Delhi High Court
Shishir Kumar @ Chunnu vs State on 16 May, 2014
Author: G. S. Sistani
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1379/2010
% Judgment reserved on 9th September, 2013
Judgment pronounced on 16th May, 2014
SHISHIR KUMAR @ CHUNNU ..... Appellant
Through : Mr.Lal Singh Thakur, Mr.Bharat
Bhushan and Mr.Vikas Vats, Advs.
versus
STATE ..... Respondent
Through : Ms.Rajdipa Behura, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE G.P. MITTAL
G.S.SISTANI, J
1. Challenge in the present appeal, filed under Section 374(2) of the Code of
Criminal Procedure, is to the judgment dated 27.8.2010 and order on
sentence dated 30.8.2010 passed in Sessions Case No.140/2008, arising
out of FIR No.58/2004, registered under Section 364A/420/120B/34 IPC,
Police Station Mahipalpur, by which the appellant has been sentenced to
undergo imprisonment for life for the offences punishable under Section
364A IPC and under Section 120B IPC. It was directed that the sentences
would run concurrently. In addition thereto, the appellant was directed to
pay a fine of Rs.5,000/-, each, for the offences and in default thereof
simple imprisonment for six months, each.
2. The version of the prosecution, as noticed by the trial court, is as under:
"1. The case of the prosecution is that Ram Sanjivan, a blind
man, was a distributor of „Amway‟. He has a child namely
Prateek aged 6 years, while Krishan Kumar (P.O) was a
CRL.A. 1379/2010 Page 1 of 29
tenant of Ram Sanjivan in House No.294, Pocket-I, Phase-II,
Sector-13, Dwarka, New Delhi.
2. It is further the case of the prosecution that accused
Subhash, Krishan Kumar and Shishir Kumar entered into a
criminal conspiracy to commit a crime and to compel Ram
Sanjivan to deliver valuables and in pursuance thereof
accused Shishir Kumar came to the house of Ram Sanjivan
on 15.8.2004 and showed interest in obtaining distributorship
of Amway by representing himself, as Abhay, and not
Shishir Kumar, taking benefit of blindness of Ram Sanjivan.
Ram Sanjivan in turn told him to come on 17.8.2004 as on
that date, he would also call accused Krishan Kumar to his
house, who is his senior.
3. Though accused Shishir Kumar was asked to come on
17.8.2004, but he visited the house of Ram Sanjivan on
16.8.2004 also, in the absence of Ram Sanjivan when wife of
Ram Sanjivan refused his entry into the house. It is also the
case of the prosecution that during his visit, not only inside
the house but even outside the house of Ram Sanjivan,
Shishir showed more interest in developing friendship with
Prateek s/o.Ram Sanjivan, and on 18.8.2004, offered a sum
of Rs.5/- to Prateek to purchase sweets from a shop, which
act was not liked to, by the wife of Ram Sanjivan and she
herself handed over a sum of Rs.5/- to Prateek to purchase
toffee.
4. When Prateek went to the market, accused Shishir Kumar
left the house on some pretext and followed Prateek and
CRL.A. 1379/2010 Page 2 of 29
kidnapped him and took Prateek to a house where accused
Subhash was also present, and thereafter he demanded a
ransom of Rs. Thirty lacs for the release of the child of Ram
Sanjivan in a safe condition, and at the time of demand so
conveyed on telephone, accused Krishan Kumar was also
present at the house of Ram Sanjivan.
5. On receipt of such a call, Ram Sanjivan became perturbed,
when accused Krishan Kumar who remained at the house of
Ram Sanjivan, asked Ram Sanjivan not to take the threat
lightly and rather should make arrangements for payment of
a sum of Rs.30 lacs as ransom to accused Shishir Kumar.
6. Not only accused Krishan Kuamar asked Ram Sanjivan to
pay the ransom amount, despite the fact that Ram Sanjivan
told him that he is not in a position to do so, but accused
Krishan Kumar also told and suggested to Ram Sanjivan, as
to the manner in which a sum of Rs.30/- lacs can be
arranged, and asked Ram Sanjivan to collect title documents
of his house NO.294, Pocket-I, Phase-II, Sector-13, Dwarka,
and the ornaments in possession of his wife, and further told
Ram Sanjivan that he will also help Ram Sanjivan by
obtaining a sum of Rs.10 lacs from Vijender who was
residing at Punjabi Bagh, with whom he had already invested
a sum of Rs.5 lacs which he will ask Vijender to repay him,
and he will ask Vijender to extend a loan to Ram Sanjivan to
the tune of Rs.5 lacs. He also suggested that he will also take
the ornaments of his wife worth Rs.4.5 lacs and the property
of Ram Sanjivan will be sold to one Dinesh Kumar for a sum
of Rs.13 lacs, and a further sum of Rs.2 lacs will be obtained
CRL.A. 1379/2010 Page 3 of 29
as loan from Dinesh Kumar and in such manner, entire
ransom money of Rs.30 lacs will be managed i.e. ten lacs
from Vijender, 15 lacs from Dinesh and jewellery worth
Rs.4.5 lacs of wife of Krishan Kumar and the balance
amount in the shape of jewellery of wife of Ram Sanjivan.
7. It is also the case of the prosecution that it was a ploy by
Krishan Kumar to dupe Ram Sanjivan of his property,
ornaments and money, as in fact he had already left a bag
alleged to be containing a sum of Rs.10 Lakhs with Vijender
Sharma, and alleged sum of Rs.15 Lakhs with Dinesh Kumar
Tiwari and thereafter, the ransom money including jewellery
was handed over to kidnappers under Punjabi Bagh Flyover
and though, it was stated by the kidnappers that the boy will
be in a park but later on the boy was traced at Bus Stand of
Modi Nagar, and Ram Sanjivan alongwith boy reached the
police station.
8. It is also the case of the prosecution that later on, it
transpired that accused Krishan Kumar had kept blank papers
cut in the shape of currency notes and in fact, no amount was
ever received either from Vijender Kumar or Dinesh Kumar
and the amount so received and shown to have been received
at the behest of Krishan Kumar from Dinesh and Vijender
were in fact, bundles of papers cut in the shape of currency
notes, and the jewellery handed over by his wife was
artificial jewellery, and in this manner, Ram Sanjivan was
duped of the title documents of his house as well as the
jewellery belonging to his wife, and was shown to be
indebted to a sum of Rs.2 Lakhs to Dinesh Kumar and a sum
CRL.A. 1379/2010 Page 4 of 29
of Rs.5 Lakhs each to Krishan Kumar and Vijender Kumar.
