Delhi District Court
State vs (1) Parveen @ Kukki S/O Shiv Charan on 4 January, 2008
1
IN THE COURT OF SH. V.K.BANSAL;
ADDL. SESSIONS JUDGE;
NEW DELHI
IN RE: Session Case NO 94/07
State Versus (1) Parveen @ Kukki s/o Shiv Charan
Verma r/o 125/28 Laxmi Garden,
Gurgaon, Haryana.
(2) Dalip Singh s/o Munshi Lal
r/o Village & PO Badshahpur,
Gurgaon, Haryana.
(3) Ashok Kumar s/o Rajender Singh
r/o Maneshwar, Distt. Gurgaon,
Haryana.
FIR No 937/00
Police Station: Malviya Nagar
U/sec 364 A r/w 120 B IPC
JUDGMENT:
On 13.10.2000 Sh Subhash Chander Batra went to his brick kiln situated at Gurgaon in his Maruti Esteem car bearing No. DL-4CB-5253 with driver Santosh Kumar. While they were returning from the brick kiln Subhash Chand Batra and Santosh Kumar were kidnapped. Subhash Chand Batra was made to talk to his wife who told his wife that he want to talk to his son. Wife of Subhash Chand Batra then informed his son. Sh Sanjay Batra S/o Subhash Chand Batra came 2 home and he talked with his father and also one of the abductor who told that Subhash Chand Batra will be released only if they pay Rs 2 Crores. He lodged a complaint with the police. FIR was registered. On 18.10.2000 Sanjay Batra told the police that he had negotiated the ransom amount with the abductor and now they want Rs 28 lakhs which are to be delivered at Ekant Restaurant at Faizpur Road on 19.10.2000 at 2.00 p.m. Raiding party was formed. They reached Ekant Restaurant, there accused Parveen Kumar @ Kuki came to collect the ransom amount . When he took the bag from the hands of Sanjay Batra he was apprehended. He was also found in possession of one revolver with 6 live cartridges. He lead the police party to village Palda. From the village in a Haweli from one room Subhash Chand Batra and Santosh Kumar were rescued. On the disclosure of Parveen the other accused were apprehended. The scooter and car used in the commission of crime were also seized. After completion of investigation charge sheet against the accused persons was filed. Accused Ravinder Yadav and Mahinder Singh absconded and were declared PO. Ld M.M after complying with the provisions of Section 207 Cr.P.C committed the case to the Sessions Court as the 3 offence punishable U/s 364 A is exclusively triable by the Sessions Court.
2. Accused Parveen @ Kuki, Dalip Singh and Ashok were charged for the offences punishable U/s 120 B and 364 A r/w 120 B IPC. All the accused pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence. Prosecution in order to bring home the guilt of accused persons examined 18 witnesses. Thereafter prosecution evidence was closed. Statement of accused persons were recorded U/s 313 Cr.P.C wherein they denied the entire evidence. They did not wish to lead evidence in defence. Accused Parveen stated in his statement that:
"On 18.10.2000 police came to my house in the morning and told me that they want to make certain inquiries from me and that is why SHO called me. My father asked that as to what is the matter. The police officer who came to call me told that he does not know as to why SHO called me. My father told me to go and I accompanied that police officer to the police station. In the P.S I was put in the lockup. In the lockup after 2 days I was produced in the court. My signatures were obtained by the police on many papers. Thereafter I was kept in the P.S for 4 /5 days more and thereafter I was sent to jail,. My 4 father had expired during the pendancy of this case."
Thereafter the case was fixed for final arguments. I have heard the ld Addl P.P for the State. Ld defence counsels for the accused persons and perused the record.
3. Ld APP submitted that in the present case prosecution had examined 18 witnesses. The victim Subhash Chand Batra who was kidnapped was examined as PW 4 his son Sanjay Batra was examined as PW 9. Brother of the victim Shyam Sunder Batra was examined as PW 8. The other public witnesses Sh Rajinder Kr was examined as PW1. He had not supported the prosecution case and was also cross- examined by Ld APP. The other public witness Gajraj Singh was examined as PW 2 but he also turned hostile. Mawasi Ram was examined as PW 3. He also did not support the prosecution. Dharamvir R/o Village Palada was examined as PW 5 but he was also declared hostile. Rati Pal whose scooter was seized was examined as PW 6 but he also did not support the prosecution case however during cross by Ld APP he stated that he came to know that his scooter is in PS: Malviya Nagar and from there he got it released. Jagmal Singh was 5 examined as PW 7. He was also declared hostile. Sh Shyam Sunder Batra real brother of victim Subhash Chand Batra was examined as PW 8 but he also did not support the prosecution case. Sh Ramesh Dalal was examined as PW 10. He is the person in whose presence LML Vespa scooter was recovered from Rohtak i.e in front of house NO. 750/24 DLF Colony, Rohtak. He did not fully support the prosecution case and stated that accused Dilip was not with the police when the scooter was recovered. Ld P.P submitted that the other witnesses are from the police except Sunita Batra examined as PW 17 who is the wife of victim Subhash Chand Batra. Witness PW 4 , PW 9 and PW 17 have fully supported and corroborated the story of the prosecution and also corroborated each other. The police witnesses have also corroborated the story of prosecution.
