Delhi High Court
Karan Singh & Ors. vs State on 30 April, 2015
$~R-2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 604/1999
% Judgment pronounced on 30th April, 2015
KARAN SINGH & ORS. ..... Appellant
Through : Mr.V. Madhukar, Mr.Sachin Sharma
and Mr.Rupesh Tyagi, Advs. for
appellants, Karan and Susheela.
versus
STATE ..... Respondent
Through : Mr.Feroz Khan Ghazi, APP for the State.
+ CRL.A. 631/1999 & CRL.M.A. 14904/2014
MANOJ KUMAR @ PARVE ..... Appellant
Through : Mr.Vivek Sood, Adv.
versus
STATE ..... Respondent
Through : Mr.Feroz Khan Ghazi, APP for the State.
+ CRL.A. 644/1999 & CRL.M.A. 2512/2002
OM PAL SINGH ..... Appellant
Through : Mr.B.S. Mor, Adv.
versus
STATE ..... Respondent
Through : Mr.Feroz Khan Ghazi, APP for the State.
+ CRL.A. 26/2000
SUSHEELA ..... Appellant
Through : Mr.V. Madhukar, Mr.Sachin Sharma
and Mr.Rupesh Tyagi, Advs. for
appellants, Karan and Susheela.
versus
STATE ..... Respondent
Through : Mr.Feroz Khan Ghazi, APP for the State.
+ CRL.A. 152/2000
VASANT KUMAR ..... Appellant
Through : Mr.Rajat Wadhwa and Ms.Sunita
Bhardwaj, Advocates
versus
STATE ..... Respondent
Through : Mr.Feroz Khan Ghazi, APP for the State.
+ CRL.A. 408/2000
SUBHASH CHAND ..... Appellant
Through : Mr.Rajat Wadhwa, Mr.Amritanshu
and Mr.Kunal Aggarwal, Adv.
versus
STATE ..... Respondent
Through : Mr.Feroz Khan Ghazi, APP for the State.
+ CRL.A. 185/2007
VISHVA BANDHU ..... Appellant
Through : Mr.S.K. Dubey and Mr.Rajmangal
Kumar, Advocates for the appellant
versus
STATE ..... Respondent
Through : Mr.Feroz Khan Ghazi, APP for the State.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J
1. Since the present appeals arise out of a common judgment and they have
been heard together, the same are being disposed of by a common
judgment.
2. Present appeals have been filed by seven appellants, being Karan Singh,
Manoj Kumar @ Parve, Om Pal Singh, Susheela, Vasant Kumar @
Basant Kumar, Subhash Chand and Vishva Bandhu, against the judgment
and order on sentence dated 25.8.1999 passed by learned Additional
Sessions Judge, Delhi, whereby all the appellants have been convicted and
sentenced to undergo life imprisonment and were also directed to pay
Rs.500/-, each, in default thereof to further undergo Rigorous
Imprisonment for one year each under Section 364A read with Section
120B of the Indian Penal Code. The appellant, Manoj, was also directed
to undergo Rigorous Imprisonment for a period of three years for the
offence punishable under Section 384 of the Indian Penal Code.
3. In addition to the above, by a separate judgment dated 24.11.2005 the
appellant, Vishva Bandhu, was held guilty for the offence punishable
under Sections 120B/364-A/384/387 of the Indian Penal Code. Vide order
on sentence dated 30.11.2005, the appellant, Vishva Bandhu, was
sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-
and in default of payment of fine to further undergo Rigorous
Imprisonment for a period of one year.
4. The case of the prosecution as noticed by the learned trial court is as
under:
"On 7-3-94 Ajay Behl lodged complaint with P.S. Sameypur
Badli that his brother Abhey Behl had a Factory in Prehlad
Pur by the name of Sangeeta Fabricators. The salary was
disbursed to labourers on 7th of every month. There were
10/11 labourers in the factory. On that day Abhey Behl had
left the house on a Yamaha motor cycle at about 8.00 A.M.
to disburse the salaries. At about 9.00 A.M. Abhey Behl
reached in between Shahbad Dairy and Prehlad Pur. There a
maruti van No.DDA-9736 struck against motor cycle of
Abhey Behl and then Abhey Behl was taken away forcibly in
the van towards Bawana.
2. On the complaint of Ajay Behl, case u/s 365/34 I.P.C.
was registered and investigation was handed over to
Inspector Sohanbir Singh of Special Staff. To search Abhey
Behl different parties were formed consisting of Inspector
Balbir Singh-S.H.O. P.S. Model Town, Inspector P.N.
Malhotra, S.H.O. P.S. Keshav Puram, Inspector Swatantra
Kumar-S.H.O. P.S. Mukherjee Nagar, Inspector Ram
Chander- S.H.O. P.S. Mangolpuri, Inspector Sohanbir Singh
of Special Staff and S.H.O. P.S. Sameypur Badli. During
investigation Subhash Chand (accused) met police and
informed that one person had come 2-3 days prior to
occurrence who had made enquiries about Abhey Behl. At
the instance of accused Subhash Chand portrait of suspect
was got prepared and thereafter accused Subhash Chand also
escaped. During investigation Inspector Sohanbir Singh went
to Haryana also and he came to know that accused Subhash
Chand was neighbour in the Village of accused Vishwa
Bandhu Tyagi who was involved and arrested in many cases
of kidnapping for ransom. Police searched for accused
Vishwa Bandhu also and during investigation a photograph
of Vishwa Bandhu was collected from P.S. Gannaur, Distt.
Sonepat (Haryana).
3. On 8-3-94 a telephonic message was received at the
house of Abhey Behl demanding Rs.70 lakhs as ransom. On
11-3-94 the caller again telephoned Agam Behl, cousin of
Abhey Behl and called him to T.B.Hospital, Kingsway
Camp, Burari Road. Agam Behl went to Hospital and met the
kindappers and asked for proof of kidnapping of Abhey Behl.
During investigation information was received that Vishwa
Bandhu would hand over the proof of Abhey Behl being in
his custody on 13-3-94 and for that purpose Agam Behl was
called near T.B. Hospital, Kingsway Camp. On the
information Inspector Sohanbir Singh formed a raiding party
consisting of S.I. Sanjay Sharma, S.I. Rameshwar Singh and
Constable Randhir Singh and they all reached near Dhakka
Village, Burari Road. At about 12.05 P.M. accused Vishwa
Bandhu was seen coming from T.B. Hospital side and he was
over powered. From search of accused Vishwa Bandhu a
country made revolver with two live cartridges was
recovered and a separate case u/s 25 Arms Act read with
Section 5 TADA Act was got registered.
While in custody accused Vishwa Bandhu made a
disclosure statement that he received information about
Abhey Behl from Subhash Chander and then he with his
accomplices prepared a plan and kidnapped Abhey Behl on
7-3-94. Accused Vishwa Bandhu further disclosed that
Abhey Behl was kept in a rented house in Budh Vihar with
the help of his accomplices. Inspector Sohanbir sent a
wireless message and called other teams who were search for
Abhey Behl. Then accused Vishwa Bandhu led the police
party and pointed out house No.Y-2, Budh Vihar, which was
owned by Dev Raj. Accused Vishwa Bandhu got the door of
the house opened and from the room in the back side of the
house Abhey Behl was recovered from custody of accused
Basant Kumar, Om Pal Singh, Karan Singh and Susheela.
