Punjab-Haryana High Court
***** vs State Of Haryana on 18 July, 2012
Author: Rakesh Kumar Jain
Bench: Jasbir Singh, Rakesh Kumar Jain
CRA No.683-DB of 2009 -1-
CRA No.740-DB of 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
*****
CRA No.683-DB of 2009
Date of Decision: 18.07.2012
*****
Vijay and others
. . . .Appellants
Versus
State of Haryana
. . . . Respondent
*****
CRA No.740-DB of 2009
Date of Decision: 18.07.2012
*****
Panna and another
. . . .Appellants
Versus
State of Haryana
. . . . Respondent
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CORAM: HON'BLE MR.JUSTICE JASBIR SINGH, ACTING CHIEF JUSTICE
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
*****
Present: Mr.Ram Bilas Gupta, Advocate,
for the appellants (in CRA No.683-DB of 2009).
Mr.Jagdish Manchanda, Advocate,
for the appellants (in CRA No.740-DB of 2009).
Mr.Bijender Dhanker, Advocate,
for the complainant.
Mr.Pardeep Singh Poonia,
Addl. A.G. Haryana.
*****
RAKESH KUMAR JAIN, J.
We are disposing of two appeals bearing CRA No.683-DB of 2009 filed by Vijay son of Puran Singh, Ram Charan son of Jagga Ram and Seema wife of Vijay and CRA No.740-DB of 2009 filed by Panna Lal son of Deen Dayal and Sanjeev @ Sanju son of Ashok, against the order of the trial Court dated 4.5.2009 by which Panna Lal, Sanjeev @ Sanju, Seema and Vijay have been convicted for commission of offence punishable under Sections 364-A, 365 read with Section 34 of the Indian Penal Code, 1860 CRA No.683-DB of 2009 -2- CRA No.740-DB of 2009 (for short 'IPC') and Ram Charan has been convicted for the offence punishable under Section 368 IPC.
All the appellants except Ram Charan have been sentenced for rigorous imprisonment for life alongwith fine of `2500/- each for the offence under section 364-A IPC and to further undergo imprisonment for a period of three months in case of non-payment of fine. All the appellants except Ram Charan have been sentenced for rigorous imprisonment for four years alongwith fine of `2000/- each for the offence under section 365 IPC and to further undergo imprisonment for a period of two months in case of non- payment of fine and appellant Ram Charan has been sentenced for rigorous imprisonment for life alongwith fine of `2500/- eachfor the offence under section 368 IPC and to further undergo imprisonment for a period of three months in case of non-payment of fine. All the sentences are ordered to run concurrently and the period of detention already undergone by them during investigation and trial was ordered to be set off towards the aforesaid sentence of imprisonment.
The law was set into motion on a complaint of Abid Hussain son of Navi Hussain (Ex.PA) on the basis of which a formal FIR No.198 dated 27.8.2007 under Sections 364-A/365/368/34 IPC was registered at Police Station Old Faridabad (Ex.PA/1).
According to the FIR, the complainant is a resident of H.No.249, Gali No.4, Baselwa Colony, Old Faridabad and his daughter Mehrunessa, who was married with Parvez Alam about 8/9 years ago, resident of Nahar Par, Jeewan Nagar Faridabad, having two children, a daughter and a son, namely, Salman, aged about 5½ years, was living with him for the last four years as she had filed a case against her husband for maintenance. The third floor of his house was occupied from the last two months by his tenant Vijay (appellant) aged about 25/26 years and Seema (appellant) aged about CRA No.683-DB of 2009 -3- CRA No.740-DB of 2009 20/22 years, who belongs to Jhansi. Vijay was working as barber at Lovely Hair Dresser. On 27.8.2007, Seema told his daughter that she is going to purchase rakhee and asked her to send Salman with her. Her daughter sent Salman with Seema but after waiting for long time when Seema did not turn up, the matter was brought to his notice on which the complainant went to the shop of Lovely Hair Dresser but even Vijay was not present there. He suspected that Vijay and his wife Seema had kidnapped his grandson Salman, wearing white shirt and white nikker.
