Madras High Court
Prem @ Prem Karthick vs State Through on 4 February, 2014
Author: P.N.Prakash
Bench: S.Rajeswaran, P.N.Prakash
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04..02..2014 CORAM: THE HONOURABLE MR . JUSTICE S.RAJESWARAN AND THE HONOURABLE MR. JUSTICE P.N.PRAKASH Criminal Appeal No.385 of 2012 Prem @ Prem Karthick ... Appellant -Vs- State through The Inspector of Police K-4, Anna Nagar Police Station Chennai 40. (Crime No.213/2008) ... Respondent This Criminal Appeal has been preferred against the judgment and sentence passed by learned Mahila Court at Chennai dated 29.05.2012 in S.C.No.369/2008 convicting the appellant herein and sentencing him to undergo life imprisonment and to pay fine of Rs.10,000/- and in default of which to undergo further simple imprisonment period of 6 months for an alleged offence under Section 364(A) IPC. For Appellant : Mr.Kingston Jerald For Respondent : Mr.V.M.R.Rajendran Additional Public Prosecutor J U D G M E N T
(Judgment of the Court was delivered by P.N.PRAKASH, J.) The first accused Prem @ Prem Karthick, in S.C.No.369/2008, who was convicted for an offence under Section 364(A) IPC by the Sessions Court [Mahila Court] Chennai, on 29.05.2012 and sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/-, in default to undergo six months imprisonment, is the appellant before us.
2. The prosecution projected a grandiose theory of kidnapping for ransom against four accused, of whom one was a juvenile. It is the case of the prosecution that Prem @ Prem Karthick [A1], Naresh Kumar [A2], Anand Kumar [A3] and Hariharan [juvenile] had decided to kidnap school children for extracting money from their parents. Accordingly, it is alleged by the prosecution that, the sim card 9710285637 was purchased by the juvenile accused and was given to A1, using which the accused had decided to talk to the parents of kidnapped children.
(a) It is alleged that on 02.04.2008 at around 4.15 p.m., A1 kidnapped Sufia, a 7 year old girl studying in second standard in Anna Adarsh Matriculation School, Chennai, in Hero Honda Activa Motor Cycle bearing Registration No.TN 04 U 493 [M.O.2]. Thereafter, A1 is alleged to have spoken to the father of the child, Syed Amjath [P.W.1] and demanded Rs.15,00,000/- lakhs from him. Syed Amjath lodged a complaint on 02.04.2008 at 8.05 p.m. based on which Mohanraj, Inspector of Police [P.W.19] registered a case in K4 Anna Nagar Police Station Cr.No.213/2008 ad took up investigation of the case. The printed FIR is Ex.P7. From the endorsement on the printed FIR, it appears that the FIR [Ex.P7] and the complaint [Ex.P1] had reached the jurisdictional Magistrate only at 6.30 p.m. on 03.04.2008.
(b) In the complaint [Ex.P1] it has been stated by P.W.1 that his daughter Sufia was dropped in School by his uncle Mohammed Sahab [P.W.4] around 1.15 p.m. on 02.04.2008. In the evening when P.W.4 went to the School, he did not find the child and after searching for the kid in the playground, bathroom and other places, he informed P.W.1, who in turn, informed the teacher and staff of the School. It is also stated in the complaint that the teacher and staff members also started searching for the kid. It is further stated in the complaint that, P.W.1 received a call at 6.20 p.m. from Mobile No.9710285637 from a caller, who demanded Rs.15 lakhs from him as ransom for releasing the kid. P.W.19 examined P.W.1 and other relatives of the child and proceeded to the School where he examined the school staff. He prepared an Observation Mahazar [Ex.P3] in the presence of Mrs.Velumani [P.W.12] and Shanmugam [P.W.13]. He also prepared a Rough Sketch [Ex.P8].
