Delhi High Court
Sultan & Ors. vs State on 15 September, 2011
Author: G. P. Mittal
Bench: S. Ravindra Bhat, G.P.Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Hearing: 25th August, 2011
Date of Decision: 15th September, 2011
+ Crl. A. No.114/1998
SULTAN & ORS. ..... Appellants
Through: Mr. Manish Khanna, Amicus Curiae.
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, APP for the State.
AND
+ Crl. A. No.265/1998
AZAZ @ SALIM ..... Appellant
Through: Ms. Kamna Vohra, Amicus Curiae.
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, APP for the State.
AND
+ Crl. A. No.103/1998
GYAN SINGH & ANR. ..... Appellants
Through: Dr. Aman Hingorani Advocate with
Ms. Swati Sumbly, Advocate.
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, APP for the State.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
JUDGMENT
Crl. A.114/1998 Etc. Page 1 of 15
G. P. MITTAL, J.
1. The Appellants impugn a judgment dated 18.02.1998 and the order of sentence dated 19.02.1998 in Sessions Case No.2/1997 whereby the Appellants were convicted for the offence punishable under Section 364A read with Section 120B Indian Penal Code (IPC). Each of the Appellants was sentenced to undergo life imprisonment and to pay a fine of ` 4,000/-. In default of payment of fine each of the Appellant was to further undergo rigorous imprisonment (RI) for 12 months.
2. Briefly stated the prosecution case is that Appellant Saleem whose name was later on revealed as Azaz rented a room in PW-1 Gulabo's house on 20.06.1996. On 04.07.1996 at about 10:30 a.m. Azaz took away Nahid, a child aged about 2 years from Gulabo's house on the pretext of getting him Chana (gram) and did not return (with the child) for quite some time. PW-1 being mother of the small child became anxious and suspected foul play. She asked her daughter Ms. Sajjan to inform the police. A DD No.15 dated 04.07.1996 was recorded in PP Ashok Nagar, Police Station Nand Nagri. On receipt of (information through the wireless Operator B-53 information had been given by Ms. Sajjan resident of House No.C-448, Gali No.6, Ashok Nagar, Delhi) that her brother had been kidnapped by their tenant. The DD entry was assigned to Head Constable Kamta Prasad.
3. HC Kamta Prasad reached the spot and recorded Gulabo's statement Ex. PW-1/A. She disclosed that she was resident of House No.C-448, Gali No.6, Ashok Nagar, Delhi and that on 20.06.1996 a man named Saleem aged 25/26 years with a round face, having a height of 5' 6'' moved into their premises as a tenant. At about 10:30 AM, said Saleem (whose name was later confirmed as Azaz) took away her son Nahid, on the pretext of buying Chana for him. She waited for Saleem and Nahid for a long time and then searched for them outside her house. She suspected that Saleem (Azaz) had kidnapped her young son.
4. An FIR No.383/1996 for the offence punishable under Section 363 IPC was registered against Saleem and the investigation was assigned to SI Yogesh Malhotra (PW-14). It is alleged that on 08.07.1996 Sarvar Khan (PW-2) received Crl. A.114/1998 Etc. Page 2 of 15 a telephone call from the Appellant Azaz. According to PW-2, Azaz informed him (PW-2) that he had left a ransom note underneath the table fan in the tenanted room. Sarvar Khan produced the ransom note Ex. PW-2/A to SI Yogesh Malhotra wherein Appellant Azaz had demanded a ransom of ` 5,00,000/- for release of the child Nahid. It was mentioned in the ransom letter that Sarvar Khan should not go to the police; if he (Sarvar Khan) did so, Nahid's hands and legs would be cut and parceled to him (PW-2). PW-2 handed over the ransom note to the IO.
5. It is the prosecution's case that the Telephones belonging to the Petrol Pump (where PW-2 was employed) and the telephone belonging to PW-23 (the neighbour) were being observed as ransom calls were being received on these phones. SI Yogesh Malhotra traced the origin of one of the calls to a PCO owned by PW-5 Surya Prakash Gupta at Dayalpur and the origin of the second call was traced to a telephone belonging to Ali Hasan at Mustafabad. The IO informed owners of both the telephones to keep a watch and inform the police whenever any calls were made to PW-2.
