Delhi High Court
Baldesh vs State on 20 March, 2007
Author: R.S. Sodhi
Bench: R.S. Sodhi, P.K. Bhasin
JUDGMENT
R.S. Sodhi J.
1. Criminal Appeal No. 18 of 2003 challenges the judgment of the Additional Sessions Judge dated 26.10.2002 in case arising out of FIR No. 850/1997, Police Station, Dabri whereby the learned Judge has held the appellant guilty under Section 392 IPC read with Section 397 IPC as also under Section 364A IPC. The learned Judge further by his order dated 01.11.2002 sentenced the appellant to rigorous imprisonment for seven years and a fine of Rs. 1,000/- under Section 392 IPC read with Section 397 IPC and in default of payment of fine further simple imprisonment for one month; imprisonment for life and a fine of Rs. 1,000/- under Section 364A IPC and in default of payment of fine, further simple imprisonment for one month. Both the sentences were directed to run concurrently.
2. Brief facts of the case, as have been noted in the judgment under challenge, are as follows:
On 15.12.1997, Mohan Rai Handa came to police post Dwarka and lodged a report. He alleged that on that day he was traveling in Sector 9 of Dwarka in his Toyota Car No. DBC 4036, along with his wife, Seema Handa, and his neighbour, Sunil Madnani. They had gone there to see plots. When they were passing from near a park at about 2.20 p.m. two persons got his car stopped by giving signal. As soon as the car was stopped, one of them came to the driving seat and the other one went towards the left window seat where Sunil Madnani was sitting. Both of them took out revolvers and put them on his neck and on the neck of Sunil Madnani. Those persons got the rear door opened from his wife and both of them occupied the rear seat thereby sandwiching his wife between them. Thereafter those persons got the window glasses raised and asked him to move the car. Between Sector 19 and 23 they got the car taken to kuccha road and snatched the gold chain, Rs. 3,500/- in cash and a driving license. They also took Rs. 15,000/- from the purse of his wife and driving license from Sunil Madnani. Thereafter they made him and his wife got down from the car and kidnapped Sunil Madnani. Both the robbers were described in the complaint. Description of Sunil Madnani was also given. The car of the complainant was allegedly found abandoned. Statement of Sunil Madnani was recorded by the IO on 16.12.1997. He told the IO that after making Mohan Rai Handa and his wife got down from the vehicle those persons made him sit on the rear seat of the car and covered his eyes with a handkerchief. He was lateron confined in a room which was locked from outside. She also told the IO that one of the persons involved in the robbery, who was being addressed as Baldesh told him that he was a cousin brother of Balraj, a notorious criminal of village Mitrau, and would not leave him alive if ransom was not paid on time. He also claimed that revolver was also shown to him by that person. He asked those persons to arrange a mobile phone but they were not able to arrange it. They kept him confined for 6/7 hours and later on directed him to bring Rs. One lac at Mahipalpur at 11 p.m. He was released after 6/7 hours, after bringing him to some place in a car.
Three persons, Baldesh, Mukesh and Inderjeet were prosecuted. Charges Under Section 392/397/365/364A of IPC were framed against accused Baldesh whereas charges Under Section 364A/34 and 212/34 of IPC were framed against accused Mukesh and Inderjeet. All the accused pleaded not guilty and claimed trial.