4. Ld PP submitted that PW 4 has specifically stated in his examination-in- chief that when they reached near Mehra Farm and had just touched Kacha rasta for going to her business place, two young persons immediately appeared on their LML Scooter of black colour and dashed on the side of the car. One Maruti 800 Number HR 26 4678 which was 6 chasing the car of the PW 4 stopped in front of the car of the victim. Out of that car 3 boys alighted. The witness has stated that he was knowing two of them very well. One was accused Dalip S/o Munshi and the another was Ravinder S/o Master Bharat Singh. The third persons who alighted from the car was Ashok. The witness has correctly identified Dalip as well as Ashok in the court. Ravinder was not present in the court and hence the witness stated that the accused Ravinder is not present in the court (Ravinder is PO). The two accused who were on the scooter , one of them was Parveen @ Kuki. The witness has correctly identified Parveen also and the other person was not present in the court. Ld PP submitted that the other person was Mahinder Singh who is PO. Ld PP submitted that according to PW 4 all these three accused namely accused Dalip, Ashok and Parveen @ Kuki alongwith there two more accused namely Ravinder and Mahinder both P.O got stopped the car. Dalip was carrying pistol with him and Ravinder was armed with stain gun. Thereafter accused Dalip sat on the driver seat of the Easteem car. Accused Ravinder sat on the rear seat and put the nozal of the stain gun on the abdomen. Accused Ashok also sat on the rear seat alongwith the driver. Thereafter they blind folded both of them 7 and took them to some farm house. Parveen followed on the scooter and Mahinder in the Maruti Car. According to PW 4 thereafter he spoke to his wife from the mobile phone of accused Dalip and told her that he is in problem and that his son be called. This fact is also corroborated by PW 17 who stated that at about 5.30 pm she received a call and Subhash Chand Batra told her that "Mai Kisi Mushkil Mai Phass Gaya Hoo Aur Mere Bete Se Baat Kara Dejeye". At about 6.45 pm accused Dalip again rang from his mobile to find out if his son had arrived home and this time his son Sanjay Batra was at home. The fact that the call was made at about 6.45 pm by one of the accused is also corroborated by PW 9 who stated that "at 6.45 pm I received a call from a person who told that he had kidnapped my father and driver Santosh. He made me to talk to my father also. Then that person put a demand of ransom of Rs 2 Crores to me." PW 4 also stated that thereafter accused Dalip gave mobile to him to speak to his son and he talked to his son and told that the accused persons are demanding Rs 2 Crores and he would be released only if the demand is met. Both PW 4 and PW 9 stated that the accused persons told them that if the demand is acceptable then they should hoist a white flag on their house. Ld APP submitted 8 that the testimony of PW 5 and PW 9 as well as of PW 17 clearly corroborates the story of prosecution. Both PW 4 and PW 9 says that the negotiations about the ransom amount continued. PW 4 stated that accused Dalip told him that Esteem car had been parked at his residence at Sector 14 Gurgaon and this information has also been given at his residence. PW 9 also says that he received the telephone call from the kidnapper telling that the car No. DL 4CB 5253 had been left by them at their house NO. 380-A, Sector 14, Gurgaon. The car was thereafter brought by PW 9 and was seized by the police vide memo Ex PW 9/B.
5. Ld PP submitted that PW 9 on 18.10.00 told the police that the ransom amount is negotiated to Rs 28 lakhs. He also deposed before the court that as per the instructions of the kidnappers he had to reach with this amount at Ekant Restaurant at Faizpur Road. Thereafter the raiding party was formed. As per the instructions of the police in a black bag some papers were put. PW 9 was accompanied by PW 8 who had though not supported the prosecution case but the other police officials who formed a net around Ekant Restaurant for nabbing the kidnappers fully supported the version of PW 9. 9 All the police witnesses and PW 9 stated that accused Parveen @ Kuki came to Ekant Restaurant . He asked for the money. PW 9 handed over that black bag Ex P1. When the accused took the bag he was surrounded by the police officials and was apprehended. One revolver was recovered from that accused. The revolver was having 6 live cartridges. That boy was also carrying a hand bag. He came on the scooter. That scooter as well as hand bag were also seized. According to PW 9 and the other police witnesses then accused Parveen lead them to village Palada and pointed out an old Haweli . He told the police that PW 4 and Santosh Kumar are confined in a room in that Haweli. Police entered the Haweli and from one room recovered PW 4 Santosh Kumar. Ld PP submitted that this black scooter used in the kidnapping was also recovered at the instance of accused Dalip from DLF Colony Rohtak which was found parked in a gali in front of House NO. 750/24 . Ld APP submitted that the witness PW 4 had identified all the accused persons and also deposed specifically about the roles played by them in the commission of crime. The witness has also stated that the accused persons took him on the point of stain gun and demanded ransom of Rs 2 Crores. However later on they agreed to take 10 only Rs 28 lakhs. PW 17 had stated that the accused persons told them "Apney Pitaji Se Payar Hai to Paisa ka Intjam Kar Lo Aur Apne ghar pe safed Jhanda Laga Lo". Ld APP submitted that keeping in view the testimony of all these witnesses who have fully corroborated and supported each other and also the story of prosecution, the case against the accused persons stands proved. Ld APP also submitted that there is no reason why victim would depose falsely against the accused persons and let off the actual culprits. There is nothing on record that victim was having any enmity with any of the accused persons. Ld APP submitted that it is well settled principle of law that the evidence is to be weighed and not counted. It is the quality of evidence which is important and not the quantity. The witness who have turned hostile are not material keeping in view the testimony of PW 4, PW 9 and PW 17 and the other police officials. So far as the non examination of Santosh Kumar is concerned, he was not traceable. Efforts were made to trace him but could not be produced before the court. No adverse inference can be drawn against prosecution for non examination of Santosh as despite best efforts he could not be served. Ld APP in support of his arguments relied upon the judgments cited as : State 11 of UP and anr Vs Jaggu @ Jagdish AIR 1971 SC 1586, Thevar Vs State of Madras AIR 1957 SC 614 and Ram Ratan & anr Vs State of Rajasthan AIR 1962 SC 424.
