Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 1 of 46 * HIGH COURT OF DELHI AT NEW DELHI + Crl. Appeal No. 427/2001 % Judgment reserved on: April 06, 2009 Judgment delivered on: May 15, 2009 NARENDER ..... Appellant Through : Ms. Ritu Gauba, Advocate VERSUS STATE .....Respondent Through : Ms. Richa Kapoor, APP Crl. Appeal No. 429/2001 USHA ..... Appellant Through : Ms. Ritu Gauba, Advocate VERSUS STATE .....Respondent Through : Ms. Richa Kapoor, APP Crl. Appeal No. 153/2001 SATISH KUMAR ..... Appellant Through : Ms. Ritu Gauba, Advocate VERSUS STATE .....Respondent Through : Ms. Richa Kapoor, APP Crl. Appeal No. 230/2001 NAVIN ..... Appellant Through : Ms. Ritu Gauba, Advocate VERSUS STATE .....Respondent Through : Ms. Richa Kapoor, APP Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 2 of 46 CORAM :- HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ? ARUNA SURESH, J. 1. The appellants have assailed the judgment and order on conviction dated 29th January, 2001 whereby appellants Navin Kumar and Satish Kumar have been convicted for offence under Section 364-A Indian Penal Code (hereinafter referred to as „IPC‟) and are sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default to undergo six months simple imprisonment (SI). Appellants Narender Kumar and Usha Sikka have been convicted for offence under Section 368/34 IPC and are sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine to undergo six months SI. Benefit under Section 428 Cr.P.C. has also been given to the appellants. 2. As per the prosecution case, a seven years old Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 3 of 46 child named Pankhil was kidnapped on 23.1.1999 at about 6.30 P.M. from Rajouri Garden in front of House No.S-37, in a white Maruti car. The child had left his house to buy some samosa and did not return home thereafter. 3. The father of the child Shri Gurdip Singh (PW-7), informed the police about the aforesaid incident. Pursuant to the information recorded vide DD No.17-A (Ex.PW-1/A), SI Sanjay Kumar PW-21 accompanied by Const. Banwari Lal PW- 5, reached the place of occurrence where he met Shri Gurdip Singh. The statement Ex.PW-7/A of Shri Gurdip Singh was recorded and endorsed by SI Sanjay Kumar. ASI Prem Lal (PW-2), Duty Officer at Police Station Rajouri Garden recorded FIR No.205/2003, Ex.PW-2/A under Section 365 IPC on the basis of the said statement. 4. The telephones of the complainant and his tenant Manmeet Singh were put under observation on 24.1.1999. On 25.1.1999 a ransom call was received at telephone no. 5934524 which belonged to a tenant of Gurdip Singh, namely, Manmeet Singh PW-10, and ransom of Rs.4,50,000/- was demanded from the complainant. On 26.1.1999 another call was received on the said number and the caller asked to Gurdip Singh if the money had been arranged for. Gurdip Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 4 of 46 Singh, however, had not been able to arrange the money by then. 5. These phone calls were intermittently being made from I.S.B.T. and Old Delhi Railway Station, thus in the morning of 27.1.1999 teams of police officials were deployed near various PCO booths. In the morning of the same day another phone call was received at the aforementioned number and the caller again enquired if the money had been arranged, upon which Gurdip Singh informed him that Rs.1,50,000/- had been arranged. The complainant was directed to go to platform No.6 at Old Delhi Railway Station wherefrom he was supposed to catch a train for Holambikalan and to leave the money near the railway signal at Holambikalan. This call was traced by SI Vijay Singh (PW-15), who was deputed at MTNL telephone exchange Rajouri Garden. He traced the call to platform No.6 at the Old Delhi Railway Station. The police party consisting of SI Raj Kumar (PW-19), Const. Raja Ram (PW-22) and Const. Devinder (PW- 12) who had already been deployed at the Old Delhi Railway Station swung into action on being informed of the same vide D.M. Net. Two perpetrators were apprehended by the police, of which accused Navin was apprehended at the PCO booth itself, while accused Satish tried to escape but was chased Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 5 of 46 and apprehended by Const. Raja Ram. 6. After apprehending the accused persons, the message was flashed on the D.M. Net. On receipt of the message, SHO Rajouri Garden B.S. Dahiya and ACP, Rajouri Garden reached the spot followed by Investigating Officer SI Sanjay Kumar who was accompanied by Lady HC Poonam Tyagi (PW-11), complainant Gurdip Singh and his neighbour Praduman Puri (PW-8). Both the accused persons on being interrogated