Delhi District Court
State vs . 1. Shiv Pal, S/O Sh. Nand Ram, on 28 November, 2013
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE: FTC: E-COURT : SHAHDARA
KARKARDOOMA COURTS: DELHI.
SESSIONS CASE No. 36/10
FIR No. 216/09
U/S: 363/364-A/34 IPC
PS: Vivek Vihar
State Vs. 1. Shiv Pal, S/o Sh. Nand Ram,
R/o Village Kharecha,
PS Bilhore,
District Kanpur, U.P.
2. Sushil Yadav,
S/o Sh. Radha Kishan,
R/o Vill. Rauta Pur,
PS Shiv Raj Pur,
Kanpur, U.P.
3. Ravinder Singh @ Lala
Yadav, S/o Sh. Ram Singh,
R/o Village Bhujpur,
PS Bela, Distt. Auraiya, U.P.
Date of Institution : 03.04.2010
Reserved on : 26.09.2013
Judgment Delivered on : 28.11.2013
FIR No. 216/09 Page 1 of 22
JUDGMENT
1. Briefly stated the prosecution case is that on 15.112009 at about 7.00 pm complainant Sita Ram came at the police station and lodged the report that his son Badal aged about 7 years was missing from the house since 11.30 am. He suspected that someone has enticed away his son. FIR was registered u/s 363 IPC. During investigation the complainant informed that he had received a ransom call from mobile phone No.09793369534 at his mobile phone No. 9313393123 for the release of his son. He received another call from mobile phone No. 09917803661 whereupon he was made to talk to his son but his son did not speak anything and kept weeping. The child was recovered by the police on 21.11.2009 from the house of accused Sushil Yadav from village Rautapur Police Station, Shivraj Pur, District Kanpur, U.P. On interrogation Sushil disclosed that the child was brought at his house by Ravinder, brother in law of Shivpal. The victim was brought to Delhi. On the basis of secret information accused Shivpal was arrested from H.No. 618 F/2 Shankar Gali, Vishwas Nagar, Shahdara on the identification of Badal. The mobile phone with SIM and battery was recovered from his possession. He disclosed that he had kidnapped Badal on15.11.09 at 11.30 am from Sharda Nursing Home, Jhilmil Colony and handed over Badal to his brother in law Ravinder and on 19.11.09 he rang up on the mobile phone of Sita Ram from his mobile phone and FIR No. 216/09 Page 2 of 22 demanded money for the release of the child. He also disclosed that Ravinder had made the complainant talk with his son from his mobile phone No.09917803661 on 19.11.09. During investigation IO obtained the CDR of mobile phones of the complainant, accused Shivpal & Ravinder. Accused Ravinder could not be arrested and therefore chargesheet was filed against accused Shivpal and Sushil u/s 363/364-A/34 IPC.
2. NBWs were obtained against accused Ravinder and he was arrested on 22.02.10 from village Bhujpur, District Oriya, U.P. and a mobile phone make Nokia bearing SIM No. 9568970100 was recovered from his possession. His disclosure statement was recorded. Supplementary Chargesheet was filed against him.
3. After compliance of Section 207 Cr. PC, the main chargesheet and the supplementary chargesheet were committed to Sessions Court. Charge under Section 120-B and u/s 364-A r/w Section 120-B IPC was framed against all the three accused to which they pleaded not guilty.
4. In order to prove its case, prosecution examined 15 witnesses. PW-1 is Raj Kumar, Nodal Officer, Reliance Communication. He proved the call detail record of Mobile phone No. 9313393123 of the period 15.11.2009 to 25.12.09. as Ex.PW1/B. He stated that the aforesaid number was issued in the name of Jitender S/o Surender.
