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SUNDER PAL versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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Sunder Pal v. State of Haryana - CRA-255-db-2001 [2006] RD-P&H 1846 (21 March 2006)

Crl.A.No.255-DB of 2001 (1)

IN THE HIGH COURT OF PUNJAB & HARYANA,CHANDIGARH

Crl.A.No.255-DB of 2001

Date of decision: 10.1.2006

Sunder Pal vs. State of Haryana

CORAM: HON'BLE MR.JUSTICE AMAR DUTT.
HON'BLE MS.JUSTICE KIRAN ANAND LALL

Present: Ms.Vandana Malhotra, Advocate,

for the appellant.

Mr.B.S.Rana, Senior Deputy Advocate General,Haryana.

Mr.Sameer Rathore, Advocate for

Mr.Sumeet Goel, Advocate, for the complainant.

JUDGMENT

Amar Dutt,J.

Sunder Pal and nine others including the Proclaimed Offender Virender were sent up to face their trial by Police Station, City, Panipat in F.I.R.No.193 of 30.5.1996 for the commission of the offences punishable under Sections 363,365, 386, 364-A read with Section 34 of the Indian Penal Code. After trial of all the accused except Virender, whose presence the Investigating Agency was not able to secure even during the trial, were convicted under Section 364-A of the Indian Penal Code and each of them was sentenced to undergo rigrous imprisonment for life and to pay a fine of Rs.1,000/- each. In default of payment of fine each one of them was ordered to undergo further rigorous imprisonment for four months.

Crl.A.No.255-DB of 2001 (2)

Briefly stated, the facts of the prosecution case, as brought out in the statements of its witnesses, are that Amit Kumar, son of Madan Mohan, was aged 9 years and on the date of the incident i.e.29.5.1996 studying in Class III. He used to live with his father in House No.212 Old Housing Board Colony, Panipat at a distance of about 100 yards from Salarganj Gate, Panipat. At about noon-time, on 29.5.1996 the boy had gone to Salarganj to play with his friends and when he did not return to the house the family made all efforts to trace him out which proved to be futile.

Apprehending that he had been kidnapped, while Madan Mohan PW1 was proceeding to the Police Station City, Panipat to lodge a report, he met a police party at Sukhdev Nagar where he made his statement Ex.PA and on its basis formal F.I.R.Ex.PA/2 was recorded.

On 2.6.1996, Sanjiv Jain and Faqir Chand PW4 came and apprised Madan Mohan that Yashpal, a resident of Panipat, had come to them and told about their having received a telephonic message from Saharanpur that Amit Kumar was well but his abductors were demanding a ransom of Rs.10,000,00/- failing which they were threatening to kill Amit Kumar. The abductors had further informed Yashpal that in case the matter was reported to the Police even then Amit Kumar would be killed. Yashpal had also been apprised of the manner in which the money was required to be paid, which mode required Yashpal to travel in car No.HR-06B-244 belonging to Sanjiv Tayal, the younger brother of Madan Mohan, display a white cloth for identification and reach the Railway Crossing before Rampur at 10.00 p.m. On reaching there, the car was to give a signal with the dipper.

On getting this information, Madan Mohan, Sanjiv Jain and Faqir Chand had decided not to report the matter to the police and had arranged for the requisite amount taking Rs.3,50,000/- from M/s Surya Crl.A.No.255-DB of 2001 (3)

International (a factory owned by Madan Mohan), Rs.50,000/- from M/s Design Rug owned by the younger brothers of Madan Mohan, Rs.2,00,000/- from M/s Surya International in the name of Faqir Chand, an amount of Rs.1,25,000/- from Surya Woollen Mills, Panipat and Rs.2,75,000/- from Sintex Handicraft, Panipat in the name of wife of Madan Mohan as she was partner of the firm.

On 3.6.1996, Sanjiv Jain and Faqir Chand had again informed Madan Mohan that Yashpal had come and told them that he had received another message that in case the amount of Rs.10,00,000/- was not paid that day itself, Amit Kumar would be killed. Yashpal had further assured them not to worry and had taken the entire responsibility for the safety of the child. Thereupon the currency notes already collected had been arranged in the denomination of Rs.500/-, Rs. 100/- and Rs.50/- respectively and the first and the last notes of the bundles were initialled as "MM" by Madan Mohan. Sanjiv Jain had then called Yashpal at the residence of Madan Mohan and handed over the bag containing currency notes of Rs.10,00,000/- to him. Yashpal had taken away the bag in the car bearing registration No.HR-06B-244, which he had driven away himself.

