Delhi High Court
Vipin Kumar Saini vs State on 22 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 214/2004
Reserved on: 11.12.2018
Date of decision: 22.2.2019
IN THE MATTER OF:
VIPIN KUMAR SAINI ..... Appellant
Through: Mr. R.N. Mittal, Sr. Advocate with
appellant in person.
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP for State.
Inspector Ravi Shankar, SHO/Lodhi Colony
Inspector Suhaib Ahmad, SHO/Badar Pur.
ASI Tulli Ram, P.S. Badar Pur
AND
CRL.A. 643/2004
GAURI SHANKAR SHARMA ..... Appellant
Through: Mr. Janender Kumar Chumbak,
Advocate with Ms. Radhika, Ms. Rishu and
Mr. Madhav, Advocates.
versus
STATE OF GNCT OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, APP for State.
Inspector Ravi Shankar, SHO/Lodhi Colony
Inspector Suhaib Ahmad, SHO/Badar Pur.
ASI Tulli Ram, P.S. Badar Pur
CRL.A.214/2004, 643/2004 & 680/2004 Page 1 of 31
CRL.A. 680/2004
LILAWATI DEVI ..... Appellant
Through: Mr. Janender Kumar Chumbak,
Advocate with Ms. Radhika, Ms. Rishu and
Mr. Madhav, Advocates.
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP for State.
Inspector Ravi Shankar, SHO/Lodhi Colony
Inspector Suhaib Ahmad, SHO/Badar Pur.
ASI Tulli Ram, P.S. Badar Pur
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
HIMA KOHLI, J.
1. A challenge has been laid in these three appeals to a common
judgment dated 12.2.2004, passed by the learned Additional Sessions
Judge in Sessions Case No. 57/2002 arising out of FIR No.25/2002
registered under Sections 363/364-A/368 and 120-B of the Indian Penal
Code, 1860 (in short 'IPC'), whereunder all the three appellants have
been held guilty of entering into a criminal conspiracy of kidnapping an
8/10 years old boy, Bharat Singh @ Bunty and demanding ransom from
his father for his release. All the three appellants have been convicted
under Section 120-B IPC and Sections 364-A/368 IPC read with Section
120-B IPC. Vide order on sentence dated 13.2.2004, the appellants were
sentenced to undergo life imprisonment and to pay fine of Rs.10,000/-
each, failing which they have been directed to undergo rigorous
imprisonment for two years each. Pertinently, there were four co-
accused in the present case. Three accused persons, namely, accused
No.2, Gauri Shankar Sharma (appellant in Criminal Appeal
No.643/2018), his wife, accused No.3, Lilawati (appellant in Criminal
Appeal No.680/2004) and accused No.4, Vipin Kumar Saini (appellant in
Criminal Appeal No.214/2018) have faced trial, whereas the fourth co-
accused, accused No.1, Dinanath Ray @ Umesh could not be arrested
and was declared a Proclaimed Offender.
2. The prosecution case is that on 11.1.2002, Bharat Singh @ Bunty
aged 8/10 years had left at 8.00AM from his residence, bearing House
No.1162, Gali No.47, Molarband Extension, Badarpur Border to attend
his school situated in the same locality, namely, Great Anubhav St.
Thomas Public School. When Bharat did not return home by 11.00 A.M.,
his father, Jawahar Singh went to enquire about his whereabouts from his
school and was informed by his class teacher that his son, Bharat had not
attended school on that date. On learning this, Jawahar Singh went about
searching for his son throughout the day and at 5.00 P.M., he went to
Police Station-Badarpur, to lodge a missing report. Based on the said
report, FIR No.25/2002 (Ex.PW2/A) was initially registered under
Section 363 IPC and the investigation was handed over to SI Ravi
Shanker.
3. After two days, on 13.1.2002, Jawahar Singh received a phone call
in the evening at a shop situated opposite his house, named Ajanta Sewak
Band in Badarpur Market where telephone No.6949331 was installed.
When Jawahar Singh attended the said call, the caller purportedly
identified himself as Vijay Chaudhary and demanded a ransom of
Rs.8,00,000/-, for releasing his son. He was told to reach with the ransom
money at Hanuman Mandir situated near Patna Railway Station. On
receiving the said call, Jawahar Singh immediately purchased mobile
phone with No.910352967 and gave a call to the caller at the number
given by him i.e. 0612-434406. He was warned that if the ransom
amount is not paid, his son would be beheaded.
4. Jawahar Singh informed the police about receiving the telephone
call. The I.O., SI Ravi Shankar directed surveillance of the telephone
number installed at Ajanta Sewak Band. On making inquiries, he
discovered that the phone number given by the caller was installed at an
STD booth located at Masori, District Patna. On 17/18.1.2002, Jawahar
Singh accompanied by his brother-in-law, Jagbir Singh travelled to Patna
by train. He sent Jagbir Singh to Hanuman Temple to look for the
kidnapper, but none arrived. In the mean time, SI Ravi Shanker formed a
team and proceeded from Delhi to Patna. Jawahar Singh's wife informed
her husband that the kidnappers had called her at Delhi and told her that
they would call her again on next morning. On 19.1.2002, Jawahar
Singh's wife informed the kidnappers that her husband was staying at
Hotel Royal Lodge at Patna. Jawahar Singh received a telephone call at
the said hotel and the caller told him to bring the ransom money and
reach Maner Dargah on an auto rickshaw. He was also warned that if he
tried to play smart, his son would be killed. Jawahar Singh went to
Maner Dargah with the ransom money kept in a bag and waited there,
but no one came. He then went to the bigger Dargah situated close by,
where a man aged 35-37 years approached him and after confirming his
identity, asked him to handover the bag containing the ransom money.
