Punjab-Haryana High Court
Saddik And Others vs State Of Haryana on 31 January, 2012
Author: T.P.S. Mann
Bench: Satish Kumar Mittal, T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. D-535-DB of 2008
Date of Decision : January 31, 2012
Saddik and others
....Appellants
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Bijender Dhankhar, Advocate
for the appellants.
Mr. Ajay Kumar Gupta, Addl. Advocate General, Hry.
T.P.S. MANN, J.
The appellants were tried for the offences under Sections 365/34, 364-A IPC and 25 of the Arms Act. Vide judgment and order dated 15.7.2008, Additional Sessions Judge, Gurgaon convicted them under Section 365 IPC and sentenced them to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months. They were further convicted under Section 364-A IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. They Criminal Appeal No. D-535-DB of 2008 -2- were also convicted under Section 25 of the Arms Act for which Saddik and Sakir-appellants were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months while Mohd. Bachu Ali and Majibull-appellants were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month for the aforesaid offence. All the substantive sentences were ordered to run concurrently. The period of detention, if any, already undergone by the appellants was ordered to be set off, according to law.
According to the prosecution, on 17.12.2005, complainant-Krishan Parshad came to Police Station Udyog Vihar and submitted a complaint stating therein that for the last five years he was residing with his family in village Molahera in the house of Rattan Lal Yadav and was working as a Helper in IMT, Manesar. He had two children, namely, Kapila, 8 years' old daughter and Kamal Parshad, 5 years' old son and both were studying in Government School, Molahera. On 15.12.2005 at about 2.30 p.m., he left for duty and his wife also went to a neighbour's house while their son Kamal Parshad was playing outside with some children. When his son did not return till Criminal Appeal No. D-535-DB of 2008 -3- evening, his wife searched for him in the neighbourhood. On his return from duty, she informed him that their son was missing since 2.30/3.00 p.m. They made efforts but could not find him. On 16.12.2005 at about 10.00 a.m., the complainant received a telephonic call at an STD booth in his neighbourhood and the caller asked him as to how much money he could arrange. The complainant told him that as he was poor he could not arrange money, upon which the caller said that his son was in their custody and he should arrange for money and he also said that he would call later on. On enquiry, it was revealed that the call was received from telephone No. 01615008532 of an STD booth at Ludhiana. On 17.12.2005 at about 9.00 a.m., again a call was received at the STD booth meant for the person ironing the clothes near the house of the complainant and the said person was asked to come alongwith mother of the child to a place by the side of canal behind Krishan Mandir, Ludhiana. The caller also threatened with dire consequences in case the police was informed. This fact was told to the complainant by Shanker Mandal, who used to iron the clothes. On the basis of this complaint, FIR No. 575 dated 17.12.2005 under Section 365 IPC was registered at Police Station Udyog Vihar, Gurgaon.
During the course of investigation, ASI Raj Singh alongwith other police officials went to Ludhiana and arrested the Criminal Appeal No. D-535-DB of 2008 -4- accused. The missing child was recovered. Spring actuated knives were recovered from accused Mohd. Bachu Ali and Majibull, which were taken into possession. Accused Sakir and Saddik got recovered country made pistols and cartridges in pursuance of their disclosure statements. The offence under Section 25 of the Act was added to the heading of the FIR.
Upon completion of the investigation and presentation of the challan followed by its commitment to the Court of Sessions, the appellants were charged for the aforementioned offences, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution had examined ten witnesses.
PW1 Nand Kishore, Ahlmad proved orders Ex.PA and Ex.PB regarding sanction accorded by District Magistrate, Gurgaon for prosecution of Sakir and Saddik-appellants under Section 25 of the Act.
PW2 Constable Ramphal deposed that on 22.12.2005, he joined the investigation of the case. The accused were taken in TATA Sumo to village Javedi Kalan near Ludhiana. When the investigation team reached House No.16 belonging to Mandeep Singh, accused Sakir got recovered a country made pistol of 7.65 bore, alongwith live cartridges of the same bore Criminal Appeal No. D-535-DB of 2008 -5- from a bag hanging on a wall. Accused Saddik also led the police party to the same house and got recovered a pistol of .12 bore alongwith two cartridges which had been kept concealed in a box containing clothes. The recovered country made pistols and cartridges were taken into possession.