On 4.6.1996, Yashpal brought back Amit Kumar and handed over him to Madan Mohan. Amit Kumar told his father that on 30.5.1996 he was accosted by Virender absconder, who apprised him that his father was calling him. On hearing this, Amit Kumar accompanied Virender for some distance where two youngmen, namely, Vinod and Sohan were positioned near a Yamaha Motor Cycle. Vinod was standing near the Motor Cycle while Sohan was sitting on the pillion. Sohan had caught hold of Amit Kumar and closed his mouth and made him to sit on the motor cycle whereafter the motor cycle was driven away by Vinod to the G.T.Road via bus stand from where it was taken to Gharaunda. When the motor cycle Crl.A.No.255-DB of 2001 (4)

reached the Yamuna bridge, Amit Kumar was given water to drink and the appellants threw a coin in the river. After this his abductors took him to Railway Station Sona Arjunpur where it started raining. Thereupon they made him to sit on the ticket window. When the rain stopped Vinod and Sohan had removed him on the motor cycle to a garden where 4/5 persons were taking liquor. One of them had asked Vinod whether the work had been done and another one of them had enquired as to where Virender was, to which enquiry Vinod replied that Virender had been left at Panipat with Yashpal. The group was addressing each other by their names as Sohan, Pawan, Pappu, Jagbir, Sunder Pal and Vikas. They had served meals to Amit Kumar in the garden.

On the next day, Virender also came there and thereafter Virender and Vinod had taken Amit Kumar on the Yamaha motor cycle to the house of Vidya Sagar Chawla at Saharanpur. Vinod stayed with Amit Kumar whereas Virender used to go out at times. Vidya Sagar Chawla also remained present in the house and the entire incident was narrated by Amit Kumar to him that night. On the following day, after Virender had returned, he and Vinod took Amit Kumar to a sugar cane field on a Yamaha motor cycle. On the pavement of nearby canal, an Ambassador car was standing and then Sohan, Pawan, Pappu, Jagbir Sunder Pal and Vinod had taken Amit Kumar for making a telephonic call to his father asking him to reach soon. On the way, Vinod had told them that the uncle of Amit Kumar and Kakku had reached and, therefore, they should escape. On hearing this, the appellants took Amit Kumar back to the sugar cane field. During the night car belonging to the uncle of Amit Kumar came there and Yashpal got down from the same. He called for the aforementioned persons where upon Amit Kumar was taken near the car. Vinod enquired from Yashpal whether everything was alright at the house of Amit Kumar and Yashpal Crl.A.No.255-DB of 2001 (5)

replied in the affirmative. Vinod handed over Amit Kumar to Yashpal, who in turn handed over a bag to Vinod. Yashpal further told that they shall count for the money after some time. Yashpal thereafter took Amit Kumar to Saharanpur where meals were taken and Yashpal had left him at the residence of Madan Mohan.

After his release, Amit Kumar had told his father that he could point out the places where he had been taken. He had also made a similar statement before the police. On 8.6.1996, Madan Mohan and his son Amit Kumar accompanied the police party. The boy had first taken them to Salarganj gate from where he had been kidnapped and thereafter to Sona Arjunpur Railway Station in Uttar Pradesh. From there,he had taken them to a garden where he had been kept and from there to a sugar cane field which was at some distance from the Railway Station. Thereafter, Amit Kumar had taken them to the house of Vidya Sagar Chawla at Saharanpur.

The police had been carrying out raids to apprehend the accused and during one such raid on 19.6.1996, in which Pawan Kumar PW3 had been joined, the police had gone to Sona Arjunpur where a person, whose name is not forth coming in the investigation, had disclosed that Sunder Pal and Pawan were sleeping under a tree in the field. The police had then raided the field and apprehended both these appellants. On interrogation, Sunder Pal made a disclosure statement Ex.PF that out of the ransom of Rs.50,000/-,he had spent Rs.1,000/- and had kept concealed the remaining amount of Rs.49,000/- wrapped in a polythene paper underneath the ground in the fields. His disclosure statement which runs into five pages interestingly incorporated the entire details of the kidnapping including the portions wherein even he had not been associated and bears his thumb impression and is attested by Pawan Kumar and Jai Narain. Pursuant to this disclsoure statement Sunder Pal had got discovered Rs.49,000/- currency Crl.A.No.255-DB of 2001 (6)

notes of the denomination of Rs.100/, which were taken into possession through recovery memo Ex.PF/1. Pawan too made an equally detailed disclosure statement Ex.PG which was reduced into writing and signed by the appellant and attested by Pawan Kumar and Jai Narain in the presence of SI Krishan Pal and subsequent thereto, he too got recovered Rs.45,000/- of the denomination of Rs.100/- each from the field indicated by him in the disclosure statement. It was taken into possession through recovery memo Ex.PG/1.

On 20.6.1996, when Madan Mohan was standing at Mayur Chowk, a Sub Inspector, an Assistant Sub Inspector and three Constables met him and they together proceeded towards the Railway Station, Panipat.

When they were standing out side the cycle stand, Railway Station, Madan Mohan noticed Yashpal appellant coming towards the Railway Station.