Jawahar Singh asked him to show his son but the man demanded the
money first. When Jawahar Singh handed over the bag containing the
ransom money to the man, he gave him a photocopy of his son's identity
card whereon it was written that he should proceed to house No.301 of
Royal Lodge to take the child. Jawahar Singh went back to Royal Lodge
and proceeded to room No.301, but it was found locked.
5. In the meanwhile, on receiving information from a public person,
the local police found the kidnapped child, Bharat weeping near Maner
Dargah. On making enquiries, he informed the police that he had been
kidnapped from Delhi. The kidnapped child was taken to the police
station where his uncle, Jagbir Singh had also arrived and he identified
his nephew. On the police inquiring from the child as to where was he
confined, he took them to the locality of Kuhars (idol makers) from
where he led them to a house where accused No.3, Lilawati was found
and arrested. Lilawati disclosed to the police that her husband, accused
No.2, Gauri Shankar, had gone with the accused No.1, Dinanath. In the
meantime, SI Ravi Shanker also reached P.S. Maner where the
kidnapped child and Lilawati were already present. In her disclosure
statement, Lilawati stated that her husband had kidnapped the child along
with the other co-accused and had received the ransom amount that was
distributed amongst them.
Prosecution Evidence:
6. As the case was cracked by the I.O., SI Ravi Shanker (PW-14) and
the other police officers were a part of his team that was constituted to
recover the victim, his deposition would cover the entire contours of the
prosecution case. PW-14 deposed that after arresting Lilawati, he and his
team had proceeded with the local police to her house at village Maner
where she had pointed out the premises where the kidnapped child was
kept during his captivity for ransom. The pointing out memo in respect of
the said house, adjoining Lilawati's house is marked as Ex.PW14/B.
Efforts were made to search the other co-accused, but in vain. Thereafter,
PW-14 returned with his team members to Delhi and so did the
kidnapped child along with his father and uncle. On 20.1.2002, Lilawati
was produced before the Metropolitan Magistrate, Danapur and on being
granted three day's transit remand, she was produced by the police
before the court in Delhi on 23.1.2002 and was remanded to police
custody. At her pointing out, accused No.4, Vipin Kumar Saini was
arrested from his house at Ali Gaon, Sarita Vihar, Delhi. The said
accused was the one that the kidnapped child, Bharat had identified as
the person who was on a motorcycle and when he was going to his
school on 11.1.2002, he was taken by Gauri Shankar, made to sit on the
motorcycle and head for the Railway Station. Accused No.2, Gauri
Shankar, husband of Lilawati, was arrested from Chankyapuri on
11.2.2002 and PW-14 recorded his disclosure statement (Ex.PW14/E).
At his instance, the police had proceeded to a timber shop in Mithapur
Extension area where he was residing with his friend and a sum of
Rs.45,000/- was recovered from there. The memo of recovery of the
money is marked as Ex.PW8/A and the recovered money as Ex.P-9
(colly).
7. Accused No.2, Gauri Shankar was produced in court on
12.02.2002, and after his police remand was obtained, he took the police
to his native village, Barkha Chanda at District Bhojpur, P.S. Koliber on
14.02.2002, where a search of his house was conducted. From his house,
Gauri Shankar had got recovered the school bag and school identity card
of the kidnapped child, some railway tickets, other papers and a cash
amount of Rs.19,000/-, vide seizure memo marked as Ex.PW6/A. He
also disclosed to the police that he had concealed a sum of Rs.80,000/- in
the lawns of the house of his in-laws, situated in village Maner. But when
the police took him to the said place, nothing could be recovered. Efforts
were also made to search for the accused No.1, Dinanath Ray but he
could not be traced. PW-14, SI Ravi Shanker proved the site plan of the
place from where the child was recovered by the Maner police, marked
as Ex.PW14/F.
8. On 19.7.2002, charges were framed against the accused persons
under Sections 363, 364-A, 368 read with 120-B IPC. All the accused
persons pleaded not guilty and claimed trial. The prosecution examined
14 witnesses in support of their case. The main witnesses are Bharat
Singh @ Bunty (PW-1), the kidnapped boy, his father, Jawahar Singh
(PW-2), his uncle, Jagbir Singh (PW-4) and the public witness, Kamlesh
Yadav (PW-12).
9. SI R.P. Yadav (PW-5) and HC Chattar Singh (PW-8) were
members of the team constituted by the IO, PW-14. PW-5 proved the
recovery of the kidnapped child at Maner Dargah and the site plan of the
spot where he was found sitting, marked as Ex.PW5/A. PW-8, HC
Chattar Singh was a witness to the recovery of the sum of Rs.45,000/-
[Ex.P9 (colly)] from a timber shop in Delhi at the instance of the accused
No.2, Gauri Shankar, vide seizure memo Ex.PW8/A. PW-8 was also a
witness to the recovery of the school bag and school identity card of
Bhart, Rs.19,000/- in cash and other articles (Ex.P1 to P8) from the
house of Gauri Shankar, vide recovery memo marked as Ex.PW6/A. The
local police officers posted at District Bhojpur who were cited and
produced by the prosecution include ASI Mukesh Kumar (PW-6) and SI
Gorakh Manda (PW-7). PW-6 and PW-7 were also witnesses to the
recovery of Rs.19,000/- and other articles from Gauri Shankar's house.