6. In the course of the investigation the IO came to know that the real name of Saleem was Azaz. He was Habib's nephew and was planning to kidnap some child for ransom. The IO made a frantic search for Habib. He was, however, not available at his house.
7. According to the prosecution, on 19.07.1996, Surya Prakash Gupta (PW-6) informed the police that one Sultan, who had made calls to the petrol pump, (for PW-2), had been apprehended. The IO reached Surya Prakash Gupta's shop and arrested Sultan. Sultan made a confessional statement Ex. PW-2/C; in pursuance thereto, Habib was arrested on 20.07.1996. It is alleged that Habib too made a confessional statement Ex.PW-2/E and disclosed that the child could be recovered from Azaz. Several raids were conducted by the police to arrest Azaz @ Saleem. On 09.08.1996 the IO got information that Azaz had gone to his village Nangla Kisi. A raid was organized and Azaz was arrested. It is alleged that Azaz also made a disclosure statement Ex. PW-2/H. At his (Azaz's) instance the Suntek factory at Firozabad was raided. The Appellants Ravinder and Gyan Singh were Crl. A.114/1998 Etc. Page 3 of 15 arrested from there. It is alleged that they (Ravinder and Gyan Singh) also made disclosure statements Ex.PW-2/K and Ex.PW-2/L to the effect that the kidnapped child was with Raj Bahadur @ Mallan. The accused persons were sent back to Delhi. Azaz was brought back to Etah on police remand. On 14.08.1996 at about 4:00 AM, the house of Rajpal and Veerpal in Nangla Kisi, PS Firozabad, District Etah, was raided. A photograph Ex.PW-2/C of the kidnapped child was found in Veer Pal's house. The child was found from the house and was identified by Sarvar Khan. The accused persons, Rajpal, Veerpal and Azaz's wife, it is alleged, could not be apprehended as they had absconded. A report under Section 173 Cr.P.C. was presented against the five Appellants.
8. On Appellants' pleading not guilty to the charge, the prosecution examined 14 witnesses.
9. On closure of prosecution evidence, the Appellants were examined under Section 313 Cr.P.C. to afford them an opportunity to explain incriminating evidence led by the prosecution. The Appellant Sultan denied any knowledge that Azaz had rented a room in the complainant's house. He denied having made any call from PW-6's PCO or his arrest from the PCO. He took the plea that the police enquired about the residential address of Azaz and Habib from him, which he gave. After a few days he was called to the police post in the presence of Sarvar Khan (PW-2) and was implicated in the case falsely.
10. The Appellant Azaz denied that he was a tenant in the complainant's house, or that he had taken Nahid on the pretext of getting Chana. He denied having made any telephone call to Sarvar Khan or placing a ransom note under the table fan. He denied that his specimen handwriting was obtained by PW-14. He stated that he never resided in the Suntek factory at Firozabad, U.P. The Appellants Ravinder and Gyan Singh were arrested from Sohna, Faridabad and not from Suntek factory. He stated that the police had made a false case against them.
11. The Appellant Habib denied that he was a part of the conspiracy in the kidnapping or that he made any disclosure statement. He denied that he knew PWs 3 and 4.
Crl. A.114/1998 Etc. Page 4 of 1512. The Appellants Gyan Singh and Ravinder also denied any knowledge of Nahid's kidnapping or that they made any disclosure statement. They stated about having been arrested from Sohna Faridabad and not from the Suntek factory and stated that they have been implicated in the case falsely.
13. We have heard Mr. Manish Khanna, Amicus Curiae for the Appellants, Sultan and Habib, Ms. Kamna Vohra, Amicus Curiae for the Appellant Azaz @ Salim, Dr. Aman Hingorani, Advocate for the Appellants Gyan Singh and Ravinder and Mr. M.N. Dudeja, learned APP for the State and have also perused the records.