Accused Susheela was found present in the kitchen of the
house. Victim Abhey Behl gave statement to the police."
5. In support of its case, the prosecution has examined nineteen witnesses.
The appellant, Basant, examined two witnesses in his defence; appellant,
Manoj, examined one witness in his defence; and appellant, Om Pal, also
examined one witness in his defence.
SUBMISSIONS QUA APPELLANTS, KARAN SINGH AND
SUSHEELA.
6. Mr.V. Madhukar, learned counsel appearing on behalf of the appellants
Karan Singh and Susheela, who are husband and wife, submits that the
appellants, Karan Singh and Susheela, have been falsely implicated in this
case on account of a misunderstanding at the wedding of Susheela‟s bua‟s
son where the Police persons had misbehaved with Susheela. It is further
submitted that the victim has named and identified the appellants, Karan
Singh and Susheela, herein at the instance of Police and there is nothing to
link the appellants, Karan Singh and Susheela, to the house from where
the victim was allegedly rescued.
7. Attention of the Court is drawn by Mr.Madhukar to the evidence of PW-3,
Dev Raj, landlord of the house, from where the victim was recovered.
Counsel contends that in his testimony PW-3 has testified that he is the
owner of house no.Y-3, Budh Vihar, whereas the victim was rescued from
the house Y-2, Budh Vihar. The landlord has also testified that he had
given the house on rent to Sh.Radhey Shyam and Sh.Onkar Singh and
neither of the two persons were present in Court. Thus, the prosecution
has failed to establish the link of the house where the victim was confined
with the appellants. It is also contended by the counsel for these
appellants that only vague and general assertions have been made by the
victim that the appellants, Karan Singh and Susheela, used to threaten and
beat the victim. Counsel contends that the victim has even failed to state
in his testimony as to what was the amount of ransom, which was
demanded from the brother of the victim.
8. Another argument, which has been raised by Mr.Madhukar, learned
counsel for the appellants, Karan Singh and Susheela, is that the victim
has been unable to describe the house where the victim was confined for a
period of seven days. Mr.Madhukar submits that in his testimony the
victim has stated that there was a cot in the room while, PW-16 SI
Rameshwar Singh, has testified that there was no cot in the room. He has
further testified that on the first floor there was another room and a
kitchen and Susheela was found in the kitchen.
9. Learned counsel for the appellants, Karan Singh and Susheela, submits
that no medical examination of the victim was carried out to show that the
victim was beaten up or kept blind folded. Counsel further submits that
even as per the prosecution Ompal, Vishwa Bandhu, Basant and Manoj,
had intercepted the victim in a white coloured Maruti van, which was
being driver by Ompal. Admittedly, the appellant, Karan Singh and
Susheela, were not present when the victim was abducted.
10. Counsel also contends that there are material contradictions in the
testimonies of PW-16, SI Rameshwar Singh and PW-19, Inspr.Sohanvir
Singh, with regard to the layout of the house from where the victim was
recovered. As per PW-16, SI Rameshwar, there was no doorbell affixed
on the door. After the entry door, there was a gallery, then a courtyard and
then there was a room. There was a toilet under the staircase in the
courtyard and a hand pump was installed nearby.
11. Whereas PW-19, Inspr.Sohanvir Singh, has testified that no child was
found in the house Y-2. One cot was lying in the outer room and one cot
was found on the first floor. One dari was found in the room from where
Abhey Bahl was recovered. He had not checked other household articles
in the house. He had also not noticed any trunk (suit case) in the house
bearing no.Y-2.
SUBMISSIONS QUA APPELLANT, BASANT (Also referred to as Vasant
in some portions of the judgment)
12. Learned counsel appearing on behalf of the appellant, Basant, submits that
this appellant has also been falsely implicated in this case on account of a
personal enmity with Vishwa Bandhu. It is contended that this appellant
used to drive a tempo, which was hired by Vishwa Bandhu many times.
The appellant, Basant, used to demand charges from Vishwa Bandhu but
Vishwa Bandhu avoided making payment. One day Vishwa Bandhu had
threatened this appellant, while removing many accessories from the
tempo, that he would falsely implicate him in this case.
13. Learned counsel for the appellant, Basant, also contends that there are
material contradictions in the testimonies of PW-7 and PW-19. While
PW-7 has testified that this appellant was present in the room at the time
of rescue of the appellant and he was sitting on the floor, PW-19 has
testified that this appellant was found sitting on the cot. Counsel contends
that this appellant was in fact arrested from his house and not arrested
from the spot of the incident.
14. Reliance is placed by learned counsel for the appellant, Basant, on the
evidence of DW-1, father of the appellant, Basant. Counsel submits that
DW-1 in his testimony has testified that around 11 or 11.15 one Police
van of white colour with Police officials in civil clothes and one
Policeman in uniform enquired about his son (appellant, Basant).
Appellant, Basant, was taken to the Police Station on the pretext of some
enquiry with regard to his tempo and it is only after three or four days that
he learnt that the appellant, Basant, had been falsely implicated and
arrested in this case.
15. In his cross-examination, DW-1 has testified that after the Police had
taken his son (appellant, Basant,) away he had contacted the Police of
various Police Stations but he did not lodge any complaint with the senior
Police Officials about lifting of his son.
16. Reliance is also placed on the testimony of DW-2 who has also testified in
favour of the appellant that at about 11.00 a.m. he was present in the
residence of Panna Lal (DW-1, father of the appellant, Basant) to get
some documents checked and at that time 4-5 persons had taken the
appellant, Basant, away on the pretext of some enquiries. Since the
appellant, Basant, did not return for 3-4 days enquiries were made.
17. Learned counsel for the appellant, Basant, submits that it is a settled law
that the testimonies of defence witnesses are to be treated on equal footing
as the witnesses of the prosecution and the trial Court has, thus, erred in
not relying on the testimonies of these two defence witnesses.
SUBMISSIONS QUA APPELLANT, MANOJ.
18. Mr.Vivek Sood, learned counsel appearing on behalf of the appellant
Manoj, submits that the judgment passed by learned trial court is based on
surmises and conjectures. Counsel further submits that the appellant,
Manoj, has been falsely implicated in this case, which is evident from his
conduct. He did not abscond and also from the fact that the trial court has
disbelieved the recovery of number plates sought to have been made at the
instance of appellant, Manoj. Counsel further submits that when the raid
was conducted by the Police, the appellant, Manoj, was not found at the
spot where the victim was kept as a hostage. It is further submitted that
the appellant, Manoj, was named by Vishva Bandhu on account of a
personal enmity and to falsely implicate him.
19. Mr.Sood also submits that one of the grounds on which the trial court has
convicted the appellant, Manoj, is that he had refused TIP. Counsel
further submits that refusal of TIP was for a cogent reason as the face of
appellant, Manoj, was not muffled properly and, thus, the appellant,
Manoj, refused TIP.
20. Learned counsel for the appellant, Manoj, further submits that PW-19,
Inspr.Sohanveer Singh, in his testimony has stated that he recorded the
statement of Abhay Bahl, victim (PW-2), whereas PW-16, SI Rameshwar
Singh and PW-7, SI Sanjay Sharma, who had accompanied PW-19, in
their testimonies, were silent with regard to the fact that statement of PW-
2 was recorded by PW-19.
SUBMISSIONS QUA APPELLANT, OM PAL SINGH.