10. PW-9, Mr. G.P. Singh was the Link Magistrate who was assigned
the TIP of the accused No.4, Vipin Kumar Saini. He deposed that Vipin
Kumar Saini was produced by the IO in a muffled face before him on
24.1.2002 and was asked whether he wanted to join the TIP or not, but he
refused. The TIP proceedings were proved by PW-9 as Ex.PW9/B. PW-
10, Shashikant Pandey, the Chief Reservation Supervisor, Patna Railway
Station proved that the railway reservation tickets, Ex.P3, P4 and P-6 had
been issued from Patna Junction to Delhi, for a journey conducted on
28.12.2001 and 8.7.2001. He also proved the platform ticket, Ex.P5, sold
on 19.4.2001.
11. Out of three public witnesses cited by the prosecution, namely,
Krishan Murari Tiwari (PW-11), Kamlesh Yadav (PW-12) and Inder
Bhushan (PW-13), two of them who had turned hostile were PW-11 and
PW-13, both residents of village Maner, Patna. Initially, both the said
witnesses had stated under Section 164 Cr.PC that in the month of
January, they had seen the kidnapped child with the accused No.1,
Dinanath, accused No.2, Gauri Shankar and the accused No.3, Lilawati.
At that time, PW-11 had also stated that he had asked Gauri Shankar as
to who the boy with him was and he was told that the boy was a son of
his friend in Delhi and his mother was being treated at Patna. But later
on, he denied that he had learnt that the boy had been kidnapped or that
when he had seen him at PS Maner, he had identified the child to be the
same who he had seen alongwith Gauri Shankar. However, both PW-11
and PW-13 did admit to their signatures appearing at point A and B,
respectively on Ex.PW11/A, the seizure memo prepared by the police
during the house search at the residence of Raj Nath Mistry, father-in-
law of Gauri Shankar conducted on 19.2.2002. PW-12, Kamlesh Yadav,
a resident of village Barkha Chanda, District Bhojpur, Bihar had deposed
that he knew Gauri Shankar since he belongs to his village; that he had
seen the police entering Gauri Shankar's house with him, where a box
was found containing a school bag, school identity card, a sum of
Rs.19,000/- etc. that were seized. PW-12 had admitted to signing the
seizure memo, Ex.PW6/A and had deposed that the said recoveries were
made in his presence.
12. Coming to the star witness, namely, Bharat Singh @ Bunty (PW-
1), the child, who was kidnapped for ransom, he had correctly identified
the accused No.2, Gauri Shankar, accused No.3, his wife Lilawati and
accused No.4, Vipin Kumar Saini. PW-1 deposed that when he was on
his way to his school at 8.00 A.M. on 11.1.2002, Gauri Shankar had met
him and told him that his father had sent him to take him to meet
Lilawati. As he knew both husband and wife from earlier days since they
had stayed as tenants at his father's house, he accompanied Gauri
Shankar till some distance, when they met the accused No.4, Vipin
Kumar Saini, who was on a motorcycle. Gauri Shankar made the child sit
on the motorcycle and Vipin Kumar Saini drove them around on the
streets from some time. Thereafter, PW-1 was taken to the Railway
Station. He correctly identified the registration number of Vipin Kumar
Saini's motorcycle as DL 5SQ 0421. He stated that both the accused
persons gave him a packet of biscuits and they stood at a distance from
him near the motorcycle. After some time, Vipin Kumar Saini left the
Railway Station on his motorcycle and Gauri Shankar took him inside
the train saying that he was taking him to meet Lilawati. When the child
inquired about his parents, Gauri Shankar stated that they were with
Lilawati.
13. PW-1 further deposed that after the train journey was over, Gauri
Shankar took him in a three-wheeler scooter to his house where Lilawati
was present. He remained confined in that house for about 8-9 days.
Gauri Shankar took away his school bag and identity card and left the
house and Lilawati used to give him food etc. After some days, Gauri
Shankar came back to the house and told PW-1 that he should
accompany him to meet his father. Gauri Shankar took him to 2-3 places
and from there, made him speak on the telephone to his father from STD
booths. Accused No.3, Lilawati restrained PW-1 from speaking to
anyone and also told him that if someone made inquiries from him, he
should state that he is her sister's son. He further stated that one day,
Gauri Shankar told him to accompany him to meet his father and he was
left at an old fort/dargah, where the police ultimately found him. On
making inquiries from him, PW-1 took the police to the house of Gauri
Shankar and Lilawati, where he had been detained. The police
apprehended Lilawati from there and took her to the police station, where
the kidnapped boy met his uncle, PW-4 and father, PW-2 and returned
with them to Delhi.
14. PW-2, Jawahar Singh, father of the kidnapped child and PW-4,
Jagbir Singh, brother-in-law of PW-2 and uncle of PW-1 corroborated
the version of the IO, PW-14 with regard to the manner in which the
incident unfolded which finally resulted in the recovery of the kidnapped
child at PS-Maner. PW-2 identified his son's school bag and school
identity card as Ex.P1 and Ex.P2. PW-4 identified accused No.3,
Lilawati and stated that when he reached there, he found his nephew
already present at PS-Maner.
Defence Evidence:
15. On conclusion of the prosecution evidence, the accused were given
liberty to lead evidence. Except for the accused No.2, who had produced
one witness, namely, DW-1, Vikram Sharma, none of the other accused
produced any defence witness. DW-1, a resident of village Manik Pur,
PS Koliber, District Bhojpur, Bihar deposed that being a neighbour, he
knew Gauri Shankar and when the Delhi Police had gone to his house,
Gauri Shankar did not accompany them into his house and they did not
recover anything from the said house, nor did they prepare any document
there.
16. In his statement recorded under Section 313 Cr.PC, the accused
No.4, Vipin Kumar Saini denied having any knowledge of the entire
incident. He also denied the fact that he was produced in a muffled face
before the court on 24.1.2002, but he had refused to join the TIP
proceedings. Accused Nos.2 and 3 also denied the entire prosecution
version and claimed that they were innocent.