(c) With police network he started tracing and tracking the call received by P.W.1 from the Mobile No.9710285637 furnished by P.W.1. Based on tower location, the Inspector of Police [P.W.19] accompanied by P.W.1 and other relatives went to Puzhal area and started mounting surveillances. They found A1 and the Kid near a Christian Prayer House and immediately apprehended A1 and rescued the kid and handed her over to her father, P.W.1. Based on the disclosure statement of A1, the Inspector of Police [P.W.19] came to know about the involvement of A2, A3 and Hariharan in this episode. The admissible portion of the confession statement is Ex.P11. On the showing of the first accused, A2, A3 and Hariharan, were also apprehended by the Inspector of Police [P.W.19] and his party. The confession statements were recorded from A2, A3 and Hariharan in the presence of witnesses Krishnasamy [P.W.14] and Shanmugam [P.W.15]. Both of them turned hostile to the prosecution case and stated that they had never seen any of the accused. It may be relevant to note that, both of them, Krishnasamy [P.W.14] and Shanmugam [P.W.15], are persons living opposite the house of P.W.1 and they know the family of P.W.1. The Inspector of Police [P.W.19] seized the Samsung Cell Phone [M.O.1], black colour Hero Honda Activa Motor Cycle [M.O.2], a container with 100ml of Chloroform [M.O.3], leather gloves [M.O.4], handkerchief [M.O.5] and Aircel Sim Card 9710285637 [M.O.6] These material objects were seized in the presence of witnesses Suif and Esan, [both were not examined] under the cover of Mahazar [Ex.P12]. The seized properties were despatched to the jurisdictional Magistrate only on 08.04.2008 as could be seen from Form 95 [Ex.P13]. A request was made to the learned Magistrate to forward the seized articles to the Tamil Nadu Forensic Sciences Laboratory for chemical analysis. The Inspector of Police [P.W.19] filed an alteration report [Ex.P14] on 04.04.2008 before the jurisdictional Magistrate praying for altering the charge from one under Section 363 IPC to 364(A)IPC. The material objects sent to the Tamil Nadu Forensic Science Department were examined by Ettiyappan [P.W.18], who in his report [Ex.P6] stated that the liquid in the plastic container was found to be chloroform [Trichloromethane]. The accused who were arrested by the Inspector of Police [P.W.19] were produced before the jurisdictional Magistrate for remand. After completing the investigation, the Inspector of Police [P.W.19] filed a final report against four accused for offences under Section 364(A) r/w 109 IPC. The case against Hariharan [juvenile] was split up and sent to the Juvenile Court for disposal in accordance with law.
(d) We are little surprised to note as to why the Investigating Officer did not include conspiracy charge under Section 120 B IPC in the Final Report, when according to him the accused had a prior plan pursuant to which they procured a separte mobile connection for execution of the plan. Unfortunately, today's Police believe that a conspiracy charge can be maintained only under two circumstances, viz.,
(a) there should be an approver to speak about everything;
or
(b) the Investigating Officer and his party had encircled the accused while they were loudly hatching a plot under a bridge and recover from them some copper wires and Eveready torch cells. Section 10 of the Evidence Act is no more in Police vocabulary. Sir Stephens must be turning in his grave at this sordid state of affairs!
(e) Three accused were committed to the Court of Sessions, where two charges were framed:
(1) that A1 had committed an offence under Section 364(A) IPC; and (2) that A2 and A3 had abetted the commission of offence by A1 punishable under Section 364(A) r/w 109 IPC.
(f) The accused pleaded not guilty and in order to prove the prosecution case, 19 witnesses were examined, 14 exhibits and 6 material objects were marked. When the accused were questioned about the incriminating materials against them under Section 313 Cr.P.C. they denied the same. Two defence witnesses were examined. The trial Court acquitted A2 and A3 and convicted A1 alone and sentenced him as aforesaid. Hence he is now before us in this appeal.