revealed that the child was confined in the house of accused Navin at Taranagar in Sonepat. The accused persons led the police party to House No.98, Taranagar, Sonepat and got the child recovered who was found in confinement of accused Narender Sikka and accused Usha Sikka at Sonepat. Vide recovery memo Ex.PW-21/D. Accused Narender Sikka and Usha Sikka were interrogated and on finding the proof of commission of an offence, they were arrested under Section 368 IPC vide arrest memo Ex.PW-21/O and Ex.PW-21/P respectively. The police party, thereafter, returned to Delhi along with the accused persons. Disclosure statement Ex.PW-21/A of accused Navin and Ex.PW-21/B of accused Satish were recorded on the same day. 7. On 29.1.1999, SI Sanjay Kumar went back to Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 6 of 46 Sonepat accompanied by HC Paramjeet Singh (PW-18) and accused Navin. On the pointing out of accused Navin, he took into possession a white Maruti Car which was used for kidnapping Master Pankhil vide recovery memo Ex.PW-21/G from the possession of Sh. Randhawa Singh (PW-20). 8. On 2.2.1999, the records of telephone No.5934524 for the period from 24.1.1999 to 27.1.1999, Ex.PW-21/H were obtained from the telephone exchange by SI Sanjay Kumar. The statements of the witnesses were thereafter recorded and the investigation was completed. 9. Equipped with the recovery of the kidnapped child, the seizure of the car used in the kidnapping and record of the calls made by accused Navin and Satish and other ocular evidence, charge sheet was filed against the appellants under Sections 364-A/368/34 IPC for having kidnapped Master Pankhil. 10. The trial court framed following charges against accused Navin Kumar and Satish Kumar on 25.5.1999:- “That you both the accused Naveen Kumar s/o Narender Kumar and Satish S/o Shri Ram have kidnapped the child Pankhil s/o Gurdeep Singh, at about Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 7 of 46 6.30 P.M. on 23.1.1999 from Rajouri Garden and subsequently demanded the ransom for the release of the child. Thereby you have committed the offence under Section 364-A IPC. …..” 11. Following charges were framed against accused Narender Kumar and Usha Sikka:- “That you both the accused Narender Kumar s/o Pyare Lal and Usha Sikka w/o Narender Kumar knowingly confined and kidnapped the child Pankhil s/o Gurdeep Singh from 23.1.1999 to 27.1.1999. Thereby you have committed the offence under Section 368 IPC…..” 12. Since the accused persons refuted the allegations made in the charges against them and pleaded not guilty, the case was put to trial. 13. The trial court after discussing the entire evidence of the prosecution found following incriminating evidence against the appellants, sufficient to convict them:- “(a) That on 23/1/1999, a wireless message was received in control room at about 6.42 pm with regard to kidnapping in a white colour vehicle and same was conveyed to police station which was recorded vide DD No.17A Ext. PW1/A. (b) The prosecution has further proved that the DD Entry No.17A Ext. Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 8 of 46 PW1/A was handed over to PW6 Krishan Bahadur Thapa, DHG Constable to hand over to PW21, SI Sanjeev Kumar, who in pursuance of DD entry went to house No.S-37, Janta Market, Rajouri Garden alongwith PW5 Const. Banwari lal and then, he recorded the statement of complainant PW7 Gurdeep Singh, who happened to be the father of kidnapped child and his statement is Ext. PW7/A and he flashed the message of kidnapping of child Pankhil. PW7 Gurdeep Singh has deposed that at about 6.30 pm he received a telephonic call from his wife that his son had been kidnapped and he lodged the complaint with the police. He further deposed that on 25/1/99, he received a telephonic call from the kidnapper on the telephone of his tenant PW10, Manmeet Singh on telephone No.5934524 and the kidnapper demanded ransom of Rs.4,50,000/- and again on 26/1/1999, other telephonic call was received in which he was asked to arrange money. He further stated that on 27/1/1999, another call was received at about 11 am at the telephone of PW10 Manmeet Singh. Thereafter, call was received at 1 pm in which again, he was asked to arrange money and he replied that he could arrange only Rs.1,50,000/-. He was told on telephone to catch train from Old Delhi Railway Station from platform No.6 for Colambia Railway Station and then to leave money near the railway signal of Columbia Railway Station. Meanwhile, he received call from police and he went to railway station where the police had arrested two persons. He recognized the voice Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 