Conclusion of the Trial Court:
17. Based on the evidence brought on record, the learned ASJ
observed that the testimony of the child witness had been adequately
corroborated by the statements made by PW-2, PW-3, the police officers
and an independent witness, Kamlesh Yadav (PW-12). The prosecution
version also stood proved by the attending circumstance of the recoveries
that were effected at the instance of the accused No.2, Gauri Shankar on
the 11th and 14th February, 2002. Holding that the oversight on the part of
the IO in not mentioning the number and denomination of the currency
notes recovered on the disclosure of Gauri Shankar from his house was
not enough to discredit the recovery when it had been duly corroborated
by other witnesses. Thus, the trial court arrived at the conclusion that the
recoveries made on 11th and 14th February, 2002 were a part of the
ransom amount demanded by the accused persons for releasing the
kidnapped child and there was ample evidence on record to prove that it
was a case of kidnapping for ransom. As a result, the accused were
convicted under Sections 364A and 368 read with 120-B IPC and were
sentenced to undergo life imprisonment.
Arguments:
18. The impugned judgment has been assailed by Mr. Janender Kumar
Chumbak, learned counsel for the appellants, Gauri Shankar and Lilawati
in Criminal Appeal Nos.643/2004 and 680/2004 respectively and by
Mr.R.N. Mittal, Sr. Advocate, who has appeared for Vipin Kumar Saini,
the appellant in Criminal Appeal No.214/2018, but on different grounds.
19. Mr. R.N. Mittal, Sr. Advocate argued that the role assigned by the
prosecution to Vipin Kumar Saini was very limited. He stated that the
appellant had allegedly given a lift on his motorcycle to the accused
No.2, Gauri Shankar, when he was with the kidnapped child in the
morning of 11.1.2002 and he had dropped them at the Railway Station.
He explained that Vipin Kumar Saini is an Ayurvedic doctor, practicing
in the same locality and he knew both, the kidnapped child as also Gauri
Shankar; that Vipin Kumar Saini had got married only a month before
the incident took place, on 11th December, 2001 and he had been gifted
the motorcycle in question by his in-laws. It was argued that no evidence
has been brought on record to suggest the involvement of Vipin Kumar
Saini in the crime; that it was not proved that he was in touch with any of
the co-accused after the incident of kidnapping on 11.1.2002 and nor was
any recovery made from him, either of the ransom money or the other
articles; that his innocent act of offering a lift to Gauri Shankar and the
kidnapped child cannot be held against him when there is no other
evidence to link him to the crime. Learned Senior Advocate also
highlighted the ingredients of Section 364A IPC to urge that his client
has been wrongly charged under the said provision when he had no role
to play in the abduction of the child and nor was it proved that he had
threatened to cause death or hurt him or had demanded any ransom
amount. He added that by the date Vipin Kumar Saini was granted
suspension of sentence in the present appeal, he had already undergone a
sentence for a period of three years and 10 months, as on 17.11.2005.
20. Coming to the accused Nos.2 and 3 Gauri Shanker and Lilawati,
their counsel, Mr. Janender Kumar Chumbak argued that the prosecution
has miserably failed to prove that the boy had been kidnapped by his
clients or they had extended him any threats and demanded ransom to
release him; that the prosecution could not prove that there was any
apprehension that any injury could be caused to the child and therefore,
the provisions of Section 364A IPC had been wrongly invoked. It was
next argued that there were a lot of discrepancies between the testimonies
of the witnesses, as for example, PW-4 Jagbir Singh, uncle of the
kidnapped child, had deposed that his nephew was recovered on
20.1.2002 whereas, the IO, SI Ravi Shankar (PW-14) had stated that the
child had been recovered a day before, on 19.1.2002. It was argued that
the prosecution has failed to prove that any ransom amount was
demanded by the accused No.2 from PW-2, father of the kidnapped
child; that no explanation has been offered as to the manner in which
PW-2 arranged the ransom amount of Rs.8 lakhs and the denomination in
which the said money had been arranged; that the police witnesses have
not deposed about the denomination of the notes recovered alongwith
their serial numbers, nor was any witness produced who could identify
that the notes recovered on the alleged disclosure statement made by
accused No.2, were a part of the ransom money.
21. It was also argued on behalf of Gauri Shankar and Lilawati that
during the court proceedings, the prosecution had failed to conduct their
TIP and it was only when they were present in court that the child had
identified them for the first time, which from its very nature, is an
evidence of a weak character; that the claim of the kidnapped child that
he knew the accused Nos.2 and 3 from 6-7 years earlier as they were
residing as tenants under his father, is highly improbable for the reason
that even if it is assumed that he was 10 years of age at the time of his
abduction, though the child had deposed that he was 8 years old, he
would have been 3-4 years old when they were allegedly living as
tenants at his father's premises. Learned counsel also doubted the
prosecution version that the kidnapped boy had led the police party to the
residence of the accused No.3, Lilawati from the place where he was
found sitting near the Dargah when the distance between the two places
was about 1½ km. He further submitted that the kidnapped child was a
tutored witness and no reliance could have been placed on his deposition.