3. For the purpose of appreciating the evidence in this case, we propose to analyse this case under two sub headings:
(1) Charge of Kidnapping; and (2) Charge of demanding ransom of Rs.15 lakhs.
CHARGE OF KIDNAPPING:
4. From the evidence of Jayalakshmi -Principal of the School [P.W.3], Nirmala Kumari -Office Assistant [P.W.6], Sasikala - Co-ordinator [P.W.7] and Aruna - Class Teacher [P.W.8], the Prosecution has clearly established that Sufia was studying in Anna Adarsh Matriculation School at the relevant point of time and from the Attendance Register [Ex.P2] is is clear that she came to the School on 02.04.2008. These witnesses also stated that Annual Examinations were going on at that time and the second standard children were asked to come only for the afternoon session. No serious cross examination has been done by the defence nor have the defence disputed the fact that Sufia was a second standard student of that School and that she went to School on 02.04.2008. From the evidence of Mohammed Sahab [P.W.4] the uncle of P.W.1, the Prosecution has established that on 02.04.2008 he dropped Sufia in the School at around 1.15 p.m. and when he came back to pick the child at around 4.15 p.m., he did not find the child in the School. In his evidence Mohammed Sahab [P.W.4] stated that, he started searching for the child in all the classrooms , bathroom and in the play ground. Finding that the child was not there, he informed the father of the child [P.W.1] and alerted him. It is in the evidence of P.W.1 that he also went to the School which is a normal conduct of any parent. From the evidence of Nirmala Kumari [P.W.6] it can be seen that the parents and other relatives of Sufia came to School in search of the child in the evening. She immediately informed Sasikala Co-ordinator [P.W.7], Aruna - Class Teacher [P.W.8] and Jayalakshmi - Principal of the School. By evening, it became apparent that the child was missing.
5. At this point it may be relevant to address one argument that was advanced by the learned counsel for the appellant. It is the contention of the learned counsel for the appellant that the entire kidnap drama was stage managed by one Dr.H.I.Hussain and P.W.1 and that the child was left in the custody of Dr.H.I.Hussain only at the instance of P.W.1. Except making suggestions to various witnesses on this score, which the witnesses of course have denied, there is no tangible material in this Court to come to an inference that the entire drama was stage managed by the father of the kid, as contended by the learned counsel for the appellant. From the evidence of the School authorities including the watchman Gnanasekaran [P.W.9] it has been established by the prosecution that the relatives of the child were frantically searching for her at all places and the school authorities also joined them in the search. If it is a make believe drama as contended by the learned counsel for the appellant, then the conduct of P.W.1 would have been different. We find from the evidence that P.W.1, his relatives and the School authorities were all seriously involved in trying to locate the whereabouts of the child. Therefore, we reject the argument of the learned counsel for the appellant that the kidnapping was a stage managed drama by P.W.1 and one Dr.Hussain.
6. The next line of enquiry is who kidnapped the child? The best evidence available for this fact is, the evidence of child herself. Sufia Nurain-the kidnapped child was examined as P.W.2 before the trial Court. She was 9 years old at that time. The trial Judge has questioned the child to satisfy himself about her capacity to give evidence. After having been so satisfied, he proceeded to examine her as a witness. On our part, we also went through the preliminary examination conducted by the trial Court and we find from the answers of P.W.2 that she was quite capable of understanding the things around her and was of good mental disposition to give evidence in the case.