Yashpal was apprehended by the police and on his personal search a country made pistol from his right dub and three live cartridges from the left pocket of his trouser were recovered, which were taken into possession through recovery memo. On interrogation, in the presence of Madan Mohan, Yashpal had made a disclosure statement Ex.PB in which after giving the details of the persons involved in the kidnapping and the amount of ransom taken, he disclosed that his share in the ransom came to Rs.6,00,000/- out of which Rs.5,75,000/- have been kept in the bag in a Almirah at his residential house and an amount of Rs.25,000/- had been kept concealed in the house of his sister in Ludhiana and a pistol had been kept concealed in a house of his sister in Saharanpur. Pursuant to this disclosure statement, Yashpal appellant got recovered Rs.5,75,000/- and the black coloured bag bearing the words "M.M.Tayal" embroidered thereon from his house, which were taken into possession through recovery memo Ex.PC, which was attested by Madan Mohan and Ramesh Chand.

Crl.A.No.255-DB of 2001 (7)

On the same day, Inspector Krishan Pal PW8 joined Sanjay Tayal in the investigation and after receipt of the secret information about Vinod, Vikas and Vidya Sagar, he went to the Truck Union, Panipat and apprehended all of them from the Kotha of a tube well. The Inspector had recovered a sum of Rs.42,000/- from a bag which was being carried by Vikas. The notes were in the four packets of Rs.100/- denomination and four notes were of the denomination of Rs.500/-. The first and the last notes bore the initials of "MM". These were taken into possession through recovery memo Ex.PR, which was attested by the witnesses. A similar search of Vinod led to the recovery of Rs.41,000/-, which were carried by him in a bag. The notes were in four packets of Rs.100/- denomination and two packets of Rs.500/- denomination. The first and the last currency notes of the packet of Rs.500/- denomination bore the initials "MM", the signatures of Madan Mohan PW1. The notes were taken into possession through recovery memo Ex.PS. A similar search conducted on the person of Vidya Sagar led to the recovery of Rs.24,000/-. All the notes were of the denomination of Rs.500/- and 12 notes were recovered from the right pocket of Vidya Sagar while 36 notes were recovered from the back pocket of the pant of Vidya Sagar. All the notes bore the initials "MM", which were identified by Sanjay Tayal and taken into possession through recovery memo Ex.PT. During the personal search of Vinod and Vikas one pistol of .12 bore along with two live cartridges were recovered from Vinod whereas from Vikas one pistol of .315 bore along with three live cartridges were recovered.

On the same day, Inspector Ravinder Kumar PW9 along with SI Yad Ram and other police officials had gone to Sona Arjunpur in search of the accused and there one Jaswant Rai was joined in the investigation.

There the police party got a secret information that Virender, Sohan and Crl.A.No.255-DB of 2001 (8)

Vishav Pal were coming from Shamli to Panipat on a Yamaha motor cycle whereupon he set up a naka. On their arrival, Sohan, Virender and Vishav Pal were apprehended and a sum of Rs.40,000/- were recovered from Vishav Pal, which were carried by him in a bag of black colour, which he was holding in his hand. A similar sum of Rs.40,000/- was recovered from a bag which was being carried by Sohan appellant. All the notes were of the denomination of Rs.100/- each and bore the initials "MM" of Madan Mohan complainant, who has been described as Madan Gopal complainant.

On the personal search of Virender 86 currency notes of the denomination of Rs.500/- each i.e. Rs.43,000/- were recovered. All the aforesaid currency notes were recovered through recovery memos Ex.PJ,,PK and PL respectively. The motor cycle was also taken into possession through recovery memo Ex.PM.

On 4.8.1996, Inspector Ravinder Kumar PW9 along with SI Randhir Singh and other police officials and the complainant went to village Sona Arjunpur in search of Jagbir appellant where he came to know that he had gone to Panipat in order to surrender in the Court. When the police party was present near the bridge of Yamuna, the Inspector received a secret information that Jagbir had gone to Panipat. When the police party reached Sanjay Chowk, Panipat, the complainant pointed out towards Jagbir who was standing near a three wheeler.He was apprehended. On 7.8.1996, on interrogation Jagbir made a disclosure statement Ex.PD to the effect that he had kept concealed an amount of Rs.5,000/- in a wax paper in the Baithak of his house situated in village Sona Arjunpur. Thereafter, in pursuance of his disclosure statement, he got recovered a sum of Rs.5,000/- of the denomination of Rs.100/- each. The same were taken into possession through recovery memo Ex.PE. One of the notes was bearing the initial of "MM".

Crl.A.No.255-DB of 2001 (9)

On completion of the investigation, a challan was put in the Court of the Ilaqa Magistrate, who committed the case to the Court of Sessions as the offences disclosed therein were exclusively triable by that Court.

On going through the challan papers, the Additional Sessions Judge framed charge under Section 364-A of the Indian Penal Code against all the appellants to which they pleaded not guilty.

In order to bring home charge against the appellants, the prosecution examined Madan Mohan PW1, Amit Kumar PW2, Pawan Kumar PW3, Faqir Chand PW4, SI Yad Ram PW5, ASI Dalel Singh PW6, Inspector Rajinder Singh PW7, SI Krishan Pal PW8 and Inspector Ravinder Kumar PW9.