FIR No. 216/09 Page 3 of 22PW-2 is Sita Ram. He is the complainant. He proved the complaint Ex.PW2/A. He stated that after 5 days of the incident at about 7.30 pm he received a call on his mobile phone No.9313393123, the caller enquired from him about his name and address and told him that his son Badal was with him and he was asked to arrange a ransom of Rs.2.5 - 3 lacs. He stated that he told him that he was too poor to arrange the amount but the said person disconnected the phone. He reported this matter to the police. He stated that next day he was called at the PS. He went there with his brother in law. While he was sitting in the PS, he received a call at his mobile phone. He was made to talk with his son Badal for about 10 seconds and thereafter the phone was disconnected. He further stated that next day at about 4/4.30 pm he received a call from the police telling that his son has been recovered. Then he alongwith his cousin went to the PS and at about 10/10.30 pm after completing the necessary paper formalities he was handed over the custody of his son Badal. PW-2 was declared hostile and was cross examined by the Ld. APP. In the said cross examination he stated that he did not accompany the police party which had gone to the search of his son to Shivrajpur, District Kanpur. He denied that on receipt of information the house of Sushil Kumar @ Balwan Yadav was raided by the police or that on interrogation Sushil Kumar led them in a room on the ground floor and brought out a boy from the room FIR No. 216/09 Page 4 of 22 who was identified by him as his son. He denied that accused Sushil was arrested by the police in his presence. He denied that he had stated before the police that the accused Sushil Kumar was arrested in his presence. He identified his signatures on the arrest memo Ex.Pw2/PX-2 and the seizure memo of the child Mark PW2/A but denied that the said memos were prepared in village Rohtapur at the time of recovery of his son from the possession of Sushil Yadav. However, he admitted that when he was present at the PS Vivek Vihar, a secret information was received by the police about the person who had kidnapped his son and about his presence at H. No.618, F/2, Vishwas Nagar. He admitted that on receipt of this information he alongwith Hemant and his son Badal accompanied the police officials and reached Shankar Gali, Vishwas Nagar from where accused Shivpal standing on the roof was arrested by the police.
PW-3 is Hemant Kumar, brother in law of PW-2. He stated that on 14/15.11.09 he received a call from Sita Ram that his son Badal was missing. On 17.11.09 he came to Delhi at the house of Sita Ram and on 18.11.09 while he was present at the house of Sita Ram, a call was received on the mobile phone of Sita Ram. The person calling demanded ransom of Rs. 2.5 lacs for releasing Badal. Sita Ram then made complaint at the police station. He further stated that next day Sita Ram received a call from his employer telling that Badal has been recovered and FIR No. 216/09 Page 5 of 22 asked him to meet police official Sarfuddin for identification of Badal. He stated that he accompanied police officials to Kanpur. There they went to Police station Shivrajpur and joined the local police and then went to village Rohtapur. In the village police officials went inside the house in search of Badal and thereafter he was also called inside. It was dark. 2 - 3 other persons were present inside the room. He called the name Badal. The son of Sita Ram came there. He then brought Badal outside the house. Outside the house two persons who were father and son met the police officials and on enquiry they told them that the house belonged to them and they told that their bua had brought Badal stating that Badal was her grandson. Both these persons were apprehended by the police. He identified accused Sushil as one of them. PW-3 was declared hostile and was cross examined by the Ld. APP.
PW-4 is HC Govind Ram, Duty Officer. He recorded the FIR Exbt. PW-4/A. PW-5 is Mukesh. He stated that on 15.11.2009, his nephew Badal came from tuition at about 10.00 am. After leaving Badal in the house, he went to bring tea for Badal. Within two minutes, he returned back to the house. He stated that he and his mother searched for Badal and informed Sita Ram. He further stated that Sita Ram lodged a complaint at the police station and FIR No. 216/09 Page 6 of 22 that after one week, Sita Ram brought Badal back to the house.
PW-6 is Sh. R.L. Meena, MM. He had recorded the statement of Badal under Section 164 Cr. PC.
PW-7 is Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel. He proved the Customer Application Form of mobile phone No. 9793369534 as Exbt. PW-7/A and also proved the CDR of the aforesaid number as Exbt.PW-7/B. PW-8 is Hussain M. Zaidi, Nodal Officer, Idea Cellular. He proved the Customer Application Form of mobile phone No. 9917803661 and proved the CDR Exbt. PW-8/B. PW-9 is Inspector Mohan Singh. He took up the investigation of this case on 22.12.2009. He obtained the NBWs of accused Ravinder. He got recorded the statement of Badal under Section 164 Cr. PC and obtained the CDRs of mobile phone numbers from which the ransom calls were received by Sita Ram.