7. In her evidence, P.W.2 stated that on 02.04.2008 she was dropped in the School by Mohammed Sahib [P.W.4] in the afternoon and after School was over, she was playing in the school ground. At that time, one uncle approached her and told her that her father had met with an accident and had been admitted in the hospital and that he has asked him to fetch her there. Therefore, she accompanied that person in his two wheeler and that person went around the city aimlessly. She identified the appellant [A-1] as the person who came to her School and picked her. She stated that after some time, she was in a car which also went around. Thereafter, the car stopped at a shop and the appellant bought biscuits and chocolates and gave her. Again they got into the car and went around for some more time and came back to the same place where the two wheeler was parked. The appellant paid money to the driver of the car and sent him away. P.W.2 stated that she went to sleep in the night and again the next day when she came by a two wheeler with the appellant near a Prayer House, she saw her father with police and she was taken away by them. This is what she has stated in her examination-in-chief. She did not say anything about the appellant telephoning her father and demanding ransom or putting her forcibly to sleep or threatening or intimidating her. She was subjected to cross examination by the defence, in the course of which she stated that along with the appellant "a bearded uncle" came to the School. When she was asked whether that bearded uncle was Dr.Hussain, she said that she does not know his name. Therefore, from her evidence it appears that one other bearded character has also been associated with A1, about which there has not been any investigation by the police. In the cross examination, she initially stated that she does not know one Deepak, but subsequently she stated that she spent that night in the house of Deepak. It is her case that she was in School uniform when she was taken away by the appellant, but on the next day when the police rescued her, she was in a different dress, which she admitted in the cross examination. She did not say anything about A2, A3 and the juvenile accused.
8. From a careful scrutiny of the evidence of P.W.2, it is clear to us that this appellant and one other person have gone to the School at around 4.15 p.m. and the appellant has taken her away by falsely representing to her that her father had met with an accident. She was rescued only on the next day near the Prayer House. Therefore, we have no hesitation in holding that the prosecution has satisfactorily proved that the appellant had kidnapped P.W.2 on 02.04.2008 from her School and she was in his custody until she was rescued the next day. The prosecution has also established that, taking away of the kid/P.W.2 was not with the consent of her father/P.W.1 or anyone else. Therefore, the offence of kidnapping punishable under Section 363 IPC has been satisfactorily proved by the prosecution.
DEMANDING RANSOM:
9. According to P.W.1, his Mobile Phone Number is 9884669785. From his complaint [Ex.P1] it can be seen that he received the first call to his mobile from 9710285637 at 6.20 p.m. In his chief examination also P.W.1 stated that he received the first call at 6.20 p.m. This Court can take judicial notice of the fact that time of receipt of a call in a mobile phone can be determined with a fair amount of accuracy. In Complaint [Ex.P1], P.W.1 stated that the caller demanded Rs.15 lakhs from him. Only two persons can be privy to this conversation, namely P.W.1 and the caller. Investigation by the police revealed that the mobile number 9710285637 is an Aircel connection and is in the name of G.Ananda Kumar [A-3]. This fact stands proved from Ex.P10 [Aircel Application Form with the photograph of G.Anand Kumar and the Report from Aircel]. The said G.Ananda Kumar [A3] was acquitted by the trial Court. It is alleged by the prosecution that the SIM Card of the said AIRCEL connection was recovered from the possession of A1 on 03.04.2008 at around 11.05 a.m. by the Inspector of Police [P.W.19] in the presence of two witnesses Saif and Esan under the cover of Mahazar [Ex.P12]. Neither Saif nor Esan was examined in the trial court for reasons best known to the prosecution.
10. It is settled legal proposition that, even if recovery witnesses turn hostile to the prosecution case, the factum of recovery can be established through the evidence of the Investigating Officer and Courts should not reject the evidence of the Investigating Officer without sufficient reasons thereof. We have no quarrel with this proposition. But in this case, the non examination of these Mahazar witnesses coupled with certain other peculiar features makes us doubt the recovery. According to the prosecution, the appellant and the child were apprehended near a Christian Prayer House at No.3, 20th Street, Kavangarai, Puzhal, Chennai 66.