APPELLANT AZAZ @ SALIM
14. The prosecution case against this Appellant is that, he kidnapped the child Nahid on 04.07.1996 at about 10:30 AM; he kept the ransom note Ex.PW-2/A in the rented room underneath the table fan and talked about this to Sarvar Khan (PW-2). Then, pursuant to his disclosure statement Ex.PW-2/H, Nahid was rescued from Veer Pal's house. It is argued by the appellant's learned counsel that the prosecution has not led any evidence to prove that the room was let out by Gulabo (PW-2) to Azaz. PW-1 admitted that she did not see the child being taken away by the Appellant. Thus, there is no reliable evidence on record to prove that Azaz was responsible for the kidnapping. The recovery of the ransom note Ex.PW-2/A, argues the learned counsel, is shrouded in mystery as there is no seizure memo proved by the prosecution regarding the production of the ransom note by PW-2 and its seizure by the IO. It is contended by the learned counsel that in his statement under Section 313 Cr.PC., Azaz denied giving any specimen handwriting and the prosecution has failed to establish that Azaz's specimen handwriting was obtained during investigation so as to connect the ransom note with him. It is argued that there is no evidence to show that the Appellant entered into any conspiracy with the other accused. Thus, the learned counsel argued that the Trial Court's order could not be sustained and the Appellant is entitled to be acquitted.
15. The learned APP, on the other hand, submits that there cannot be any direct evidence regarding proof of any conspiracy, as conspiracies are always hatched in Crl. A.114/1998 Etc. Page 5 of 15 secrecy. It is contended that there is no reason to disbelieve Gulabo, Nahid's mother, regarding his being taken away by the Appellant, and PW-2's testimony cannot be disbelieved regarding the recovery of the ransom note from the rented room, and its production to the IO. The conclusion reached by the Trial Court, argues the learned APP, is well founded and on the basis of the evidence adduced and the impugned judgment does not call for any interference.
16. First of all, we shall deal with the recovery and seizure of the ransom note.
According to the prosecution version, the child was kidnapped on 04.07.1996. PW-2 Sarvar Khan deposed that, three days later, he received a telephone call from Azaz saying that he had kept a letter under the table fan. He deposed that on checking the room the ransom note Ex.PW-2/A was recovered, which he handed over to the IO. SI Yogesh Malhotra, IO (PW-14) corroborated that Sarvar Khan had given him the ransom note on 08.07.1996, i.e. after four days (and not three days as claimed by PW-2). He had also disclosed to the IO, Azaz's call, which was received by him; a demand of ransom of ` 5,00,000/- was made in the letter Ex.PW-2/A. There is no gainsaying that the recovery and seizure of this document was a very crucial and important piece of evidence and in the absence of any seizure memo, the recovery becomes doubtful.
17. According to the prosecution, the room was rented to the Appellant just 14 days before the occurrence. It was very important for the IO to search the room immediately after registration of the case to get any clue about the culprits, particularly, the Appellant. Thus, it was natural that the IO would have inspected the rented room and if there was any valuable piece of evidence, then the same would have been noticed by him. Thus, the story that the ransom note was recovered after 3-4 days of the kidnapping becomes improbable.
18. PW-2 claims to have received a telephone call from Azaz at the petrol pump where he used to work. There is no evidence that he ever had any telephonic conversation with Azaz prior to the alleged call. According to the prosecution, the Appellant Azaz was inducted as a tenant in complainant's room just a few days before the incident. In the circumstances, it cannot be said that PW-2 was Crl. A.114/1998 Etc. Page 6 of 15 conversant with Azaz's voice on telephone. In the circumstances, it would be difficult to believe the prosecution version regarding discovery of the ransom note from the rented room and its delivery by PW-2 to the IO.