When examination under Section 313 of the Code of Criminal Procedure in order to explain the incriminating circumstances appearing in evidence against them, Vikas, Vishav Pal, Pawan Kumar, Vidya Sagar, Sunder Pal, Vinod, Sohan and Jagbir appellants pleaded innocence and false implication, whereas Yashpal appellant took the following plea:- "I am innocent. The PW Fakir Chand and Sanjeev Jain are close friends and are inimical to me. In the year 1992, I met with an accident while travelling in the car of Sanjeev Jain regarding which a claim case is still pending in the Hon'ble High Court. My right hand was amputated above elbow due to that accident and I am not in a position to drive any vehicle including car. All the prosecution witnesses have business relations with each other and they have given false statements against me. I never participated in the said occurrence. No recovery of any currency notes or pistol etc. was ever made from me nor I got recovered the child Amit. I never demanded any ransom amount nor I have ever received if from the Pws.

Crl.A.No.255-DB of 2001 (10)

Madan Mohan and Amit Pws had voluntarily given affidavit Ex.DB and Ex.DC wherein they have not levelled any allegation against me. The said affidavits were duly verified by the police at the time of disposal of my bail application. As a matter of fact, later on, Madan Mohan and Amit Kumar and other Pws concocted a false story because they had put forward the demand of huge cash from my relatives and as I was unable to meet their illegal demand, so they have deposed falsely.

However, the appellants chose not to lead any evidence in defence.

The trial Court after hearing arguments came to the conclusion that the prosecution has been able to prove its case against all the appellants and convicted them under Section 364-A of the Indian Penal Code and each of them was sentenced to imprisonment as indicated above.

We have heard Ms.Vandana Malhotra, Advocate, appearing for the appellant in Crl.A.No.255-DB of 2001, Mr.Sunder Singh, Advocate, appearing on behalf of the appellant in Crl.A.No.272-DB of 2001, Mr.M.J.S.Waraich, Advocate, appearing on behalf of the appellants in Crl.A.No.302-DB of 2001, Mr.P.C.Chaudhary, Advocate, appearing on behalf of the appellant in Crl.A.No.307-DB of 2001, Mr.Maharaj Kumar, Advocate, appearing on behalf of the appellants in Crl.A.No.319-DB of 2001, Ms. Jigyasa Tanwar, Advocate, appearing on behalf of the appellant in Criminal Appeal No.418-DB of 2001, Mr.B.S.Rana, Senior Deputy Advocate General, Haryana, appearing on behalf of the State and Mr.Sameer Rathore, Advocate for Mr.Sumeet Goel, Advocate appearing on behalf of the complainant. As all the aforesaid appeals arise out of the same judgment, they are being disposed of by this judgment.

Ms.Vandana Malhotra, Advocate, arguing on behalf of Sunder Crl.A.No.255-DB of 2001 (11)

Pal appellant submitted that her client is only stated to have watched over the child and has been attributed no role in restrictions of his movement.

Rs.49,000/- recovered from him does not even bear the initials of MM and there being no charge of conspiracy, he cannot be foisted with the liability of any role in the kidnapping of Amit Kumar and demanding ransom for the release of the child.

Mr.Sunder Singh,Advocate, appearing on behalf of Vidya Sagar, sought to rely on the fact that the name of his client did not appear in the FIR and he has only been identified by Amit Kumar. He further submitted that although the police is alleged to have known the identity of his client by the 4th

of June,1996, the recovery has been effected only on 20.6.1996 from different persons. He further pointed out that in fact only two persons, namely, Vinod and Sohan have taken active part in the act of kidnapping and there is no role played by Vidya Sagar in commission of the offence. He further submitted that there is no proof of the recoveries of the notes bearing the initials of MM and, therefore, this part of the evidence has got to be ruled out of consideration. In these circumstances, in the absence of any evidence of conspiracy, Section 364-A of the Indian Penal Code would not apply to his client.

On behalf of Yashpal appellant it was submitted by Mr.M.J.S.Waraich, Advocate, that the trial Court while appreciating the evidence led before it had overlooked the fact that Madan Mohan, the complainant, had, before the commencement of the trial in his affidavit Ex.DB, which was attested on 9.1.1997, denied having informed anybody regarding the demand of ransom of Rs.10,00,000/- or its having been conveyed to him by Yashpal or that Yashpal was arrested in his presence and his son Amit Kumar in his affidavit Ex.DC executed on the same day denied having any knowledge about the identity of his kidnappers. In view Crl.A.No.255-DB of 2001 (12)

of these affidavits, it was urged before us that the statements made by these witnesses in Court ought not to have been relied upon by the trial Court for basing the conviction of the appellants. According to him, both the witnesses Madan Mohan and Amit Kumar are not reliable. Madan Mohan had been shifting his stand from time to time and there being no evidence of conspiracy being available on the record conviction of his client should be set aside as communicating the demands of ransom by itself could not be used to foist criminal liability under Section 364-A of the Indian Penal Code on him. It was further submitted that the fact that all the recoveries of the amounts of ransom that had been distributed by the kidnappers amongst themselves have been made between 19.6.1996 and 7.8.1996 renders doubtful the reliability of this evidence as the manner in which these recoveries have been effected does not comply with the established norms which the police is required to follow as the Investigating Officer had information about the identity of the persons involved in the crime on 3rd

/4th

of June,1996.