PW-10 is HC Dharmender Kumar. He is the witness of recovery of Badal from accused Shiv Pal from Village Rohta Pur. He is also witness to the arrest of accused Shiv Pal on the identification of Badal.
FIR No. 216/09 Page 7 of 22PW-11 is HC Suresh Pal. He is also the witness of recovery of Badal from accused Sushil at Village Rohta Pur and arrest of accused Shiv Pal and recovery of mobile phone from his possession. On 20.02.2010, he had accompanied HC Mahender and Constable Dharmender to Village Bella, District Ooriya for the execution of NBWs of accused Ravinder. He stated that accused Ravinder was arrested vide arrest memo Exbt. PW10/PX1 and his personal search was conducted vide memo Exbt. PW-10/PX2.
PW-12 is HC Mahender Singh. He had arrested the accused Ravinder and recovered a mobile phone make Nokia of black clolour with SIM vide memo Exbt. PW-10/PX4 and recorded his disclosure statement Exbt. PW-10/PX3.
PW-13 is SI Onkar Singh. He filed the supplementary charge sheet against accused Ravinder @ Lala.
PW-14 is SI Pritam Singh. He is the Investigating Officer of this case. On 20.11.2009, he rescued the kidnapped boy Badal from Village Rohta Pur, PS Shivraj Pur from the house of accused Sushil on the basis of secret information and then brought him back to Delhi on 21.11.2009. On 21.11.2009, he apprehended accused Shiv Pal from Vishwas Nagar on the identification of Badal.
FIR No. 216/09 Page 8 of 22PW-15 is Constable C.P. Navneet Yadav. He is the witness of arrest of accused Ravinder.
5. Statements of all the accused were recorded under Section 313 Cr. PC wherein they stated that they were innocent and have been falsely implicated in the present case.
6. Accused Shiv Pal and Ravinder did not lead any defence evidence. In his defence, accused Sushil examined DW-1 Vidhya Sagar. He stated that accused Sushil is his neighbourer and that five police officials in plain clothes came at the house of accused Sushil and took him with them. He stated that the child was not with Sushil at the time when he saw the police taking him. He further stated that child was not recovered from the accused.
7. Arguments have been heard from the learned Additional PP as also from the learned counsels of accused. The learned Additional PP has argued that prosecution witnesses have proved the recovery of kidnapped boy Badal from accused Sushil from his house at Village Rohta Pur and have also proved that accused Shiv Pal was arrested on the identification of Badal. It is stated that it has also been proved that mobile phone with SIM No. 9793369534 from which ransom call was made to the complainant was recovered from the possession of accused Shiv Pal. It is FIR No. 216/09 Page 9 of 22 further submitted that the second call was made from mobile N. 9917803661 which is proved to be in the name of accused Ravinder and thus it is argued that prosecution has been able to prove the charge of conspiracy and kidnapping for ransom against all the three accused and thus they are liable to be convicted.
8. The learned counsel of accused Sushil has argued that Badal has not been examined as a witness. It is stated that the father of the complainant has turned hostile with regard to recovery of his son from accused Sushil. It is submitted that there is no independent public witness of recovery of Badal from the house of accused Sushil and thus it is argued that prosecution has failed to prove the recovery of Badal from accused Sushil beyond doubt. The learned counsel of accused Shiv Pal and Ravinder has argued that as per Customer Application Form, mobile No. 9917803661 from which the second call was received by the complainant is not in the name of accused Ravinder but it is in the name of one Raghvinder. It is thus submitted that the said phone is not connected with accused Ravinder and he is liable to be acquitted. With regard to accused Shiv Pal, it is argued that PW-3 Hemant Kumar has not supported the prosecution version that accused Shiv Pal was arrested in his presence from Vishwas Nagar on the identification of Badal. It is submitted that there is no independent witness of arrest of accused Shiv Pal and recovery of mobile phone from his possession from Vishwas Nagar. It is thus FIR No. 216/09 Page 10 of 22 stated that the recovery of mobile phone being doubtful, the CDR of mobile phone No. 9793369534 is of no help to the prosecution and hence accused Shiv Pal and Ravinder are liable to be acquitted.