9. It is also the case of the prosecution that Scooter bearing
No.DL-1SH-4014, was obtained by Krishan Kumar on
17.8.2004 from one Shakir Malik, after representing that his
own motorcycle is out of order and that the said Scooter
belonged to one Viswajit, who was the registered owner
thereof, and had given the same to his brother-in-law Shakir
Malik, and was later on seized by the police being found in
possession of accused Shishir Kumar at the time of his arrest,
and was released on superdari to its owner.
10. It is also the case of the prosecution that the ransom call
was traced to have been made from a public booth and
though the shop was identified but it transpired that the
person manning the booth, had started operating a PCO from
a shop of betel vendor, and stated that he is not in a position
to say, as to by whom call was made, as many persons visit
the PCO booth on daily basis, and later on at the instance of
accused Krishan Kumar, accused Shishir Kumar was arrested
and was found in possession of artificial jewellery belonging
to the wife of accused Krishan Kumar, the jewellery
belonging to the wife of Ram Sanjivan, and the bundles of
currency notes alongwith bag, which in fact, were simply
papers cut in the shape of currency notes and accused Shishir
refused to join TIP.
11. On the bais of such version of the prosecution, my Ld.
Predecessor framed Charges U/s.120B IPC read with Section
364A IPC for entering a criminal conspiracy for kidnapping
CRL.A. 1379/2010 Page 5 of 29
Prateek, son of Ram Sanjivan, a blind person, and actually
kidnapping Prateek and demanding a sum of Rs.30 Lakhs
from Ram Sanjivan and extending threats to cause death of
Prateek in case of non payment of ransom, and a separate
Charge was framed against accused Krishan Kumar for
playing fraud upon Ram Sanjivan and for handing over to
him bundles of currency notes instead of real currency after
dishonestly inducing him to part with jewellery of his wife as
well as the title documents of his property."
3. Prosecution has in all examined 17 witnesses, out of whom Ram Sanjivan
has been examined as PW-1, his son Prateek as PW-4 and his wife,
Kanika Kushwaha, as PW-5.
4. Learned counsel for the appellant submits that the impugned judgment is
bad in law and the same is based on surmises and conjectures. Counsel
further submits that the trial court has failed to appreciate that the
complainant, namely, Sh.Ram Sanjivan Kushwah, had failed to identify
the currency note of Rs.100/- when learned counsel for the appellant
during cross-examination had handed over a currency note of Rs.100/- but
had only stated that it was a plain piece of paper, whereas during the trial
he had deposed that he is aware of the difference between a currency note
and paper, although he is totally blind.
5. Learned counsel for the appellant contends that there are material
contradictions and improvements in the statements made by the witnesses.
Counsel further contends that the trial court has failed to appreciate that
the complainant had stated that the appellant, Shishir, had asked for the
literature book of Amway, however, he was confronted with Exhibit PW-
1/A, wherein this fact was not recorded. Moreover, the complainant had
CRL.A. 1379/2010 Page 6 of 29
stated that Abhay (Appellant Shishir) had asked for a glass of water from
his wife when he was standing outside the house, which statement was
also confronted with Exhibit PW-1/A, wherein this fact was not recorded.
It is also contended that the complainant had submitted that on 16.8.2004
his son Prateek had told him that uncle (appellant Shishir) was standing
and watching him at the gate of Airport Colony, when the gate keeper
made the child to enter the gate of the colony, which statement was also
confronted with Exhibit PW-1/A, wherein this fact was not recorded.
Another contradiction, which has been pointed out, is that the complainant
had deposed that he had told the appellant, Abhay (Shishir), that his
senior, Sh.K.K. Tiwari, was not coming, since the appellant had come late
and the complainant had already informed Sh.K.K. Tiwari not to come,
which statement was also confronted with Exhibit PW-1/A, wherein this
fact was not recorded.
6. It has also been pointed out by learned counsel for the appellant that the
trial court has failed to consider that it has been deposed by the wife of the
complainant that she gave Rs.5 to Prateek to buy some eatables and
thereafter, Prateek went out of the house and meanwhile the appellant
followed him and told him that he will come in the evening and join the
Amway distribution, which does not find mention in the statement made
under Section 161 Cr.P.C., Marx-X.
7. It is also pointed out by learned counsel for the appellant that the
complainant had told the Police that Krishan Kumar had told him to
collect the title documents of his flat at Dwarka, which again does not find
mention in Exhibit PW-1/A.
8. Counsel further submits that the evidence of child witness, PW-4, is
neither trustworthy nor reliable. It is also contended that the recoveries are
doubtful as no reasonable and prudent man would keep the alleged
CRL.A. 1379/2010 Page 7 of 29
scooter and blank papers in his house. It is next submitted that neither any
ransom call was made nor was any monetary benefit derived by the
appellant from the complainant. Counsel also submits that the appellant
had no relationship with Krishan Kumar and, thus, the story of the
prosecution cannot be believed.
9. Ms.Rajdipa Behura, learned counsel for the State, submits that there are
no discrepancies in the evidence of PW-1, PW-4 and PW-5, as such, and
the contradictions, sought to be pointed out by counsel for the appellant,
are not material in nature, and hence, would not dent the case of the
prosecution. Counsel further submits that the evidence of PW-4, the child,
is reliable as he has identified the appellant and, thus, the prosecution has
been able to establish its case beyond doubt.
10. We have heard learned counsels for the parties, considered their rival
submissions and also perused the impugned judgment passed by the
learned trial court. Before dealing with the rival submissions of the
counsels for the parties, we deem it appropriate to discuss the evidence of
some of the material witnesses in detail.