11. The defence examined one father Paul Glackson [D.W.1], who is the Pastor associated with that Prayer House. In his evidence, he stated that on 02.04.2008 when he came to the children's hostel run by the Prayer House, he was informed by one Mr.Deepak, who is the warden of the Hostel that the appellant had left a child with them saying that the child's father will come the next day and pick her up. He also in the cross examination stated that he saw the child in the hostel on 02.04.2008. From the evidence of the child [P.W.2] it can be seen that when she woke up on the next day, the police and her father came and rescued her. She admitted that she was wearing a different dress and not the School uniform which she was wearing on the previous day. Strangely the Prosecution has not adduced any evidence to show where the child spent the night. Is it not the duty of the Police to discover if there was any secret hideout and make it dysfunctional? The Prosecution theory that suddenly on 03.04.2008 at 11.00 a.m. they apprehended the appellant and the child near the Prayer House does not cut ice. In this background the evidence of Father Paul Glackson [D.W.1] to the effect that the child was left by the appellant with Deepak, the Warden of the Children's Home run by the Prayer House assumes significance. P.W.2 in the cross examination admitted that she spent the night in Deepak's house. The evidence of Anbuselvan [P.W.16], a Pastor in the Prayer House does not inspire our confidence when weighed with the evidence of Father Paul Glackson [D.W.1].
12. The defence examined one Kumaran [D.W.2] to show that on 03.04.2008 at around 8.30 a.m. itself the police had come to the Church and had taken the appellant. From the analysis of the entire evidence it appears to us that the theory projected by the police that the appellant was arrested at 11 a.m. and recoveries of mobile phone, Chloroform leather gloves etc. were recovered from him looks artificial. In this background, the non examination of the two mahazar witnesses for the alleged recovery assumes significance and we are unable to persuade ourselves to proceed on the ipsi dixit of the Investigating Officer [P.W.19] that the appellant was arrested at 11.00 a.m. and at 11.15 a.m. the material objects were seized.
13. According to P.W.1, he received the call demanding Rs.15 lakhs at 6.20 p.m. on 02.04.2008. But the prosecution document, namely Ex.P10 [call details issued by Aircel, showing the calls made from 9710285637 to 9884669785 (P.W.1's mobile). Apart from the call details, Ex.P10 includes the Aircel application and subscriber details about which we have referred to earlier] shows that the first call from 9710285637 on 02.04.2008 to 9884669785 [Mobile of P.W.1] has gone at 6.57 p.m. Totally three calls are recorded. The second call is at 7.20 p.m. and the third call is at 7.55 p.m. As stated earlier, the mobile 9710285637 does not belong to the appellant and it belongs to the acquitted accused/A3. The alleged seizure of the SIM Card from the appellant is also suspect for the reasons given by us above. Bearing this in mind, if we peruse the complaint [Ex.P1] and the FIR [Ex.P7], we find that FIR [Ex.P7] has been recorded only on 03.04.2008 and not on 02.04.2008 as projected by the police. In the complaint [Ex.P1] given by P.W.1 to the Investigating Officer [P.W.19] it is written:
"Received the complaint and registered the case under the Cr.No.213/2008 u/s 363 IPC and taken up for investigation .
Signed, Mohanraj 3/4."
When P.W.19 was confronted about the date, 03.04.2008, in the cross examination he stated that he had inadvertently written the date as 03.04.2008. Again in the printed FIR [EX.P.7] at the column where the Station House Officer should sign, Mohanraj [P.W.19] has signed and has again put the date as 03.04.2008. This also he explains as inadvertence. Now, if we see as to when this FIR reached the Magistrate, it is clear that it has reached the Magistrate at 6.30 p.m. on 03.04.2008. There is an inordinate delay in sending the FIR to the Magistrate for which there is no plausible explanation given by the prosecution. We are aware of the legal position that, delay by itself in sending the FIR to the Magistrate will not vitiate the case of the prosecution. We are viewing this delay in the light of the following suspicious features, namely:
(1) The first call itself has come only at 6.55 p.m., whereas P.W.1 has stated that he received the call at 6.20 p.m.;
(2) 2nd and 3rd calls have come to P.W.1 at 7.28 p.m. And 7.55 p.m. There is no reference to these two calls in the complaint [Ex.P1]. According to P.W.19 he received the complaint and registered the FIR at 8.05 p.m. (3) The mobile 9710285637 stands in the name of the acquitted accused [A-3] and there is no material to show how it came to the possession of A-1;
(4) According to D.W.1, the child was left in the hostel run by the Prayer House on 02.04.2008 with instructions by A-1 that her father will come and pick her up the next day. On the next day, P.W.1 and the police party have picked up the child from near the Prayer House;
(5) No independent witness was examined to prove the seizure of the sim card, motor bike etc. from A-1 on 03.04.2008;
(6) No evidence to show, who is the owner of the Motor bike [M.O.2] allegedly used by A-1;
(7) The child [P.W.2] stated in cross examination that she spent the night in Deepak's house thereby corroborating Fr.Paul Glackson [D.W.2].