The investigation was taken up by the CIA staff, Faridabad. During the course of investigation, on 29.8.2007, Ravi Hussain (PW3) brother of Mehrunessa (PW2) received a call on his mobile No.09213622131 from mobile No.09919436147 belonging to Vijay, who demanded a sum of `25 lacs towards ransom in order to release the kidnapped child Salman and asked him to bring the money to Jhansi. Ravi Hussain (PW3) along with the police party started for Jhansi but on the way he informed Vijay (appellant) that his vehicle is out of order and he would reach Gol Chowk, Gawalior on 31.8.2007.
According to the prosecution, Vijay (appellant) along with appellants Sanjeev @ Sanju and Panna Lal, was present at Gol Chowk, upon the signal of Ravi Hussain to the police, they were apprehended and on their personal search, recovered mobile No.09919436147 from the possession of Vijay, mobile No.9335274526 from the possession of Panna Lal and mobile No.9936928787 from the possession of Sanjeev @ Sanju, which were taken into possession vide memo Nos. Ex.PJ, Ex.PL and Ex.PM/1, respectively. Appellant Vijay disclosed that Salman is confined in the house of Ram Charan situated in village Rattanpura from where he was recovered in conscious possession of appellants Ram Charan and Seema, who were present in the house. The child was handed over to Ravi Hussain (PW3). CRA No.683-DB of 2009 -4- CRA No.740-DB of 2009 In order to prove their case, the prosecution examined Abid Hussain (PW1), Mehrunessa (PW2), Ravi Hussain (PW3), Akilesh (PW4), Jai Kishore (PW5), Sanjay Kumar (PW6), Ram Kishan (PW7), Head Constable Hoshiar Singh (PW8), ASI Om Parkash (PW9), Constable Dinesh Kumar (PW10), Rajender Singh (PW11), SI Jagat Singh (PW12) and Prem Singh (PW13).
The appellants pleaded their innocence in the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), but did not choose to lead either oral or documentary evidence in defence.
Counsel for the appellants in CRA No.683-DB of 2009 titled as "Vijay and others Vs. State of Haryana" has argued that the appellants have been falsely implicated in this case. It is submitted that even no offence under Section 364-A IPC is made out as there is no evidence on record that any threat of taking life of Salman or causing hurt to him has been extended on failure to pay the ransom amount. He also relied upon a decision of the Delhi High Court in the case of "Chotey Khan Vs. State", 2009 (4) RCR (Criminal) 718 and a decision of this Court in the case of "Surender Kumar Vs. State of Haryana" 2007 (1) RCR (Criminal) 159.
However, learned counsel for the State has submitted that there is no flaw in the investigation about the participation of all the three appellants, namely, Vijay, Seema and Ram Charan in kidnapping and demanding ransom. It is argued that Mehrunessa (PW2) is the primary witness, who has disclosed the circumstance in which appellant Seema had taken away Salman. Abid Hussain (PW1) had gone to the shop of Vijay, working as a barber with the Lovely Hair Dresser at Old Faridabad, who was not found present at that time nor did he and his wife returned back to their residence. Ravi Hussain (PW3) brother of Mehrunessa (PW2), on 29.8.2007, CRA No.683-DB of 2009 -5- CRA No.740-DB of 2009 received a call on his mobile No.9213622131 from the mobile of Vijay (appellant) bearing No.09919436147, in which he had demanded `25 lacs for releasing the child. The call details are produced on record as Ex.PJ and have been proved by Constable Dinesh Kumar (PW10). It is also submitted that Vijay (appellant) has been apprehended at Gol Chowk, Gawalior and on his disclosure, Salman was recovered from the house of Ram Charan, who was his relative, where Seema was also present. It is further submitted that offence under Section 364-A IPC is apparently made out as there was no other purpose of kidnapping Salman except for demanding ransom. It is also argued that it is not necessary to give threats of death or hurt rather it is the conduct of the kidnappers which may give rise to a reasonable apprehension that such person may be put to death or hurt, to constitute offence under Section 364-A IPC.
We have heard learned counsel for the parties and are of the view that CRA No.683-DB of 2009 filed by the appellants Vijay son of Puran Singh, Ram Charan son of Jagga Ram and Seema wife of Vijay, is devoid of any merit and deserves to be dismissed.