11. PW-1 Ram Sanjivan has deposed that appellant, Shishir, whom he
identified from his voice (as PW-1 is a blind person) came to his house on
15.8.04 and asked him for literature book of Amway as he was also
interested in becoming a distributor of Amway. PW-1 gave him a book,
and told him that further information with regard to the same can be given
by Krishan Kumar, his senior, and asked the appellant to come on 17.8.04
as he will not be available on 16.8.04. However, on 16.8.04 appellant,
Shishir, in the absence of PW-1 came to his house and asked his wife to
give further literature of „Amway‟, which was refused by her on the plea
that her husband is not at home and after having water, accused Shishir
Kumar left. In the evening when PW-1 returned to his house he was told
CRL.A. 1379/2010 Page 8 of 29
by his son that the appellant, Shishir, who had given him a chocolate on
15.08.04, was standing at the gate of the Airport Colony and watching
him. He has further stated that on 17.8.2004 he received a telephone call
from the appellant, Shishir Kumar, expressing his inability to meet him on
account of having sustained injuries in an accident but then he turned up
at his house at 2.30 or 3 pm. PW-1 told the appellant that since earlier he
had refused to come, PW-1 had already asked the accused, Krishan
Kumar, not to come to his house on 17.8.04 and thereafter gave the
appellant an appointment for 18.8.2004. On 18.8.2004, accused, Krishan
Kumar, came to his house at 1 p.m., and 10 to 15 minutes thereafter,
appellant Shishir Kumar also reached there.
12. He has further stated that though the discussion regarding distributorship
of „Amway‟ started between all three of them i.e. PW-1; accused, Krishan
Kumar; and appellant, Shishir Kumar; however, he found that appellant
Shishir Kumar was taking more interest in his son (PW-4) than in the
discussion and was trying to be friendly with him asking about his likes
and dislikes and after knowing the things liked by Prateek, appellant, told
him that he also has a lot of cartoons. His son started playing with the
appellant, who eventually offered a sum of Rs.5/- to his son to buy some
potato chips, which aspect was told by his son to his wife, who asked her
son not to accept the money from the appellant and rather, herself gave a
sum of Rs.5/- to Prateek to buy eatables, and then he went outside. In the
meantime, accused Shishir also followed his son after representing that he
will come in the evening and will join the Amway distribution.
13. He has further deposed that his son did not return and was searched for by
his wife, who could not find him. At 3.45 pm, he received a telephone call
on his mobile informing him that his son had been kidnapped by the caller
who demanded a sum of Rs.30 lakhs for the release of his son.
CRL.A. 1379/2010 Page 9 of 29
Furthermore, the caller threatened to kill his son, in case the demand was
not met.
14. He has further testified that he became dumb and his wife became
unconscious. He asked the accused, Krishan Kumar, as to how his son
will be rescued as he did not have the money to pay the ransom amount,
on which Krishan Kumar asked him to collect the title documents of his
House bearing No.294, Part-I, Phase-II, Sector-13, Dwarka, and the
ornaments in possession of his wife, and further assured him that wife of
Krishan Kumar has also got ornaments worth Rs.4.5 lakhs which he will
collect and that he will also collect a sum of Rs.5 lakhs from Vijender
Sharma, with whom he had invested the same and will also arrange a
further sum of Rs.5 lakhs as loan on interest from Vijender Sharma and
thereafter, the complainant (PW-1) collected the ornaments of his wife as
well as title documents of his house and accompanied Krishan Kumar.
15. He has further stated that firstly, they reached the house of Krishan
Kumar, from where Krishan Kumar collected ornaments belonging to his
wife and from there, they proceeded to the house of Vijender at Punjabi
Bagh where Vijender handed over a sum of Rs.5 lakhs, which he owed to
Krishan Kumar and a further sum of Rs.5 lakhs as loan @ 3% interest per
month to him and that the notes were in the form of bundles and were
given by Vijender to Krishan Kumar.
16. He has further testified that Krishan Kumar told him that the notes were in
the denomination of Rs.500/- and though, he touched the notes, he could
not say whether they were actual currency notes or merely paper notes
and after collecting the said amount, they went to the house of Dinesh
Tiwari, who had earlier shown interest to purchase the complainant‟s
property at Dwarka for a sum of Rs.14,20,000/-. When the accused,
Krishan Kumar, asked Dinesh Kumar to purchase the property, Dinesh
CRL.A. 1379/2010 Page 10 of 29
said that he will not pay more than Rs.12.5 lakhs for the property.
However, when accused, Krishan Kumar, requested Dinesh Kumar, he
agreed to pay Rs.13 lakhs towards consideration amount for purchase of
the house and a further sum of Rs.2 lakhs as loan on the surety of Krishan
Kumar and in this manner, a further sum of Rs.15 lakhs was collected by
Krishan Kumar and kept in a briefcase. The witness (PW-1) has
specifically stated that he had not touched the notes.
17. PW-1 has further stated that he took the bag containing jewellery and
other articles on the motorcycle of Krishan Kumar and started moving to
Mahipal Pur. When they reached Punjabi Bagh, he received a call on his
mobile phone bearing No.32744467 and was asked by the caller to come
under Punjabi Bagh Flyover, and otherwise, he threatened to slit the throat
of his son and throw his body away. PW-1 further stated that he came to
know about the place where they had reached on enquiries being made by
him from Krishan Kumar, who informed him that they had reached
Punjabi Bagh and will be reaching the flyover soon. He handed over the
mobile to Krishan Kumar to understand the exact location of meeting the
kidnappers, and after Krishan Kumar talked to the caller on the mobile,
they reached under Punjabi Bagh Flyover.
18. He has further stated that from the talks, it appeared that two or three
persons were talking to each other (as the witness is blind) and on the
asking of Krishan Kumar, PW-1 (complainant) handed over the bag
containing the jewellery of his wife and of the wife of Krishan Kumar,
and one briefcase said to be containing Rs.25 lakhs to one of the said
persons.
19. He has further stated that he told the persons to handover his son Prateek
to him as he had paid the ransom to them on which he was asked to go
towards roadside where his son would be present, but when he reached
CRL.A. 1379/2010 Page 11 of 29
near roadside along with accused Krishan Kumar, his son was not present.
Thereafter he received a telephone call informing him that his son was
standing at the Bus Stand of Voltas Company, Moti Nagar, and that they
may pick him from there. On reaching there, he found Prateek present at
the Bus Stop alone at 11 p.m., who was then picked up and made to board
the same motorcycle on which PW-1 and accused krishan Kumar were
travelling.
