Delhi High Court
Manish Chand vs State Govt. Of Nct Of Delhi on 5 April, 2018
$~3 to 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1337/2013
MANISH CHAND ..... Appellant
Through: Ms. Aishwarya Rao, Advocate.
versus
STATE GOVT. OF NCT OF DELHI ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP for
State
4
+ CRL.A. 1369/2013
DAL CHAND ..... Appellant
Through: Mr. Biswajit Kumar Patra and
Mr. Syed Meesam, Advocates
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP for
State
5
+ CRL.A. 716/2014
RAJ KISHORE ..... Appellant
Through: Ms. Inderjeet Sidhu, Advocate
(DHCLSC)
Versus
STATE ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP for
State
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA
Crl.A. Nos. 1337/2013, 1369/2013 & 716/2014 Page 1 of 18
JUDGMENT
% 05.04.2018
Dr. S. Muralidhar, J.:
1. These appeals are directed against the judgment dated 8 th July, 2013
passed by the learned Additional Sessions Judge, North West-II, Rohini
Courts in Sessions Case No. 63/2013 arising out of FIR No. 179/2011
registered at Police Station („PS‟) Adarsh Nagar convicting the Appellants
for the offence under Section 364-A read with 120-B IPC and the order on
sentence dated 16th July, 2013 whereby each of them were sentenced to
Rigorous Imprisonment („RI‟) for life with the fine of Rs. 10,000/- in default
to undergo Simple Imprisonment („SI‟) for the period of one month for the
aforementioned offence.
The charge
2. The charge against the aforementioned three Appellants i.e. Dal Chand
(Accused No.1: A-1), Raj Kishore (A-2), Manish Chand (A-4) along with
another co-accused Sanjay Yadav (A-3) [who was a juvenile in conflict with
the law („JCL‟) and whose trial therefore got separated and conducted before
the JJB] was that before 11th July, 2011 they entered into a criminal
conspiracy. The second charge was that pursuant thereto on the said date at
around 5 pm they kidnapped Prince, aged six years from Jhuggi no.E-15 at
Lal Bagh, Azad Pur, Delhi and thereafter made a ransom call to his father
stating that if a sum of Rs. 20 lacs was not paid, Prince would be killed.
They were accordingly charged with having committed the offences
punishable under Section 120 B IPC per se and Section 364 A IPC read with
Section 120 B IPC.
The child goes missing
3. The process of law was set in motion when Dharambir (PW-8) came to
PS Adarsh Nagar at around 4.30 p.m. on 12th July, 2011 stating that his son
Prince aged six years had gone missing from around 5 pm on 11 th July,
2011. In a statement (Ex.PW-8/A), PW-8 stated that his son was playing
outside the jhuggi and had not returned home.
4. Inspector Arvind Pratap Singh, (PW-16) who was at the time Sub-
Inspector („SI‟) at PS Adarsh Nagar registered a case on the basis of the
above statement and then accompanied PW-8 to his house and thereafter to
the Azadpur Bus Terminal and the railway station in order to trace the child
but could not find him. A wireless transmission message was sent to all
SSPs and DCPs in Delhi and all over India. Details were entered in the Zip
net and hue and cry notices were issued.
The ransom calls
5. On 14th July, 2011 while PW-16 was at the PS, PW-8 came there at
around 9 am and informed him that PW-8 had received a ransom call on his
mobile bearing no.9953716681 (hereafter 6681) on 13 th July, 2011 at around
8 pm from a mobile No. 9058435350 (hereafter 5350) from an unknown
person. The caller stated that the child was with him and in case PW-8
wanted the child to remain alive he should pay a ransom of Rs.20 lacs. PW-
8 purportedly told the caller that he did not have the financial capacity to
pay such an amount and sought some time to arrange for the funds.
6. PW-8 then told PW-16 that he again received a call at 1 pm on 14th July,
2011 from another mobile No. 9528839799 (hereafter 9799) where the caller
again threatened to kill Prince in case PW-8 informed the police or anyone
else. PW-8 told the caller that he was ready to pay the ransom but he should
be made to talk to his child to ensure that the child was alive. The caller told
him that he would be made to talk to the child in the evening.
7. On 14th July, 2011 at 8.40 p.m. PW-8 received another call from the same
number. He spoke to Prince. He also requested the caller to decrease the
ransom amount and asked for 3-4 days‟ time. The caller then gave him two
days‟ time to arrange for the money.