Mr.P.C.Chaudhary, Advocate, appearing for Vikas and Vinod appellants, submitted that Madan Mohan PW1 and Amit Kumar PW2 only identified Vinod in Court and no test identification parade has been held.

He further submitted that there was no independent corroboration to the testimony of the child witness and no proof of the demand for ransom and recoveries of money is available and that his clients have to be acquitted.

Mr.Maharaj Kumar, Advocate appearing on behalf of Jagbir appellant, submitted that the only role attributed to the accused represented by him is that he was playing cards at Sona Arjunpur and he has not even been identified in Court.

Similarly, Jigyasa Tanwar, Advocate, appearing for Vishav Pal and Pawan Kumar asserted that both these appellants are not named in the Crl.A.No.255-DB of 2001 (13)

FIR and there has been no test identification parade and the recoveries are not reliable.

On behalf of the State, it was submitted that the fact that an amount of Rs. 9,24,000/- has actually been recovered from various appellants speaks volumes for their being guilty. The intention of each one of the persons convicted in the case is discernible from the role played by him in the incident and the passive approach adopted by him on coming to know that Amit Kumar had been abducted/kidnapped from lawful guardianship of his parents, the consent given by them to the demand for ransom and the fact that from each one of them some portion of the ransom money has been recovered. It is on the basis of this conduct of the appellants that the State wants us to infer the requisite mens rea required to prove the ingredients of Section 364-A of the Indian Penal Code and uphold the conviction despite the fact that no formal charge under Section 120-B/34 of the Indian Penal Code has been framed against the appellants.

The learned Deputy Advocate General further submits that though it is unfortunate that the case property is not available for perusal by this Court yet in view of the fact that in cross-examination no one had challenged the assertion that the notes recovered at the behest of the appellants bore the initials "MM" of Madan Mohan, which were stated to have been appended by him on the first and last note of each bundles are sufficient to conclude that what was recovered did have the initials as deposed to by the aforesaid witness. Further more the fact that none of the appellants claimed that any portion of the money that was recovered from their person or discovered at their behest belonged to them would not create a hurdle potent enough to form the basis for the acceptance of the appeal.

We have carefully considered the rival contentions and have perused the records.

Crl.A.No.255-DB of 2001 (14)

The case of the prosecution as proved before the trial Court rests mainly on the testimony of Madan Mohan and Amit Kumar with other witnesses providing supporting evidence to prove circumstances for establishing the role played by the accused in the commission of the offence, which they have been found to have committed and how the ransom paid by Madan Mohan had been shared between each one of them.

In his statement Madan Mohan PW1 had deposed in relation to his having become apprehensive that his son Amit Kumar having been kidnapped when the latter did not return on 29th of May,1996 and

consequently on Ist of June,1996, he had gone and reported this fact to the police. On 2nd

of June,1996, he had been informed by Sanjiv Jain and Faqir Chand PW4 about Yashpal appellant having received a message from Saharanpur about Amit Kumar having been abducted and to convey the demands raised by his abductors for payment of Rs.10,00,000/- failing which the boy would be killed. He had also deposed regarding the place where the money was to be delivered and the manner in which the delivery was to be made. The details of the car which had to be used are also given therein. He has further given the details of the organizations from which he had collected the money and the fact that on 3rd of June,1996, Sanjiv Jain

and Faqir Chand had again come to inform him about Yashpal having told them that in the event of the money not being paid on the 3rd of June,1996

itself, Amit Kumar would be killed. He gave the details of how the currency notes were arranged in bundles of Rs.500/-, Rs.100/- and R.50/- and that on the first and last notes of each bundles he had put his initials "MM". He further indicated that Sanjiv Jain had called Yashpal to his residence and to this appellant he had handed over the bag containing Rs.10,00,000/-of currency notes where after Yashpal had taken the bag in car bearing registration No.HR-06B-244, which had been driven by him.

Crl.A.No.255-DB of 2001 (15)

He had also indicated that on 4th

of June,1996, Yashpal had come to his

house to hand over Amit Kumar to him. This was done in the presence of Sanjiv Jain and Faqir Chand. On 8th of June,1996, his son Amit Kumar accompanied by him had shown the police, the place at Salarganj gate from where he had been kidnapped, Sona Arjunpur Railway Station where he had been taken immediate afterwards, the garden to which he had been taken from the Railway Station, the sugar cane field and the house of Vidya Sagar Chawla. In his presence, during the police investigation Yashpal had been apprehended and a country made pistol and three live cartridges recovered from him. He had also witnessed the disclosure statement and the recovery of Rs.5,75,000/- from Yashpal on 20th of June,1996. On 4th

of

August,1996, he claims that he was present at the time when Jagbir appellant was apprehended as also during the subsequent investigation which led to the recovery of Rs.5,000/-.