20. The witness has further stated that he called up no.100, and when they
reached Uttam Nagar, he was asked to come at P.S. Mahipal Pur, but
Krishan Kumar told him not to go to the police station and rather, asked
him to proceed towards his house at Dwarka. However, when he told
Krishan Kumar that he was going to the police station only because he
had received a phone call from PS Mahipal Pur and that he will not lodge
any complaint with the police, Krishan Kumar agreed to accompany him
to PS Mahipal Pur and they reached PS Mahipal Pur, where enquiries
were made from him and he lodged the FIR Ex.PW-1/A bearing
No.58/04.
21. He has further testified that police personnel took accused Krishan Kumar
to the place from where payments were arranged and the place from
where the child was recovered, and Vijender (PW-2) and Dinesh Tiwari
(PW-6) also reached the police station, where they were interrogated.
Vijender told the police that Rs.10 lakhs did not belong to him but in fact
were kept with him by Krishan Kumar saying that whenever he will bring
the complainant along with him, Vijender had to say that Rs.5 lakhs
belong to Krishan Kumar and the other Rs.5 lakhs were being given on
loan. Even Dinesh PW-2 informed the police that the sum of Rs.15 lakhs
given did not belong to him, but were left by Krishan Kumar Tiwari at his
house on the representation that he had to conduct the deal of purchase of
CRL.A. 1379/2010 Page 12 of 29
the house with the complainant. Thereafter, police interrogated accused
Krishan Kumar. This witness (PW-1) was cross examined at length and
the Counsel for appellant Shishir Kumar has argued that on all aspects,
this witness was confronted with his previous statements made to the
police, and as such, his testimony should not be relied upon on account of
material discrepancies between the same.
22. We also deem it appropriate to reproduce the testimony of the child
witness, PW-4, Prateek who has given a vivid description of the events
that unfolded from the time he was kidnapped by the appellant till he was
picked up by his father (PW-1) from the bus stop. Testimony of PW-4
reads as under:-
"PW-4 Prateek s/o Ram Sanjevan, student, aged 7 years r/o A6/7
AAI Colony, Mahipal Pur New Delhi
Q: In which class do you study?
A: I study in 2nd class.
Q: What is the name of your class teacher?
A: My class teacher is Yog Maya.
Q: What is name of your school"
A: Deep Public School.
Q: Where is your school situated>
A: In Vasant Kunj.
Q: How many children are in your class.
A: There are 30 children in my class.
Q: What is the name of your mother.
A: My mothers name is Kamla.
Q. How many brothers and siters (sic.sisters) you have?
A. I have one sister.
Q. What is the name of your sister?
A. The name of my sister is Kirti.
I have put specific questions to the witness. He looks quite
intelligent but keeping in view his tender age the oath is not being
administered to the witness as he is very young in age and he does
not appear to understand the sanctity of the oath.
CRL.A. 1379/2010 Page 13 of 29
(Without oath)
On 18.8.04 at about 2.30 pm I was playing at my house, one
uncle came and he offered me Rs.5 and then I told to my mother
who had told to me not to accept that. I can identify that person
who offered Rs.5, the child witness has correctly identified by
pointing out towards the accused Shishir. Then my mother gave me
money and when I was going to purchase some eatables and the
uncle met me near the temple who had earlier offered me Rs.5 note
the witness is again pointed out towards the accused Shishir Kumar
correctly. Then he took me on a two wheeler scooter to a far
distance. That uncle gave me Mazza to drink and cheetos to eat.
That uncle made me to stand on the bus stand and he went to make
a telephone call. After some time my father came there where I and
accused Shishir were already present. The accused Shishir had also
come to our house and so I knew him earlier.
XXXXXX by Sh.Dharamraj Counsel for accused Subash and
Krishan
It is wrong to say that I had told the colour of scooter as
green in my statement U/s 161 Cr.P.C. Vol The accused was having
blue helmet. Confronted with statement Ex.PW4/DA where the
colour of the scooter is mentioned as blue. It is wrong to say that I
have been tutored by my mother and father.
xxxxx by Sh.RS Jain adv for accused Shishir
I do not know if the name of the uncle who had kidnapped
me is Shishir. The uncle Shishir, accused present in Court, had
come to our house on 15th August only. It is wrong to say that I
came back to my house along with accused Shishir. My father did
not have any friendship with accused Shishir. After the arrest of
accused Shishir police had taken me and accused to PS. One day
after the incident, I identified the accused Shishir in the PS. It is
wrong to say that police had told me that accused Shishir had
kidnapped me. Vol. I was already knowing that accused Shishir had
kidnapped me. There is security guard on the gate of our society.
Police had never taken me with the IO to the court for TIP.
Accused Shishir had not given me beatings. Accused had offered of
Maza and Chocolate to me. The scooter kept on roaming for about
CRL.A. 1379/2010 Page 14 of 29
half an hour after the kidnapping. The accused had taken me to a
room where was offered food etc. and by that time it has become
dark and I was taken to the bus stand. It is wrong to say that I had
gone with accused Shishir on the asking of my father."
23. Testimony of PW-5, Kamla Kushwaha, reads as under:
"PW-5 Kamla Kushwaha w/o Ram Sanjivan aged 30 years,
housewife r/o A-6/7 AI Colony Mahipal Pur New Delhi
On SA:
On 15.8.03 accused Shishir present in the court came at my
house. I was not present at my house. On 16.8.03 he again came
and he ring up the door bell and asked that whether Ram Sanjivan
was at home. I told him that he had gone for his duty. The accused
Shishir asked that he had to take a book and I told him that my
husband had not told me about this thing. I asked him to come on
next day as my husband was not at home, then he asked for a glass
of water. I did not open the door and asked him to remain outside.