PW3 Inspector Shamsher Singh stated that on 4.2.2006, he had prepared the final report under Section 173 Cr.P.C. against the accused persons. He had verified the facts of the case before preparing the final report.
PW4 Constable Bahadur Singh testified that on 17.12.2005, he, alongwith ASI Raj Singh, Constable Raj Kuldeep and Smt. Kanchan, alongwith her husband Krishan Parshad, reached CIA Staff, Ludhiana and came across Vikram Kapoor, DSP (Industries), Gurgaon. The DSP prepared raiding parties of Punjab as well as Haryana police and also briefed them. Thereafter, one police party was deputed behind Krishan Mandir while other deputed on the other side of the bridge. Rs.70,000/- consisting of one genuine currency note of Rs.100/- at the top and another currency note of similar denomination at the bottom of bundle of notes were handed over to Smt. Kanchan. At about 2.00 p.m., two young boys met Smt. Kanchan and talked to her. After that they gave signal towards the other side of the bridge. Upon this, all the four accused were apprehended by the raiding Criminal Appeal No. D-535-DB of 2008 -6- parties and the child recovered. All the accused were interrogated at the spot. They disclosed their names as Saddik, Sakir and Mohd. Bachu Ali, while the witness did not remember the name of the fourth accused. Accused Saddik suffered a disclosure statement. The accused were, thereafter, brought to Police Station Udyog Vihar, Gurgaon and duly interrogated by ASI Raj Singh. On 22.12.2005, accused Saddik led the police party to room No.16 on the second floor situated at Javedi Kalan which had been taken on rent form one Mandeep Singh and got recovered a country made pistol of .12 bore alongwith a live cartridge of the same bore. Accused Sakir also made disclosure statement and in pursuance thereof got recovered one country made pistol of 7.65 bore, besides two live cartridges of the same bore.
PW5 DSP Mukhtiar Singh stated that on 18.12.2005, he was posted as Inspector, CIA, Ludhiana. On that date, Superintendent of Police (Detective), Ludhiana ordered him to help ASI Raj Singh, Investigating Officer of the case. Accordingly, he called other officials working in his office. In the meantime Vikram Kapoor DSP (Industries), Gurgaon reached CIA Staff. DSP Vikram Kapoor briefed the joint forces of both the States that a boy, kidnapped from Gurgaon, was to be rescued safely and without using any force. Raiding parties of forces of Criminal Appeal No. D-535-DB of 2008 -7- both the States were prepared. As per demand of the accused, ASI Raj Singh prepared a fake bundle of Rs.70,000/- containing one currency note of the denomination of Rs.100/- on the top and one similar currency note at the bottom of the bundle. ASI Raj Singh kept the bundle in a white polythene and put the same in a bag of black colour which was handed over to Smt. Kanchan, mother of the kidnapped boy to be delivered to the accused persons after receiving their indication in that regard. Constable Raj Kuldeep was deputed to help Smt. Kanchan and to stand at a distance of 10 feet away from her. Smt. Kanchan, alongwtih Constable Raj Kuldeep was directed to reach the bridge of river of Javedi Kalan (Ludhiana). In the meantime, ASI Raj Singh received a telephonic message from the Gurgaon police that the accused were reaching the canal bridge at Javedi Kalan with the kidnapped boy. It was further disclosed that if any action was taken or information given to the police, the boy would be killed. After receiving the information, the raiding parties, while in civil dress, reached the designated place. In the meantime, two young boys reached near Smt. Kanchan, who was standing near the canal bridge in Javedi Kalan. Those boys then pointed towards the kidnapped boy, who was present with two other young boys. The four young boys, who were the accused, were apprehended by the forces of the two States and the kidnapped boy recovered. After recovering the kidnapped boy, he was handed over to his Criminal Appeal No. D-535-DB of 2008 -8- mother Smt. Kanchan. ASI Raj Singh interrogated the accused, who were all residents of Bihar. Two spring actuated knives were recovered from the pocket of Mohd. Bachu Ali and Majibull accused. The knives were taken into possession.