Amit Kumar appearing as PW2 had deposed about the manner in which he had been taken away from Salarganj by Virender (still absconding) to the place where Vinod and Sohan appellants were standing.

There he had been forcibly made to sit on the motor cycle by Vinod and removed to Sona Arjunpur Railway Station by Sohan and Vinod where Pawan, Pappu, Jagbir, Sunder Pal and Vikas were playing cards. He also had, during the investigation, taken the police to the house of Vidya Sagar and had given the details of how Sohan, Pawan, Pappu, Jagbir, Sunder Pal and Vinod took him to make a telephonic call for conveying their demands and how Yashpal had come with ransom money and handed over the bag to Vinod.

The credibility of these two witnesses is sought to be assailed primarily on the position taken by them on 9th of January,1997 in their

affidavits Ex.DB and DC, which they admit having executed on account of Crl.A.No.255-DB of 2001 (16)

the threats that were being held out to them by the compatriots of the accused in order to facilitate their release on bail. In answer to a Court Question, Madan Mohan has explained the circumstances as under:- "As I had been receiving threats to my life as to the life of my son and further since accused wanted that on the basis of my affidavit he shall be released on bail, therefore, I gave affidavit Ex.DB. Even thereafter I received letter Ex.C.1 (objected to) containing threat."

and similar is the explanation of the child witness. The explanation appears to be plausible in view of the fact that on perusal of the original affidavits, we find that there is no indication that the non-judicial stamp papers had been bought by the deponents and the circumstance that these affidavits were attached with the bail application by the counsel for the accused. The affidavits, which were filed with the bail application by the counsel for the accused lend credence to the explanation given by the witnesses that they were being threatened by the appellants and their compatriots. These circumstances, in our opinion, have rightly been taken into consideration by the trial Court for rejecting this objection.

Apart from this objection, no serious challenge was raised before us to shake the credibility of the testimony of Madan Mohan and Amit Kumar during arguments. We have, however, with the help of the counsel, gone through their statements and find that no serious dent has been made, which would enable us to reject what has been stated on oath by them. Interestingly, the testimony of Amit Kumar while giving the details of the manner in which he was kidnapped from the custody of his parents for demanding ransom for his release at best implicates Virender, Vinod and Sohan for having removed him from the custody of his parents.

What happened at Sona Arjunpur does not throw any light on any previous Crl.A.No.255-DB of 2001 (17)

meeting of the minds between these three persons and Pawan, Pappu, Jagbir, Sunder Pal and Vikas, who were playing cards at the Railway Station Sona Arjunpur. There is also no evidence to prove that any one of them did any overt act to facilitate the continuance of the offence of kidnapping though according to Amit Kumar he was removed to the house of Vidya Sagar on 30.5.1996 yet there is no material on the record from which the reasons for participation of Vidya Sagar in the abduction can be traced out. In relation to Pawan, Pappu, Jagbir, Sunder Pal and Vikas, we find no evidence in the testimony of any witness to show that they had done any overt act in furtherance of the kidnapping to prove their involvement in the offence.

The prosecution apparently is relying upon the recoveries of currency notes which were handed over by Sanjiv Jain to Yashpal for onward transmission to the abductors. These recoveries can be tabulated as under:-

Name of the accused Date of Date of Amount disclosure recovery recovered.

1. Sunder Pal 19.6.1996 19.6.1996 Rs.49,000/-

2. Pawan Kumar 19.6.1996 19.6.1996 Rs.45,000/-

3. Yashpal 20.6.1996 20.6.1996 Rs.5,75,000/-

4. Vikas 20.6.1996 20.6.1996 Rs.42,000/-

5. Vinod 20.6.1996 20.6.1996 Rs.41,000/-

6. Vidya Sagar 20.6.1996 20.6.1996 Rs.24,000/-

7. Vishav Pal 20.6.1996 20.6.1996 Rs.40,000/-

8. Sohan 20.6.1996 20.6.1996 Rs.40,000/-

9. Jagbir 4.8.1996 4.8.1996 Rs.5,000/- Crl.A.No.255-DB of 2001 (18)

The circumstances in which these recoveries have been made and the manner in which disclosure statements are couched is clearly motivated by ulterior considerations. Ex.PF and PG are the disclosure statements which are stated to have been made by Sunder Pal and Pawan Kumar. A perusal of these disclosure statements shows the over zealousness of SI Krishan Pal, as can be clearly inferred from the details incorporated therein. One of such disclosure statements Ex.PF of Sunder Pal is reproduced hereunder:- "In the presence of the following witnesses accused Sunder Pal son of Jaildar caste Rajput resident of Sona Arjunpur while in police custody disclosed on interrogation that about 22/23 days prior from today Sohan Singh son of Amar Singh, Vinod son of Randhir Singh resident of Panipat has come to me and Sohan Singh has told to me that we have brought a child from Panipat after kidnapping, in which sufficient money met to us.