I brought a glass of water and gave him. After taking water he
went. When I went to take my son at bus stand where he used to
come from his school at 12.30 pm, my son was with the chowkidar
and my son Pratik told me that the uncle who had given him the
chocolate on 15.8.03 at my house was standing near the bus stand
near Safal. I came with my child to my house on 16.8.03. Accused
Shishir present in court again came at my house on 17.8.03. My
husband also present at the house. Shishir was taking to my
husband regarding Amway company. My husband told him that
Krishan Kumar can tell him better in this regard. On 18.8.03
Krishan Kumar also came at about 1 pm. Shishir telephoned to my
husband and asked about whether Krishan had come then my
husband told that Krishan present in court had come and then
accused Shishir present in court also came to my house at about
1.15 pm. Then I prepared tea. My child Pratik started playing with
the accused persons, accused Shirishir and Krishan present in court
correctly identified. After preparing tea I started working my
domestic work. Accused Shirishir asked my child Pratik to wear
clothes and my son came to me and told that uncle was giving him
Rs.5 and should he accept. I refused not to accept that money. I
gave Rs.5 to my son and then my son left the house to purchase
CRL.A. 1379/2010 Page 15 of 29
eatables. After sometimes Shishir also left saying that he will come
in the evening and Krishan remained present in the house. My
husband asked me where my son had gone and I told that he had
gone to purchase some eatables. Then when my child did not come
back I searched him in the area but he was not traceable. I came to
my house. Krishan Kumar was having mobile phone and he asked
me that where I had searched for my son then I told him that I
searched Pratik in the nearby areas but he was not traceable. Then
he told me that he had received a telephone call was received that
my son had been kidnapped and he also disclosed that there was a
demand of Rs.30 lacs from the kidnappers and then I started
weeping. Accused Krishan asked me to take the papers/documents
of my house which was situated in Dwarka and asked me to take
my jewelery with me saying that there was no time and the money
is to be arranged for the release for child. He also told me not to
inform the police otherwise we will not get the child back. I
believing him and took the papers and jewelery with me and
accompanied accused Krishan and he took me and kept me at his
house with his wife at Pappan Kalan sector-13. Accused Krishan
Kumar took my husband who is blind with the jewelery and papers
of the house. He had also taken the jewelery of his wife with him
saying that money is to be arranged by selling the jewelery and the
house and by collecting from the persons to those he had given the
money on debt. He took my husband but I do not know where he
had taken my husband. On 19.8.04 when I had gone to PS I had
come to know that the accused who had kidnapped my son had
been arrested. When I came to the court I say the accused Shishir
present in court in judicial custody. Later some jewelery recovered
by the police and I later on released them on superdari. I have
brought the jewelery with me today. Three Mangal Sutra Ex.P1, P2
and P3, Ring Ex.P4 all of gold, one pair of Jhumki Ex.P5/1-2, nose
ring Ex.P6, Kamar Patta Ex.P7, one Tagri Ex.P8, one heavy pair of
Pazeb Ex.P9, one pair of light pazeb Ex.P1-, one single Pazeb
Ex.P-10, six silver coins Ex.P12, one bichua Ex.P13 correctly
identified.
Xxxx by Sh.RS Jain counsel for accused Shishir Kumar
Police recorded my statement in the PS on 19.8.04. Accused
Shishir Kumar present in court had visited my house twice again
said thrice. For the first time accused Shishir came to my house on
15.8.04 at about 12 noon when I was not at my house and it was
CRL.A. 1379/2010 Page 16 of 29
told to me by my husband. It is correct that my husband has told me
that Shishir had come at 12 noon. Again Shishir came at about 4
pm when I was present at my house and I served to him and I went
into other room and Shishir remained with my husband for about
half an hour. Shishir had also visited on 16.8.04 at 12 noon in my
presence. My husband had gone for duty. Shishir stayed at my
house for about five minutes. Accused Shishir was not known to
me prior to his visit at my house. It is wrong to say that my
husband and Shishir were friends for the last about two years.
Statement mark X was recorded by the police on 19.8.04. I gave my
correct statement to the police. The bus stand is at a distance of five
minutes distance from my house. But stand is not visible from my
house. There is a mother dairy shop near the bus stand. It is wrong
to say that my son did not tell me that Shishir met him and he had
offered chocolate to him or that I have given a wrong statement at
the instance of my husband Ram Sanjivan to falsely implicate the
accused in this case. It is wrong to say that I deposed false;y. It is
wrong to say that Shishir did not come at any time after 16.8.04. It
is wrong to say that my son was not kidnapped by anybody and it
was a concocted story just to frame the accused persons in this case.
I did not see accused Shishir taking away my son nor my son
recovered from the possession of Shishir. It is wrong to say that I
deposed falsely.
Xxxxx on behalf of accused Krishan, Subash
Nil. Opp. Given.
...............
PW-5 Kamla Kushwaha recalled for further cross examination on
behalf of accused Krishan and Subhash on S.A.
Xxxxxx by Shri Dharam Raj counsel for accused Krishan and
Subhash
The accused Shishir came to my house on 15-08-2004 and
not on 15-8-2003 which has wrongly been recorded earlier. I had
gone to Sunday bazaar. I had gone to Sunday Bazaar from 12 noon
to 1 pm. I had gone to the Independence Day function but it was
over by 11 am. It was in colony itself and my son had also
accompanied me. However, my son did not go with me in the
market. The Sunday Bazaar is nearby to our colony which is within
a distance of 10 minutes walking near the police station. It is
incorrect that on 18-8-2004 accused Krishan Kumar did not come
to my house. It is incorrect that no jewellery was taken by accused
Krishan from me. The accused has taken my husband with him and
not me. Since I did not accompany the accused as such I cannot say
where they have taken my husband. It is incorrect to suggest that I
am deposing falsely. It is incorrect that the accused has not taken
the documents of ownership of the flat. It is incorrect to suggest
that I have falsely implicated the accused persons as accused
Krishan was not vacating the house which was on rent with him.
It is incorrect that the value of jewellery was not more than
Rs.5,000/-."
24. Testimony of PW-6 reads as under:
"PW6, Dinesh Kumar Tiwari, s/o Chander Bhan Tiwari, 43 years,
private service, r/o 67, Pocket E 15, Sector 8, Rohini Delhi.
On SA:
I know accused Krishan Kumar who is present in the court
who is the neighbourer of my in laws and who used to reside at
SBM Colony Karampura.
On 17/8/2004 at about 9.30 pm, accused Krishan Kumar
came at my residence at Rohini having a brief case with me which
was locked and asked me to keep that brief and that it was
containing money and also told me that he would collect the same
the next morning. The reason accused tendered to me was that it
was not safe for him to carry the brief case as it was having huge
money and that he had to go to Dwarka. Believing him, I kept the
brief case with me and after about ten minutes he left my house.