9 of 46 of accused Naveen Kumar. Disclosure statement of accused persons was recorded by police. He accompanied the police and on pointing out of the accused, child was recovered from the house of Naveen Kumar. (c) It has further proved by the prosecution that child Pankhil was kidnapped and child was examined as PW14. Master Pankhil has stated as below:- “I was kidnapped by the accused persons who has been correctly identified by the witness. I was kidnapped from Delhi and taken to Sonepat. I was given sweets. I was brought back by my father.” This fact is also proved by the statement of PW13 Smt. Devender Kaur, mother of child Pankhil. There is nothing on the record on which basis a small child of seven years Pankhil and other prosecution witnesses can be disbelieved. (d) The prosecution have further proved the making of threatening calls by examining PW4 Inder Singh J.T.O. and proved the copy of the telephone recording report as Ext. PW-4/A, further by the statement of PW7 Gurdeep Singh, PW10 Manmeet Singh, PW15 SI Vijay Singh who observed the call in telephone exchange and PW18 HC Paramjeet Singh, who was also deputed in switch room on 25/1/1999 and 26/1/1999. (e) The prosecution has further proved the hiring of Maruti Car No.HR- 10B-8507 (which was used for kidnapping) by examining PW20 Randhawa Singh, owner of the car and PW16 Rajender Kumar who sold the Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 10 of 46 car to PW20 Randhawa Singh. The fact has been further proved by examining PW17 SI Satinder, who served him notice u/s. 133 of Motor Vehicle Act Ext.PW17/A upon PW16 Rajender and on PW20 Randhawa Singh and the fact was further proved by IO by making recovery of the above said car at the instance of accused Naveen vide Ext. PW21/G. (f) The prosecution has proved the arrest of accused Naveen and Satish from Old Delhi Railway Station by examining PW12 Const. Devender, PW19 SI Raj Kumar and PW22 Const. Raja Ram. All the witnesses have deposed in consistent manner that on 27/1/1999, they were deputed at Old Delhi Railway Station. AT about 1.10 p.m. SI Raj Kumar received a message on D.M. Net that kidnapper had made telephonic call from platform No.6. They rushed to platform No.6 and apprehended Naveen at the spot. The other accused Satish tried to run away but he was also apprehended. Their arrest is further proved by PW7 Gurdeep Singh, the complainant, who also reached at the spot, PW8 Parduman Puri, PW9 ACP Parmod Singh Kushwah, PW11 WHC Poonam Tyagi and PW21, SI Sanjay Kumar, who also reached at the Old Delhi Railway Station. (g) The prosecution has further proved the recovery of kidnapped child Pankhil, PW14, from the custody of accused Smt. Usha Sikka and Narender Kumar, parents of accused Navin Kumar from Sonepat. The version of the prosecution is supported by the statement of PW14, Master Pankhil, PW7 Gurdeep Singh, Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 11 of 46 PW8 Parduman Puri, PW11 Lady HC Poonam Tyagi, PW18 HC Paramjeet Singh. (h) The prosecution has further proved the FIR bearing No.74 of 99 as Ext. PW2/A by the examination of PW2 ASI Prem Lal. (i) In nut-shell, the prosecution has proved its case that the child Pankhil aged seven years was kidnapped from Delhi and immediately, PW13 Smt. Devender Kaur, mother of Pankhil informed her husband PW7 Gurdeep Singh, who send information which was recorded vide DD entry No.17/A, Ext. PW1/A and said DD was handed over to PW21 SI Sanjay Kumar through PW6 Const. Krishan Bahadur Thapa and Gurdeep Singh made statement Ext. PW7/A before PW21 SI Sanjay and SI Sanjay send a rukka through PW5 Const. Banwari Lal to police station for the registration of the case where PW2 ASI Prem lal recorded the formal FIR. PW21 SI Sanjay Kumar recovered a chappal of the child from the spot and deposited with PW3 HC Sri Bhagwan MHC(M) on 23.1.1999 vide making the entry in the register Ext. PW3/A. Thereafter PW15 SI Vijay Singh was deputed in switch room who observed the telephonic call made to PW7 Gurdeep Singh on the telephone No.5934524 installed at the residence of PW10 Manmeet Singh who happened to be the tenant of PW7 Gurdip Singh. Kidnappers made the telephonic calls on 25/1/1999, 26/1/1999 and 27/1/1999 in which a ransom of Rs.4,50,000/- was demanded. Kidnappers Naveen Kumar and Satish Kumar hired a Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 12 of 46 Maruti Car no.HR-10-B-8507 from PW20 Randhawa Singh, who purchased the same from PW16 Rajender Kumar. The car was hired on 24/1/1999. The kidnappers accused Naveen Kumar and Satish Kumar made a telephonic call from platform No.6, Old Delhi Railway