6. Ld APP further submitted that the defence taken by the accused persons is that they have been falsely implicated but mere assertion by the accused is not sufficient to disbelieve the testimony of the witnesses who are otherwise trustworthy and reliable, particularly when the accused persons does not give any reason for their false implication by the witness. Ld Addl. P.P in support of his arguments relied upon the judgment cited as Mohd. Nooruzzama Vs. State 2007 Cri. L.J. 2125 (DB). So far as the requirement of Section 364 A is concerned, the witnesses have stated that the accused persons demanded Rs 2 Crores . The victims were also kept confined from 13.10.2000 till 19.10.2000 when they were recovered from village Palada. The demand of ransom itself is sufficient for sustaining conviction U/s 364 A IPC . So far as the amount of ransom is concerned the fact that earlier they demanded Rs 2 Crores and then agreed to pay Rs 28 lakhs only does not affect the demand of ransom or takes it out of the ambit of Section 364 A IPC. Ld APP in support of 12 his arguments relied upon the judgments cited as: Baldesh Vs. State 2007 NOC Cri.L.J 682 (Delhi) DB = 2007 II AD (Cr) Delhi High Court 495 wherein it has been held that:-
"As regards the quantum of ransom, it is immaterial as to the amount that was demanded or argued to be paid. The requirement of law is satisfied upon a demand of ransom being made."
It is prayed that prosecution has fully discharged its onus and proved the guilt of accused beyond doubt and they be held guilty.
7. Ld counsel Mr Piryani for accused Parveen submitted that PW 9 had deposed before the court that when he talked with the kidnappers and his father at 6.45 pm he was told that Rs 2 Crores have to be paid if he wants to get his father released. But this important fact has not been mentioned in the FIR which creates doubt about the alleged demand made by the accused persons as deposed by PW 4, PW 9 and PW 17. Ld counsel submitted that in fact there was no kidnapping and no such demand was made by any person including the accused Parveen. Ld counsel further submitted that according to Section 27 of the Evidence Act the 13 disclosure statement of the accused is admissible only to the extent which leads to discovery of a fact or recovery of some evidence. In the present case accused Parveen was apprehended by the police at Ekant Restaurant situated at Faizpur Road. According to PW 19 his disclosure was recorded in the PS: Malviya Nagar after the recovery of Subhash Chand Batra and Santosh Kumar . As the recovery was not in pursuance of the disclosure statement of accused Parveen in fact there was no disclosure statement at the time of affecting recovery of the victims, therefore that disclosure statement cannot be read at all. The signatures of the victims are also not there on the memo of recovery and also the memo vide which the custody of Subhash Chand Batra and Santosh was handed over to PW 9 which clearly shows that in fact no recovery was affected by the police on 19.10.2000. The accused were apprehended only after the victims were recovered. The non presence of the signatures of the victims on the handing over memo creates doubt regarding the truthfulness of the story of the prosecution. Ld counsel further submitted that there are contradictions also in the testimony of the witnesses. According to the police officials the katta (country made revolver) was recovered from the left 14 dub of accused Parveen but PW 9 stated that the weapon was recovered from the left pant pocket of accused Parveen. Ld counsel submitted that the alleged pistol had also not been produced before the court. Local police was also not joined. No public person was joined though it has come in the evidence that the persons were present in the Ekant Restaurant when accused Parveen reached there to take the bag. There are also contradictions as to what was there in the black bag Ex P1. According to PW 9 plane papers were put in that bag but PW 9 himself at later stage says that raddi and newspapers were put in the bag. Even the police officials says that plane papers and newspapers were put in the bag. Ld counsel submitted that this creates doubt on the story as to whether there was such bag wherein the plane papers or the papers or raddi was put in which was allegedly taken by accused Parveen. Ld counsel submitted that in fact Parveen was lifted from his house after the victims have already been recovered and falsely implicated in this case. Ld counsel further submitted that non joining of public witness from the Ekant Restaurant and PW 8 not supporting the story of prosecution regarding apprehension of accused Parveen at Ekant Restaurant or handing over any bag to Parveen 15 completely demolishes the story of prosecution. Statement of PW 8 becomes all the more important in view of the fact that he is the real brother of the victim and if event had taken place in the manner as deposed by PW 4, PW 9 and PW 17 he would have also supported the prosecution case. The story further needs its water- loo when the prosecution had failed to examine driver Santosh who was also kidnapped alongwith PW 4 as per the story of prosecution. In fact no such incident had taken place. The victim himself had left his car at his house at Gurgaon and thereafter falsely implicated the accused persons in this case. This also finds support from the fact that the car was recovered from the house at Gurgaon which was brought by PW 9 and handed over to the police. The car was a vital piece of evidence but PW 9 had deliberately got it washed and cleaned as he was knowing that nothing would be found in the car supporting the story of kidnapping. According to PW 4 accused persons hit his car with LML scooter black colour. Ld counsel submitted that due to the impact of the scooter by the side of the car some damage must have been caused on the car but no such evidence has been brought on the file that there was any scratch or dent on the Esteem Car. Ld counsel submitted that 16 in the light of all these contradictions and the fact that the other public witnesses examined as PW 1, PW 2, PW 3, PW 5, PW 6, PW 7 , PW 8 and PW 10 have not supported the prosecution at all clearly shows that it is a cooked up and manipulated story. The accused has been falsely implicated in this case. Ld counsel prayed that benefit of this be given to the accused and he be acquitted.