19. It is urged by the learned counsel for the Appellant that the specimen handwriting Ex.PW-6/A alleged to have been taken from him was not proved to have been so taken, in view of his denial in the statement under Section 313 Cr.P.C. There is no merit in this submission. PW-14 (the IO) deposed about obtaining the specimen handwriting Ex.PW-6/A of the Appellant and sending it to FSL Malviya Nagar for comparison. This part of PW-14's testimony was not challenged in the cross- examination. Thus, we do not agree with the submission that the specimen handwriting Ex.PW-6/A has not been proved to be that of the Appellant. Yet, we doubt the recovery and the seizure, particularly, in the absence of any seizure memo. The recovery of the ransom note Ex.PW-2/A is wholly suspect. It would be difficult to rely on the note as having been recovered from the rented room occupied by Azaz.
20. Admittedly, there is no documentary evidence about Azaz's induction in the room as a tenant. There is no requirement in law mandating a written document or agreement for creation of tenancy. We have to see the credibility of the evidence produced by the prosecution. Gulabo (PW-1) testified that on 20.06.1996 Azaz approached her for renting the room and introduced himself as Saleem. In cross- examination, only a suggestion was given to the witness that Azaz was never inducted as a tenant (by PW-1), although, there is a small discrepancy in the testimonies of PW-1 and PW-2, as to whether, Azaz approached PW-1 directly or whether he was referred by some other person. PW-1 deposed that Azaz was not introduced by anyone but had come directly to take the room on rent. PW-2, on this aspect, stated that Azaz was sent to him by an earlier tenant. This cannot be said to be a material contradiction so as to disbelieve Azaz's induction as a tenant in the house belonging to PW-1. We do not find any reason to disbelieve PWs 1 and 2's testimonies that Azaz was inducted as a tenant in a room in house No.C- 48, Gali No.6, Ashok Nagar, Delhi belonging to PW-1.
Crl. A.114/1998 Etc. Page 7 of 1521. On the aspect of Nahid's kidnapping, PW-1 deposed that on 04.07.1996 at about 10:30 AM, the Appellant took the child with him under the pretext of getting him Chana and the child did not return after that. She searched for the child and thereafter informed the police through her daughter Ms. Sajjan. The Police went to her house and she made a statement Ex.PW-1/A. Nothing was elicited in PW- 1's cross-examination to discredit her testimony. She was candid to admit that the Appellant had not taken the child earlier for getting him Channa. She also admitted that she had not seen the child being taken away by Azaz as she was having a bath at that time. It is well known that the neighbours residing in small tenements become close to each other very quickly. Therefore, she (PW-1) had no suspicion about the Appellant's motive when he told her that he was taking the child to buy him Chana. It is important to note that the Appellant consciously selected the time when PW-1 was having a bath and informed her that he was taking the child with him for buying him Chana so that the mother (PW-1) might not start searching for the child immediately. PW-1's testimony also is that the child did not return in spite of her waiting and then she searched for him. It was only at 2:50 PM that DD No.15 was lodged in Police Post Ashok Nagar, Police Station Nand Nagri through Ms. Sajan (PW-1's daughter) about her brother having been kidnapped by the tenant. So, the Appellant managed to get sufficient time to leave from the area and perhaps out of Delhi to accomplish his plan. The police reached the spot on the basis of the DD recorded on PW-1's statement. HC Kamta Prasad sent tehrir Ex.PW-10/A for registration of the case at 4:30 PM. It is apparent that though the Appellant tried to mislead the complainant by telling her that he was taking Nahid for getting him Chana, yet after a reasonable wait (for him to return), the FIR was quickly lodged. We do not find any reason to disbelieve PW-1's testimony that on 04.07.1996 at 10:30 AM. Nahid was taken away by the Appellant out of the lawful guardianship of his parents.
22. Another piece of evidence against the Appellant is the child's recovery pursuant to the disclosure statement Ex.PW-2/H. This disclosure statement runs into three handwritten pages in single space, where all the details about how the child was Crl. A.114/1998 Etc. Page 8 of 15 kidnapped, who facilitated the act and where the child was kept from time to time were disclosed.