Smt. Kanchan, mother of the kidnapped boy, appeared as PW6 and deposed that she had been living with her family members in the house of Rattan Lal in village Molahera, which she had taken on rent. She had two children, i.e. one daughter, namely, Kapila of 8 years and the other a son, namely, Kamal Parshad of 7 years. On 15.12.2005, her son, Kamal Parshad, went outside the house for playing but did not return uptil 4.00 p.m. She searched for her son in the neighbourhood till evening but did not find him. When her husband, Krishan Parshad, returned home at about 8.00 p.m., she apprised him about the missing of her son. Even during night, she, alongwith her husband, kept on searching for their son but found no clue. On the next day, she, alongwith her husband, went to the Police Station where they were asked to bring a photograph of her son. As they did not have the photograph of their son, they came back to their house. When they reached their rented accommodation, they received a telephonic message at the STD booth and the caller conveyed to them that their son Kamal was in their custody for which they demanded ransom. They were also told not to Criminal Appeal No. D-535-DB of 2008 -9- inform anyone, including the police or else the child would be killed. After receiving the message from the kidnappers of her son, the witness and her husband started arranging money. On the same day, they again received a telephonic message at the same STD booth that no one be informed about the kidnapping of their son or else he would be killed. The second time demand was made for Rs.70,000/-. The witness, alongwith her husband Krishan Parshad then went to the Police Station. On the complaint submitted by her husband, a case was registered by the police regarding the kidnapping of her son. On 17.12.2005, during night, the witness, alongwith the police officials left for Ludhiana. On reaching there, help was sought from the local Punjab police. The police officials prepared a bundle of notes, purported to be worth Rs.70,000/- by placing a genuine currency note of Rs.100/- at the top of the bundle and a similar currency note at the bottom of the same. The bundle was kept in a polythene and then placed in black colour bag which was handed over to her. As she had been directed by the accused to come with money on the canal bridge situated behind Krishan Mandir in Ludhiana, she, alongwith the police officials, reached the designated place. When she was standing on the canal, the police officials in civil dress were also standing here and there. She kept waiting for half an hour. In the meantime, two boys came to her and asked her as to whether she had come from Criminal Appeal No. D-535-DB of 2008 -10- Gurgaon, to which she replied in the affirmative. They demanded money from her but when she asked them to show her son Kamal Parshad, they told her to turn back. She did so and saw her son in the custody of two other persons present at the spot. In the meantime, the police officials present around the spot apprehended the four accused and took them to the local police station. Two knives were recovered from the accused persons when they were searched. The police had also interrogated the persons about their names and identity. She, alongwith police party, then returned to Gurgaon. The custody of her son was handed over to her.
PW7-A Krishan Parshad, father of the kidnapped boy Kamal, also deposed on the same and similar lines as that of his wife PW6 Smt. Kanchan. He also deposed about receiving of telephone call at the STD booth on 16.12.2005, vide which he was told that his son Kamal was in the custody of the caller and his companions, who were present behind Krishan Mandir at Ludhiana. He was directed to send his wife Smt. Kanchan with '7'. The accused persons then asked the witness to bring Rs.70,000/- while coming to Ludhiana. The witness was told that he should not inform anyone, including the police, about the kidnapping of his son or his son would be killed. He further stated about the receiving of second telephonic message from the accused on Criminal Appeal No. D-535-DB of 2008 -11- 17.12.2005 to which he replied that he had arranged the money and would be coming to the designated place. Then he went to the local police and lodged report Ex.P1. He, alongwith his wife, then accompanied the police to Ludhiana. At Ludhiana, he remained in the Police Station as he had been directed by the accused to send his wife Smt. Kanchan only with the ransom amount. The police, thereafter, apprehended the accused and recovered his son.