21. Mr.Mor, learned counsel for the appellant, Om Pal Singh, submits that as
per the prosecution the appellant, Om Pal, had booked and hired a Maruti
van bearing No.DDV 509, which was a taxi, parked at Subhash Chowk,
Sonipat, from PW-15, Sh.Suresh Kumar, driver of the van, for the
commission of the offence. It is further submitted that this fact is not
proved in view of the statement of Sh.Suresh Kumar, PW-15, who
testified on oath in the Court that "none of the accused standing in the
Court were amongst the boys who had taken the Maruti Van".......
"Similarly I cannot say if the accused Om Pal present in the Court is the
same Om Pal Dahiya, who had booked the Maruti van and had
accompanied him from Sonipat to Burari".
22. Mr.Mor further submits that it is also the case of the prosecution that the
appellant, Om Pal, had got manufactured two fake number plates bearing
no.DDA 9736 from PW-11, Sh.Om Prakash, who prepares number plates
for motor vehicles at his shop at Kashmiri Gate. Mr.Mor further submits
that this fact is also not proved on record. To the contrary, PW-11 has
testified that the number plates were prepared at the instance of
Inspr.Sohanvir Singh, I.O. of the case. PW-11 was declared hostile.
23. Learned counsel for the appellant, Om Pal, submits that during cross-
examination by learned Public Prosecutor PW-11 stated that "I cannot say
if Om Pal Singh, s/o Sh. Karan Singh, had come to my shop accompanied
by Police. I also cannot say if accused Om Pal Singh, standing on the
dock, (The learned Additional PP has pointed out towards the accused
Om Pal Singh) was the person, who had got the number plates prepared
from me." It is also contended that as per the prosecution, Om Pal Singh,
was driving the Maruti Van at the time of kidnapping of PW-2 and was
also present at the time of his rescue by the Police on 13.3.1994. It is
contended that this fact is also not proved and it is established on record
that during his examination-in-chief PW-2 did not refer to the name of the
appellant, Om Pal Singh, amongst those persons, who were apprehended
by the Police, when PW-2, Abhey Bahl was rescued. It is further
submitted by the counsel for the appellant, Om Pal, that the examination-
in-chief of this witness was deferred for a period of one month and it is
only after tutoring that he named the appellant herein as one of the
persons present at the time of the raid. It is also contended that PW-2 had
failed to recollect the identity of this appellant as he had testified that "I
had seen the driver of the Maruti van i.e. accused Om Pal standing on the
dock. I do not recollect if accused Om Pal was bearing a beard at that
time or not".
24. Learned counsel for the appellant, Om Pal Singh, submits that it is the
case of the prosecution that the victim was confined in a room for seven
days and all the appellants were present. Thus, it is highly improbable that
the victim could not recollect as to whether Om Pal was having a beard or
not. It is also contended that no independent witness was joined at the
time of rescue of PW-2 despite presence of various persons as the raid
was conducted during day time in a crowded locality.
SUBMISSIONS QUA APPELLANT, VISHWA BANDHU.
25. Mr.Dubey, counsel appearing for the appellant, Vishva Bandhu, in
CRL.A. 185/2007, submits that no case under Section 364A IPC is made
out against the appellant. Counsel submits that the case of the prosecution
is when the motor-cycle of the victim was intercepted, the appellant
herein along with Vasant and Manoj had pushed him into the Maruti Van;
the appellant was armed with a gun while Basant and Manoj were armed
with knife. Counsel for the appellant also submits that this incident has to
be looked in isolation as at that stage the victim was only threaten not to
make a noise. Counsel also submits that during the entire period when the
victim was in confinement there is no evidence to show that either any
weapon was used to cause any threat or create any fear of death in the
mind of the victim, hence, ingredients of Section 364A IPC have not be
made out. Counsel also submits that the victim cannot be believed that he
was beaten or kicked by all the appellants, for two reasons: firstly the
evidence is completely vague and secondly there are no bodily injuries on
the victim; nor the victim was medically examined, which is evident from
the evidence of the victim, Karan Singh and Susheela, who have also
stated that the victim was not sent for medical examination. Counsel has
also submitted that in case seven accused persons were kicking and giving
beating to the victim, he would surely have some injuries on his body and
in the absence thereof, appellant would not have been convicted.
26. Mr.Dubey also contends that the appellant has been falsely implicated in
the matter and he was not arrested from Delhi on 13.3.1994. It is also
submitted that he was acquitted in the case FIR No.49/1994 registered
under Sections 25/54/59 of the Arms Act, at P.S. Mukherjee Nagar, New
Delhi, thus it cannot be said that the appellant was armed with a pistol.
Counsel also submits that Ex.2A heavily relied upon by the prosecution
would also show that the victim had written that he is fit and fine (THEEK
THAK HUN) and the appellant had also stated in the letter that they have
no intention to kill him. Counsel submits that a conjoint reading of both
the letters would in fact give an impression that the appellants and more
particularly the present appellant (Vishva Bandhu) had no intention of
causing any bodily harm/injury or creating fear of death. Counsel further
submits that on the one hand PW-14 (Agam Bahal) has testified that he
was informed that victim would be killed, he submits that this part of the
evidence is unreliable for the reason that the letter handed over to him
speaks to the contrary.
27. Counsel for the appellant has placed reliance on Vishwanath Gupta Vs.
State of Uttaranchal reported at (2007) 11 SCC 663 in support of his
arguments with regard to the mandatory ingredients of Section 364-A of
the Indian Penal Code.
28. Reliance has also been placed by counsel for the appellant in the case of
Jamil Ahmed Vs. State (NCT) of Delhi reported at 2013 (203) DLT 561,
a decision by the Division Bench of this court wherein it has been held
that in the absence of any threat to life or body of the kidnapped person in
the event of ransom money not being paid Section 364-A IPC would not
be attracted.
SUBMISSIONS REGARDING APPELLANT, SUBHASH.
29. Mr.Rajat Wadhwa, learned counsel appearing on behalf of appellant,
Subhash, submits that the judgment of the learned trial court is liable to be
reversed on the ground that the appellant has been convicted for the
offence punishable under Section 364A of the Indian Penal Code whereas
no charge under Section 364A was framed against the said appellant.
30. Learned counsel for the appellant Subhash further submits that this
appellant has been falsely implicated in this case and the conduct of this
appellant was not that of an accused or of a guilty man. The appellant
Subhash, who was working in the factory of the victim was the first
person to inform the brother of the victim with regard to the kidnapping of
the victim. This appellant gave the car number, identified the spot and
pointed out to the direction in which the vehicle had gone away. This
appellant also gave the description of Vishva Bandhu and on the basis of
this description Vishva Bandhu was finally arrested. Counsel contends
that in case this appellant was guilty there was no reason for him to have
acted against his own interest. Counsel further submits that it has also
come on record that this appellant had accompanied the brother of the
victim to the Police Station.
31. It is also contended by Mr.Wadhwa, learned counsel appearing for the
appellant Subhash, that it is highly improbable that the appellant,
Subhash, was arrested along with Manoj, knowing fully well that the
other co-accused had been arrested. It is also contended that the victim
would have named Subhash out of nervousness as he was in confinement
for a period of seven days. Reliance is also placed on Illustrations (e) and
(i) of Section 8 of the Evidence Act, which read as under:
"8. Motive, preparation and previous or subsequent conduct.