3. The Prosecution, in order to establish its case, examined 10 witnesses. Of these, PW-2, Mohan Rai Handa, is the complainant. He has stated that on 15.12.1997, he was going towards Pappan Kalan. At about 2.10 - 2.15 p.m. he reached grey colour DDA Flats. He was driving his Toyota Car No. DBC 4036. Mr. Sunil Madnani was on his left in the front seat while his wife was sitting on the back seat. While he was driving slow and looking at the flats near DDA grey colour flats, two persons suddenly emerged and waved them to stop. His wife sensing something wrong urged him to drive on. However, the witness thinking that those persons wanted to show them some flats stopped. As soon as the vehicle stopped, he realized that one of the accused was pointing a hand gun at his head and the other had put a hand gun at the temple of his friend, Mr. Sunil Madnani. The rear doors were locked by the witness's wife but the person who had put the hand gun at his temple directed that the doors be opened at which his wife unlocked the doors and both the persons sat by the side of his wife at the rear seat continuing to point the gun menacingly at Mr. Madnani and the witness. The car engine was running. The accused persons directed the witness to drive the car as per their instructions. At that time, the witnesse's wife and Mr. Madnani were pleading with those persons to spare them, but the witness was directed to keep quiet and keep driving. The person who had pointed the gun at this witness directed that the vehicle be taken to a kuchha road where the person came out followed by the witness's wife. He then directed the witness to switch off the car and get out of it. The witness obliged and kept the key in the ignition of the car. The witness was then directed to remove the gold chain and his wallet. It was then given over to the person. The wallet contained Rs. 3,500/-, driving license, visiting cards etc. This person then asked the witness's wife to hand over her purse. She too immediately did so. The person then emptied the bag and took about Rs. 1,500/-. The person on the other side directed Madnani to hand over his wallet which contained about Rs. 1,000/-. The witness goes on to say that his wife was able to wave at a passerby who stopped the car. At this, the robbers returned the empty purse and the wallet and pulled the witness out of the car and then got into the driving seat and drove away with Sunil Madnani still being inside the car. The witness and his wife as also the passerby, who had stopped, gave chase to the robbers, but the robbers made good their escape. The witness was then taken to Police Station Dabri where he lodged a report, Ex. PW-2/A. The witness identified one of the two accused persons present in court and pointed towards Baldesh as the person who was in command of the operation. However, the witness did not identify the other person present in court to be the accomplice of Baldesh.
4. The witness was cross-examined wherein he stated that he chased the accused in a white Maruti Zen of a Congress worker whose name was Brahm Yadav. To a question, he replied that he and his wife were in the white Maruti Zen car which gave chase for about 15 minutes. Mr. Brahm Yadav dropped them at the Police Station Dabri where they were met by Mr. Raj Pal Singh Nagar, the SHO. The cross-examination, which was lengthy, was really aimed at only troubling the witness rather than eliciting any crucial point. Minor discrepancies of no consequence were sought to be highlighted.
5. PW-3, Seema Handa, is the wife of the complainant, PW-1. She has supported the version of the Prosecution in toto and corroborates the statement of her husband, PW-1, Mohan Rai Handa, on all aspects.
6. PW-4, Sunil Madnani, states that on 15.12.1997 at about 2.15 or 2.30 p.m. he had gone to Dwarka along with his neighbours, Mr. Mohan Rai Handa and his wife, Mrs. Seema Handa, in their car. The witness states that while they had been in Sector 9 and near about the area in Dwarka, sitting in the vehicle, two persons came down from a nearby building at the time when the car was moving slowly signaling the car to stop. The car stopped and one of the accused persons, Baldesh, present in Court, pointed a revolver towards the head of Mr. Mohan Rai Handa. The second person pulled out a revolver and pointed the same at the witness. Both the persons thereafter sat on the rear seat sandwiching Mrs. Seema Handa. They directed Mr. Mohan Rai Handa to drive the car which was later got stopped at one corner of kuccha road. There the accused persons robbed Mr. Mohan Rai Handa, Mrs. Seema Handa and this witness of all the cash as also a chain. At that time a car came from behind and stopped. Baldesh started Mohan Rai Handa's car and drove away the same, while this witness was still in the car. While driving, this witness's eyes were wrapped with a piece of cloth. The witness was taken into a house which appeared to be a nursery having a wall of about 10 feet high. He was kept in a room which was bolted from outside and his eyes untied, while the accused went away to dispose of the car and change their clothes. They returned after about 30 minutes after changing their clothes. They then made the witness remove his jewelery which consisted of a diamond ring, watch, one gold bracelet, etc. and then demanded money and directed him to make a call to get money from his house. The accused then went to arrange for a mobile phone but failed. The accused demanded rupees two lacs for his release. The witness conveyed his helplessness, upon which the accused insisted that he must arrange whatever was possible. The matter was then settled at rupees one-and-half lac. The witness was then dropped at Mahipalpur chowk/cargo airport around 2 O'clock at night. He was threatened that if he did not return with the money, they would trace him out and kill him. The accused had taken the witness's driving license and other documents for identification. The witness immediately, on release, went to the Vikaspuri Police Station from where he was directed to Dabri Police Station. He went to Dabri Police Station and made his report. In cross-examination, his entire examination-in-chief was got reiterated.