9. PW-5 Mukesh has proved that he had left Badal at the house before going out to bring tea and when he returned back Badal was not present at the house and was not traceable. PW-2 Sita Ram, father of Badal also deposed that he made search of Badal but could not find him. Thus, PW-2 and PW-5 have proved the kidnapping of Badal on 15.11.2009.
10. PW-2 Sita Ram deposed that five days after kidnapping, he received a call on his mobile phone from mobile No. 9313393123 and the caller asked him to arrange the ransom of Rs. 2-1/2 - Rs. 3 lacs. He further stated that next day, he received another call on his mobile phone and was made to talk with his son Badal for about ten seconds before the phone was disconnected. PW-1 Raj Kumar, Assistant Nodal Officer, Reliance Communication proved from the Customer Application Form that mobile No. 9313393123 is issued in the name of Jitender, son of Surender Lal. In cross examination by the learned Additional PP, PW-2 Sita Ram admitted that he had taken mobile phone No. 9313393123 in the name of Jitender and that Jitender is also his name. When cross examined by the learned defence counsel, he FIR No. 216/09 Page 11 of 22 stated that the name of his father is Shyam Dev and in the election I card, his name is mentioned as Jitender and the name of his father is mentioned as Surender Lal. He clarified that he is also known by the name of Jitender and that his father's name in his driving license and voter I card by mistake is mentioned as Surender Lal who is his father in law. The explanation given by PW-2 leaves no room for doubt that mobile No. 9313393123 belongs to PW-2 Sita Ram @ Jitender and none else. Assuming for the sake of arguments that Jitender, son of Surender Lal is some person other than PW-2 Sita Ram, even then, the same makes hardly any difference, inasmuch as, PW-2 may be the user of the phone who received ransom call.
11. PW-1 Raj Kumar has proved the call detail record of mobile No. 9313393123 for the period 15.11.2009 to 25.12.2009 as Exbt. PW-1/B. The call detail record Exbt. PW-1/B proves that an incoming call was received at 8:31:41 from mobile phone No. 9793369534 on 19.11.2009 which fact corroborates the testimony of PW-2 regarding the receipt of ransom call. Though there is contradiction with regard to the time of receipt of ransom call, inasmuch as, PW-2 stated that ransom call was received at 7.30 pm but the same is not of much consequence as there is likelihood that witness may have forgotten the time of the call due to lapse of time. The CDR of the mobile phone of the complainant further proves the receipt of second call from mobile No. FIR No. 216/09 Page 12 of 22 9917803661 at 3:23:32 on 19.11.2009.
12. SI Pritam Singh deposed that both the mobile phones were put on surveillance. The location of mobile phone No. 9793369534 was found to be of Vishwas Nagar while the location of the second mobile phone number 9917803661 was found to be Bhuj Pur, District Ooriya, U.P. He deposed that on 20.11.2009, he constituted a raiding party comprising of HC Sarfuddin, Constable Dharmender, Sita Ram, Hemant and another Constable which left Delhi for Bhuj Pur. On the way to Bhuj Pur, they came to know that the location of mobile phone No. 9917803661 was that of Village Rohta Pur, PS Shivraj Pur, District Kanpur, U.P. They took the assistance of local police and went to Rohta Pur Village but could not find Badal. While they were proceeding back to Delhi, they stopped at a tea shop where he received a secret information that Badal was in the house of Sushil at Village Rohta Pur. They then returned back to Village Rohta Pur and enquired about the address of accused Sushil and reached his house. On enquiry initially, accused Sushil showed his ignorance but on further interrogation, he produced Badal from the room of his house. Badal started crying on seeing his father Sita Ram. Sita Ram identified Badal to be his son. Recovery memo Exbt. PW-10/A was prepared. Accused Sushil gave disclosure statement Exbt. PW-10/B and was arrested vide memo Exbt. PW-2/PX2.