(e) A is accused of a crime. The facts that, either before or at
the time of, or after the alleged crime, A provided evidence
which would tend to give to the facts of the case an
appearance favourable to himself, or that he destroyed or
concealed evidence, or prevented the presence or procured
the absence of persons who might have been witnesses, or
suborned persons to give false evidence respecting it, are
relevant.
(i) A is accused of a crime. The facts that, after the
commission of the alleged crime, he absconded, or was in
possession of property or the proceeds of property acquired
by the crime, or attempted to conceal things which were or
might have been used in committing it, are relevant."
32. In this case charge was framed on 4.4.1995. It may be noticed that a
charge under Section 364A of the Indian Penal Code has been framed
only with respect to appellants, Vishva Bandhu, Manoj, Basant and Om
Pal Singh.
33. After PWs-1 to 15 were cross-examined, the appellant Vishva Bandhu
was declared a Proclaimed Offender on 11.1.1999.
SUBMISSION OF MR.GHAZI, LEARNED APP FOR THE STATE.
34. Mr.Ghazi, learned counsel for the State, submits that the victim has
named appellant, Basant, as one of the persons who was present in the
Maruti van, when he was intercepted. Counsel has further submitted that
appellant, Basant, was carrying a knife and he had threatened the victim.
The appellant was arrested from the house from where the victim was
rescued. The arrest memo and the testimonies of PW-7 and PW-19 would
show the presence of this appellant at the house from where the victim
was arrested.
35. Mr.Ghazi, learned counsel for the State, submits that PW-2 has also
identified appellant, Manoj, as one of the persons, who was present in the
Maruti van and who was holding a knife in his hand. He has also testified
that all the appellants including appellant, Manoj, used to beat him with
fists and kicks and extended threats to him. PW-2 has also testified that
the appellants, Manoj and Vishva Bandhu, used to leave the house in the
morning and return in the evening, and in their absence the appellant,
Manoj, used to remain around him and keep a watch on him.
36. Mr.Ghazi, learned counsel for the State, has also submitted that a separate
charge not having framed under Sections 364-A of the Indian Penal Code
against Subhash, Karan Singh and Sushila is a mere omission. It is further
submitted that the prosecution has been able to establish its case beyond
any shadow of doubt against all the appellants.
37. In response to the submissions of counsel for the appellant, Om Pal Singh,
learned counsel for the State has submitted that PW-2 has identified the
appellant, Om Pal Singh, as the driver of Maruti van and this appellant
was arrested from the spot at the time of rescue of the victim, which is
evident from his arrest memo.
38. We have heard learned counsel for the parties, examined the trial court
record, the evidence and the judgment passed by the trial court.
39. Before we deal with the rival submissions of counsel for the parties, we
deem it appropriate to refer to the testimonies of some of the material
witnesses in detail. PW-1 (Ajay Bahl) is the real brother of the victim.
He has testified that he runs a factory in the name of Sangeeta Fabricator
at Prehladpur with 10-11 labourers who are paid salary on 7th day of each
month. On 7.3.1994 at about 8:00 a.m. his brother Abhay Behl left the
house at Yamah mother cycle for the factory for distributing salary; at
9:40 a.m. he received a phone call from one of the factory labourers,
namely, Subhash, whom he identified in court. Subhash informed him
that about 9:00 a.m. in between Shahbad dairy and Prehladpur motorcycle
of his brother was hit by a Maruti Van bearing No.DDA 9736 on account
of which, his motorcycle fell down and thereafter his brother along with
cash was taken away in the Maruti Van and the said van had gone towards
Bawana. PW-1 has also deposed that on receipt of information he
reached Shahbad dairy Police Post and lodged a report, Ex.PW-1/A.
During cross-examination this witness has stated that he had recognized
the voice of Subhash. He also testified that Subhash had also reached the
spot.
40. The star witness in this case is PW-2 (Abhey Bahl), the victim. PW-2 has
testified that he has a factory in the name of M/s.Sangeeta Fabricators in
village Prehladpur and 10-12 labourers worked in the factory. On
7.3.2014 as usual in the morning at about 8:15 a.m. he left for the factory
on his motorcycle DBX-262 (Yamah); he was going via Bawana Road,
Shahbad diary and at about 8:45 a.m. when he had crossed Shahbad dairy
a Maruti van of white colour having „Press‟ words written on its rear
screen came from behind and overtook him and stopped ahead of his
vehicle, because of which he stopped his vehicle; three persons came out
of the Maruti van, being Vishva Bandhu, Manoj and Basant, whom he
correctly identified in court. Vishva Bandhu and Manoj caught hold of
him and accused persons pushed him from behind and put him in the said
Maruti van. Accused (Om Pal), whom he also identified, was driving the
Maruti Van. Vishva Bandhu was holding a revolver in his hand, while
accused (Manoj and Basant) were holding knives in their hand. Accused
(Vishva Bandhu) affixed a tape on his mouth and covered his face with a
jacket. At that time, while being pushed him in the Maruti Van, he was
threatened not to raise his voice, else he would be killed; and he could not
attract the attention of anyone. PW-2 has also testified that he was taken
to a house and confined in a room. In the house accused (Karan Singh)
and his wife (Sushila) were present. Sushila provided him food and to the
other accused persons; and she used to extend threats to him that in case
his family members did not pay ransom, she would get him killed. He
also testified that all the accused persons used to beat him with fists and
kicks at the said house; and other accused persons also used to extend
same threats when he was confined in the house. It has also been testified
by PW-2 that accused (Manoj and Vishva Bandhu) used to leave the
house in the morning and return in the evening. The other accused
persons used to remain around the house and keep a watch on him so that
he did not raise any alarm. He also testified that he was carrying
Rs.9,500/- in cash, which amount was removed from his purse. This
amount was removed by Vishva Bandhu and Manoj. Vishva Bandhu and
Manoj also removed gold chain with a locket having the image of lord
Shiva from his neck. It is also testified that Subhash, who used to work in
his factory, also came to the said house after 2-3 days and also extended
threats for persuading his family members to pay the ransom. He also
identified Subhash. He was confined in the said house for 7 days before
he was rescued by the Police. PW-2 has also testified that on 12.3.1994,
Vishva Bandhu got a letter written from him in two lines; and on the next
day he got him photographed and also recorded his voice. On 13.3.1994
between 2:00 to 3:00 p.m., police along with Vishva Bandhu entered the
room of the house where he was confined. He was rescued and other
accused persons namely, Basant, Karan Singh and Sushila were
apprehended from the spot. PW-2 has also testified that on 18.3.1994 he
was called to the police station by Inspector Sohanbir before whom he
identified the letter of two lines, which Vishva Bandhu had got written
from him. On 13.3.1994 he was called at Tis Hazari Courts where he
identified Manoj. On the next date of hearing PW-2 testified that when he
was rescued by the Police, police had also apprehended Om Pal, whom he
also identified in court. During the examination-in-chief, PW-2 has also
identified the revenue stamps, Ex.P-2; telephone diary P-3; visiting cards
Ex.P-4/1 to P-4/9; and a card /warranty Ex. P-5, which accused, Vishva
Bandhu had removed from him. He also identified his writing Ex.P-6,
which he was made to write by Vishva Bandhu. He also identified 3
audio cassettes. Audio cassettes were played in court and he identified his
voice in the cassettes. He also identified Subhash Chand, who was the
person employed by him at the factory.