If the delay in sending the FIR is viewed from the prism of these glaring features in this case, we have no hesitation in holding that the complaint and the FIR were not contemporaneously given and were prepared subsequently to make out a case of demand of ransom.
14. One other aspect which begs an answer is the alleged conduct of the appellant in taking the child in a Call Taxi driven by Dharman [P.W.10]. P.W.10 in his evidence stated that he is the owner of the Indica Car TN-22-AEE-6093 which plies for a Company by name Victory Call Taxi. He stated that on 02.04.2008 at about 5.15 p.m. he received instructions from the call taxi office to go to Retteri area for a pick up. It is his evidence that he was given the mobile number of the customer with which he located the appellant who had a child with him. They both got into his car and went to another area and returned to the place where they were picked up. They travelled 16 kms for which he was paid Rs.200/- by the appellant. In his cross examination he has stated that the child was very happy and cheerful in the company of the appellant. The irony is, he did not give the mobile number of the appellant nor his mobile number in his evidence. No one from Victory Call Taxi was examined to corroborate P.W.10 or to speak about the mobile number from which the booking was done. Had the prosecution disclosed the mobile number, we would have seen whether that number finds place in the call details, Ex.P.10. No evidence like trip sheet or copy of driving licence or R.C.Book has been filed to show that P.W.10 is a call taxi driver and that he plied his taxi for the appellant on 02.04.2008. P.W.10 spoke nothing about A2, A3 or the juvenile accused. Even the Investigating Officer [P.W.19] has not stated in his evidence as to how he came to know about P.W.10 and when he recorded his statement.
15. Abductions and kidnappings are done in secrecy and not under public gaze unless the kidnapper is a Don Quixote. If we believe the evidence of P.W.10, it is advantageous to the appellant inasmuch as it shows that the appellant was a lone fool hardy prankster. If we disbelieve P.W.10, then also it is advantageous to the appellant because there is no corroboration for the child's testimony that she went around the city in a car. Either way the appellant stands to gain.
16. Therefore, from the analysis of the entire evidence we are convinced that the prosecution has not proved the demand of ransom by the appellant and hence he cannot be convicted for the offence under Section 364(A) IPC.
In fine, the appellant is acquitted of the offence under Section 364(A) IPC. We hold that the appellant is guilty of the offence under Section 363 IPC and we impose a sentence of 7 years Rigorous Imprisonment and fine of Rs.10,000/- and in default to undergo simple imprisonment for 6 months on him for the said offence. The appeal is partly allowed with the above modification.
[S.R.,J.] [P.N.P.,J.]
04..02..2014
gms
Index :Yes
Internet :Yes
To
1. The Inspector of Police
K-4, Anna Nagar Police Station
Chennai 40.
2. The Mahila Court at Chennai.
3.The Public Prosecutor
High Court, Chennai.
S.RAJESWARAN, J.
AND
P.N.PRAKASH, J.
gms
Pre-delivery judgment in
Crl.A.No.385 of 2012
04.02.2014