So you, Pawan, Virender, Vishav Pal and Jagbir met me in the garden near Railway Station after gathering. This fact is also told to them. So I along with Pawan Kumar went in the garden near Sona Arjunpur Railway Station at about 8 O'clock in evening. Jagbir son of Babu Ram, Vishav Pal son of Sappater Singh caste Rajput, resident of Sona Arjunpur and Vikas son of Raghbir, caste Barbar, resident of Panipat met me there. We were talking together. In the meantime at about 9/10 O'clock in the night, Sohan Singh son of Amar Singh resident of Sona Arjunpur and Vinod son of Ranbir Singh resident of Panipat brought a boy on motor cycle. Later on the name of the boy came to know Amit Kumar son of Madan Mohan resident of Panipat. I asked that where is Virender, then Vinod told that he was staying with Yashpal @ Down in Panipat, he will reach Crl.A.No.255-DB of 2001 (19)

till morning. We stayed in the garden with child during whole night. On the next day in the morning Virender and Vinod took away the child on the same motor cycle to Saharanpur in the house of Vidya Sagar son of Mulak Raj resident of Saharanpur who is friend of Virender. We returned back to our houses. Vikas went along with Jagbir. Next day Virender son of Mohar Singh came to me and told that Vinod and boy Amit Kumar is present in our sugar cane field. You along with Pawan went there to safe guard of the boy. So I called Pawan from his house and went in the field with him where Vinod and Amit met me. After sufficient time Sohan, Virender, Vishav Pal and Jagbir and Vikas also came there and kept the boy upto three days in the field and we are usually visiting the village. Vinod and Sohan talking with Yash Pal on Panipat on telephone aftergoing to Devband Saharanpur and asked to them to bring the money quickly otherwise we will left the boy or kill him. Yash Pal told them on telephone that he will reach quickly after doing the arrangement of money. You may not to leave the child otherwise programme will be destroyed.

After two days Vinod went for telephone to Saharanpur and on return he told that today Down will come with money in between the road of Nananta and Rampur. Upon this we all along with boy reached at about 12/1 O'Clock in day time near the Delhi-Saharanpur road. Then Sonu came along with white colour car. Then we sit in that car. After some time one Maruti car came from Nananta side. When the same reached near to us then Vinod said that run, as the uncle of the boy has come. Then we ran towards Saharanpur after starting the car.

Crl.A.No.255-DB of 2001 (20)

They chased us for some distance after then returned and went towards the Nananta. We have left the car near Rampur and went on foot in the same field through the fields. Then in the evening Vinod told today Down will certainly come after taking the money. For identification of the car a white cloth would be tied. So at about 8 O' Clock in the night, I, Pawan, Sohan and Vinod reached near the Delhi Saharanpur road. At about 9 O' Clock in the night car coming in slow speed, upon which a white cloth was tied which was stopped by Vinod and call us and brought him near his fields while sitting in the car where a bag full of currency notes handed over to Vinod by Down and said that Rs.10 lacs in it. Rs.6 lacs is to be returned and Rs. 4 lacs share you and got recorded some address to Vinod and went to Panipat along with boy and Rs.10 thousands from it. Then Sonu and Vinod had given to me, Pawan, Jagbir and Vishav Pal of Rs.50 thousands each. The currency notes came into my share is of five bundles of Rs.100/100. Sohan, Virender, Vinod and Vikas went towards the village along with remaining amounts. I went to my field. I have separated Rs. One thousand from it and remaining Rs.49,000/- has been kept concealed in the field of sugar cane after wrapped in wax paper. No body else know about it and me. I can get the same recovered by pointing out. Disclosure statement memo is prepared. Disclosure statement made was got signed by the witnesses and myself." From the above, it is clear that Ex. PF incorporates the entire details of the manner in which Amit Kumar was kidnapped, removed and Crl.A.No.255-DB of 2001 (21)

the places where he was kept. All these facts would be totally inadmissible in evidence for statements under Section 27 of the Indian Evidence Act are only relevant regarding the fact discovered in pursuance thereof and not any other detail. As a matter of fact the portion of confession made by Sunder Pal, which deals with how Amit Kumar was induced by Virender to move towards the place where Vinod and Sohan were standing and the details of how Amit Kumar was forced to sit on the motor cycle are clearly matters about which Sunder Pal appellant would have no personal knowledge. From the details incorporated in the statement, it can easily be inferred that Ex.PF incorporates in itself the details of portions of the investigation of which Sunder Pal would have no knowledge and, therefore, the same cannot be held to be a voluntary admission of guilt by Sunder Pal. Though the disclosure statements made by Vinod, Virender and Sohan avoid this pit fall yet the circumstance that the recovered notes are not available for the perusal of this Court would disentitle us from taking into consideration the evidence of recoveries. We were shocked and dismayed when it came to our notice that without obtaining the requisite orders from a Judicial Magistrate, the recovered money has been handed over to Madan Mohan and, therefore, we have no way of satisfying ourselves that whether the initials "MM" were actually appended on the notes or not. This was necessary in view of the submissions made by the learned counsel for the appellants to the effect that deposition of some witnesses are at variance with one and another regarding whether each one of Rs.500/- note bore the initials or it was only the first and the last note which was initialled. It is unfortunate that this position has arisen in a case in which kidnapping of a minor child from the guardianship of his parents for demand of ransom was involved, which offence is punishable with imprisonment for life. In this view of ours we are supported by the Crl.A.No.255-DB of 2001 (22)