8. Ld counsel Sh R.N. Vats for accused Dalip submitted that this is a story based upon the lies. The witnesses PW 4, PW 9 and PW 17 have been confronted with their statements earlier recorded by the police. They have made improvements in their statements to implicate the accused persons. Ld counsel submitted that it is well settled principle of law that the witness who makes improvement cannot be relied. In the present case the evidence itself shows that all the witnesses have made improvements and were confronted with their statements recorded U/s 161 Cr.P.C. They have also tried to give the wrong facts. PW 4 stated that he has no house in Gurgaon whereas PW 9 as well as PW 17 stated that they have house in Gurgoan. PW 9 had contradicted himself during his examination and cross 17 examination. On 10.9.2004 during his examination in chief he stated that police advised him to put plane papers but later on he stated that there were papers in the black bag and at the later stage he stated that the bag was containing raddi/ waste newspapers. According to the prosecution story the ransom was paid at Ekant Restaurant in the presence of PW 8 and PW 9. PW 8 is the real brother of PW 4 and uncle of PW 9. In his presence the ransom money was paid and revolver was allegedly recovered from accused Parveen but he has not supported the prosecution story. He has also not deposed that victims were recovered at the instance of Parveen from village Palada and according to him he had seen his brother and driver at PP: Badshahpur which supports the defence version that in fact PW 4 and Santosh Kumar were recovered prior to 19.10.2000 and thereafter accused persons were lifted from their houses and implicated in this case. This also finds support from the testimony of IO who stated that he also visited PP: Badshahpur but does not explain as to why he had gone there.
9. Ld counsel submitted that Section 52 of Cr.P.C mandates that the officer or other person making arrest under 18 this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested. Ld counsel submitted that in this case the recovery was allegedly effected at Ekant Restaurant therefore IO should have produced that revolver before the Area Magistrate or produced/deposited it at Police Post: Badshahpur or Police Post: Kotwali. IO had not followed the mandate of Section 52 of Cr.P.C. He had not produced the revolver either to his Senior or before the court after affecting recovery and deposited in the Malkhana of P.S: Malviya Nagar. No explanation is given as to why the revolver marked was not produced before the court . In fact the revolver was not produced even during trial either before this court or before the court where accused Parveen was facing prosecution U/s 25 of the Arms Act in Gurgaon. Accused Parveen had been acquitted in that case as the case property i.e revolver was not produced.
10 Ld counsel submitted that in the present case as argued by Mr Piryani the recovery had been affected before 19 the disclosure and the same is meaningless. Ld counsel in support of his arguments relied upon the judgment cited as :
Bhimappa Jinnappa Naganur Vs State of Karnataka 1958 CrLJ 80 SC and 1993 Cri.L.J 1801 SC. Ld counsel submitted that so far as the alleged recovery at the instance of Dalip is concerned, the only public witness PW 10 had not supported the prosecution case. The witness has stated that "I do not remember if any accused person was with them or not. I do not know accused Dalip present in the court." Ld counsel submitted that this witness was cross-examined by Ld APP but the witness specifically stated that accused Dalip was not with the police at the time of recovery. Ld counsel submitted that keeping in view the fact that the recovery of scooter has become doubtful at the pointing of accused there is no other evidence to link the accused with the commission of offence.
11. Ld counsel further submitted that for making out the case U/s 364 A of IPC it has to be shown that the person kidnapped was threatened to be killed or hurt or the conduct of the accused person was such which give rise to reasonable apprehension that the person so abducted may be put to 20 death or hurt or may cause 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 who do or abstain from doing any act or to pay a ransom. Ld counsel submitted that in the present case complainant no where says that there was any threat to kill him or to cause any hurt to any person or to the person kidnapped. It was also not a case where the Government was asked to do something or to pay a ransom. Ld counsel submitted that as the ingredients of offence punishable U/s 364 A are not there hence the accused cannot be held guilty U/s 364 A IPC.