Appellants Vijay and Seema were the tenants of Abid Hussain (PW1) and thus very well known to Mehrunessa (PW2). The allegation is that Seema, on the pretext of going to market to buy rakhee asked Mehrunessa (PW2) to take Salman with her, cannot be disbelieved and thereafter when Abid Hussain (PW1) was informed about the absence of Salman and Seema for long time, his natural reaction was to go to the shop of Vijay to inform and enquire the whereabouts of Seema and Salman but found that even Vijay was not present there. The receipt of call from the mobile No.09919436147 belonging to Vijay (appellant) on the mobile No.9213622131 of Ravi Hussain (PW3) maternal uncle of Salman, in which he demanded `25 lacs as ransom and asked him to come to Jhansi to deliver the money and recover the child, CRA No.683-DB of 2009 -6- CRA No.740-DB of 2009 is also a clinching factor. The arrest of Vijay (appellant) at Gol Chowk, Gawalior and on his disclosure recovery of Salman from the house of Ram Charan where Seema was also present is another factor which proved the guilt of the appellants.
Insofar as the arguments of the counsel for the appellants that Section 364-A IPC is not made out as there is no material on record about the threat or causing hurt, the decisions in the case of Surender Kumar (Supra) and Chotey Khan (Supra) are not applicable.
Section 364-A IPC is reproduced as under:
"Kidnapping for ransom, etc.-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, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death or imprisonment for life, and shall also be liable to fine."
According to the aforesaid provision, it is not always the threat which has to be proved rather the offence under Section 364-A IPC would also constitute by the conduct of the kidnapper which would give rise to a reasonable apprehension that the kidnapped person may be put to death or hurt.
CRA No.683-DB of 2009 -7-CRA No.740-DB of 2009 In the present case, once the child has been kidnapped and has been taken away from Faridabad to Jhansi, an amount of `25 lacs is demanded as ransom to release, there was obvious and reasonable apprehension in the mind of the complainant that in case of non-payment of ransom, the kidnapper would eliminate or cause hurt to the kidnapped person. Thus, in our view, the offence under Section 364-A IPC is apparently made out and since the chain of circumstance is complete, insofar as from the act of kidnapping and recovery of Salman from the possession of the appellants, who had demanded ransom, their guilt is proved and hence we do not find any error in the approach of the learned trial Court in convicting and sentencing the appellants.
In view thereof, CRA No.683-DB of 2009 filed by the appellants Vijay son of Puran Singh, Ram Charan son of Jagga Ram and Seema wife of Vijay, is hereby dismissed.
The other appellants, Panna Lal and Sanjeev @ Sanju, have filed separate appeal i.e. CRA No.740-DB of 2009. Counsel appearing on their behalf has argued that since they have not played any role either in kidnapping, demanding the ransom or concealing or confining the kidnapped child, therefore, no offence under Sections 364-A IPC and 365 IPC is made out against them. It is also submitted that except for their call details with appellant (Vijay) and their alleged presence at Gol Chowk, Gwalior, no allegation has been found to have been made against them. It is not the case of the prosecution that the appellants had made any call, whatsoever, to the complainant or his family members, in any manner, for any reason. They have also not been suspected at any stage by the complainant and were arrested only for the reason that they were also present at the time of arrest of Vijay (appellant).
CRA No.683-DB of 2009 -8-CRA No.740-DB of 2009 Counsel for the State has argued that the appellants Panna Lal and Sanjeev @ Sanju were in contact with Vijay on mobile phone and were also found present at the time when Vijay was arrested.
We have heard both the learned counsel for the parties and are of the view that the appellants Panna Lal and Sanjeev @ Sanju, deserves acquittal by extending the benefit of doubt as the prosecution has failed to lead any evidence on record, showing their involvement at any stage i.e. from the stage of kidnapping the child till the stage of his recovery, because there has never been any suspicion by the complainant against them as they were not known to the complainant, they did not make any phone call to the complainant even on behalf of Vijay and had also not been accomplice in confining the kidnapped child, who has been found from the house of Ram Charan. Merely on the basis of their presence at Gol Chowk, Gwalior or their having contact with Vijay on mobile, they cannot be held guilty and convicted under Sections 364-A and 365 IPC with the aid of Section 34 IPC.
In view of the above discussion, CRA No.740-DB of 2009 filed by the appellants Panna Lal and Sanjeev @ Sanju, is allowed and they are acquitted by giving them benefit of doubt. They are ordered to be released forthwith, if they are not involved in any other case.
(RAKESH KUMAR JAIN) JUDGE (JASBIR SINGH) ACTING CHIEF JUSTICE JULY 18, 2012 Vivek