22. Learned counsel concluded by submitting that without prejudice to
the stand of the accused Nos.2 and 3 that they had no role to play in the
crime, even in the worst case scenario, the prosecution could only prove
the case of kidnapping under Section 363 IPC, which entails a maximum
punishment of imprisonment for seven years with fine and not Section
364A IPC, that provides life imprisonment for kidnapping for ransom on
threat to cause hurt or death. It was thus argued that besides failing to
prove the crime under Section 364A IPC, the prosecution had failed to
prove that any conspiracy was hatched between co-accused, for invoking
the provisions of Section 120-B IPC. To substantiate his submission that
when there are lapses in the investigation due to ineffective prosecution,
then the benefit of doubt arising out of the deficient investigation must
go to the accused, Uttar Pradesh vs. Wasif Haider & Ors., reported as
2018 SCC OnLine SC 2740 was cited.
23. In support of their submissions, learned counsel for the parties
have walked us through the entire evidence produced before the trial
court. We have carefully examined the testimonies of the witnesses and
scrutinized the documentary evidence in the light of the arguments
advanced by both sides and the case law cited.
Analysis:
24. The conviction of the appellants on the charge of kidnapping for
ransom is primarily based on the statement of Bharat Singh @ Bunty
(PW-1), the kidnapped child, supported by the testimony of his father,
Jawahar Singh (PW-2), his uncle, Jagbir Singh (PW-4), a public witness,
Kamlesh Yadav (PW-12) and the police officials, who were members of
the raiding party.
Testimony of the child witness (PW-1):
25. Coming first to the claim of the counsel for the appellant about the
child witness being tutored or his statement being contradictory, there is
no doubt that the testimony of a child witness needs to be evaluated with
care and caution before it is accepted. It is not considered prudent to act
upon the sole testimony of a child witness without any corroborative
evidence. As was recently observed by this Bench in Arshad @ Munna
Khan vs. State of NCT Delhi, CRL.A. 576/2018 decided on 22.01.2019,
judicial dicta is that the deposition of a child witness requires greater
scrutiny before it is accepted or rejected but as long as the said statement
is found to be credible and it rings true, there is no good reason to reject
the same [Refer: Rameshwar vs. State of Rajasthan reported as AIR
1952 SC 54, Mangoo vs. State of M.P. reported as AIR 1995 SC 959,
Panchhi and Ors. vs. State of U.P. reported as AIR 1998 SC 2726,
Ratansinh Dalsukhai Nayak Vs. State of Gujarat reported as AIR 2004
SC 23, Gagan Kanojia and Anr. vs. State of Punjab reported as (2006) 13
SCC 516, Nivrutti Pandurang Kakote and Ors. vs. State of Maharashtra
reported as AIR 2008 SC 1460, State of Madhya Pradesh vs. Ramesh
reported as (2011) 4 SCC 786 and Raj Kumar vs. State of Madhya
Pradesh reported as (2014) 5 SCC 353]. However, in a case of
kidnapping, where there is no witness to such an act, the court cannot
insist on corroborative evidence regarding the identity of the kidnappers,
if the statement of the kidnapped child is otherwise creditworthy and it is
found that he is in a position to identify his kidnappers without
committing any mistake.
26. Having perused the deposition of PW-1, the child witness, no
impression can be gathered that his statement suffers from the vice of
tutoring or that it is full of contradictions so as to raise a doubt as to its
correctness. There is no rule that in instances of a child testimony, there
should invariably be corroborative evidence in all circumstances,
irrespective of the facts of a given case. On a close scrutiny of his
statement with regard to the identity of the accused Nos.2, 3 and 4, there
was no reason for the trial court to have rejected the same. Moreover, the
evidence of the child witness stands adequately corroborated on all
material particulars by the testimony of his father and uncle (PW-2 and
PW-3). Apart from the police witnesses, there is also a public witness,
Kamlesh Yadav (PW-12), who has testified that the police had
accompanied accused No.2, Gauri Shankar to his house where one
school bag, school Identity-Card, railway tickets, cash amount of
Rs.19,000/- and other document were found in a box. PW-12 was a
witness to the seizure memo Ex.PW6/A. In any event, the child, who had
been abducted on 11.1.2002, had remained in confinement for about 9
days, upto 19.1.2002, when he was finally recovered near Maner Dargah.
Having stayed in captivity for a sufficiently long time, it is not surprising
that he was able to correctly identify the accused persons which he did
before the court. Similarly, the child witness identified accused No.4,
Vipin Kumar Saini and correctly mentioned the registration number of
his motorcycle. Counsel for the said accused does not deny the fact that
the motorcycle in question belonged to Vipin Kumar Saini. It has only
been stated that the same was a gift from his in-laws on his marriage that
was solemnized a month earlier. In the extensive cross-examination
undergone by the child witness at the hands of the defence counsel, he
remained firm and his testimony, unshaken. Therefore, the identity of all
the accused persons stands proved beyond doubt.
27. It is also noteworthy that on the date when the kidnapped child
was recovered near Maner Dargah and taken to PS Maner where accused
No.3, Lilawati was present on being apprehended by the local police, the
child had taken the police party to the house of Gauri Shankar and
Lilawati, located quite close to the Dargah. The correct identification by
the child of the house where he had been kept in confinement by the
accused Nos.2 and 3 from the date he was kidnapped, till he was
recovered, is itself sufficient to accept his testimony as correct. The
argument advanced by learned defence counsel that such a small child
could not have known the way to the place where he was confined, is
found to be devoid of merits, as it has come in the evidence that the child
had first taken the police to the locality of Kuhars (idol makers) and
using the said spot as a landmark, he had proceeded directly to the house
of the accused Nos. 2 and 3. Therefore, even if we accept the contention
of the learned defence counsel for the accused Nos.2 and 3 that the child
witness was of too tender an age to have recognized Gauri Shanker and
Lilawati when they used to reside as tenants in his father's house about
6/7 years ago, there is sufficient independent evidence on the record for
this Court to accept the testimony of the child witness of having correctly
identified the accused persons.