Next day, in the evening, he came about 8.30-9 pm along with a
blind man on „motor cycle‟. That blind man was made to sit in the
drawing room and accused Krishan Kumar took me in a corner of
the house. He told that blind was in difficulty and he (blind man)
had to sell his house as he was facing some financial constraint. He
asked me that I should agree to purchase the house for a
consideration of 12 to 13 lac and in addition to it he also asked to
give consent to give Rs 2 lac to that blind man. He told me that he
had arranged the money. I initially refused but when he insisted that
blind man was his friend, I agreed to his proposal. I gave the brief
case to Krishan Kumar which was left with me and he left with
blind man within ten minutes. The was however no transaction
carried out between us.
On 19/8/2004, in the morning at about 4.35 am some police
officers came from the PS Mahipalpur and I was instructed to come
to the police station. I reached there at about 10.30 am. Then I came
to know about this case. Then my statement was recorded at 12.30
pm.
XXX by Sh. RS Jain counsel for accused Shishir Kumar
My statement was recorded in PS on 18/19.8.04. I first time
saw Ram Sanjivan when he came with accused Krishan at my
residence on 18.8.04. It is wrong to say that I have deposed falsely
at the instance of Ram Sanjivan. It is wrong to say that I deposed
falsely.
Xxxxxx on behalf of accused Krishan, Subash
Nil. Opp. Given."
25. We have carefully examined the evidence of all the witnesses and for the
sake of convenience reproduced the evidence of some of the material
witnesses. PW-1, Ram Sanjivan, father of the victim, is a blind person.
During his testimony, he identified the appellant from his voice, as the
person, who came to his house on 15.8.2004 and asked for the literature
book of Amway being interested in becoming a distributor. The evidence
of PW-1 read with the evidence of his wife, PW-5, Kamla Kushwaha
clearly establishes that the appellant had visited their house on 15.8.2004,
16.8.2004 and 17.8.2004; and their testimonies also establish the keen
interest taken by the appellant in their son. The appellant also enquired
from their son about his likes and dislikes. PW-1 has also given a detailed
account of how his son did not return home and thereafter he received a
telephone call on his mobile informing him that his son had been
kidnapped by the caller and in case Rs.30.0 lacs were not paid, he would
find his son dead.
26. PW-1 has also given a vivid description of the role of Kishan Kumar, the
co-accused, who has been declared a Proclaimed Offender. PW-1 has
also described the second ransom call received by him on his phone
no.32744467, asking him to reach under Punjabi Bagh Flyover, otherwise
threatening to slit the throat of his son. PW-1 has also described how the
briefcase containing Rs.25.0 lacs and jewellery were handed over on the
asking of Kishan Kumar by PW-1. And finally PW-1 has described how
a third phone call was received by him informing him that his son was
standing at the bus stop at Voltas Company, Moti Nagar where they
finally found his son.
27. The first submission of counsel for the appellant is that there are material
contradictions and improvements in the evidence of PW-1, father of the
victim and PW-5, the mother of the victim. This submission of counsel
for the appellant is without any force. The contradictions which have
been pointed out and have been noticed by this court are minor
contradictions, which do not touch the core issue and the contradictions
are of such a nature which do not shake the case of the prosecution.
Whether the appellant had asked for the literature book of Amway or not
or whether he had asked for a glass of water from the wife of the
complainant or not cannot be treated as material contradictions. It has
been repeatedly held that to reach a conclusion that there are material
contradictions and improvements in the case of the prosecution, courts
must read the evidence as a whole and must consider only those
improvements and contradictions which go to the core of the issue and not
any and every contradiction should be a ground to doubt the case of the
prosecution.
28. The Apex Court in the case of Shyamal Ghosh Vs. State of West Bengal
reported at (2012) 7 SCC 646, has held as under:
"46. Then, it was argued that there are certain discrepancies and
contradictions in the statement of the prosecution witnesses
inasmuch as these witnesses have given different timing as to
when they had seen the scuffling and strangulation of the
deceased by the accused. It is true that there is some variation in
the timing given by PW 8, PW 17 and PW 19. Similarly, there is
some variation in the statement of PW 7, PW 9 and PW 11.
Certain variations are also pointed out in the statements of PW 2,
PW 4 and PW 6 as to the motive of the accused for commission of
the crime. Undoubtedly, some minor discrepancies or variations
are traceable in the statements of these witnesses. But what the
Court has to see is whether these variations are material and affect
the case of the prosecution substantially. Every variation may not
be enough to adversely affect the case of the prosecution.
47. xxxx
48. xxxx
49. It is a settled principle of law that the Court should examine
the statement of a witness in its entirety and read the said
statement along with the statement of other witnesses in order to
arrive at a rational conclusion. No statement of a witness can be
read in part and/or in isolation. We are unable to see any material
or serious contradiction in the statement of these witnesses which
may give any advantage to the accused.
xxxxx
68. From the above discussion, it precipitates that the
discrepancies or the omissions have to be material ones and then
alone, they may amount to contradiction of some serious
consequence. Every omission cannot take the place of a
contradiction in law and therefore, be the foundation for doubting
the case of the prosecution. Minor contradictions, inconsistencies
or embellishments of trivial nature which do not affect the core of
the prosecution case should not be taken to be a ground to reject
the prosecution evidence in its entirety. It is only when such
omissions amount to a contradiction creating a serious doubt
about the truthfulness or creditworthiness of the witness and other
witnesses also make material improvements or contradictions
before the court in order to render the evidence unacceptable, that
the courts may not be in a position to safely rely upon such
evidence. Serious contradictions and omissions which materially
affect the case of the prosecution have to be understood in clear
contra-distinction to mere marginal variations in the statement of
the witnesses. The prior may have effect in law upon the
evidentiary value of the prosecution case; however, the latter
would not adversely affect the case of the prosecution.
69. Another settled rule of appreciation of evidence as already
indicated is that the court should not draw any conclusion by
picking up an isolated portion from the testimony of a witness
without adverting to the statement as a whole. Sometimes it may
be feasible that admission of a fact or circumstance by the witness
is only to clarify his statement or what has been placed on record.