23. Section 25 and 26 of the Indian Evidence Act prohibit admissibility of any confession to a police officer by anyone accused in any offence. Section 27 is in the shape of exception to Section 25 and 26 and provides that if any fact mentioned is discovered as a result of the information received from an accused, in the custody of a police officer, then so much of the information, whether it amounts to a confession or not, as relates distinctly to the "fact discovered" is admissible in evidence.
24. It has been repeatedly held by the Supreme Court that under Section 27 of the Evidence Act what is admissible is the information or such part thereof which relates distinctly to the fact thereby discovered. (Ram Kishan Mitthan Lal Sharma v. State of Bombay, AIR 1955 SC 140; Earabhadrappa @ Krishnappa v. State of Karnataka, AIR 1983 SC 446; Antar Singh v. State of Rajasthan, AIR 2004 SC 2865).
25. Under Section 27 of the Evidence Act if information given by an accused leads to the discovery of a fact which is the direct outcome of such information then only would it be evidence; however, when the fact has already been discovered, the disclosure/confessional statement would be of no consequence.
26. In this case, as stated earlier, the Appellant gave the details as to how the child was kidnapped and carried from one place to another with the involvement of the various persons, some of whom are facing trial. In the end of the statement, it is mentioned that on 29.07.1996 when he reached Suntek factory, he came to know that Mallah (@ Raj Bahadur) had taken away his wife and children as also the kidnapped child. He (the Appellant) searched for them at various places and came to know that they (Mallah, Azaz's wife and children and the kidnapped child) had gone to Veer Pal's maternal grandfather's house at Chhitu Ka Nangla and Gyan Singh and Ravinder were aware of the same. Thus, this fact was not within the personal knowledge of the Appellant that the kidnapped child was kept by Veer Pal's maternal grandfather's house. Rather he derived this knowledge through Crl. A.114/1998 Etc. Page 9 of 15 some source which is not known. The recovery memo Ex.PW-2/J (which is prepared by PW-14 and is attested by Sarvar Khan and Constable Satpal) reveals that the kidnapped child was recovered from the house of Veer Pal (and not from the house of Veer Pal's maternal grandfather). Thus, there was no discovery of any fact and no part of the disclosure statement Ex.PW-2/H is admissible. Then there is discrepancy as to in whose presence the recovery of the child was made. PW-2, who is the attesting witness to the recovery memo Ex.PW-2/J says that all the accused were present at the time of recovery of the child, whereas PW-14 the IO says that only Azaz was present. Thus, apart from the fact that the disclosure statement is inadmissible in evidence there are doubts as to the manner of recovery of the child. In any case, the disclosure statement cannot be used against the Appellant.
27. The prosecution relies on the testimonies of PWs 3 and 4 to support the conspiracy theory. PW-3 deposed that he was a tenant in the house of Sarvar Khan one year prior to the recording of his statement. He then shifted to Gagan Vihar, U.P. He deposed to have known the Appellant Habib, who used to reside in his neighbourhood. He (Habib) later shifted to Mustafabad. He (PW-3) shifted to Partap Nagar Saboli. He deposed that Sarvar Khan was a good man and would help them in the time to need. He used to praise him (PW-2) before Habib and had informed him that by dint of hard work he had purchased the truck, a TSR and built his own house. He also owned a plot in Loni. He informed his son Gyan Pal to inform PW-2 that Azaz used to live with Appellant Habib.
28. PW-4 Gyan Pal (son of PW-3) deposed that Azaz used to visit Habib, his maternal uncle, since they were earlier tenants in PW-2's house. He once visited his house. Habib also visited PW-2's house with him. He deposed that Habib had asked Azaz to rent PW-2's room. On his return from the village, his father informed about the kidnapping of PW-2's son by his tenant.
29. Though, PWs 3 and 4 were examined by the prosecution to prove the conspiracy to kidnap Nahid, yet, no evidence was led by the prosecution as to how the IO reached PWs 3 and 4 and why didn't they have any occasion to disclose these Crl. A.114/1998 Etc. Page 10 of 15 facts to the IO. Even otherwise, PWs 3 and 4's testimonies are innocuous to draw any inference of Habib and Azaz entering into any conspiracy.