Station. The car was detected and they were apprehended b y PW19 SI Raj Kumar with the assistance of PW22 Const. Raja Ram and PW12 Const. Devender Kumar. Immediately, the other police officials PW20 SI Sanjay Kumar, HC Paramjeet Singh, PW11 Lady Const. Poonam Tyagi, ACP Parmod Singh Kushwah reached on the spot. Thereafter, PW7 Gurdeep Singh alongwith PW8 Pradhuman Puri also reached at Old Delhi Railway Station. The accused were apprehended while making threatening calls and calls have been proved by PW4 Inder Singh J.T.O. At Old Delhi Railway Station, accused Navin Kumar made disclosure statement Ext. PW21/A and accused Satish Kumar made disclosure statement Ext.PW21/B. At the instance of both the accused persons, PW21 SI Sanjay Kumar took the permission from PW9 Pramod Kumar Kushwah to take accused persons to recover the kidnapped child and on the pointing out of the accused, PW27, SI Sanjay, PW19 SI Raj Kumar, PW18 HC Paramjeet Singh, PW22 Const. Raja Ram, PW12 Const. Devender, PW11 Lady HC Poonam Tyagi, PW7 Gurdeep Singh and PW8 Pradhuman Puri went to Sonepat where from at the instance of accused persons, child was recovered from Narender Kumar and Smt. Usha Sikka, parents of accused Naveen Kumar Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 13 of 46 vide recovery memo Ext. PW21/D. Accused Narender Kumar was arrested vide Ext.PW21/E and accused Smt. Usha Sikka was arrested vide Ext.PW11/A. Child was brought to Delhi and handed over to his parents. In this manner, case of the prosecution stands proved beyond reasonable doubt.” 14. Ms. Ritu Gauba, learned counsel for the appellants has argued that there are grave and material contradictions in the statement of witnesses which have destroyed and demolished the entire prosecution case. The investigation of the police has been at random and it has failed to prove the case of ransom against appellants Navin and Satish Kumar. She has argued that one of the major contradictions in the testimony of the witnesses, namely, Gurdip Singh (PW-7), Shri Parduman Puri (PW-8), ACP Pramod Singh Kushwah (PW-9), Lady HC Poonam Tyagi (PW-11), Const. Devinder (PW-12), HC Paramjeet Singh (PW-18), SI Raj Kumar (PW-19), SI Sanjay Kumar (PW-21) and Const. Raja Ram (PW-22) is regarding the persons who had gone to Sonepat on 27.1.1999 for recovery of the child and the nature of transport used by the witnesses for going to Sonepat. 15. The contradictions as highlighted by the defence counsel are:- Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 14 of 46 (a) Gurdip Singh PW-7 in his cross examination:- “….Thereafter both the accused, I, my friend, inquiry officer Sanjay and lady constable were went to Sonipat by my Sumo (my relative's). ACP Kushwaha was on his own car also went Sonipat but I cannot tell that by which vehicle they went to Sonipat….” (b) Parduman Puri PW-8 in his cross examination:- “….We went to Sonipat on Tata Sumo the number of which I cannot say. I also cannot say who was the owner of the Tata Sumo. A Sikh gentleman was driving the Sumo, I, Gurdeep Singh, and Sanjay and both the accused persons were present in the vehicle. I cannot say if any other vehicle accompanied the vehicle in which I was present or not…..” (c) HC Poonam Tyagi PW-11 in her cross examination:- “…..At about 4.45 P.M. I was asked by Sanjay Singh to accompany him to Sonipat and I agreed. Sanjay Singh, myself, Head const. Paramjeet, Devender, Raja Ram, Naveen, Satish, Gurdeep left for Sonipat. There was one more Sikh gentleman but I do not remember his name. There was no other person except the persons whose name or description I have given above. All of us went in the same Tata Sumo to Sonipat……” (d) Const. Devinder PW-12 in his cross examination:- “…….We went on govt. vehicle for Sonipat. That vehicle was Temp Travels. In this tempo travel to accused, 3 police officials (our team) and 1 I.O. And another constable Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 15 of 46 whose name I do not remember went to Sonipat. I cannot tell the registration number of that Govt. vehicle. One or two other private vehicle like cars also went to Sonipat. Both were Maruti cars. I cannot tell the names of the person who were travelling in those cars but one ACP Sh.Khushwa was with them. We left Delhi for Sonipat at 11.45 A.M. and reached at Sonipat in 45 minutes…..” (e) HC Paramjeet Singh PW-18 in his examination-in-chief:- “…..In Tata Sumo from railway station along with S.I. Sanjay, S.I. Raj Kumar, Const. Raja Ram, Const. Devinder, WHC Poonam Tyagi and Gurdeep Singh, Parduman Puri went to Sonipat in the same vehicle……” (f) SI Raj Kumar PW-19 in his cross examination:- “…..I cannot say where from S.I. Sanjay reached on the spot. After the arrival of S.I. Sanjay, I remained on the spot for about 30-40 minutes. Thereafter I left the railway station along with const. Devinder and came back to Spl. Staff Tagore Garden……” (g) SI Sanjay Kumar PW-21 in his examination in chief:- “….I took the permission from ACP to go out of station. I along with const. Raja Ram, Const. Devinder, HC Paramjeet, Lady HC Poonam and both accused persons and the complainant and his neighbourer Praduman Puri went to Sonipat in Tata Sumo…..” 