7. PW-8, SI Dharampal, deposes that on 15.12.1997, he was Chowki In-charge Police Post, Dabri. He received a message on wireless about abduction. He went near DDA nursery in Dwarka in Sector 9 where complainant, Mohan Rai Handa, met him along with his wife and made a statement, Ex. PW-2/A. A case was got registered vide FIR Ex. PW-7/A. Site plan Ex. PW-8/2, was prepared. He then received information that the vehicle of the complainant was parked at Mansa Ram Park, Nathiala. He along with Head Constable Lal Ram seized the car, Ex. PW-8/3. The witness goes on to state that PW-4, Sunil Madnani, had informed him that at the place where they were dropped, he could hear recital of namaz and that there was a peculiar small brick house where the car had gone into a sharp slope before it entered the gate of the house where he was confined. On the basis of this identification, he reached the nursery of Mathiala and located the place where Sunil Madnani had been detained. Some persons were present who indicated that Mukesh and Inderjeet had dropped the kidnapped man at this place. Thereafter, they started searching for Mukesh and Inderjeet. On 26.10.1998, Baldesh surrendered in Court and was taken into custody in another case pending in Police Station Vasant Kunj. The witness moved an application, Ex. PW-8/5, for holding a TIP of accused, Baldesh. TIP was conducted at Central Jail by Shri Dharmesh Sharma, Metropolitan Magistrate, New Delhi on 9.1.1998. In cross-examination, this witness denied that he had taken Mohan Handa, Seema Handa and Sunil Madnani to Police Station Vasant Kunj to show the accused.
8. PW-9, Shri Dharmesh Sharma, deposes that on 6.1.1998 he was working as Metropolitan Magistrate, New Delhi. An application was submitted by SI Dharampal for holding TIP of accused, Baldesh, which was marked to him by the Area Magistrate. The accused was produced before him on that day in muffled face. He fixed 7.1.1998 for holding TIP of the accused. He reached Tihar Jail No. 3 at 3.05 p.m. and conducted the proceedings in the room of Mr. Chawal Singh, Assistant Jail Superintendent. He directed the curtains to be pulled down so that it was not possible for any one from outside to see the proceedings being conducted in the room. The IO and the witness who had met him outside the gate of Tihar Jail No. 3 were directed to remain there unless called at his directions. Accused, Baldesh, was produced who was identified by Mr. Chawal Singh, Assistant Jail Superintendent. Accused, Baldesh, was asked whether he wanted to participate in the TIP to which Baldesh expressed his willingness. His statement, Ex. PW-9/2, was recorded. The accused was directed to arrange 8 or 9 persons of his choice. He produced 9 inmates of jail who appeared to be of the same age group and of similar complexion and height. The other features like beard, weight etc. were also more or less the same. The accused preferred to stand 6th from the right. Sunil Madnani appeared and he immediately pointed towards the accused and raised his finger in the direction and identified Baldesh as the person standing 6th from the right. The positions of the persons and the accused were intermingled and their clothes changed inter se. Then Mr. Mohan Rai Handa was produced. He too, on a close look, identified the accused. A similar exercise of changed position and clothes was again undertaken and this time Mrs. Seem Handa was produced. She too identified the accused, Baldesh, correctly.