FIR No. 216/09 Page 13 of 2213. The learned counsel of accused Sushil has argued that if the testimony of PW-14 is to be believed, Badal was recovered from accused Sushil in the presence of PW-2 Sita Ram but PW-2 has not supported this fact inasmuch as, during cross examination by the learned Additional PP, he denied having accompanied the police party to Shivraj Pur, District Kanpur in search of his son. He denied that accused Sushil Kumar took them in a room and produced his son. He denied that accused Sushil Kumar was arrested by the police in his presence. It is also argued that IO is guilty of not joining any independent witness from the area and thus recovery of Badal from accused Sushil is highly doubtful. The recovery memo Exbt. PW-10/A proves the recovery of Badal from the house of accused Sushil Yadav. The recovery memo bears the signatures of Sita Ram and Hemant besides other members of the police party and IO. On a careful perusal of the recovery memo, it is found that the writing and signatures of all the witnesses except that of Sita Ram are in the same ink. The signatures of PW-2 Sita Ram are in a different ink. The possibility that signatures of Sita Ram were not taken at the place of recovery of child and thus he was not with the police team at the time of recovery of child therefore cannot be ruled out, otherwise the signatures of Sita Ram would also have been in the same ink. It seems that PW-2 has spoken the truth when he states that he had not accompanied the police to Rohta Pur for the recovery of his son Badal. However, on this ground, recovery of Badal from FIR No. 216/09 Page 14 of 22 accused Sushil cannot be doubted because there is one more public witness of recovery namely PW Hemant Kumar who has categorically deposed that he had accompanied the police officials to Kanpur and from there to Ooriya and then to Rohta Pur Village on receipt of a call from where Badal was recovered from the house of accused Sushil Kumar. The testimony of PW-3 Hemant Kumar with regard to recovery of Badal from accused Sushil cannot be doubted. It is not the plea of the accused that PW-3 was having any enmity with accused Sushil for his false implication and thus there is no reason why he would depose falsely against him and therefore there is no reason to disbelieve his testimony.
14. It is correct that no one from the village of accused Sushil was joined in the raiding party at the time of conducting raid at the house of accused Sushil. It is a settled law that conviction can be based on the testimony of a single witness. One credible witness outweighs the testimonies of number of other witnesses of indifferent character. Section 134 of Evidence Act categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted. In taking this view, I am supported by the judgment of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308. In the said case, out of three witnesses, two of them had turned hostile but conviction was based on the sole testimony of third witness. The Hon'ble Court held that FIR No. 216/09 Page 15 of 22 conviction can be based on the testimony of a single eye witness provided his credibility is not shaken and the court finds him a truthful witness. In the present case, prosecution version as stated by PW-14 SI Pritam Singh regarding the recovery of Badal from accused Sushil is corroborated by the testimony of PW-3 Hemant Kumar and therefore simply on the ground that no person from the village was joined in the raid, prosecution version is not rendered doubtful. In my view, prosecution has been able to prove the recovery of Bada from accused Sushil beyond doubt.
15. PW-14 SI Pritam Singh deposed that Badal and Sushil were brought to Delh on 21.11.2009 and that same day on the basis of secret information, he along with police team, Badal, complainant Sita Ram, Hemant and accused Sushil went to house No. 618F/2, Shankar Gali, Vishwas Nagar. Accused Shiv Pal was present on the roof of the house. He was identified by Badal as the same person who had kidnapped him whereupon accused Shiv Pal was arrested and he gave disclosure statement. In cross examination by the learned Additional PP, PW-14 admitted that one mobile phone make Nokia 1203 with SIM No. 9793369534 and two SIMs, one of Idea and other of Vodafone and one driving license bearing photograph of Shiv Pal were recovered from his possession vide memo Exbt. PW- 2/PX4. The learned defence counsel has argued that as per prosecution story, accused Shiv Pal was apprehended on the identification of Badal but Badal has not been examined by the prosecution, not being a competent witness and therefore there is no FIR No. 216/09 Page 16 of 22 evidence to link accused Shiv Pal with the crime.