Where it is a genuine attempt on the part of a witness to bring
correct facts by clarification on record, such statement must be
seen in a different light to a situation where the contradiction is of
such a nature that it impairs his evidence in its entirety.
70. In terms of the explanation to Section 162 Cr.P.C. which deals
with an omission to state a fact or circumstance in the statement
referred to in sub-section (1), such omission may amount to
contradiction if the same appears to be significant and otherwise
relevant having regard to the context in which such omission
occurs and whether there is any omission which amounts to
contradiction in particular context shall be a question of fact. A
bare reading of this explanation reveals that if a significant
omission is made in a statement of a witness under Section 161
Cr.P.C., the same may amount to contradiction and the question
whether it so amounts is a question of fact in each case. (Sunil
Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13
SCC 657 and Subhash v. State of Haryana (2011) 2 SCC 715.
71. The basic element which is unambiguously clear from the
explanation to Section 162 Cr.P.C. is use of the expression 'may'.
To put it aptly, it is not every omission or discrepancy that may
amount to material contradiction so as to give the accused any
advantage. If the legislative intent was to the contra, then the
legislature would have used the expression 'shall' in place of the
word 'may'. The word 'may' introduces an element of discretion
which has to be exercised by the court of competent jurisdiction in
accordance with law. Furthermore, whether such omission,
variation or discrepancy is a material contradiction or not is again
a question of fact which is to be determined with reference to the
facts of a given case. The concept of contradiction in evidence
under criminal jurisprudence, thus, cannot be stated in any
absolute terms and has to be construed liberally so as to leave
desirable discretion with the court to determine whether it is a
contradiction or material contradiction which renders the entire
evidence of the witness untrustworthy and affects the case of the
prosecution materially."
29. Applying the law to the facts of this case, we find that the contradictions
pointed out by counsel for the appellant are minor in nature and cannot be
a ground to set aside the order of conviction passed by the trial court.
30. Another argument raised before us is that the evidence of PW-4 is neither
trustworthy nor reliable by virtue of him being a child witness. This
submission of counsel for the appellant is also without any force. We
have extracted the evidence of PW-4 and carefully examined the same.
The law with regard to reliance on the evidence of a child witness is well
settled. The Apex Court in the case of Ratansinh Dalsukhbhai Nayak
v. State of Gujarat, reported at 2004 CriLJ 19, held that a child witness,
if found competent to depose, his / her testimony can be the basis of
conviction. Relevant portion of the judgment reads as under:
"6. Pivotal submission of the appellant is regarding acceptability
of PW 11's evidence. The age of the witness during examination
was taken to be about 10 years. The Indian Evidence Act, 1872
(in short "the Evidence Act") does not prescribe any particular age
as a determinative factor to treat a witness to be a competent one.
On the contrary, Section 118 of the Evidence Act envisages that
all persons shall be competent to testify, unless the court considers
that they are prevented from questions, because of tender years,
extreme old age, disease - whether of mind, or any other cause of
the same kind. A child of tender age can be allowed to testify if he
has intellectual capacity to understand questions and given
rational answers thereto. This position was concisely stated by
Brewer, J. in Wheeler v. United States 159 US 523 : (1895) 40
LeD 244 . The evidence of a child witness is not required to be
rejected per se, but the court as a rule of prudence considers such
evidence with close scrutiny and only on being convinced about
the quality thereof and reliability can record conviction, based
thereon. (See Suryanarayana v. State of Karnataka) 2001 CriLJ
7. In Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC
341 it was held as follows: (SCC p. 343, para 5)
A child witness if found competent to depose to the facts
and reliable one such evidence could be the basis of conviction. In
other words even in the absence of oath the evidence of a child
witness can be considered under Section 118 of the Evidence Act
provided that such witness is able to understand the questions and
able to give rational that such witness is able to understand the
questions and able to give rational answers thereof. The evidence
of a child witness and credibility thereof would depend upon the
circumstances of each case. The only precaution which the court
should bear in mind while assessing the evidence of a child
witness is that the witness must be a reliable one and his/her
demeanour must be like any other competent witness and there is
no likelihood of being tutored.
The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
intelligence, and the said Judge may resort to any examination
which will tend to disclose his capacity and intelligence as well as
his understanding of the obligation of an oath. The decision of the
trial court may, however, be disturbed by the higher court if from
what is preserved in the records, it is clear that his conclusion was
erroneous. The precaution is necessary because child witnesses
are amenable to tutoring and often live in a world of make-
believe. Though it is an established principle that child witnesses
are dangerous witnesses as they are pliable and liable to be
influenced easily, shaken and molded, but it is also an accepted
norm that if after careful scrutiny of their evidence the court
comes to the conclusion that there is an impress of truth in it,
there is no obstacle in the way of accepting the evidence of a child
witness."
31. This question was also the subject matter of a judgment of the Supreme
Court in Acharaparambath Pradeepan and Anr. v. State of Kerala,
reported at 2007 (1) JCC 828. Relevant portion of the judgment reads as
under:-
"48. Section 118 of the Indian Evidence Act seeks to exclude
evidence of those who may suffer from intellectual weaknesses. It
reads as under:
Who may testify. -- All persons shall be competent to
testify unless the Court considers that they are prevented
from understanding the questions put to them, or from
giving rational answers to those questions, by tender years,
extreme old age, disease, whether of body or mind, or any
other cause of the same kind.
49. In terms of the said provision therefore, all persons shall be
competent to testify unless by reason of tender years, the court
considers that they are incapable of understanding the questions
put to them and of giving rational answers. It is for the Judge to
satisfy himself as regards fulfillment of the requirement of the
said provision. The opinion of the learned Judge had been
recorded and, thus, it satisfies the test laid down by this Court in
Rameshwar S/o. Kalyan Singh v. The State of Rajasthan
1952CriLJ547.
50. It is not the case of the appellants that the court had failed to
comply with the statutory obligations in this behalf. It is also not
the case of the appellants that their testimonies otherwise should
not have been accepted.
51. A child indisputably is competent to testify if he understands
the question(s) put to him and gives rational answer thereto. None
of the witnesses have been found to be suffering from any
intellectual incapacity to understand the questions and give
rational answers thereto.