41. During cross-examination, PW-2 has also testified that the three persons
(Vishva Bandhu, Manoj and Basant) were also uttering threats that they
would finish him, in case he did not go inside the van. He also stated that
the accused, Vishva Bandhu, was sitting at the front seat while Manoj and
Basant were sitting by his aside. Also during cross-examination he
testified that he could not give the number of rooms in the house as he
was confined in one room having no window. He was taken to the toilet
with his face covered; one cot was in the room and an old taperecorder
was also lying, which used to be played at high volume. He was also not
medically examined after he was rescued.
42. During cross-examination PW-2 again identified Om Pal, but could not
recollect if Om Pal was bearing a beard at that time. He also stated that
during cross-examination Om Pal used to be present for the entire day.
43. PW-3 (Dev Raj) is the owner of the house bearing Y-3, Budh Vihar,
Delhi. He has testified that he had let out the house at a rent of Rs.1400/-,
per month, to one Radhey Sham and Omkar Singh, who were brought to
him by a property dealer (Kailash Chand Jain), however, no rent
agreement was executed.
44. This witness has also testified that he could not give the number of the
portion which was owned by him, but he testified that it was part of plot
No.Y-3 and he had purchased the house from one Sh.Paul on power of
attorney. He also testified that none of the persons (Radhey Sham and
Omkar Singh) are present in court. He has also testified that he was
summoned by the police at the aforesaid house and in his presence one
purse and one transistor were seized vide seizure memo PW-3/A. He
identified his signatures at point „A‟ and also identified the seized items,
purse at Ex.P-1 and transistor Ex.P-7 (two in one).
45. This witness was cross-examined by the Public Prosecutor and during the
cross-examination by the APP, PW-3 was confronted with the statement
marked „X‟, wherein it had not been recorded that the house in question
was let out to Radhey Sham and Omkar. During cross-examination, PW-
3 has also stated that the house belonged to him has No.Y-2 and not Y-3.
During the cross-examination, it was also denied by PW-3 that the house
was let out to the accused, Vishva Bandhu; he was confronted with the
portion „A to A‟ marked „X‟, wherein it was so recorded. During cross-
examination PW-3 denied that Onkar Tyagi had approached him for
letting the house to Vishva Bandhu; he was also confronted with portion
marked „B to B‟, wherein it had been so recorded. He denied that a
camera was also recovered from the house and he was confronted with the
portion marked „C to C‟ of the statement marked „X‟, wherein it was so
recorded. Further in the cross-examination this witness has stated
contrary to the statement made before police, upon which he was
confronted with the portion „D to D‟ wherein he has stated in his
statement pointing out towards the person, Vishva Bandhu the person
whom he had rented out the house.
46. During cross-examination by counsel for the appellant, Om Pal, PW-3 has
testified that the police recorded his statement on 13.3.1994 at the spot as
well as in the police station; and one purse and a transistor were recovered
by the police from his house between 2:00 to 3:00 p.m. on 13.3.1994.
47. PW-4 (Gurdeep Kumar) testified that on 17.3.1994 he was working as
Metropolitan Magistrate, Tis Hazari Courts; and Manoj was produced
before him. He had asked Manoj about his willingness to participate in
the Test Identification Parade, which was refused by him. He recorded
his statement Ex.PW-4/A. This witness was not cross-examined.
48. PW-5, Sh.Omprakash Mehta, has testified that he had purchased Maruti
Van bearing No.DDB -509 from one Sh.K. K. Batra and had got it
financed from Upkra Leasing, Paschim Vihar, New Delhi. PW-5 has also
testified that he had employed a driver for the van at a monthly salary of
Rs.1000/-. The van was being plied on hire and also for his personal use.
On 5.3.1994 his driver had informed him that some relations of the hirer
were to be dropped to the Airport and the Van would be returned in the
morning of 7.3.1994. The van was returned only at 12:00 noon.
49. PW-6 (ASI Anandi Prasad) testified that on 7.3.1994 Ajay Bahl had come
to him and made a report. He recorded his statement Ex.PW-1/A. He had
then made an endorsement on the statement (Ex.PW-6/A) and sent it
through constable Rajinder Kumar to the police station for registration of
the case. During cross-examination this witness has testified that he
reached the spot of the incident and found a motorcycle lying at the left
side of the Kachha wall going to Prehladpur from the Police Station.
50. PW-16, SI Rameshwar Singh, has testified that on 13.3.1994 when he was
posted with Special Staff of North District, he had accompanied
Inspr.Sohanbir Singh, SI Sanjay Sharma and Ct.Ranbir and went to Burari
Road with regard to kidnapping of Abhey Bahl. Vishva Bandhu was seen
coming from the side of T.B. Hospital towards Dhakka Village on foot.
Since he resembled the photographs and the sketch, which had been
shown to them, he was intercepted. He disclosed his name as Vishva
Bandhu. A country made revolver was recovered from the left dub of the
pant of Vishva Bandhu for which a separate case was registered. The
revolver was loaded with two live cartridges. On interrogation, Vishva
Bandhu disclosed that he could get the kidnapped person, Abhey Bahl,
recovered from House No.Y-2, Budh Vihar, Police Station Sultanpuri.
Vishva Bandhu led the police party to the house, he knocked the door,
Karan Singh opened the door and he was overpowered. Abhey Bahal,
Basant and Om Pal, were present in the room. The accused persons were
interrogated. Susheela, who was upstairs, was brought to the ground floor.
PW-16 identified all the accused persons. Besides proving the pointing
out memos, PW-16 also testified that on search of the house, one tape
recorder, one camera, one pursue containing some papers and visiting
cards, were recovered. The purse also contained revenue stamps. PW-16
also testified that accused Om Pal had identified the Maruti van on
15.3.1994. On 16.3.1994 appellants, Manoj and Subhash, were arrested
from a house in Budh Vihar and in pursuance to the disclosure statement
number plates bearing no.DDA 9736 were recovered from the ganda
nalla.
51. During cross-examination, PW-16 described the house having no door
bell affixed on the door. There was a gallery and a courtyard and
thereafter a room. There was a toilet under the staircase and a handpump
was installed nearby. The adjoining plot was vacant. There was no cot in
the room. There was also a room and a kitchen on the first floor. Susheela
was found in the kitchen on the first floor. He has further testified that the
owner of the house No.Y-2 was called.
52. PW-18, Dr.M.A. Ali, S.S.O. Grade I (Documents), C.F.S.L., C.B.I., has
testified that the questioned documents received by him marked as Q-1
and Q-2 and the questioned writings red encircled and marked Q-1 and Q-
2 on Exhibit PW-2/A, and the specimen writing marked as S-1 to S-5,
which are Exhibits PW-16/J1 and PW-16/J5. PW-18 has further testified
that he examined the questioned and specimen writing, and came to the
conclusion that handwriting evidence pointed to the writer of specimen
writings marked S-1 to S-5, Exhibits PW-16/J1 to PW-16/J5, being the
person responsible for writing the questioned writings red encircled and
marked Q-1 and Q2 on Exhibit PW-2/A.