16. Admittedly, Badal has not been examined. He was cited as a prosecution witness in the list. When produced in court, my learned predecessor observed that from appearance, Badal appears to be aged about four years. He did not agree with the submission of his father that his age was 7-8 years. It was therefore observed vide order dated 17.09.2010 that Badal is too young to depose in this case and he was not considered fit to be examined as a witness because of tender age. Though unfortunately, Badal has not been examined but the testimony of PW-14 SI Pritam Singh that Shiv Pal was apprehended on the identification of Badal finds corroboration from the testimony of PW-2 Sita Ram who also admits in cross examination by the learned Additional PP that on the basis of secret information, he along with Hemant and his son Badal accompanied the police officials at Shankar Gali, Vishwas Nagar and that Badal identified accused Shiv Pal who was standing on the roof. The testimony of PW-14 finds further corroboration from the testimony of PW-10 HC Dharmender Kumar who also stated that Badal had identified accused Shiv Pal standing on the roof of house No. 618-F, Vishwas Nagar whereupon he was apprehended. There is no cross examination on this fact by the learned counsel of accused Shiv Pal and therefore the fact that accused Shiv Pal was apprehended by the police on the identification of Badal stands proved beyond doubt. There is further evidence against accused Shiv Pal in the shape of recovery of mobile phone No. 9793369534 from his possession after FIR No. 216/09 Page 17 of 22 his arrest. PW-2, PW-10 and PW-11 are the witnesses of recovery of mobile phone from the possession of accused Shiv Pal and they support the testimony of PW-14 SI Pritam Singh in this regard. As stated above, accused Shiv Pal has not cross examined PW-10 HC Dharmender Kumar and therefore recovery of mobile phone No. 9793369534 from the possession of accused Shiv Pal is proved beyond doubt.
17. The call detail record Exbt. PW-1/B of mobile of complainant bearing No. 9313393123 proves that an incoming call was received from mobile phone No. 9793369534 which has been proved to have been recovered from the possession of accused Shiv Pal. PW-7 Vishal Gaurav, Nodal Officer, Bharti Airtel has proved the call detail record of mobile No. 9793369534 as Exbt. PW-7/B. The CDR Exbt. PW-7/B proves that there was an outgoing call made from this phone to mobile No. 9313393123 at 8:31:40 on 19.11.2009 which was of the duration of 118 seconds. This is stated to be the ransom call received by the complainant. Thus, the recovery of mobile phone No. 9793369534 from which ransom call was made is sufficient to nail the accused Shiv Pal in the present case and it conclusively proves that accused Shiv Pal had made the ransom call.
18. So far as accused Ravinder is concerned, prosecution is relying on the evidence of second call received by PW-2 Sita Ram from mobile No. 9917803661. According to PW-2, he was made to FIR No. 216/09 Page 18 of 22 talk to his son Badal for ten seconds when the second call was made. The CDR of mobile phone No. 9313393123 Exbt. PW-1/B proves the receipt of call from mobile No. 9917803661 at 3:23:32 on on 19.11.2009. Admittedly, mobile phone having SIM No. 9917803661 is not recovered from accused Ravinder. PW-8 Hussain M. Zaidi, Nodal Officer, Idea has proved the Customer Application Form of mobile No. 9917803661. The Customer Application Form Exbt. PW-8/A is in the name of Raghvinder Singh and not Ravinder Singh. PW-8 also deposed that as per their record, the mobile is in the name of Raghvinder Singh, son of Ram Singh. PW-8 proved the CDR of phone No. 9917803661 Exbt. PW-8/B but the CDR does not show that any call was made from this number on 19.11.2009. PW-8 deposed that as per record, this mobile was not used. Thus neither it is proved that phone No. 9917803661 was in the name of accused Ravinder nor it is proved that any outgoing call was made from this number to the phone of the complainant. Thus, the evidence of CDR is of no help to the prosecution. Insofar as accused Ravinder is concerned, there is no other evidence on record against accused Ravinder except the disclosure statements given by him and co-accused to the police which are inadmissible in evidence. Thus, prosecution has failed to prove its case against accused Ravinder beyond doubt.
