Delhi High Court
Mahender Singh vs State on 16 March, 2016
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : March 16, 2016
+ CRL.A.449/2000
MAHENDER SINGH .....Appellant
Represented by: Mr.G.S.Sharma, Advocate with
Mr.R.A.Sharma, Mr.V.K.Sharma
and Mr.Jitender Panchal,
Advocates
versus
STATE .....Respondent
Represented by: Mr.Varun Goswami, APP with SI
Kapil Kumar PS GTB Enclave.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (Oral)
1. Mahender Singh has been convicted for offence punishable under
Section 364A IPC vide the judgment dated May 03, 2000 and directed to
undergo imprisonment for life vide the order on sentence dated May 11,
2000. Vide the impugned judgment co-accused Vinod Kumar @ Binnay
and Smt.Manju Sharma have been acquitted.
2. The prosecution case rests on the testimony of Smt.Saroj Verma,
the mother of Rajat @ Golu, child aged 1½ years at the time of alleged
incident and we reproduce her deposition in the Court as under:
"Accused Mahender Singh was working as a mistry at our
scooter-repair shop, from the last 2 years. On 3.1.98 at
about 8.00 or 8.30 a.m., accused Mahender Singh came to
our house to obtain the key of the aforesaid shop. I can
identify the accused Mahender Singh, present before the
Court (the witness rightly identify the accused). I handed
over the keys of our shop to the accused. My son Gollu was
playing in the courtyard. He lifted Gollu, questioning him
as to whether he would accompany him. At that time, Gollu
was aged about 15 months. Gollu used to go at our shop
alongwith his father, his grandfather and the accused also.
On 3.1.98, accused had taken my son alongwith him. Our
shop is located outside the house, in the same premises.
When Gollu had not returned for about half an hour I went
to our shop alongwith tea for the accused. Accused was not
present at the shop. I searched for accused and Gollu,
while standing at the shop for sometime. When accused has
not returned nor Gollu was available, I telephoned my
husband at his office. Within 20 minutes my husband
reached home. I was standing outside the shop, waiting for
the accused and my son. I immediately heard the telephone
call and lifted the receiver. Accused Mahender was there on
the other side. He told me that Gollu was with him. He also
informed that he was at Geeta Nursing Home, since Gollu
had received injuries. He further informed that in case he is
not available at Geeta Nursing Home, then he may be
searched at GTB Hospital, Shahdara. My husband and our
neighbours had gone to Geeta Nursing Home.
After a long time, the accused gave a second
telephonic call. He told us that he was sitting at Gagan
Cinema and Gollu be taken from there. I informed about
this telephonic call to my father-in-law and brother-in-law.
I telephoned my husband at the police station and informed
him about that fact. At about 4 p.m. accused again
telephoned at our residence. Telephone is installed at our
shop. I reached there and heard the call. He told me that
Gollu was with him and she should arrange for a sum of
Rs.5 lakhs upto 10th of January otherwise Gollu will be
killed. I became hopeless.
On 26.1.98 my son Gollu was recovered."
3. In cross-examination various suggestions have been given to
Smt.Saroj Verma including the suggestion that she consented to taking
away of Golu upto the shop and that when Mahender telephoned her at
about 4.00-4.30 PM that he was returning home with the child Smt.Saroj
Verma asked him not to return home with the child as her husband had
lodged the complaint and Mahender should return only after 2-3 days. A
suggestion was also given to Smt.Saroj Verma that Golu was borne out
of the loins of accused Mahender.
4. From the evidence of Smt.Saroj Verma as noted above it is clear
that Mahender Singh on January 03, 1998 at about 8.00-8.30 AM in the
morning took away child Rajat @ Golu from his house to the shop and
did not return till 4.00-4.30 PM in the evening. The child could be
recovered only on January 26, 1998 abandoned near a drain in
Bullandsher. From the evidence of Saroj Verma the offence of
kidnapping punishable under Section 363 IPC is thus made out against
Mahender Singh. However, the issue is whether the offence under
Section 364A IPC is made out or not.
5. As per Saroj Verma in the call made by Mahender Singh at 4.00
PM he stated that Golu was with him and Saroj Verma should arrange for
a sum of `5 lakhs upto 10th January otherwise Golu will be killed. In her
statement under Section 161 Cr.P.C. the words 'Golu will be killed' are
not mentioned. This is a material improvement in the statement of the
witness thus liable to be ignored.
6. Whether mere demand of money unaccompanied by any threat or
hurt would fall within the ambit of Section 364A IPC came up for
consideration before the Division Bench of this Court in the decision
reported as 149 (2008) DLT 306 (DB) Rafiq & Anr. vs.State wherein this
Court held:
"10. Another submission made on behalf of the appellant
was that no threat to cause death or hurt to the kidnapped
child had been extended nor the appellants by their conduct
gave rise to a reasonable apprehension that the kidnapped
child could be put to death or hurt, to make Mohd. Ikrar to
pay ransom, conviction and sentencing of the appellants
under Section 364A IPC cannot be sustained. An argument
in this respect was advanced before the learned trial court
also but the same was held unacceptable. In this context it
may be noticed that though there is evidence of ransom calls
being received by the father of the kidnapped child on his
phone, the identity of the person making such ransom calls
could not be proved. That apart, a mere demand of ransom
amount for release of a kidnapped person, is not sufficient
to attract application of Section 364A IPC unless it is also
proved that the kidnapped person was threatened with death
or hurt or that the conduct of the kidnappers was such
which could raise a reasonable apprehension that he could
be put to death or hurt if the ransom amount was not paid.
In the present case the child did not state that the appellants
had at any point of time threatened to cause his death or
hurt. Even the father of the child at no place in his statement
testifies that the person making ransom calls had on any
occasion threatened to kill the kidnapped child or cause
hurt to him. The appellants at no stage by their conduct
gave rise to a reasonable apprehension to the father or any
member of his family that in the event of ransom amount
being not paid, the kidnapped child would be put to death or
hurt. The learned trial court in the impugned judgment
while finding that the appellants from their conduct gave
rise to reasonable apprehension that the kidnapped child
would be put to death or hurt, did not spell out their
particular conduct which could have given rise to the
reasonable apprehension as aforesaid. There being total
absence of evidence in regard to any threat to cause death
or hurt to the kidnapped child and also for lack of evidence
in regard to the appellants conducting themselves in a way
that could give rise to a reasonable apprehension that the
child would be put to death or hurt, the ransom demands
implicate could not have brought the offence within the
ambit of Section 364A IPC.
7. As noted in the present case the ransom call was received by Saroj
Verma and that Mahender had threatened to kill Golu in case ransom
amount was not arranged was stated in the Court for the first time which
in our opinion is a material improvement. Consequently the conviction
of Mahender Singh is modified from one under Section 364A IPC to the
offence of kidnapping punishable under Section 363 IPC. Mahender
Singh was released on bail on September 15, 2008 after undergoing
imprisonment for 10 years and 8 months excluding remissions. Thus the
sentence is modified to the period already undergone.
8. The appeal is disposed of.
9. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
10. TCR be returned.
(MUKTA GUPTA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
MARCH 16, 2016
'vn'
