all details and facts which
have been noted in the letter also detailing the subtle threat to the
complainant and asking for Rs.15,000/- each for the return of two girls
i.e. a total sum of Rs.30,000/-; as also the date and place when and
where the money had to be brought Ex.PW-18/A in the handwriting of
Kanta Prasad could not have been written under pressure. The gist of
this letter does not suggest so.
33 Testimony of PW-14 and PW-15 is also relevant. This conforms
to the testimony of PW-6 and PW-18 all of whom stated that Kanta
Prasad once treated PW-15 and in the course of this treatment he had
misbehaved with PW-15; then the husband of PW-15 who is PW-14
(son of complaint- PW-18) had beaten Kanta Prasad which was the
cause of revenge which Kanta Prasad had against the family of PW-18
which had led him to take this revenge through his son Mukesh. PW-6
in fact had stated that she was told by Mukesh that he was taking
revenge on behalf of his father. No cross-examination has been effected
on any of these witnesses on this score to dent their credibility.
34 The victims were both minors on the date of the offence; this has
also been established through version of PW-16.
35 Section 120 B of the IPC entails a conspiracy. A conspiracy as is
well known is always hatched in secrecy. There may or may not be any
overt act. In this case, the roles as have been described and proved
through cogent evidence of both Jai Parkash @ Guddu and Kanta Prasad
stand proved.
36 The impugned judgment convicting the appellant under Section
363 and 366 of the IPC does not call for any interference.
37 Section 363 of the IPC which deals with the offence of
kidnapping entails punishment which may extend to 10 years; Section
366 of the IPC which is kidnapping for a purpose entails a punishment
which may extend to 10 years in addition to fine. The maximum
sentence of 10 years has been imposed upon the appellants. It has also
been pointed out learned counsel for the appellants that both the
appellants have suffered a protracted trial; offence relates to the year
1996; i.e. almost two decades old. The appellants have become senior
citizens during this period.
38 This Court accordingly thinks it fit to reduce the sentence which
is reduced from RI 10 years to RI 5 years. The fine remains unaltered.
Jai Parkash @ Guddu who has already undergone sentence of 5½ years
as has been reflected by his nominal roll is released on the period of
incarceration already suffered by him. Accused Kanta Prasad be taken
into custody to serve his remaining sentence.
39 Appeals disposed off in the above terms.
INDERMEET KAUR, J
MAY 12, 2014
ndn