12. Ld counsel further submitted that in fact applicant was not involved and he has been falsely implicated. Applicant himself moved an application for conducting TIP but despite that the TIP was not conducted which raises doubt about the story of the prosecution. Statement of the complainant was deliberately recorded later on with the fact that he was knowing accused Dalip before the incident so that there be no need to conduct the TIP. It is prayed that keeping in view the fact that accused himself moved the application 21 for TIP despite that TIP was not conducted , raises presumption that accused was not involved and the benefit of the same be given to the accused. Ld counsel in support of his arguments relied upon the judgment cited as : Sri Ram Vs State of UP AIR 1975 SC 175. Ld counsel submitted that PW 4 and PW 9 are not reliable witnesses . PW 4 had stated that he was knowing accused Dalip before the incident as Dalip is resident of Village Badshahpur and PW 4 is also having his Brick Kiln near village Badshahpur. Ld counsel submitted that while under cross-examination it is stated that accused Dalip is resident of village Palada but later on he has stated that he had never visited the house of Dalip in Palada and in the same breath had also stated that Dalip is having his house in Badshahpur and he had also seen that house. Ld counsel submitted that keeping in view this part of testimony that in fact PW 4 was not knowing this accused before the incident and he had named and identified the accused Dalip only at the instance of police. Ld counsel prayed that keeping in view all these contradictions and the fact that there is no evidence to link the accused with the commission of offence, benefit be given to him and he be acquitted. Ld counsel in support of his arguments has relied upon the judgments cited 22 as Jaskaran Singh Vs. State of Punjab 1997 Supreme Court Cases (Cri) 651 , Vinod Kumar Vs. State of Haryana 2006 (1) Crimes 371 Punjab & Haryana High Court (DB), Rati Ram and Anr Vs. State RCR 1991 (2) Delhi High Court 187, Vijayan @ Rajan Vs. State of Kerala 1999 (1) RCR (Criminal) 824, Dana Yadav @ Dahu Vs. State of Bihar 2002 (4) RCR (Criminal) 314, Jagjit Singh @ Jagga Vs. State of Punjab 2005 (3) RCR (Criminal) 647, Ashraf Hussain Shah Vs. State of Maharashtra 1996 (2) CRIMES 309 = 1996 Cri. L.J 3147, Satnam Singh Vs. State of Rajasthan 2000 (1) RCR (Criminal) 211, Manepalli Anjaneyulu Vs. State of A.P 1999 (3) RCR (Criminal) 460, Vijender Vs State of Delhi 1997 Supreme Court Cases (Cri) 857.
13. Ld counsel for the accused submitted that in the present case it is not there on the file that any ransom was demanded. According to PW 4 , PW 9 and PW 17 there was demand of Rs 2 crores. While moving an application for remand of accused Parveen @ Kuki the IO had mentioned the ransom amount as 25 lakhs . PW 9 when appeared in the 23 witness box stated that ransom amount was negotiated to Rs 28 lakhs. Even that amount was also not given according to the evidence. Only the plain papers or the newspapers were put in the bag Ex P1. Keeping in view this controversy as to what was the ransom amount and whether it was even paid or not the benefit goes to the accused. It is prayed that benefit be given to the accused and he be acquitted.
14. Ld counsel Sh Samaybeer Singh for Accused Ashok submitted that accused Ashok has been falsely implicated in this case. PW 4 was not knowing him before the incident. Accused Ashok was also not arrested from the spot. No other witness was knowing the accused Ashok prior to the incident, therefore it was required that the prosecution after arresting PW 4 should get test identification parade conducted but TIP was not got conducted. Accused has been identified first time in the court. As per the settled law identification first time in the court is not admissible and cannot be relied. Ld counsel submitted that keeping in view all these facts it is clear that no reliance on the testimony of PW 4 regarding identification of Ashok Kumar can be placed. There is no other evidence to link him with the commission of offence. 24 Even otherwise statement of Subhash Batra was recorded late by the prosecution. As per settled law if there is delay in recording statement U/s 161 Cr.P.C then no reliance on the same can be placed. Ld counsel further submitted that accused Ashok is not named by the co-accused Parveen in his disclosure statement. There was nothing with the police showing that accused was in any manner connected with the commission of crime when he was arrested. He was not named in the FIR. Statement of Subhash Batra was also not with the police. The co-accused has also not named him till his arrest. Keeping in view all these facts it is clear that Ashok Batra was lifted from his house and thereafter framed in this case. It is prayed that benefit of doubt be given to accused and he be acquitted.