9. PW-10, SI Sushil Kumar, states that on 23.12.1997 he was investigating the case arising out of FIR No. 631/1997. He was present in Court when Baldesh surrendered in Court. Baldesh was interrogated after taking permission of the Court and his disclosure statement, Ex. PW-10/1, was recorded. On interrogation, Baldesh, offered to get the suit case and papers of Anil recovered from his office where he was carrying business of property dealing. He also disclosed that he would get Bibloo arrested and get recovered the property from him which was the subject matter of FIR No. 631/1997
10. In his statement under Section 313 Cr.P.C, Baldesh admitted that he was correctly identified by Mr. Mohan Rai Handa, Seema Handa and Mr. Sunil Madnani in the TIP, but took up the defense that he was shown to the witnesses at Police Station Vasant Kunj.
11. The trial court, on the basis of the material placed before it, returned a finding that the Prosecution had been able to prove their case against Baldesh and thereby went on to convict him under Section 392 read with Section 397 IPC as also under Section 364A IPC while acquitting Mukesh and Inderjeet.
12. It was contended by counsel for the appellant that the identification of the accused at the Central Jail on 7.1.1998 could not be relied upon since the accused was already shown to the witnesses at Police Station Vasant Kunj. He also submitted that the ransom demand has been incorrectly mentioned by Mr. Sunil Madnani who claims that the accused first demanded rupees Rs. 5 lacs and then reduced it to Rs. 2 lacs, but ultimately deposes that he was asked to bring Rs. 1.5 lacs. This contradiction, according to learned Counsel, is material and goes to the root of the Prosecution's case.
13. We have heard learned Counsel and have carefully examined the material on record including the depositions of the witnesses. It appears that PW-2 and PW-3 have consistently stated that Baldesh was one of the persons who had stopped the car and pointed the weapon at Mr. Mohan Rai Handa. It was Baldesh who was in-charge of the operation and gave directions to Mr. Mohan Rai Handa while in the car. Both the witnesses also stated that they were relieved of their belongings, namely, cash and jewelery articles by Baldesh and his companion. They also deposed to Baldesh having driven away the car of Mr. Mohan Rai Handa and to the chase given to the car by Mr. Brahm Yadav.
14. From the testimony of these two witnesses, it appears that they have unerringly identified the role played by Baldesh in the saga enacted. The witnesses further have identified Baldesh at the Jail and subsequently in Court. These witnesses have however failed to identify the others who were tried Along with Baldesh. Their testimony inspires confidence and nothing has been elicited from them which would tend to discredit them in the cross-examination. PW-4, Sunil Madnani, while supporting and corroborating PW-2 and PW-3 in their version, has testified as to how he was abducted, confined and threatened with the ransom demand. He too has identified Baldesh to be the person in command of the operation while he does not identify the other accused persons. From his testimony, it can safely be deduced that Mr. Sunil Madnani was abducted and ransom demanded for his release by putting him to fear giving rise to a reasonable apprehension that the accused persons may hurt or put him to death.
15. The criticism of the defense regarding identification is hardly one that need detain us since the accused himself raised no apprehension nor objected to the TIP which was being held in the presence of a Metropolitan Magistrate. The assertion that he was shown to the witnesses at Vasant Kunj Police Station is an afterthought. As regards the quantum of ransom, it is immaterial as to the amount that was demanded or agreed to be paid. The requirement of law is satisfied upon a demand of ransom being made.
16. The trial court, upon analysis of the material before it, has given detailed reasoning which appeals to us. We too, upon a re-analysis, have arrived at the conclusion that the reasoning adopted by the trial court and its conclusions cannot be faulted with. Consequently, we uphold the judgment of conviction and order on sentence challenged before us while dismissing Criminal Appeal No. 18 of 2003.