PW7 ASI Hawa Singh stated that on 18.12.2005, he was posted in Police Station Udyog Vihar, Gurgaon. On that date, on the directions of the SHO, he was deputed on the STD of Sirhendu in village Molahera, where the phone calls from kidnappers of the son of Krishan Parshad were being received. The witness was deputed at the STD booth to find out as to from which telephone numbers the calls were coming. However, as there was no ID cover on the said STD, it was not possible to trace out the telephone numbers and the place from where the telephone calls were coming. After arranging an ID caller, he got it fixed on the STD of Sirhendu. After installing the ID caller, one telephone call originating from telephone No.0161-5003876 from Ludhiana was received at 13:51:22 and the second at 1:12:52. He sent the telephone call details to ASI Raj Singh on his mobile No.9350245915. He also handed over the receipts to ASI Raj Criminal Appeal No. D-535-DB of 2008 -12- Singh regarding the call made by him to the said ASI.
PW8 ASI Gurdial Singh, Armourer, Police Lines, Gurgaon testified that he had found country made pistols of .12 bore and 7.65 bore to be in working condition and in that regard he proved his reports Ex.PJ/2 and Ex.PJ/3.
PW9 ASI Raj Singh deposed that on 17.12.2005, he was posted in Police Station Udyog Vihar, Gurgaon. On that date, complainant-Krishan Parshad submitted application Ex.P1 and on its basis, he registered FIR Ex.P1/1. He then visited village Molahera and enquired from the complainant's wife Smt. Kanchan. Then he, alongwith the police party and the complainant, started for Ludhiana and reached CIA Staff, Ludhiana at 6.30 a.m. Assistance was provided by the Punjab police to the raiding party. Necessary instructions were given to the police officials. After reaching the spot, Smt. Kanchan was asked to sit on the bridge, alongwith one bag containing bogus currency notes alongwith some original notes. At 2.00 p.m., two persons came near Smt. Kanchan and had a talk with her. Those persons then gave a signal towards village Javedi Kalan. On being satisfied that those two persons were involved in the kidnapping of Kamal, who was standing with two other accused nearby, the police party apprehended all the four kidnappers and recovered the boy. From the personal search of Mohd. Bachu Ali Criminal Appeal No. D-535-DB of 2008 -13- and Mazibull-accused, country made knives were recovered. On the next day, the accused were taken on police remand. Saddik and Sakir suffered their respective disclosure statements and got recovered one country made pistol of 7.65 bore with two live cartridges and one country made pistol of .12 bore alongwith one live cartridge, respectively, from the designated places. On 26.12.2005, he produced both the fire arms before the Armourer. After collecting the report that the fire arms were in working condition and the cartridges were live, he obtained sanction order for prosecution of the accused under the Arms Act.
Despite the fact that ASI Hawa Singh had already been examined as PW7 on 11.4.2008, the prosecution, for the reasons best known to it, once again, examined ASI Hawa Singh as PW10. It is another thing that while appearing as PW10 he reiterated the same version as was narrated while appearing as PW7.
When the accused were examined under Section 313 Cr.P.C., they denied the allegations of the prosecution and pleaded false implication. According to them, they had been living in village Molahera. Sakir accused was on talking terms with Smt. Kanchan, which was not liked by her husband Krishan Parshad. Because of the same, Krishan Parshad in collusion with the police implicated them in the present case. The Criminal Appeal No. D-535-DB of 2008 -14- accused, however, did not examine any evidence in their defence.
After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court convicted and sentenced the accused, as mentioned above. Hence, the present appeal filed by them whereby they have challenged their conviction and sentences.