15 After hearing the arguments and going through the record, I am of the opinion that the law nowhere requires as to how many witnesses have to be examined before fact is to be believed as proved. The conviction can be based on the sole testimony if the witness is reliable, trustworthy, unblemished and have stood through the test of cross- examination. The basic principle is that it is the quality of the 25 evidence which matters and not the quantity. In the present case the witnesses from the village from where the victims were allegedly recovered and the other public witnesses including the real brother of victim Subhash Batra had turned hostile. He was examined as PW 8 but had not supported the prosecution case. Only the victim PW 4, his son PW 9 and the wife of victim PW 17 had supported the prosecution case. As pointed out by the ld APP PW 4 had identified all the accused persons and had also given details, assigning roles to all the accused persons in the commission of offence. The defence had raised the issue of test identification parade. In my opinion no doubt if accused are not known to the victim or the witness then it is required that test identification parade be conducted. In the present case PW 4 had stated that he was already knowing accused Dalip and Parveen though defence had tried to make out a case that PW 4 was not knowing Dalip before the incident but PW 4 had even stated that he had visited the house of Dalip at Badshahpur as the bricks from his brick kiln had gone to the house of Dalip. There is no such suggestion to PW 4 that the bricks from his brick kiln had not gone to the house of Dalip or that he had never gone to the house of Dalip at Badshahpur. Even 26 otherwise the witness has correctly identified all the accused persons and according to the evidence PW 4 remained in the custody of the accused persons from 13.10.2000 to 19.10.2000 when he was recovered by the police from village Palada at the instance of accused Parveen. PW 4 nowhere says that any of the accused was having their faces muffled when he was kidnapped or later on till he remained in there custody. Even the defence does not say or put to the witness that he had not seen the accused persons as all the accused were having their faces muffled or that the persons who kidnapped him were having their faces muffled and, therefore, he cannot identify them. In my opinion when the victim had remained with the accused persons for almost 5 days with their open faces then to allege that TIP should have been conducted and the identification by PW 4 in the court is immaterial is not tenable.
16 Ld defence counsel has also taken the plea that the disclosure of accused Parveen was recorded later and recovery had already been affected and hence this disclosure is no disclosure in the eyes of law and cannot be relied upon. In my opinion when accused Parveen was apprehended at Ekant 27 Restaurant at that time the urgency was to recover the kidnapped persons whose life was under threat. Even otherwise the important evidence is not recording disclosure statement but the actual pointing out by accused Parveen and recovery of the victims from that place. The fact that it was Parveen who got recovered the victims from village Palada is proved by the testimonies of PW 9 and the police witnesses. No doubt PW 8 had not supported the prosecution case on this aspect but I do not find any reason to disbelieve the testimony of PW 9 who is son of the victim, particularly when he had stood through the test of cross-examination and there is nothing on record to show that either he or his father had any enimity with any of the accused persons and that is why they have deposed falsely. There is nothing on record to show that PW 4 or PW 9 had any reason to falsely implicate the accused persons.
17. Ld counsel had also stressed upon the point of non examination of Santosh. According to the story Santosh was kidnapped alongwith PW 4. He was kept with him in the farm house and thereafter in the Haweli from where he was recovered alongwith PW 4. Keeping in view all these facts 28 undoubtedly PW Santosk Kumar was also a material witness. According to the defence as no such incident had taken place and Santosh Kumar was not there or was ready to support the concocted story of PW 4 and PW 9 i.e why he has not been examined by the prosecution. As the prosecution has deliberately withheld the material witness therefore adverse inference be drawn against the prosecution. But the record reveals it otherwise. The record shows that summonses were sent to Santosh Kumar repeatedly at the address available on the file and the report received was that he has gone out of Delhi and his whereabouts are not known. There is nothing on record that prosecution was knowing the address of Santosh. When the summonses were repeatedly received back unserved and it has become clear that his presence cannot be procured , the court vide order dated 7.8.06 dropped the witness. The court observed that :
" The summons of PW Santosh received back unserved again with the same report that he is not traceable and has gone to Nepal. In these circumstances, when this witness is not being produced despite several opportunities given and he is reported to have gone to Nepal, as such he is dropped."29
Keeping in view all these facts in my view no adverse inference can be drawn against prosecution for not examining Santosh.
18. So far as non compliance of the provisions of Section 52 of Cr.P.C is concerned in my opinion if the IO had not complied with any provision of Cr.P.C, then IO can be held responsible for that but the accused cannot be given benefit of the same if otherwise the case stands proved. In the present case PW 4 had stated that he was kidnapped by accused alongwith other two co-accused namely Ravinder (PO) and another person whose name PW 4 was not knowing but investigation revealed that he was Mahinder (PO). The witness has correctly identified them. The testimony of PW 4 finds corroboration from the testimony of PW 9 and PW 17 about the timing of kidnapping then the various phone calls, talks with the accused and ultimately recovery from village Palada at the instance of accused Parveen. So far as the question of recovery of Esteem car is concerned PW 4 had stated that he was told by accused Dalip that the car had been left at the house in Gurgaon and PW 9 also supports this part of testimony of PW 4. The defence has taken the plea that the 30 car should have been mechanically inspected to find out if there was any damage to the car and also to find out whether there were any finger prints but no such effort has been made. In my opinion this could have been an additional important evidence if IO would have been vigilant and careful during investigation. But in my opinion in view of the direct evidence of PW 4 this lapse on the part of IO does not in any manner affect the prosecution case.