Discrepancies in the testimony of prosecution witnesses:
28. Coming next to the argument advanced by learned counsel for the
accused Nos.2 and 3 that there were several discrepancies between the
statement of the prosecution witnesses and for this reason, their
testimony ought to be discarded, it is a settled position of law that even if
there are omissions, contradictions and discrepancies, the entire evidence
cannot be discarded oughtright. In such an eventuality, it is the duty of
the court to sift the evidence so as to separate the truth from falsehood,
after exercising due care and caution so that all exaggerations,
embellishment and improvements can be thrown out. On doing so, the
Court is empowered to arrive at a conclusion that the remaining evidence
would still be sufficient to convict the accused. As long as the irrelevant
details do not corrode the credibility of the witness,
omissions/contradictions, if any, cannot be treated as sufficient to shake
basic version of the prosecution witnesses. Further, material
discrepancies must be treated on a different footing vis-a-vis normal
errors of observation and errors of memory etc., that are minor in
character and do not go to the very root of the prosecution story. The law
on this aspect has been distilled in Sohrab and Anr. vs. The State of M.P.
(1972) 3 SCC 751; State of U.P. vs. M.K. Anthony (1985) 1 SCC 505;
Krishna Mochi & Ors. vs. State of Bihar Etc. (2002) 6 SCC 81; State of
Rajasthan vs Om Prakash (2007) 12 SCC 381; Prithu & Ors. Vs. State of
H.P. (2009) 11 SCC 588; Rameshbhai Mohanbhai Koli and Ors. vs.
State of Gujarat 2010(11) Scale 120 and Essa & Ors. Vs. The State of
Maharashtra, through STF, CBI Mumbai and Ors. (2013) 3 Scale 1.
Given the legal position as discussed above, in our view, the
discrepancies in the testimonies of the witnesses sought to be highlighted
by the learned counsel for the accused No.2 and 3 are too trivial and do
not go to the root of the matter for this Court to disregard the prosecution
version.
Test Identification Parade:
29. As for the plea of the learned counsel for the accused No.2 and 3
that the prosecution had failed to conduct their TIP and they had been
identified by the kidnapped child for the first time in court, it may be
emphasized that the underlying purpose of a prior test identification is to
put to test, the trustworthiness of that evidence. In the case of Malkhan
Singh and Ors. vs. State of Madhya Pradesh reported as (2003) 5 SCC
746, after examining the earlier decisions on the effect of not holding
prior test identification parade, the Supreme Court held as under:-
"7. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of section 9 of the Evidence Act the position in law
is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are
relevant under section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement
made in court. The evidence of mere identification of the
accused person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a
prior test identification, therefore, is to test and strengthen
the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in court
as to the identity of the accused who are strangers to them
in the form of earlier identification proceedings. This rule
of prudence, however, is subject to exceptions, when, for
example, the court is impressed by a particular witness on
whose testimony it can safely rely, without such or other
corroboration. The identification parades belong to the stage
of investigation, and there is no provision in the Code of
Criminal Procedure, which obliges the investigating agency
to hold or confers a right upon the accused to claim, a test
identification parade. Failure to hold a test identification
parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such
identification should be a matter for the courts of fact.
XXX XXX XXX
10. It is no doubt true that much evidentiary value cannot be
attached to the identification of the accused in court where
identifying witness is a total stranger who had just a fleeting
glimpse of the person identified or who had no particular
reason to remember the person concerned, if the
identification is made for the first time in court." (emphasis
added)
30. As can be seen from the above, failure to hold a test identification
parade cannot make the evidence of identification in the court,
inadmissible. The TIP only corroborates the identification of the witness
in court, if necessary. However, each case has to be examined on its own
facts to see the extent of weightage that can be attached to such an
identification. In the present case, we are of the opinion that failure to
hold a test identification of the accused Nos.2 and 3 is not fatal to the
prosecution case as the said accused persons were not complete strangers
to the kidnapped child (PW-1). Nor is it anybody's case that PW-1 had
such a fleeting glimpse of the accused that he was not in a position to
recognize them. Even if we disregard his testimony to the effect that he
knew the accused No.2 and 3 from earlier days since they had stayed as
tenants in his father's house, it has been proved that the child had
remained in their custody for 8/9 days, which was sufficient time for him
to have identified them from their memory imprinted in his mind,
without a TIP having been conducted.
Effect of failure to cross-examine PW-1, 2 and 4 on certain aspects:
31. It has further been canvassed that the prosecution version stands
falsified as it has failed to prove the CDRs, the manner in which the
child's father, PW-2 went about collecting the ransom money allegedly
demanded for releasing his son, the person to whom he had given the
ransom amount and the denomination in which it was given. Learned
counsel for the accused Nos. 2 and 3 argued that no one had identified
the notes allegedly forming a part of the ransom money, recovered on the
basis of the seizure memo, Ex.PW6/A. He has also disputed recovery of
Rs.45,000/- from a timber shop at Mithapur Extn., vide seizure memo
Ex.PW8/A.
32. It is relevant to note that though liberty was granted to the accused
persons to cross examine PW-2, none of them cross-examined him on
any of the points now sought to be raised for the first time by learned
defence counsel. There are several judicial pronouncements that have
held that wherever the opponent has declined to avail himself of the
opportunity to put his essential and material case in the cross-
examination, it must follow that he believed that the testimony given,
could not be disputed at all. To put it differently, if the opponent asks no
question to the witness produced by the prosecution, then it must be
taken that the version of the said witness has been accepted by him.