Learned counsel for the appellants has submitted that no offence under Section 364-A IPC was made out as there was no evidence brought on record by the prosecution to establish that the kidnapping was in order to commit the murder of Kamal Parshad, 5 years' old son of the complainant. Further, neither the owner of the STD booth where the complainant had received telephone call regarding the kidnapping of his son and the demand of ransom made nor the person putting up in the neighbourhood of the complainant who used to iron the clothes and had also received ransom call was examined by the prosecution. Even the STD owner at Ludhiana from where the ransom calls emanated was not cited as a witness. It is also submitted that the Punjab Police did not submit a report to the District Magistrate as well as the Sub Divisional Magistrate in respect of the recovery of the kidnapped boy and arrest of the accused. Further, there were discrepancies writ large which Criminal Appeal No. D-535-DB of 2008 -15- make the testimonies of the interested and official witnesses unworthy of credit. It is also submitted that there was delay in the lodging of the FIR. Names of the accused were not mentioned in the FIR. Even no test identification parade was held so as to connect the accused with the crime. Finally, it is submitted that no independent witness was joined by the police while effecting the recovery of the weapons.
On the other hand, learned State counsel has submitted that the prosecution has led sufficient evidence to prove the charges against the appellants.
Having heard learned counsel for the parties and scanning the evidence minutely with their able assistance, the Court is of the considered view that the prosecution has led cogent and convincing evidence for proving its case against the appellants for commission of offences under Sections 365/34 and 364-A IPC and 25 of the Arms Act and, therefore, they rightly stand convicted and sentenced by the trial Court.
While lodging the FIR, the complainant had stated that on 15.12.2005, he left his house in the morning for his work place. At about 2.30 p.m., his wife went to a house in the neighbourhood for some work. At that time, his son was playing outside the house with other children. When his child did not return home till evening, his wife started searching for him. When Criminal Appeal No. D-535-DB of 2008 -16- he himself returned home, he was informed by his wife that their son was missing since 2.30/3.00 p.m. On 16.12.2005 at about 10.00 a.m., a call was received at a nearby STD booth and the person making the call asked for calling the person whose child had gone missing. Accordingly, the complainant attended to the call and the caller asked him as to how much money he could arrange. The complainant replied that he was a poor person and had no money. The caller stated that the complainant's son was in his custody. The complainant was asked to arrange an amount of Rs. 70,000/- and told that he should wait for his next call. The complainant learnt that the call had emanated from an STD booth situated at Ludhiana in the State of Punjab. On 17.12.2005 at 9.00 a.m., once again, a call was received at the STD booth asking the person who used to iron clothes in front of the house of the complainant to talk to the caller. When that person attended to the call, the caller asked him to reach Ludhiana alongwith the complainant's wife and he was warned that no information be conveyed to the police or else he would be responsible for the consequences. This information was conveyed to the complainant, who then drafted complaint Ex. P1 and submitted the same before ASI Raj Singh at Police Station Udyog Vihar, Gurgaon, pursuant to which FIR Ex. P1/1 under Section 365 IPC was registered.
Criminal Appeal No. D-535-DB of 2008 -17-
While appearing as PW7-A, the complainant re-
itereated the version as stated by him in his complaint Ex. P1. He also deposed that when the caller asked for ransom of Rs.70,000/- to be brought to Ludhiana, he was threatened against disclosing to any person including the police about the kidnapping of his son otherwise he would be killed. He further stated that the called had asked him to arrange Rs.70,000/- and not to disclose anything to any one including the police otherwise his son would be killed and thrown in the river. However, he was not cross- examined as regards the first part of the ransom call and the threat that in the event of his disclosing about the kidnapping of his son to any one, he would be killed. He was only confronted with his statement Ex. P1 where he had not mentioned about the killing of his son in the event of the demand not being fulfilled and to be thrown in a river. Even otherwise under Section 364-A IPC, the offence is complete once the prosecution establishes that the kidnapping had been made under such circumstance which gives rise to a reasonable apprehension that the person kidnapped would be put to death or hurt. Actual causing of hurt is not a pre- condition for committing the offence under Section 364-A IPC. Reasonable apprehension of death or hurt being caused is sufficient to convict the accused for the offence under Section 364-A IPC if it is proved that the kidnapping was made so as to claim ransom. Even otherwise PW6 Smt. Kanchan, who is Criminal Appeal No. D-535-DB of 2008 -18- mother of the kidnapped boy, had testified before the trial Court that when the telephonic message was received at the STD booth, the caller had passed on the message to the effect that her son Kamal Parshad was in their custody for which ransom amounting to Rs.70,000/- was asked for and with a clear direction that no body including the police be informed or else her son would be killed. She further deposed that on the same day another similar telephonic message was received and, accordingly, out of fear the complainant party had not disclosed to any one about the kidnapping of the boy and also the conversation held between the complainant and the accused. In her cross-examination, she was confronted with her statement Ex. DA where she had not disclosed about the first telephonic conversation. However, she was not asked any question about the second telephonic message when she and her husband were threatened against disclosing to any one including the police about the kidnapping of their son, otherwise he would be killed.