53. PW-19, Sohanveer, has testified that on 13.3.1994 he was posted as
Inspector Special Staff, North-West District. On that day, investigation of
this case was taken over by him. Based on the portrait, he met SI Man
Singh of Haryana Police, who has since expired. SI Man Singh had told
them that the portrait resembled Vishva Bandhu. His photograph (Exhibit
PW-19/A) was taken. PW-19 also came to know from the village that
appellants, Subhash and Vishva Bandhu, were from the same village and
they were very good friends. Photograph of Vishva Bandhu (Exhibit PW-
19/A) was mixed up with other photographs of kidnappers and criminals
and thereafter those photographs were shown to PW-14, Agam Bahl, who
identified Vishva Bandhu as the person, whom he met at T.B. Hospital
with another person. All teams were shown photographs of Vishva
Bandhu. On 13.3.1994 on receipt of instructions from DCP he along with
SI Rameshwar Singh, SI Sanjay Sharma and Ct.Ranbir Singh in a private
vehicle held nakabandi at Nakka crossing. At around 12.10 p.m., Vishva
Bandhu was seen coming alone on foot from Camp crossing side. As he
resembled the man in the photographs, Exhibit PW-19/A, Vishva Bandhu
was stopped and overpowered. Enquiries were made and from his
personal search, from the left dub of his pant a country made revolver was
recovered, which was containing two live cartridges. A separate case
under Arms Act was registered against him. His disclosure statement was
recorded. He disclosed that Kidnapped person Abhey Bahal was kept and
detained at Y-2, Budh Vihar and he could get him recovered. He led them
to Y-2, Budh Vihar. The door was locked. Vishva Bandhu knocked the
door. Karan Singh opened the door and he was overpowered. There was a
room in the front across a small courtyard. Abhey Bahal was sitting on the
dari. Basant and Om Pal were found in the room. Susheela was found in
the kitchen on the first floor. From the room one camera, a tape recorder,
a pursue belonging to Abhey Bahal, 20 revenue stamps, telephone diary
and visiting cards were recovered. Signatures of landlord and Abhey
Bahal were taken on the seizure memo. This witness has also testified that
he recorded the statements of the landlord, Dev Raj and Abhey Bahal.
PW-19 also recorded the disclosure statements of the appellants Vishva
Bandhu, Om Pal and Basant. He has further deposed that on the next day,
Vishva Bandhu had led them to Bakoli Vilage in a room where the
conspiracy to kidnap Abhey Bahal was hatched. Appellant, Subhash lived
in that room with Sultan Singh Mistri. PW-19 has further testified that
thereafter he took all the five accused persons to the house of Agam Behl
at Model Town. Agam Behl met them at his house and he produced three
cassettes (Exhibits C-1, C-2 and C-3) and one letter (Exhibit P-6), which
were handed over by Agam Behl and were seized vide memo Ex.PW-
16/H. Agam Behl told him that first three lines i.e. portion A to A in
letter, Exhibit P-6, were in the handwriting of his brother, Abhey Behl.
Appellant, Vishva Bandhu on interrogation admitted that rest of the letter,
Exhibit P-6, was written by him. PW-19 obtained specimen handwriting
and signatures of the appellant, Vishva Bandhu on the first sheets, which
are Exhibit PW-16/J1 to J5. The letter Exhibit P-6 was attached with C.D.
whereas the three audio cassettes were sealed in pulanda with seal of RS.
All the five accused persons were produced in Court and he obtained
police remand of appellants, Vishva Bandhu and Om Pal, upto 17.3.1994.
54. PW-19 has further testified that appellant Om Pal led them to a number
plate makers at Thomsan Road, Kashmere Gate and disclosed that he had
got fake number plates of number DDA 9736 from a particular number
plate maker. The said person was found present and PW-19 recorded his
statement. Pursuant to the disclosure statement of appellant, Om Pal, he
took Om Pal and Vishva Bandhu to Sonepat. The appellant, Om Pal,
pointed out towards a van bearing no.DDV 509 which they hired and used
for kidnapping Abhey Bhal. The driver of the van Suresh was found
present and he recorded his statement. Owner of the van also came there,
whose statement was also recorded by PW-19. The van was seized vide
memo, Exhibit PW-16/K, and then they returned to Delhi. On 16.3.1994
appellants, Vishva Bandhu, and Om Pal were taken out of the lock up and
then Vishva Bandhu led the Police party to Budh Vihar and at the
pointing out of Vishva Bandhu, appellant Manoj and Subhash (present in
Court), were arrested. Appellants, Manoj and Subhash, were arrested vide
personal search memos, Exhibits PW-16/L and PW-16/M. While in
custody both the appellants, Subhash and Manoj, made disclosure
statements, Exhibits PW-7/B and PW19/D. In pursuance to the disclosure
statements, appellant Manoj Kumar (present in the Court) pointed out to a
nalla, from where he got recovered two number plates of Maruti van
bearing numbers DDA 9736 which were sealed in a parcel with the seal of
RS and the same were taken into possession vide memo Exhibit PW-7/C.
The number plates are Exhibits P-9 and P-10. Since appellant Manoj
Kumar was to be identified in TIP his face was got muffled and he was
directed to keep his face muffled. On 17.3.1994 appellants, Manoj Kumar,
Subhash, Vishva Bandhu and Om Pal were produced in the Court and an
application for TIP of appellant Manoj Kumar was moved in the court but
he refused to join TIP.
55. PW-19 has also testified that on 18.3.1994 Abhey Bahl came to his office
and letter Exhibit P-6 was shown to him wherein he identified first three
lines at portion A to A as to be in his handwriting. Abhey Bahl told him
that portion A to A was got written from him by accused persons in the
evening of 12.3.1994 while threatening him and in similar way his voice
was recorded in the cassette. He has further testified that during
investigation he recorded the statement of the property dealer also through
whom appellant Vishva Bandhu and father of appellant Manoj had taken a
room on rent at Y-2, Budh Vihar, where appellant Karan Singh and
Susheela were lodged 15/20 days prior to incident. It is the same house
where Abhey Bahl was kept after kidnapping.
56. During cross-examination this witness has testified that no child was
found in the house no.Y-2 but one cot was lying in the outer room, one
cot was found in the first floor, one dari was found in the room from
where Abhey Bahl was recovered. He had not minutely searched the
house to check other house hold articles in the house. He had not noticed
any trunk or suit case in the house no.Y-2.
57. DW-1, Panna Lal, has testified that appellant, Basant, is his son. At about
11.00/11.45 a.m., one police van of while colour came in which three
police officials were in civil uniform and one was in police uniform. They
enquired about Basant. He informed them that Basant was taking food.
Basant was being taken to the Police Station for some enquiries about a
tempo, which was involved in an accident. Basant did not return for 3-4
days. DW-1 came to know that Basant had been arrested and he had been
falsely implicated in this case.
58. DW-2, Devi Singh, also testified that he is an agriculturist by profession
and also a Numberdar of the Village. He has further deposed that he
knows retired Patwari, Panna Lal, DW-1. It has further been deposed that
the accused Basant is the son of Panna Lal. About 5 years ago in the
month of Fagun at about 11.00 a.m. he was present at the residence of
Panna Lal to get some documents checked. Basant was taking food. A
white Maruti like vehicle came and took away Basant. Basant did not
return for 3-4 days.
59. DW-3, Suman, has testified that appellant, Manoj, is his son and Vishva
Bandhu is his relative. The relationship between them had soured on
account of some payments in the year 1991-92. Many times she and her
husband had demanded Rs.18,000/- or Rs.20,000/-, which were borrowed
by Vishva Bandhu, but he did not pay, and one day during quarrel Vishva
Bandhu had threatened that Manoj would be involved in a serious case.