30. We would discuss the role and evidence against each of the Appellant in the later part of the judgment. Suffice it to say, at this stage, that apart from the confessional statement made by each Appellant (which are inadmissible in evidence), there is nothing on record to establish the link with each of the Appellants, to establish any conspiracy.
31. In view of the above discussion, we are of the opinion that the prosecution has failed to lead any evidence of the offence of criminal conspiracy alleged to have been committed by Azaz. It has not been proved beyond reasonable doubt that the ransom note Ex.PW-2/A was written by the Appellant and left in the rented room. Thus, the Appellant Azaz cannot be convicted for the offence punishable under Section 120B IPC, or for the offence punishable under Section 364A read with Section 120 B IPC.
32. The prosecution, however, has been able to prove beyond doubt that on 04.07.1996, at about 10:30 AM, the Appellant kidnapped Nahid from the lawful guardianship of his parents. He is, therefore, liable to be convicted for the offence punishable under Section 363 IPC.
APPELLANT SULTAN
33. To prove its case against Sultan, the prosecution relied on the testimonies of PWs 2, 5 and 14 and the disclosure statement Ex.PW-2/C. PW-2 deposed that Sultan was arrested from Lalaji's shop, which was a PCO. He deposed that the Appellant was apprehended by members of the public and Lalaji's wife while making a call from the PCO. This witness gave his employer's number at the petrol pump (where the call was allegedly received) as 2294367. He testified that he was given a message by one of his colleagues at the petrol pump about Sultan's apprehension at the PCO booth. He along with police reached the PCO at Mustafabad. The PCO owner informed them that Sultan had been making telephone calls on earlier occasions too. The police arrested Sultan. He made a Crl. A.114/1998 Etc. Page 11 of 15 disclosure statement Ex.PW-2/C to get his co-accused arrested and get the child recovered.
34. PW-5 Surya Prakash Gupta deposed that Telephone number 2170218 was installed in his shop. He testified to not knowing any of the accused. He expressed ignorance if any of them had ever visited his shop to make a telephone call on 11.07.1996 or on 19.07.1996. Since this witness did not support the prosecution version, he was permitted to be cross-examined by the learned APP. He denied having produced Sultan before the police on 19.07.1996 when he went to make a telephone call. He denied having made any such statement to the police and was confronted with his statement Ex.PW-5/A. He denied the suggestion that he was won over by the accused.
35. PW-14 deposed about Sultan's arrest from PW-5's shop. Even if, we fully rely on the PWs 2 and 14's testimonies regarding Sultan's production before the police by PW-5, even then there is no evidence to show that Sultan made any call to PW-2. According to the prosecution, ransom calls were being made to PW-2 by the kidnappers at the phone installed at the petrol pump (employer of Sarvar Khan) as also in PW-2's neighbourhood. These phones were kept under surveillance, yet no evidence of the call details were produced regarding any call made from PW 5's PCO. In view of PW-5's not supporting the prosecution case, it would be difficult to conclude that Sultan made ransom call to Sarvar Khan. It is important to note that though the phones were under surveillance and may have been taped, yet none of the tapes were produced nor was the sample voice of Sultan taken for comparison (spectrography). Thus, the prosecution has failed to prove beyond reasonable doubt that Sultan ever made any ransom call to PW-2.
36. The confessional statement Ex.PW-2/C also gives the details about how Nahid was kidnapped and where he was kept from time to time. Apprehension was also expressed that perhaps Azaz wanted to pocket the entire ransom amount. In the end of the confessional statement Sultan disclosed that he was aware of the Azaz's addresses and he could get the child recovered. Thus, no specific information was given by the Appellant nor was discovery of any fact made in pursuance of the Crl. A.114/1998 Etc. Page 12 of 15 confessional statement Ex.PW-2/C. The fact of Nahid's kidnapping by Azaz was already known to the police and the complainant. For the reasons stated earlier, the disclosure statement is inadmissible in evidence. The prosecution has failed to adduce any evidence to prove that the Sultan was part of the conspiracy for commission of the offence or that he had committed the substantive offence of kidnapping. The Trial Court's order vis-à-vis Sultan cannot be sustained. He is entitled to be acquitted.