19. So far as the acquittal of accused Parveen in the criminal case by the court of ACJM Gurgaon is concerned in my opinion that does not in any manner affects the merits of this case. Every case has to be decided on its own merits and not on the basis of judgment in any other case. This case has to be decided on the basis of evidence adduced in this case. Ld counsel submitted that revolver was not produced before this court hence benefit be given to the accused. After going through the entire evidence I found that the revolver was not used while committing the offence. It is not a material evidence to prove the case. The revolver was found in possession of accused Praveen @ Kukki when he was apprehended after he received bag Ex. P1. In my opinion as 31 revolver was not used in any manner in the commission of offence hence the non-production of the revolver is not fatal to the prosecution case.
20. So far as the dispute whether plain papers, or newspapers or raddi was there in the bag Ex P1 , I am of the opinion that it is not a big issue. Even otherwise according to PW 9 police asked him to put plain papers and he stated that he put the papers. In general we used the word Papers even for the newspapers and therefore when PW 9 during cross- examination stated that he had put raddi newspapers in bag Ex P1 that is not a major contradiction in his testimony going to the root of the case. The decision to put papers in the bag in place of money was taken by the police and it was decided that the bag containing papers would be handed over to the person who would come to collect it. Accused Parveen came to collect that bag at Ekant Restaurant. Defence had vehemently argued that no public person was joined from Ekant Restaurant though the staff of Ekant Restaurant and the public persons available there, in my opinion as at that time the police was investigating the case of kidnapping and was not knowing the accused persons therefore disclosing the 32 fact that police had reached there and then asking the persons present there may have spoiled the entire plan . It might have happened that the police may by giving this information to the public endanger the life of the kidnapped persons therefore in my opinion in the facts and circumstances of the present case non joining of the public witnesses at the Ekant Restaurant is not fatal to the prosecution.
21. The defence had also contended that there was no demand of ransom and that is why the witnesses had given different amount at different places. I have gone through the statement of witnesses and I found that there is no contradiction on the point that initially the accused persons/kidnappers demanded a ransom of Rs 2 crores and ultimately it was settled at Rs 28 lakhs. The offence U/s 364 A IPC as held in the case cited as Baldesh Vs. State 2007 NOC Cri.L.J 682 (Delhi) DB = 2007 II AD (Cr) Delhi High Court 495 is complete when there is a demand of ransom after kidnapping a person. In the present case as deposed by PW 4, PW 9 and PW 17 it is clear that there was a demand of Rs 2 crores and ultimately it was negotiated to Rs 28 lakhs, 33 therefore in my opinion the requirement of Section 364 A IPC is satisfied.
22. From the above discussion in my opinion the prosecution by examining PW 4, PW 9 and PW 17 had fully established its case . It has been proved on record that all these accused persons alongwith their two more accused Ravinder and Mahinder both PO kidnapped PW 4 and demanded ransom of Rs 2 crores which was negotiated to Rs 28 lakhs. There is no reason to disbelieve the testimony of PW 4, PW 9 and PW 17. There is nothing on record that PW 4, PW 9 and PW 17 or the police officials had any reason to falsely implicate the accused persons in the present case. In my opinion the prosecution has discharged its onus and proved its case beyond doubt. I therefore hold all the accused guilty U/s 364 A r/w 120 B IPC and 120 B IPC and convict them accordingly.
Announced in open court ( V.K. BANSAL )
dated: 20.12.2007 ADDL. SESSIONS JUDGE
NEW DELHI
34
IN THE COURT OF SH. V.K.BANSAL;
ADDL. SESSIONS JUDGE;
NEW DELHI
IN RE: Session Case NO 94/07
State Versus (1) Parveen @ Kukki s/o Shiv Charan
Verma r/o 125/28 Laxmi Garden,
Gurgaon, Haryana.
(2) Dalip Singh s/o Munshi Lal
r/o Village & PO Badshahpur,
Gurgaon, Haryana.
(3) Ashok Kumar s/o Rajender Singh
r/o Maneshwar, Distt. Gurgaon,
Haryana.
FIR No 937/00
Police Station: Malviya Nagar
U/sec 364 A r/w 120 B IPC
ORDER ON SENTENCE:
Present; Sh Ahmad Khan Addl. P.P for the state.
All the three convicts produced from JC, with defence counsel.
Heard on the point of quantum of sentence.
Ld Addl. P.P submitted that the convicts are desperate accused. They are facing trial in many cases. They are threat to the society. They have kidnapped the complainant for 35 ransom. Convict Dalip Singh was so desperate that when he was released on interim bail he attempted to kill Sh Sumit Virani son in law of the complainant of this case. In this regard FIR NO: 176/03 was registered at PS: Udhyog Vihar, Gurgaon. Convict was charge sheeted in that case. There are other cases also against convict Dalip, one U/s 302 IPC bearing FIR NO: 268/00 of P.S: Bilaspur District: Gurgaon, another case that also U/s 302 IPC against convict Dalip Singh as well as Parveen @ Kukki bearing FIR NO: 606/00, U/s 302 IPC r/w 201 IPC besides that there were two more cases U/s 25 Arms Act against convict Dalip Singh. Ld APP submitted that there is so terror of the convict persons in the society that the witnesses do not dare to depose against them. It is prayed that keeping in view the effect of the convict persons on the society, heinous crime of kidnapping for ransom wherein not only victim who was kidnapped and was under threat throughout the time of being killed his family members were also undergoing some trauma fearing any untoward incident till the time the victims were got rescued. It is prayed that keeping in view these facts the convict be awarded capital punishment.