[Refer: A.E.G. Carapiet vs. A.Y. Derderian AIR 1961 Calcutta 359;
Ashis Sen and Ors. Arun Kmar Bose and Ors. 2006 SC OnLine Cal. 131
and Ravinder Singh vs. State (NCT of Delhi) (2013) 197 DLT 99 (DB)]
33. In the instant case, the testimony of PW-1, PW-2 and PW-4 has
remained unchallenged on the facet of demand for the ransom amount
received by the father of the kidnapped child. Therefore, an adverse
inference would have to be drawn against the accused Nos.2 and 3
insofar as the said aspect is concerned. The doubt sought to be cast by the
defence counsel on the recovery of a part of the ransom amount, is also
found to be devoid of merits. It was on the basis of the disclosure
statement made by the accused No.2 who was arrested in Delhi on
11.2.2002, that a sum of Rs.45,000/- was recovered from a timber shop
in Mithapur Extn. (Ex.PW8/A) to which HC Chattar Singh (PW-8) and
the IO, SI Ravi Shankar (PW-14) were witnesses. It has also come on
record that on 14.2.2002, the accused No.2 had taken the police to his
house at village, Barka Chanda, District Bhojpur, where a school bag and
school identity card of the kidnapped child, some railway tickets and a
sum of Rs.19,000/- in cash, were recovered vide seizure memo
Ex.PW6/A. Besides the police witnesses, the said recovery was also
corroborated by a public witness, Kamlesh Yadav (PW-12). Therefore,
the recovery of the child and the recovery of a part of the ransom amount
seized at the instance of the accused No.2, stands adequately proved.
Whether any offence is made out under Section 364-A IPC
34. Lastly, learned counsel for the accused No.2 and 3 has pleaded
that even if his clients are held guilty for kidnapping of the child, they are
liable to be convicted and punished under the provisions of Section 363
IPC alone and not under Section 364A IPC. The basis of taking such a
plea is that the ingredients of Section 364A IPC have not been
satisfactorily established by the prosecution as no evidence has come on
record to connect the ransom calls allegedly received by the father of the
kidnapped child, with the accused Nos.2 and 3.
35. The prosecution case was that the child was kidnapped for ransom.
The provisions of Section 364A IPC are reproduced hereinbelow for
ready reference:-
"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."
36. The language used in Section 364A IPC itself suggest that when
kidnapping is done alongwith a threat to cause death or hurt to the
kidnapped person or gives a reasonable apprehension that such a person
may be put to death or hurt or compel any Government or foreign State
or international inter-governmental organisation or any person to pay a
ransom, the offence is complete. The punishment prescribed under the
said provision is death or imprisonment for life, besides fine. For
attracting the provisions of Section 364A IPC and convicting a person
thereunder, it is incumbent for the prosecution to prove the following
ingredients:-
(1) The accused must have kidnapped, abducted or detained any person;
(2) He must have kept such person under custody or detention and
(3) Such kidnapping, abduction or detention must have been for ransom.
[Refer: Malleshi vs. State of Karnataka (2004) 8 SCC 95 and Suman
Sood @ Kamal Jeet Kaur vs State Of Rajasthan (2007) 5 SCC 634]
37. In Suman Sood (supra), the Supreme Court took note of the fact
that the term, "ransom" has not been defined in the IPC and went by the
dictionary meaning of the said word that means "a sum of money
demanded or paid for the release of a captive". In other words, ransom is
a sum of money that is demanded for payment to release a captive,
prisoner or detenu. The gravity of the said offence has been explained in
Suman Sood (supra) in the following words:-
"60. Kidnapping for ransom is an offence of unlawfully
seizing a person and then confining the person usually in a
secrete place, while attempting to extort ransom. This
grave crime is sometimes made a capital offence. In
addition to the abductor, a person who acts as a go-
between to collect the ransom is generally considered
guilty of the crime."
38. There is no reason to disbelieve PW-2 in the instant case when he
deposed that he had received threatening calls twice, first in Delhi on
13.01.2002 and a second time in Patna, on 19.01.2002 and the caller had
warned him on both occasions that if the ransom amount is not paid, his
son would be beheaded. Thus, it can be safely inferred that ransom calls
with threats extended had been received by the father of the kidnapped
child. A demand of ransom amount for the release of the kidnapped
person is by itself not sufficient to attract the provisions of Section 364A
IPC, unless and until it is satisfactorily proved that the kidnapped person
was also threatened with death or hurt or the conduct of the kidnapper
was such that it could raise a reasonable apprehension that the person
abducted, could be put to death or hurt if the ransom amount is not paid.
The latter aspect remains unproved as the smokescreen was not lifted by
the prosecution from the identity of the person(s) who had made the said
ransom calls.
39. The prosecution has failed to connect the ransom calls received by
PW-2 with the accused No.2 to 4 by producing and proving the CDRs of
the mobile phone of PW-2, the phone installed at the shop opposite his
house, and the number furnished to PW-2 by the caller, installed at a
STD booth in Patna. In the absence thereof, PW-2's testimony to the
effect that on 13.01.2002, he had received a call from the accused No.2,
Gauri Shankar on his mobile phone and he had identified himself as
Vijay Choudhary, remains unproved. Nor is this Court in a position to
accept his statement to the effect that he had received a ransom call at the
hotel at Patna on 19.01.2002, without any corroborative evidence. There
is yet another prominent discrepancy which cannot be ignored. While
the kidnapped child has stated that the accused No.1, Dinanath who has
been declared a proclaimed offender and the accused No.2, Gauri
Shankar used to take him to different STD booths for making calls to his
father, PW-2, the father has nowhere stated that the kidnappers used to
make his son speak to him on the phone. It is also a matter of record that
the ransom money was not paid by PW-2 to any of the accused persons.