8. At this stage, a supplementary statement of PW-8 was recorded by PW-16
and the CDRs were also obtained in respect of the numbers that PW-8 gave
him.
9. According to PW-16, from the CDRs it was revealed that the calls were
made from Etawa, UP. It is also informed that one of the numbers
9990834556 (hereafter 4556) was in constant touch with both PW-8 as well
as the other person who had called the mobile of PW-8 i.e. the number
ending with 6681 on 13th July, 2011.
10. When PW-16 asked PW-8 about the mobile number ending with 4556 he
was informed by PW-8 that it belonged to A-1 who happened to be related
to PW-8. Upon learning this, PW-16 accompanied by PW-8 went to the
Jhuggi of A-1 but could not find him and were informed that he had gone to
his native place. PW-8 informed PW-16 that A-1 was a native of village
near Mainpuri and had relatives living at Etawa, UP.
The rescue of the child
11. PW-16 then constituted a police team and left for Etawa at 11.45 p.m. on
14th July, 2011. While they were at Etawa on 15th July 2011, at around 6.30
pm PW-8 conveyed to them through the duty officer at the PS in Delhi that
he had received another ransom call from the same number 9799. PW-16,
who was at Etawa, asked PW-8 to reach the Etawa police lines. Meanwhile
PW-16 came to know that one of A-1‟s relatives was residing at Chakva
Khurd, Etawa and A-1 frequently visited that place.
12. The police team reached PS Basrehar, Etawa on 16th July, 2011 and
made a DD entry regarding their arrival. PW-8 met them there. PW-16
constituted a ready party and also associated local police officials. At 4.35
pm they left PS Basrehar for Chakva Khurd. On the way, they met a secret
informer near a petrol pump who disclosed that a child had been kidnapped
from Delhi and brought to village Chakva Khurd.
13. The police team reached the outskirts of the village and parked their
vehicles. The informer told them that the child was in the house of A-4.
When the police party reached the house of A-4, they noticed a person
sitting outside who upon seeing them ran inside the house. They followed
him into the house and found that another person was standing outside the
room there. Inside the room they found Prince and another person with him.
The person standing outside the room was identified as A-1. The person
found sitting inside the room was identified as A-2. Incidentally, A-1 and A-
2 are stated to be related. On enquiry from A-1 and A-2 it was learnt that
there was one more person A-3 who had gone back to his house and that the
person who was keeping watch outside the house was A-4 who had run
away.
Arrests of the accused
14. A-1 and A-2 were arrested and subjected to personal search. A-1 is
stated to have taken the police party to the house of A-3 who was then
arrested. All the three i.e. A-1, A-2 and A-3 was brought back to PS
Basrehar and interrogated. The police party reached Delhi on the morning of
17th July, 2011 with the three accused and the child and their disclosure
statements were recorded. On the same day, the child was handed back to
the custody of his parents after being produced before the learned MM.
15. According to PW-16, on 19th July 2011, A-1 then got recovered a Nokia
Mobile containing a sim of Idea bearing No. 4556. This was then seized.
The child's statement before the MM
16. The statement of the child was also recorded on 19th July 2011 before the
learned MM under Section 164 Cr PC. In the said statement (Ex.PW-16/C)
the child disclosed that A-1, who was living nearby, came there while he
was playing outside his house on 11 th July, 2011 and told him that his
mother was calling him. As soon as the child went near A-1, he took him
away to some place far away where Sanjay (A3), Manish (A4) and one more
person were present. Those four persons then made him sit in a bus and took
him to Etawa. They had kept him for four days in a Jhopri. When he told
them that he wanted to return to his parents they told him that his father
would come there on his own. Thereafter the police came there and took him
away.
Recovery of mobile phones
17. PW-16 further stated that on 20th July, 2011 they again visited village
Chakva Khurd accompanied by A-3 who got recovered two mobiles, one of
make Lava bearing a number ending in 9799 and another of make G-Five
bearing a number ending in 1176 from a black coloured box in his house
there. The Lava mobile bearing a number ending in 9799 was the mobile
phone from which the ransom calls had been made. According to A-3, the
other mobile phone bearing a number ending in 1176 belonged to A-2 and
was used by him to communicate with both A-3 and A-1. Thereafter they
went to the house of A-4 but did not find him there.