Ld defence counsel submitted that convicts 36 though have other cases but in those cases they have been acquitted. They were falsely involved in those cases. Even in this case there is no injury caused to any of the victim or to any other person. There is no violence caused. Ld defence counsel submitted that for making out a case for capital punishment it has to be shown that it is a rarest of rare case but keeping in view the facts of the case it does not fall within the category of rarest of rare case. Ld counsel for convict Ashok Kumar submitted that convict has old aged parents. Ld counsel further submitted that convict is in JC for the last seven years.
Ld counsel for convict Dalip Singh submitted that convict is married, having old parents and two children one son and a daughter and both minor. Ld counsel further submitted that convict is in JC for the last seven years.
Ld counsel for convict Praveen @ Kukki submitted that he is a married man having two children and both minor. He is the sole bread earner of his family. Ld counsel further submitted that convict is in JC for the last seven years.
After hearing Ld Addl. P.P for the state and ld defence counsel for the convicts on the point of quantum of sentence, I found that the convicts had committed serious offence of 37 kidnapping for ransom. It is a known fact that when a family member is abducted or kidnapped, it is not only the victim who suffers and is at the mercy of the kidnappers but the whole family of the kidnapped persons suffers and in fact dies every moment till the victim is rescued. In the present case also all the three convicts have kidnapped one person for the lust of wealth which they do not want to acquire by putting hard work but only by committing crime and then claim ransom. According to the prosecution convicts are threat to the society. They faced trial in many cases and all were serious offences of murder and not simple cases of theft etc. Prosecution has vehemently prayed that all the convicts be awarded capital punishment. Ld defence counsels on the other hand have prayed for a lenient view and submitted that as the case does not fall within the category of rarest of rare case, hence the capital punishment be not awarded. The Hon'ble Supreme Court of India in various cases had laid down the guidelines where the capital punishment be awarded. The Apex court of the land in the case titled as Bachan Singh Vs. State of Punjab AIR 1980 SC 898 opined that the court shall take into consideration all the aggravating circumstances and all the mitigating 38 circumstances before taking any decision for awarding punishment including the death penalty. It is also well settled principle of law that the punishment awarded shall be in consonance with the gravity of the offence committed. In case of Macchi Singh and Ors. Vs. State of Punjab AIR 1983 SC 957 the Hon'ble Supreme Court of India has held that one of the categories of rarest of rare case may be when the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict the death penalty irrespective of their personal opinion as regard desirability but otherwise of retaining the death penalty. The community may entertain such a sentiment when the crime is committed in extreme brutal, debolical, revolting of dastardly manner so as to arouse intense extreme indignation of community. As discussed above no doubt all the convicts have committed heinous offence of kidnapping for ransom. The convicts were having terror which is reflected from the statement of PW1 itself who during cross examination stated that the entire village was knowing this fact but the judicial file reveals that, despite that all the witness from that village turned hostile and did not dare to utter a single word against the convicts. But even then in my 39 opinion before the capital punishment is awarded it has to fall within the category of the rarest of rare case as held by the Hon'ble Supreme Court of India.
After considering all the facts of the case, submissions of the Ld Addl. P.P the previous involvement of all the convicts and also the manner in which the present offence has been committed for which they have held guilty are convicted, I am of the considered opinion that it does not fall within the category of rarest of rare case. All the convicts are, therefore, sentenced to undergo Life Imprisonment for the offence punishable U/s 364 A read with sec. 120B IPC along with fine of Rs 10,000/- each in default to undergo One Year RI. They are further sentenced to undergo Life Imprisonment for the offence punishable U/s 120B IPC with fine of Rs 10,000/- each in default to undergo One Year RI.
File be consigned to record room.
Announced in open court ( V.K. BANSAL )
dated: 04.01.2008 ADDL. SESSIONS JUDGE
NEW DELHI
40
State Vs. Parveen @ Kukki etc
FIR NO. 937/2000
PS Malviya Nagar
04.01.2008
Present; Sh Ahmad Khan Addl. P.P for the state.
All the three convicts produced from JC, with defence counsel.
Heard on the point of quantum of sentence.
Vide separate order on sentence of even date all the convicts are, therefore, sentenced to undergo Life Imprisonment for the offence punishable U/s 364 A read with sec. 120B IPC along with fine of Rs 10,000/- each in default to undergo One Year RI. They are further sentenced to undergo Life Imprisonment for the offence punishable U/s 120B IPC with fine of Rs 10,000/- each in default to undergo One Year RI.
File be consigned to record room.
( V.K. BANSAL ) ASJ:NEW DELHI