53. Indisputably, certain factors are required to be considered as
regards reliability of the testimony of the child witnesses but it is
also an accepted norm that if after careful scrutiny of their
evidence the court comes to the conclusion that there is an
impress of truth in it, there is no obstacle in the way of accepting
the evidence of child witnesses."
32. In the case at hand, the court had put specific questions to the child
witness and reached a conclusion that he had answered the questions in
an intelligent manner. The questions put by the court have also been
reproduced and we find that the court has put material questions to the
child and has rightly been able to assess that he was in a position to
testify. We find the evidence of the child witness to be reliable, cogent
and trustworthy. The child witness has identified the appellant as the
person, who had taken him on a scooter to a far away place and had also
offered him Rs.5/-. The identity of the appellant stands duly established
by the testimony of the child witness, which is further corroborated by the
evidence of PW-5 and voice identification by PW-1. It may also be
noticed that the appellant had refused to take part in the TIP.
33. The version of PW-1 regarding selling of the property at Dwarka to
Dinesh Kumar is duly corroborated by Dinesh Kumar, who has been
examined as PW-6. PW-6 has deposed that he knew accused Krishan
Kumar being a neighour of his in-laws. He stated that on 17.8.04 i.e. a day
prior to 18.8.04, accused Krishan had come to his house with a briefcase
containing money which was locked and he requested him to keep that
briefcase in his safe custody. He represented that he will collect the same
on the next morning and that he had to leave it behind with him that night
as he had to go to Dwarka and since the brief case contained money it was
not safe for him to carry it at night all the way to Dwarka. PW-6 has also
deposed that on the next day i.e. 18.8.04 in the evening, accused Krishan
Kumar came with a blind person on a motorcycle. The blind person was
made to sit in the drawing room and accused Krishan Kumar took PW-6
to a corner and told him that the blind person was in difficulty and had to
sell his house as he was facing some financial constraints and asked him
to agree to purchase the house for consideration of Rs.12 lakhs to Rs.13
lakhs and in addition to give Rs.2 lakhs to that blind man for which
money had already been arranged by Krishan Kumar. PW-6 further
deposed that he initially refused but when Krishan Kumar insisted that the
blind person is his friend, he agreed and handed over the briefcase to
Krishan Kumar, which was left in his custody on the previous day by him
but in fact, no transaction was carried out between him and the blind man.
PW-6 has also deposed that on 19.8.04 he was called to the police station
and thereafter he came to know about the real facts and he made a
statement. This witness was also not cross examined on the material
aspects and in his cross examination, he categorically stated that for the
first time, he saw Ram Sanjivan at his residence on 18.8.04 and has
denied the suggestion that he had deposed falsely. In view of the
testimony of PW-6, the version of a fake deal with Dinesh Kumar at the
instance of accused Krishan Kumar regarding purchase of property at
Dwarka for consideration of Rs.12 lakhs to Rs.13 lakhs and further
making Ram Sanjivan indebted to a sum of Rs.2 lakhs and as such
arrangement of Rs.15 lakhs from Dinesh Kumar stands duly established,
and it is also clear that the same was done at the behest and asking of
accused Krishan Kumar (P.O.)
34. From the testimony of PW-6 it is also clear that accused Krishan Kumar
had come with Ram Sanjivan, PW-1 on a motorcycle and thus, the version
of Ram Sanjivan that he was taken by accused Krishan Kumar on a
motorcycle also stands duly corroborated. This very motorcycle was
seized by the police at the instance of accused Krishan Kumar.
35. PW-16, S.I. Randhir Singh has also testified that appellant Shishir was
apprehended while coming on a Scooter at the instance of accused
Krishan Kumar and that at that time accused Shishir Kumar was carrying
a VIP bag on his left shoulder and a briefcase was lying on a two-wheeler
scooter bearing No.DL-1SH-4014. The bag and the briefcase were
checked and the bag was found to contain gold and silver jewellery and
some artificial jewellery, while in the briefcase rubber-bands and bundles
giving appearance as if they are bundles of notes were found and the said
bag was in turn found to contain another bag full of bundles of papers
giving appearance of bundles of currency notes wrapped in newspaper
and tied with rubber-bands and the total number of such bundles were
thirty. PW-16 has also testified that from amongst the jewellery
recovered from the bag, accused Krishan Kumar identified certain
jewellery to be belonging to his wife Anju and certain jewellery belonging
to Kamla, wife of complainant and the jewellery was separated and while
jewellery belonging to Anju was taken into possession vide seizure memo
Ex.PW-15/E, the jewellery of Kamla was taken into possession separately
by giving Nos.6 & 7 separately to the pullandas which were sealed with
the seal of RS.
36. PW-16 has also testified that the appellant Shishir Kumar was arrested
vide memo Ex.PW-15/A and disclosure statement of accused Shishir
Kumar was recorded, who pointed out the place from where Prateek was
kidnapped and the pointing out memo Ex.PW-15/F was prepared, and
Shishir Kumar also pointed out the place near Punjabi Bagh Flyover
where ransom money was paid and memo Ex.PW-15/K6 was prepared in
this regard. PW-16 has also testified that accused Subhash (acquitted)
was arrested on 21.8.04 and his disclosure statement was recorded. This
witness was not cross-examined on behalf of any of the accused.
37. The conspiracy is further established from the fact that Krishan Kumar
and Shishir Kumar are both related to each other and are cousins, and this
aspect has been admitted by appellant Shishir Kumar in his statement
under Section 313 Cr.P.C. and the fact remains that neither was this
disclosed by Shishir Kumar or by Krishan Kumar to Ram Sanjivan that
they are relatives nor was such a question put to PW-1 or PW-5 in their
cross-examination.
38. In view of the testimonies of the witnesses, the fact that the victim has
clearly identified the appellant as the person who had kidnapped him and
also made a call from the phone booth, the evidence of parents of the
victim, who have identified appellant as the person who had come to their
house and had shown keen interest in their son and the evidence of PW-
16, it can be concluded that the prosecution has been able to prove its case
beyond any reasonable doubt. No grounds are made out to set aside the
impugned judgment and order on sentence. Accordingly, the appeal is
dismissed.
(G.S.SISTANI)
JUDGE
(G.P.MITTAL)
JUDGE
16th May, 2014
msr