18. While going to the Railway Station in the evening, they reached near the
Subzi Mandi in Etawa when A-3 pointed out a boy who was standing in
front of the gate of the Mandi and stated that he was A-4. On this A-4 was
also arrested and from his personal search a mobile phone with number
ending in 9605 used by the accused to talk to his other associates, was
recovered.
19. On the completion of the investigation, charge sheet was filed and by the
aforementioned order dated 29th November, 2011 charges were framed
against the aforementioned three accused and Sanjay Yadav (A-3) in the
manner indicated hereinbefore.
The trial
20. The prosecution examined 16 witnesses. The child was examined as
PW-1. He was examined without oath with the trial court satisfying itself
that he was capable of understanding and speaking the truth. The child more
or less stuck to the version given by him in the statement made to the
learned MM under Section 164 Cr.PC. The slight discrepancy was that he
stated that he was confined in a hut which remained closed and when he
asked the accused that he wanted to go to his parents they replied „kal lekar
jayenge‟.
21. The child was able to identify all the accused persons present in court
with their names. For some reason the child was not subjected to any cross
examination whatsoever.
22. The child‟s father, Dharambir, was examined as PW-8 and he described
in detail the steps that were taken after the child had gone missing including
his accompanying PW-16 on the visits to the house of A-1 and later going to
Etawa and being present at the time of the recovery of the child in the
presence of A-1, A-2 and A-3.
23. PW-8 was subjected to some minimal cross examination but nothing
much could be elicited for the case of the accused. In fact his cross
examination revealed that he was earning Rs. 25,000/- to Rs. 30,000/-
annually from agricultural produce; that he had received compensation for
some agricultural land that belonged to him as a result of partition of the
family property. He also stated that his wife had left for Agra three days
prior on 11th July, 2011. He accepted that A-1 was on visiting terms with his
family and was living in their neighbourhood.
24. Nothing much emerged from the cross-examination of PW-8 that could
assist any of the accused. It must be noticed that PW-8 first deposed in the
Court on 2nd April, 2012 by way of examination-in-chief. His cross-
examination which commenced on that date continued on 3 rd April, 2012;
16th October, 2012 and ended on 2nd April, 2013. Even the cross-
examination of PW-16, the Investigating Officer (IO) of the case, did not
yield much for the accused.
25. During the trial, the CDRs of the aforementioned mobile phones were all
produced by the concerned mobile service providers accompanied by the
certificate under Section 65-B of the Indian Evidence Act. These CDRs
established that calls were exchanged between the accused throughout and
that the entire operation was co-ordinated by A-1.
Impugned judgment of the trial Court
26. The trial Court in the impugned judgment concluded that the prosecution
has been able to prove its case beyond all reasonable doubt. The trial Court
returned a finding against all the three appellants for the offence under
Section 364-A read with 120-B IPC and proceeded to sentence the
appellants in the manner indicated hereinbefore. There was no separate
conviction for the offence under Section 120- B IPC.
27. This court has heard at length the submissions of learned counsel for the
Appellants as well as the learned APP for the State.
No denial of fair trial
28. Counsel for all three Appellants were faced with the same difficulty viz.,
victim child (PW-1) not having been subjected to any cross-examination
whatsoever in the trial. The child was examined on 6th February, 2012. The
trial ultimately concluded on 28th May, 2013 with the recording of the
statements of the Appellants under Section 313 Cr PC. During this entire
period no application was made on behalf of any of the Appellants for
recalling the child for cross-examination. This opportunity, available to the
counsel for the accused, was not availed.
29. It cannot therefore, be said that there was any denial of a fair procedure
of trial as has been contended by learned counsel for the Appellants.
Evidence of the victim child
30. The key witness in the present case was of course the victim child. As
regard the legal position on the appreciation by a Court of the evidence of a
child witness, in Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5
SCC 341 the Supreme Court held:
"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
answers thereto. 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."
31. In Nivrutti Pandurang Kokate v. The State of Maharashtra (2008) 12
SCC 565 the legal position was explained thus:
"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. This 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 moulded, 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."
32. In Ranjeet Kumar Ram v. State of Bihar 2015 (6) SCALE 529, it was
observed:
"Evidence of the child witness and its credibility would depend upon
the circumstances of each case. Only precaution which the court has
to bear in mind while assessing the evidence of a child witness is that
the witness must be a reliable one."