APPELLANT HABIB
37. The only evidence against the Appellant Habib is his arrest on 20.07.1996 and making of the confessional statement Ex.PW-2/E by him. The disclosure statement is on the same lines as Sultan's. In the end of the confessional statement, the Appellant disclosed that his co-accused Azaz and one of his friends are present in Village Achhera near Jhaalgopal, District Etah and that he could get the child recovered. Neither was any specific information given by the Appellant nor was there discovery of any fact made in pursuance of the disclosure statement. The prosecution has, therefore, failed to prove its case against him beyond reasonable doubt. The Appellant Habib is entitled to be acquitted.
APPELLANTS RAVINDER AND GYAN SINGH
38. It is urged by the learned counsel for the Appellants that Azaz made a disclosure statement Ex.PW-2/H on 09.08.1996 where he informed the police that Ravinder and Gyan Singh were aware of the kidnapping. They were arrested on 10.08.1996. They made identical disclosure statements Ex.PW-2/K and PW-2/L respectively. It is argued by the Appellant's counsel that once the disclosure statement had been made by Azaz on 09.08.1996, there cannot be "rediscovery" of any fact in pursuance of any subsequent disclosure statement, made by Ravinder and Gyan Singh. Reliance is placed on Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152; State of Karnataka v. M.V. Mahesh, (2003) 3 SCC 353; Vijender v. State of Delhi, (1997) 6 SCC 171; Thimma v. State of Mysore, AIR 1971 SC 1871.
Crl. A.114/1998 Etc. Page 13 of 1539. We have already held above (while discussing the case against Azaz) that the child was not recovered from the place disclosed by him and that the confessional statement made by him was inadmissible in evidence. Ravinder and Gyan Singh in their confessional statement had disclosed that the kidnapped child was in possession of Mallah and Veer Pal and that they could get the child recovered. As we have held above, the child was not recovered from Mallah and Veer Pal's possession. Moreover, knowledge of the fact that the kidnapped child was in possession of Mallah and Veer Pal by itself is not sufficient to conclude that the Appellants were the part of the conspiracy to commit the offence of kidnapping. The Appellants' disclosure statements were also not admissible in evidence, as the fact of kidnapped child being in possession of Veer Pal and Mallah was known to the police. On the strength of Sukhvinder Singh (supra); M.V. Mahesh (supra), Vijender (supra) and Thimma (supra), we can say that through Azaz's disclosure statement there could not be rediscovery of fact already discovered.
40. There is no legal and admissible evidence proved against the Appellants Ravinder and Gyan Singh. The Trial Court judgment against them cannot be sustained. The Appellants are entitled to be acquitted.
CONCLUSION
41. In view of our foregoing discussion, Criminal Appeal No.114/1998 titled Sultan & Ors. v. State and Criminal Appeal No. 103/1998 titled Gyan Singh & Anr. v. State are allowed.
42. Criminal Appeal No.265/1998 titled Azaz @ Salim v. State is partly allowed.
Appellant Azaz's conviction under Section 364A IPC is converted to one for the offence punishable under Section 363 IPC and he is sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of ` 5,000/- or in default to undergo simple imprisonment for six months.
43. The nominal roll and record shows that Azaz had served the sentence of about three years. Since the Appellant was not appearing in the Court, he was declared Proclaimed Offender and Ms. Kamna Vohra was appointed Amicus to assist the Crl. A.114/1998 Etc. Page 14 of 15 Court. The Trial Court shall take steps for arrest of the Appellant Azaz so that he may serve the remainder of the sentence.
44. The Appeals are disposed of in the above terms.
45. Registry is directed to send the copy of this judgment to the Trial Court immediately for compliance.
(G.P. MITTAL) JUDGE (S. RAVINDRA BHAT) JUDGE SEPTEMBER 15, 2011 hs/vk Crl. A.114/1998 Etc. Page 15 of 15