16. It is argued that Parduman Puri (PW-8) does not speak of a Lady Const. having accompanied them to Sonepat, Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 16 of 46 whereas Lady HC Poonam Tyagi (PW-11) claimed that she had gone to Sonepat alongwith other police officials, the appellants Navin and Satish Kumar as well as some more persons one of them being ACP Pramod Singh Kushwah (PW- 9). Whereas PW-9 has explicitly stated that he did not go to Sonepat and had given permission to the Investigating Officer and the other staff for going to Sonepat for recovery of the child. Const. Devinder (PW-12) has also stated that ACP Pramod Singh Kushwah (PW-9) had gone with them to Sonepat. Whereas HC Paramjeet Singh (PW-18) is silent about the accused persons having gone to Sonepat with the police party. On the other hand, SI Raj Kumar (PW-19) has stated that he and Devinder had gone back to Rajouri Garden and did not go to Sonepat. 17. True that, we find these witnesses varying in giving names of the persons who had gone to Sonepat along with Investigating Officer SI Sanjay Kumar (PW-21). However, these variations and omissions in the names of the persons who went to Sonepat are natural as number of persons had gone to Sonepat along with the police party for the recovery of the child. The incident had taken place in such a manner that on receipt of telephone call at about 1.00 P.M. on 27.1.1999 (which was under observation) SI Vijay Singh (PW- Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 17 of 46 15) flashed a message on D.M.Net that the appellants have been making calls from PCO Old Delhi Railway Station, Platform No.6. The raiding party which had already gone to Old Delhi Railway Station consisting of Const. Raja Ram and Const. Devinder headed by SI Raj Kumar (PW-19) on hearing the message on D.M.Net apprehended appellant Naveen Kumar at Platform No.6, the moment he put down the telephone receiver. Appellant Satish Kumar tried to escape but, was chased and apprehended by Const. Raja Ram. Investigating Officer SI Sanjay Kumar (PW-21) went to Old Delhi Railway Station along with Lady HC Poonam Tyagi (PW- 11) on coming to know about the apprehension of the appellants. Complainant Gurdip Singh (PW-7) and his neighbour Parduman Puri (PW-8) also went in the Tata Sumo to railway station. In the meantime, B.S.Dahiya, SHO and ACP Rajouri Garden Pramod Singh Kushwah (PW-9) had also reached at the railway station. HC Paramjeet Singh (PW-18) had accompanied the SHO and was also present at the spot. Ten persons including the complainant and another independent witness Parduman Puri (PW8) had reached Old Delhi railway station at Platform No.6 from different places within a short period besides both the appellants who had been apprehended. SI Sanjay Kumar had taken permission Crl. Appeal Nos. 427/01, 429/01, 153/01 & 230/01 Page 18 of 46 from ACP for going out of station after the appellants disclosed that the kidnapped child was kept in the house of appellant Navin at Sonepat. He along with Const. Raja Ram, Const. Devinder, HC Paramjeet, Lady HC Poonam Tyagi, complainant Gurdip Singh, his neighbour Parduman Puri and the appellants went to Sonepat in the Tata Sumo. 18. The only witness who has disputed the departure of Const. Devinder Kumar from Delhi to Sonepat is SI Raj Kumar (PW-19), who in his cross examination has stated that he along with Const. Devinder had left the railway station and came back to special staff, Tagore Garden. Since all the other witnesses are coherent and consistence with each other regarding the departure of Const. Devinder along with SI Sanjay Kumar and other police officials, the complainant Gurdip Singh, public witness Parduman Puri and the appellants, the inconsistency in the statement of SI Raj Kumar which has crept in the cross examination, does not in any manner affect the prosecution case as to who went to Sonepat for the recovery of the kidnapped child, which otherwise stands proved on the record. 19. Similarly, only Praduman Puri (PW-8) has not stated that Lady HC Poonam Tyagi had accompanied them to Crl. Appeal Nos. 427/01, 429/01,