19. Prosecution has proved that ransom call of Rs. 2-1/2 - 3 lacs was made to PW-2 Sita Ram from the mobile phone of Shiv FIR No. 216/09 Page 19 of 22 Pal but the question is, is it sufficient to hold the accused guilty under Section 364-A IPC?
20. As per Section 364-A, Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt and claims a ransom and if death is caused, then in that case, accused can be punished with death or imprisonment for life and also liable to pay fine.
21. The important ingredient of Section 364-A is abduction or kidnapping as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not made then the victim is likely to be put to death. In the case of Surendra Kumar @ Raja Vs. State 2011 (5) RCR 860, the Hon'ble Court found that there was no reference in the testimony of father of the child with regard to any conduct of accused where from an apprehension would arise in his mind that if ransom was not paid, the child would be hurt or killed. The ransom witness simply stated that he received a call from the appellant to bring money and that no specific amount to be paid as ransom was conveyed. The victim child stated that appellant had kidnapped him and when he wept, he was beaten. The Hon'ble Court held that one of the essential ingredients of the offence of kidnapping for ransom is to FIR No. 216/09 Page 20 of 22 give threat of death or hurt to victim or evidence of such conduct of accused would give rise to a reasonable apprehension that the victim would be put to death or hurt was missing. Similarly, in the case of Vishwanath Gupta Vs. State of Uttranchal JT 2007 (5) SC 48, the Hon'ble Court held that essential ingredients of the offence of kidnapping for ransom i.e. Section 364-A IPC is threat to cause death or hurt to the victim or conduct which gives rise to a reasonable apprehension that kidnapped person would be hurt or killed. Same view was taken by the Hon'ble High Court in the case of Chotey Khan Vs. State 2009 (3) JCC 2192.
22. In the present case, PW-2 Sita Ram has not deposed that ransom call was coupled with any threat of causing injury or causing death of the kidnapped child. The ransom demand simplicitor therefore cannot bring the offence of kidnapping for ransom under Section 364-A IPC. The offence made out is thus only of kidnapping punishable under Section 363 IPC.
22. Accused have been charged for committing criminal conspiracy. The offence of criminal conspiracy consists in a meeting of mind of two or more persons for agreeing to do or causing it to be done a criminal act or an act by illegal means, and the performance of an act in terms thereof. In pursuance to the criminal conspiracy if the conspirators committed several offences, then all of them will be liable for the offences even if FIR No. 216/09 Page 21 of 22 some of them had not actively participated in the commission of the offences. For proving conspiracy, direct proof is difficult to obtain but it can be proved by the facts of the case and surrounding circumstances. In the present case, prosecution has been able to prove that a minor child named Badal was kidnapped, accused Shiv Pal made a ransom call and the minor child was recovered from Village Rohta Pur from the house of accused Sushil. Thus, it can be safely inferred that Badal was kidnapped pursuant to the conspiracy hatched by accused persons where after he was confined at the house of accused Sushil and ransom call was made by accused Shiv Pal. I am therefore of the considered view that prosecution has been able to prove its case against the accused Shiv Pal and Sushil beyond doubt but has failed to prove the charge against accused Ravinder. I hold the accused Shiv Pal and Sushil guilty under Section 120-B and under Section 363 IPC read with Section 120- B IPC. Accused Ravinder is acquitted with the condition that he shall furnish a bond in the sum of Rs. 10,000/- with surety of the like amount under Section 437-A Cr. PC for a period of six months.
ANNOUNCED IN THE OPEN (RAVINDER DUDEJA)
COURT ON 28.11.2013 ASJ/FTC/E-COURT/
SHAHDARA/KKD/DELHI.
FIR No. 216/09 Page 22 of 22