33. In the present case, both at the stage of recording his statement under
Section 164 Cr PC and later in the Court during the trial, sufficient
precautions were taken to ensure that the child was not under any pressure
and fully understood the responsibility of having to speak the truth. The
child has been consistent and very clear not only in pointing out who
abducted him but also what happened to him, where he was taken and kept.
He has also been able to clearly identify each of the accused in the Court.
34. The minor discrepancy pointed out that as per the victim‟s depositions
during trial when he asked to be taken to his parents the accused had replied
„Kal Lekar Jayenge‟, whereas in a statement under Section 164 Cr PC the
child said that the abductors told him that his father would himself come to
where he was, is not material enough to discredit the testimony of the child.
Consequently, the involvement of the three Appellants before this Court in
the abduction of the child is more than adequately proved by the testimony
of the child himself.
Ingredients of Section 364 A IPC
35. It was then submitted by learned counsel for the Appellants that one of
the key ingredients of Section 364-A IPC is the threat to the person being
held for ransom that he would be hurt or put to death or hurt. It was
submitted that the threat should be administered to the person who is
abducted. Reliance was placed on the decision of the Supreme Court in
Vishwanath Gupta v. State of Uttranchal (2007) 11 SCC 633 to urge that
unless the above threat is combined with actually putting the person
kidnapped to death, the offence itself is not attracted.
36. The Court is unable to agree with the above submissions for a variety of
reasons. To begin with Section 364-A IPC requires to be analysed. It 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."
37. One ingredient of Section 364-A IPC is the kidnapping or abduction of a
person or the keeping of such person in detention after kidnapping or
abduction. In other words A and B might be the persons kidnapping the
victim whereas C and D could be the persons detaining such a person after
kidnapping. In that event A, B, C and D would all be liable as far as the
offence under Section 364-A IPC is concerned.
38. Secondly, the above act of kidnapping, abduction or detention has to be
accompanied with a threat to cause death or hurt to such person. The statute
does not require the threat to be administered to the abducted person. The
threat must be to cause death or hurt to such person. If one takes the
example of a one month old baby who is kidnapped or abducted or kept in
detention, if Section 364 A IPC were to be interpreted as suggested by the
counsel for the Appellants, viz., that the threat of causing death or hurt must
be administered to the baby itself, it will defeat the very object of this
provision. It will then mean that in the event that children below the age of
say five years are kidnapped or abducted and are unable to express in the
Court for any reason that they themselves were threatened with hurt or
death, no offence under Section 364-A IPC would be attracted. The
legislative intent is to provide for a severe punishment where there is a threat
to cause hurt or death to the abducted person, even if the threat is in fact not
carried out.
39. The Supreme Court in Malleshi v. State of Karnataka (2004) 8 SCC 95,
explained the ingredients of Section 364A IPC, as under:
"12. To attract the provisions of Section 364-A what is required to be
proved is: (1) that the accused kidnapped or abducted the person; (2)
kept him under detention after such kidnapping and abduction; and (3)
that the kidnapping or abduction was for ransom....."
40. Particularly when it comes to children, an interpretation has to be placed
on Section 364-A IPC that will advance the object of the provision.
Invariably in cases where young children are kidnapped or abducted, the
threat to cause hurt or death to them would be extended to the persons from
whose lawful guardianship they are kidnapped or abducted.
41. As far as the second ingredient of the Section 364-A IPC is concerned,
the provision has a number of alternatives. These alternatives are as under:
i) There could be a threat to cause or hurt to a person kidnapped.
ii) The conduct of the kidnapper would be such as to give rise to a
reasonable apprehension that such person kidnapped could be put to death or
hurt.
iii) The reasonable apprehension could be that the person kidnapped might
actually cause, hurt or death to such person.
42. All of the above actions should be with a view to compelling another
person (in this case PW-8) „to do or abstain from doing any act or to pay
ransom‟.
43. In this case, the threat was administered by the callers to PW-8 who was
told multiple times that if he did not pay the ransom the child would be
killed. In the considered view of the Court the second ingredient of Section
364-A therefore got fulfilled in the present case. PW-8 has clearly and
consistently spoken of the ransom calls received by him from the kidnappers
from their respective mobile phones whilst also clearly saying that he was
threatened that if he did not pay of the ransom amount the child would be
killed. These have been substantiated by the CDRs. This ingredient is also,
therefore, present in the instant case.
44. Consequently, the Court is satisfied that the prosecution has been able to
show in the present case that all the ingredients of Section 364-A stand
fulfilled qua the three accused.