It is true that the owner of the STD booth and the person who used to iron the clothes in front of the house of the complainant have not been examined and so also the owner of the STD booth of Ludhiana from where the ransom calls emanated yet that is no ground to discredit the testimonies of PW6 Smt.Kanchan and PW7-A Krishan Parshad, the mother and Criminal Appeal No. D-535-DB of 2008 -19- the father, respectively of the kidnapped boy Kamal Parshad. It is no where the case of the prosecution that the owner of the STD booth at the village of the complainant or the person who used to iron the clothes had witnessed the kidnapping. Further, the owner of the STD booth was not told by the caller about the kidnapping of the son of the complainant and he was only asked to call the person whose son had been kidnapped. The non- examination of Shanker Mandal, who used to iron the clothes, is not fatal to the prosecution as the complainant had already stated about the information received by him from said Shanker Mandal, while submitting written complaint Ex. P1. Similarly, the non- examination of STD booth owner of Ludhiana does not cast any doubt on the truthfulness of the prosecution case as there is no material on record that he had heard the caller making ranson calls.
It is not a case where the police from Police Station Udyog Vihar, Gurgaon conducted raid at Ludhiana without informing the local police. Infact, according to PW9 ASI Raj Singh, the investigating officer, he alongwith his fellow officials and the complainant after reaching Ludhiana went to CIA staff and sought assistance of the Punjab Police in conducting the raid. It was only pursuant thereto that joint raiding parties of the police from the States of Punjab and Haryana were formed and Criminal Appeal No. D-535-DB of 2008 -20- the appellants were arrested and the kidnapped boy recovered from their custody. Merely because the Punjab police did not report to the District Magistrate or the Sub Divisional Magistrate regarding the recovery of the kidnapped boy and arrest of the accused is no ground to reject the prosecution case. Even otherwise for whatever lapse on the part of the investigating officer, no benefit can be extended to the appellants.
The discrepancies pointed out by the defence are too trivial in nature so as to shatter the basic substratum of the prosecution case. These discrepancies are bound to appear in the testimonies of truthful witnesses especially when they are examined by the trial Court after 2/3 years of the occurrence.
Till the time the FIR was lodged, the identity of the accused had not been established. Further, all the appellants were arrested by the police alongwith the kidnapped boy from Ludhiana. They were brought to Gurgaon, thereafter. They remained in custody throughout. There was, thus, no need for holding any test identification parade. PW6 Smt.Kanchan, PW7- A Krishan Parshad, PW4 Constable Bahadur Singh, PW5 DSP Mukhtiar Singh and PW9 ASI Raj Singh had also identified the appellants in the Court.
In the facts and circumstance of the case, it cannot be said that there was any inordinate delay in lodging of the FIR. Criminal Appeal No. D-535-DB of 2008 -21- Even otherwise no one was named as accused by complainant Krishan Parshad while submitting complaint Ex. P1 on the basis of which FIR Ex. P1/1 was registered.
Merely because the investigating officer did not associate any independent person while effecting the recovery of the weapons from the appellants is no ground to throw out the prosecution case. Spring actuated knives were recovered from the possession of Mohd. Bachu Ali and Majibull accused at the spot itself while country made pistols were recovered from the possession of accused Saddik and Sakir in pursuance of the disclosure statements from the designated places, which were in their exclusive knowledge.
In view of the above, the appeal is without any merit and, accordingly, dismissed.
( SATISH KUMAR MITTAL ) ( T.P.S. MANN )
JUDGE JUDGE
January 31, 2012
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