When Vishva Bandhu was arrested her son was also lifted by the Police.
60. DW-4, Dharampal, has testified that appellant, Ompal, lives in his
neighbourhood and was treated like a cousin. On 13.3.1994 at about 6.00
or 7.00 a.m. 3 or 4 Constables had met him. They asked about the house
of Karan Singh. He took the Police to the house of Karan Singh, who is
the father of Om Pal. Karan Singh, his wife and other children including
Om Pal were present. Om Pal was sleeping in his room and he was taken
away by the Police.
61. We may notice that the appellant Vishva Bandhu was declared as a
proclaimed offender after 19 witnesses had been examined. It is only
after the judgment dated 25.8.1999 was delivered Vishva Bandhu was
arrested and judgment in his case was delivered on 24.11.2005. It has
been argued before us by Mr.Wadhwa, counsel appearing for the
appellant (Subhash) that the appellants, Subhash, Karan Singh and
Sushila, could not have been convicted under Section 364A IPC in the
absence of a specific charge having been framed against them. It is the
case of the appellants (CRL.A. 604/1999 titled as Karan Singh & Others
v. State, CRL.A. 26/2000 titled as Susheela v. State & CRL.A. 408/2000
titled as Subhash Chand v. State) that Karan Singh and Sushila, who are
husband and wife have been falsely implicated in this case by the police
on account of misunderstanding at the wedding of Susheela‟s bua‟s son
where the Police persons had misbehaved with Susheela. It has been
contended that the victim has named and identified the appellants, Karan
Singh and Sushila at the instance of police and there is nothing to link the
appellants, Karan and Susheela to the house from where the victim was
allegedly rescued.
62. Counsel has further submitted that there is nothing on record to suggest
that the appellants had beaten or created any fear in the mind of the victim
that in case the ransom amount demanded is not paid the victim would be
killed. It has also been contended that Karan Singh and Susheela had not
participated in any manner in the kidnapping of the victim, neither they
were present when the victim was kidnapped. It has also been contended
that even otherwise the victim has only made general and vague assertion
that Karan Singh and Sushila used to threaten and beat him.
63. Mr.Wadhwa has argued that the conduct of the appellant (Subhash) would
show that he did not behave as an accused or a guilty man; he was the first
person who informed the brother of the victim with regard to the
kidnapping of his brother; he gave the car number; identified the spot;
pointed towards the direction in which the vehicle had gone and most
importantly he gave description of Vishva Bandhu on the basis of which a
sketch was prepared and Vishva Bandhu was finally arrested.
64. The first question which arises for consideration is whether in the absence
of a charge having been framed under Section 364-A IPC against the
appellants (Karan Singh, Sushila and Subhash), could they be held guilty
under Section 364A of the Indian Penal Code.
65. Learned APP for the state has argued that a specific charge not having
been framed under Section 364A of the Indian Penal Code against these
three appellants was an omission, which is curable and moreover, the
appellants have not suffered any prejudice on this account. In somewhat
identical circumstances in the case of Anil @ Raju Namdev Patil v.
Administration of Daman and Diu, Daman & Anr., reported at I (2007)
CCR 75 (SC), it has been held:
"53. The propositions of law which can be culled out from
the aforementioned judgments are:
(i) The appellant should not suffer any prejudice by
reason of misjoinder of charges.
(ii) A conviction for lesser offence is permissible.
(iii) It should not result in failure of justice.
(iv) If there is a substantial compliance, misjoinder of
charges may not be fatal and such misjoinder must be
arising out of mere misjoinder to frame charges.
54. The ingredients for commission of offence under
Section 364 and 364-A are different. Whereas the intention
to kidnap in order that he may be murdered or may be so
disposed of as to be put in danger as murder satisfies the
requirements of Section 364 of the Indian Penal Code, for
obtaining a conviction for commission of an offence under
Section 364-A thereof it is necessary to prove that not only
such kidnapping or abetment has taken place but thereafter
the accused threatened to cause death or hurt to such person
or by his conduct gives rise to a reasonable apprehension that
such person may be put to death or hurt or causes hurt or
death to such person in order to compel the government or
any foreign State or international intergovernmental
organization or any other person to do or abstain from doing
any act or to pay a ransom.
66. In this case charge was framed against the appellants herein under Section
120B and under Section 387 IPC. In the judgment the trial court has
observed that:
"150. All the accused persons have been charged with offence
punishable u/s.387 read with Section 120B of I.P.C. In my
opinion the offence punishable u/s.387 I.P.C. is covered by
Section 364-A I.P.C. in the present case, and accused persons
need not be convicted for offence punishable u/s.387 read
with Section 120B I.P.C. separately."
67. In our view the trial court has erred in reaching a conclusion that the
offence punishable under Section 387 IPC is covered by Section 364A
IPC and thus the accused persons need not be convicted for the offence
under Section 387 read with Section 120 IPC. The appellant in our view
can be convicted for a lesser offence. In the absence of a specific charge
against the appellants (Karan Singh, Sushila and Subhash) they could not
have been convicted for the offence under Section 364A IPC. The
observations in the case of Anil @ Raju Namdev Patil (supra) are fully
applicable to the facts of this case. No charge under Section 364-A IPC
was framed against these appellants. Hence the trial court could not have
convicted the appellants (Karan Singh, Sushila and Subhash) for the
offence under Section 364-A IPC.
68. However, Karan Singh and his wife Sushila have been duly identified by
the victim (Abhey). The victim has testified that after he was kidnapped
he was taken to a house where Karan Singh and Sushila were present;
Sushila used to provide food to them and the other accused. He has also
testified that on 13.3.1994 between 2:00 and 3:00 p.m. police along with
the Vishva Bandhu entered in the house where he was confined and
rescued him. Karan Singh and Sushila were also present there. The
evidence of this witness stands corroborated by the PW-19 (Inspector
Sohanveer) and testified that Vishva Bandhu led the police party to Y-2,
Budh VIhar, around 3:00 p.m.; door was knocked, and Karan Singh,
whom he identified in the court, opened the door from inside and
thereafter he was overpowered. Susheela were also found at the first
instance and both of them were arrested. S.I. Rameshwar Singh has also
testified that he was posted as special staff, North District; he had
accompanied Inspector Sohanveer and S.I. Sanjay Sharma and Constable
Ranbir Singh at the time of raid. He testified that Karan Singh opened the
door and he was overpowered, whereas Susheela was up-stairs; she was
brought to the ground floor. This witness has also testified that the
personal search memo of Karan Singh Ex.PW-16/E and the personal
search memo of Sushila Ex.-16/F were written by him. Based on the
testimony of the victim as also the testimony of PW-16 and 19, we are
satisfied that appellants (Susheela and Karan Singh) were present at the
time of the raid and rescue of the victim. With regard to the presence of
Karan Singh and Susheela, PW-7 has also testified on the same lines.
69. Mr.Rajat Wadhwa, counsel appearing for the appellant (Subhash) has
argued that Subhash has been falsely implicated in the case and his
conduct is not that of a guilty man; he has cooperated with the police and
the brother of the victim and gave details with regard to kidnapping and
helped in making the sketch of Vishwa Bandhu. It is submitted that the
victim would have named the him out of nervousness.