He has deposed that the bag containing the money was handed over by
him to some unidentified person. Nor has the kidnapped child deposed
that the accused No.2 to 4 had at any point of time, threatened to cause
his death or hurt him, for applying the provision of Section 364A IPC. In
this context, we find force in the submission made by learned counsel for
the accused No.2 and 3 that the decision of the Supreme Court in the case
of Wasif Haider (supra) would apply and for the lapses in the
investigation for connecting the ransom calls received by the father of the
kidnapped child to the accused, benefit of doubt shall have to be
conferred in their favour.
Role of each of the three accused and the offences made out:
40. Now coming to the role attributed to each of the three accused, we
may start with accused No.4, Vipin Kumar Saini. The evidence brought
on record reveals that his role was limited to giving a lift on his
motorcycle to the accused No.2, Gauri Shankar Sharma alongwith the
kidnapped child in the morning of 11.01.2002 and dropping them at the
Railway Station. The prosecution has not been able to prove that the
accused No.4 had hatched a conspiracy with the other co-accused to
kidnap the minor child for ransom or had extended a threat to put him to
death or cause him hurt. Neither the kidnapped child, nor his father or
any other witness has attributed any other role to Vipin Kumar Saini that
would suggest his involvement in the crime apart from giving a lift on his
motorcycle to Gauri Shankar Sharma and PW-1 and dropping them at the
Railway Station. We are therefore of the opinion that the impugned
judgment to the extent that Vipin Kumar Saini has been held guilty for
the offence under Section 120B and Sections 364A and 368 read with
120-B of the IPC, cannot be sustained. Accordingly, the impugned
judgment of conviction and order on sentence qua the accused No.4,
Vipin Kumar Saini is quashed and set aside and he is acquitted of all the
charges framed against him and set free unless he is required in some
other case. Since the accused No.4 is on bail, his bail bond and surety
bonds are discharged. This is however subject to the condition that he
fulfills the requirements of 437(A) of the Cr.PC.
41. The role attributed to the accused No.2, Gauri Shankar is that he
had kidnapped the child from Delhi, taken him by train to Bihar and
confined him in his house. Based on the evidence on record showing
recovery of a part of the ransom amount of Rs.19,000/- from his
residence and a sum of Rs.45,000/- that was recovered at his instance
from a timber shop situated in Delhi, it is apparent that he was a
beneficiary of at least a part of the ransom amount. However, the
prosecution has miserably failed to connect the accused No.2 to the
ransom calls received by PW-2. It is undisputed that the ransom money
was paid by PW-2 to an unidentified person and not to the accused No.2.
He is therefore acquitted of the charge framed under Section 364A IPC
on account of failure on the part of the prosecution to satisfy the
ingredients of the said provision. At the same time, it has been
satisfactorily proved that the accused No.2 had hatched a criminal
conspiracy to kidnap the minor child and wrongfully confine him. Thus,
the charges under Section 120-B IPC and under Sections 363/368 read
with Section 120-B of the IPC stand proved against him. Consequently,
the impugned judgment and order of sentence is altered and modified to
the above extent. Accused No.2, Gauri Shankar is convicted not only
under Section 120-B IPC, but also Sections 363/368 read with Section
120-B IPC and he is sentenced to undergo rigorous imprisonment for a
period of seven years with a fine of Rs.10,000/-. In default of payment of
fine, he shall undergo simple imprisonment for one year.
42. This leaves the accused No.3, Lilawati, wife of the accused No.2.
The evidence brought on record against her amply demonstrates that the
accused No.3 was well aware of the fact that her husband had kidnapped
the minor child and confined him at their house in village Maner. The
minor child has deposed that both, accused No.2 and 3 had restrained
him from speaking to anyone and the accused No.3 had in particular told
him that if someone inquires, he should say that he is her sister's son.
Thus an inference has to be drawn that the accused No.3 must be aware
of the kidnapping of PW-1 and detaining him unlawfully. She was
present in the house throughout, used to offer him food and in general,
watch over him. The above circumstances show that she was aware that
the victim had been kidnapped and kept in a secret place. However, no
evidence has been brought on record by the prosecution to prove that any
threat had been extended by the accused No.3 to the kidnapped child to
cause him death or hurt him or to connect her with the recovery of any
part of the ransom money. No witness has directly or indirectly deposed
about the ransom on the part of the accused No.3. The learned APP has
also not pointed out anything from which it can be inferred by this Court
that she has committed an offence punishable under Section 364A.
43. We are therefore of the opinion that the accused No.3's conviction
and sentence under Sections 364A is unwarranted and is accordingly set
aside. Charges under Section 120-B IPC and under Sections 363/368
read with Section 120-B IPC are made out against the accused No.3. She
is therefore convicted under Section 120-B IPC and under Sections
363/368 read with Section 120-B IPC and sentenced to undergo rigorous
imprisonment for a period of seven years and pay a fine of Rs.10,000/-
and in default of payment of fine, undergo simple imprisonment for one
year.
44. As the accused No.2 and 3 are presently on bail, they shall
surrender before the trial court within one week to suffer the remaining
sentence inflicted upon them. Benefit under Section 428 Cr.PC is
extended to them.
45. As a result of the above discussion, Crl. Appeal No.214/2004, is
allowed in toto. Crl. Appeals No.643/2004 and 680/2004 are partly
allowed on the above terms. Trial court record be sent back forthwith
alongwith a copy of this judgment.
(HIMA KOHLI)
JUDGE
(MANOJ KUMAR OHRI)
JUDGE
FEBRUARY 22, 2019
NA/ap/rkb/na