Role of A-1
45. A very earnest plea made on behalf of A-1 is that his mobile phone was
in Delhi and showed his presence there at all times. Therefore, it was
impossible that he could be arrested from Etawa. It is pointed out that on
13th July, 2011 itself the police visited his jhuggi in Delhi but did not find
him there. It is argued that the circumstances under which the mobile phone
of A-1 was found in Delhi whereas his arrest took place from Etawa raised
serious doubts whether A-1 was at all involved in the offence.
46. In the first place it must be noticed that there were no specific questions
put to either PW-8 or PW-16 over the manner of arrest of A-1 which throw
any doubt of the story of the prosecution in that regard. Secondly, it is quite
possible that A-1 did not carry his mobile with him when he went to Etawa.
Thirdly, it is not as if A-1 was not at all present in Delhi and or in his jhuggi
at any time between 11.00 p.m. on 11th July, 2011 and the date on which
they were arrested. It is possible that when the police visited his house he
was not found there but used his mobile nevertheless at other times to call
the other co-accused and coordinate the movement of the child being
kidnapped. A-1 was important to carry out the crime since admittedly he is
related to PW-8. The inducement of the child to accompany them could have
legitimately come only from A-1 since the child would not have recognised
any of the other accused. Without the active involvement of A-1, the plan to
kidnap the child could have never succeeded.
Role of A-2
47. It was then contended on behalf of A-2 that there is nothing to show that
A-2 himself had made any ransom calls to PW-8 and merely because he
happened to be related to A-1 he had been roped in by the prosecution. Here
again it must be noticed that the presence of A-2 at all times has been
spoken to by the child (PW-1) and his presence at the time of recovery of the
child from Etawa has been spoken to by PW-8 as well as PW-16. There is
nothing in the cross-examinations of PW-8 or PW-16 to give rise to any
doubts about the presence of A-2 at the time of the recovery of the child at
Etawa. Clearly the crime of kidnapping the child for ransom involved more
than one person and a coordinated action was taken by all of them in
transporting the child from Delhi and keeping him in a house at Etawa and it
could not have been possible without the active involvement of A-1, A-2, A-
3 and A-4.
Role of A-4
48. On behalf of A-4, it was submitted that his presence at Etawa was
extremely doubtful. With there being no ransom calls made by him, there is
nothing in the prosecution case which actually connected him to the crime.
49. Apart from the same problems that faced the other two accused viz., the
failure to cross examine the child who correctly identified A-4 as one of the
abductors, and the failure to elicit anything from PW-8 in his lengthy cross-
examination, a reading of the evidence of PW-8 shows that the child was in
fact kept in the house of A-4. There is no question of the child being kept
there in his house if A-4 did not give his permission.
50. While there could be some inconsistency on whether A-4 actually ran
away from the spot when the police reached there, the fact remains that he
was arrested only from the Subzi mandi in Etawa when the police party had
gone there again to collect evidence and also revisit the residence of A-4.
51. It was then argued that there is no evidence to show that the house where
the child was kept in Etawa actually belonged to A-4. With the prosecution
witnesses asserting that the house from which the child was recovered
belonged to A-4, the burden shifted on to A-3 to show that it was not, in
fact, his house. He did not even give a suggestion along these lines to either
PW-8 or PW-16 in their cross-examination.
52. The court is also not able to accept the submissions made by the all the
counsel for the Appellants that they did not get an effective opportunity to
cross-examine the prosecution witnesses. The court has already referred to
the number of dates on which PW-8 was cross-examined at length. PW-16
was also cross-examined at length.
Conclusion
53. The Court is unable to find any infirmity in the impugned judgment of
the trial Court convicting the Appellants for the offence under Section 364-
A read with 120-B IPC.
54. It was then submitted by all counsel that each of the accused was of a
very young age with no previous criminal record and therefore, a lenient
view should be taken of the sentence.
55. The Court finds that only two sentences are possible for the offence
under Section 364-A IPC. One is the sentence of imprisonment for life and
the other is the death penalty. Thus, there is no scope for any further
leniency to be shown in the matter with the trial court having sentenced each
of the Appellants to imprisonment for life. The fine amount is also not
excessive. Consequently, the impugned order on sentence also does not call
for interference. The appeals are accordingly dismissed.
S. MURALIDHAR, J.
I.S. MEHTA, J.
APRIL 05, 2018
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