70. Although the argument addressed by Mr.Wadhwa, seems attractive, but
we are unable to agree with the same for the reason that PW-1, the brother
of the victim has testified that on the fateful day he received a phone call
from one of the labourers, namely, Subhash, whom he identified in court,
informing him that about 9:00 a.m. between Shahbad Dairy and Prehlad
Pur, the motorcycle of his brother was hit by a Maruti van bearing
no.DDA 9736 on account of which his motorcycle fell down and
thereafter his brother along with cash was taken away in the said Maruti
Van from the spot and the van had gone towards Bawana. Although there
is no clarity as to how Subhash was able to provide details to PW-1.
What is surprising is that he even informed PW-1 that his brother along
with cash was taken in the Van. Providing such minute details and not
rendering any explanation casts a doubt on his conduct, moreover, even in
case out of nervousness PW-2 had named him in the statement under
Section 161, his brother PW-1 would have informed him i.e. the victim of
all the good work of Subhash and there was no reason why PW-2 the
victim would have not clarified it that he named Subhash out of
nervousness. In fact PW-2, the victim has testified that during his
confinement Subhash who used to work in their factory also came there
and he too had extended threats to him. He then identified Subhash in
Court.
71. For the above reasons, we find that although no case is made out against
the appellants (Subhash Chand, Karan Singh and his wife Sushila) under
Section 364-A IPC, but having regard that Karan Singh and Sushila were
arrested at the time of raid and PW-2, victim identified them and the fact
that the victim has named Subhash as one of the persons who had come to
the house where he was confined and extended threats to him, the
aforesaid three appellants are convicted under Section 363 IPC.
72. As far as appellants (Vishwa Bandhu, Om Pal Singh, Manoj Kumar and
Vasant Kumar) are concerned charge has been framed against them under
Section 364A as also under Section 120B IPC.
73. The first question which comes up for consideration is as to whether a
case under Section 364-A IPC is made out against the appellants or not.
Section 364A of the Indian Penal Code reads as under:
"364A. Kidnapping for ransom, etc.- Whoever kidnaps or
abducts any person or keeps a person in detention after such
kidnapping or abduction and threatens to cause death or hurt to
such person, or by his conduct gives rise to a reasonable
apprehension that such person may be put to death or hurt, or
causes hurt or death to such person in order to compel the
Government or any foreign State or international inter-
governmental organisation or any other person to do or abstain
from doing any act or to pay a ransom, shall be punishable with
death, or imprisonment for life, and shall also be liable to fine."
74. Thus Section 364A has the following ingredients:
i. That kidnapping or abduction of a person is caused; or „such
kidnapped or abducted person‟ is kept under detention;
ii. That the accused threatened to cause death or hurt, to „such
person‟ or gave rise to a reasonable apprehension that death or
hurt may be caused to „such person‟, or death or hurt is actually
caused;
iii. The above said is done to compel another person to do or
abstain from doing any act or to pay a ransom.
75. In Vishwanath Gupta v. State of Uttaranchal, 2007(11) SCC 633, the
Supreme Court observed that to prove the offence under Section 364A,
three facts are required to be established. The Supreme Court held that:
"According to Section 364A, whoever kidnaps or abducts any
person and keeps him in detention and threatens to cause death or
hurt to such person and by his conduct gives rise to a reasonable
apprehension that such person may be put to death or hurt, and
claims a ransom and if death is caused then in that case the
accused can be punished with death or imprisonment for life and
also liable to pay fine.
6. The important ingredient of Section 364A is the abduction or
kidnapping, as the case may be. Thereafter, a threat to the
kidnapped/abducted that if the demand for ransom is not made then
the victim is likely to be put to death and in the event death is
caused, the offence of Section 364A is complete. There are three
stages in this Section, one is the kidnapping or abduction, second is
threat of death coupled with the demand of money and lastly when
the demand is not made, then causing death. If the three
ingredients are available, that will constitute the offence under
Section 364A of the Indian Penal Code..."
76. We deem it appropriate to reproduce portion of the evidence of PW-2,
wherein he has testified with regard to his being threatened in case his
family did not pay ransom amount.
"2. I was taken in the Maruti Van to a house and I was confined
in a room. In the house accused Karan Singh, his wife
Sushila were present. Accused Sushila provide the food to
other accused and to me and she used to give me threats that
if my family members did not pay ransom, she would got me
killed. All the accused persons used to beat me with fists and
kicks at the said house. The other accused persons also used
to give me similar threats to me, while I was confined at the
said house. During the period, I was confined, accused
Manoj and Vishva Bandhu used to leave the house in the
morning and they used to return in the evening.......
2. ........ I was confined in the said house for 7 days before I was
rescued by the police. On 12.3.1994 accused Vishva Bandhu
got written a letter from me in two lines. On 13-3-1994
accused Vishva Bandhu got me photographed and recorded
my voice....."
77. It has been argued before us that the victim was properly looked after and
he was not beaten or threatened in any manner. He was provided food
and his testimony that he was beaten with fists and kicks cannot be
believed, as admittedly, after he was rescued no MLC was carried out and
the only reason why no MLC was carried out was that because he was
hale and hearty and in case for 7 days he was beaten with fists and kicks,
he would have been bruises and would have had injury marks. The
statement of the victim, Karan Singh and Susheela, makes it clear that the
victim was not medically examined. We have also examined the letter
which Vishwa Bandhu had got written from the victim and also the letter
written by Vishwa Bandhu, demanding ransom. The victim has written
"MAI THEEK THAK HUN". He has not communicated to his family that
in case ransom is not paid, he would be killed and in fact even Vishwa
Bandhu while demanding ransom has stated that we do not want to kill
the victim.
78. However, having regard to the evidence of material witnesses we are of
the view that a case under Section 363 of the Indian Penal Code is made
out against all the appellants. We find the evidence of the victim, PW-2,
to be reliable and trustworthy. He has described the manner in which his
motor-cycle was stopped and three persons came out from Maruti Van,
being Vishwa Bandhu, Manoj and Basant and pushed him inside the Van,
whom he identified in court. He also identified Om Pal Singh, as the
driver, who was driving the Maruti Van. He also described role of each of
the three appellants (Vishwa Bandhu was holding a revolver, whereas
Vasant Kumar and Manoj had knife); all three of them pushed the victim
into the Van; thereafter he was confined in a room. PW-2 has also
described that Karan Singh and his wife (Sushila) were present in the
room; Sushila used to provide food to him and the other accused persons;
Sushila and the other accused had threatened him that if the ransom was
not paid, he would be killed. He has also testified that all the accused
persons used to beat him with fists and kicks. The evidence of PW-2
stands duly corroborated by the evidence of PW-1, PW-19, Inspr.Sohanvir
Singh, the evidence of the landlord and the testimony of PW-16.
79. Having regard to the entire evidence on record while it leaves no room for
doubt that all the appellants in conspiracy with one another kidnapped the
victim; Om Pal Singh was driving Maruti Van as identified by the
victim; Vishwa Bandhu, Manoj and Vasant were present in the Van when
they kidnapped the victim. All the appellants were duly identified by the
victim. The testimony of the victim stands corroborated by the testimony
of PW-16, PW-19 and PW-7 (the three police officers) - the raiding party;
evidence of the landlord. The appellants (Manoj Kumar and Vishva
Bandhu) have undergone 11 years; and the appellant (Om Pal Singh and
Vasant Kumar) have undergone 8 years. All the appellants are convicted
under Section 363 and 120B of the Indian Penal Code and are sentenced
to the period already undergone.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
APRIL 30th, 2015
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