observations made in Mohd. Ibrahim vs. State, AIR 1969 Delhi 315, which Single Bench judgment has been relied upon by a Division Bench of Delhi High Court in Lala Ram and another v. State, 1988(2) Recent Criminal Reports 511 while disposing of the appeal in that case, and has observed as under:-

"Section 451 and 452 of the Code of Criminal Procedure lay down the procedure for the disposal of the case property at the conclusion of the trial. Sub-section (4) of Section 452 reads as under:-

"Except where the property is live-stock or is subject to speedy and natural decay or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months or when an appeal is presented, unless such appeal has been disposed of."

Explanation (b) to Section 451 defines the property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

Admittedly, in the present case, Ex.P-1 and P-2 are the weapons of offence alleged to have been used for causing fatal injuries to the deceased. The non-availability of these weapons of offence for examination by the court will render it improbable to find out if they were capable of being used for causing the injuries alleged to have been found on the person of the deceased. The non-production of the weapon of offence in the present case to our mind may even be said to be fatal to the prosecution case. In a case reported as Mohd. Ibrahim vs.

State, AIR 1969 Delhi 315, I.D.Dua,J. took strong exception Crl.A.No.255-DB of 2001 (23)

to the destruction of the case property before disposal of the appeal or revision. It was a case of recovery of dies and punching machine used for the manufacture of counterfeit coins. The prosecution was required to prove not only the possession of the instruments but also to prove that the possession was with the knowledge and intention of using the same for the purpose of manufacture of counterfeit coins.

Before the disposal of the appeal, the infringing articles had been destroyed. The non availability of the moulds and dies for examination of the appellate court was held to be violative of the mandatory provisions contained in Chapter II-E, Vol.III of the High Court Rules and Orders. Relying on the said Rules, during the course of the judgment, it was observed as under:- "According to the High Court Rules and Orders, Vol.III Chapter II-E, articles like counterfeit coins together with implements for their manufacture such as dies, moulds, etc. have to remain in the custody of the police department pending the disposal of the case and at the end of the case and not till after the appeal or revision. If any, the court shall send them to the Treasury or Sub- Treasury together with a short description of the case.

The reason for this rule is obvious. The Appellate Court and the revisional Court is entitled, while scrutinising the case against the accused, to have complete material before it on which the prosecution relies for proving the case against the accused persons. In the present case to deprive this Court of the benefit of looking at the dies, is a serious infirmity which must be held to be fatal to the Crl.A.No.255-DB of 2001 (24)

prosecution case. The record without the moulds is not complete and it is difficult for me to appreciate the circumstances in which an order for disposal of the moulds and the coins should have been made by the Court below."

The Court further observed as under:

"Before concluding, I must draw the attention of all concerned to the mandatory requirement of preserving all the necessary exhibits till the appellate or revisional Court disposes of the appeal or the revision, as the case may be and also of forwarding all those exhibits to such Court so that justice is properly administered." In view of the mandatory provisions contained in the Code of Criminal Procedure as well as in the High Court Rules and Orders, the prosecution was duty bound to keep in safe custody the case property so that the appellate and the revisional court had the opportunity to examine and scrutinise the material before it on which the prosecution relied for proving their case against the accused persons. In the present case, to deprive the High Court of the benefit of examining the weapons of offence, and other articles taken into possession was a serious infirmity which must be held to be fatal to the prosecution case. Against this argument, learned counsel for the State has no answer. The prosecution under the facts and circumstances has failed to prove their case beyond any reasonable doubt."

While dealing with the question, their Lordships have taken into consideration Sections 451 and 452 of the Code of Criminal Procedure and Crl.A.No.255-DB of 2001 (25)

the Rules and Orders of the High Court and we are in respectful agreement with the view taken by it.

We may now proceed to examine the submission that in the absence of any charge to the effect that the abduction of Amit Kumar and the demand of ransom made subsequent thereto was a part of a conspiracy between the appellants or in furtherance of their common intention or in pursuance of their common object to kidnap Amit Kumar and demand ransom from his parents, it would not be possible for the Court to uphold the conviction as there is no evidence of each one of them independently being responsible for the kidnapping and the demand of ransom. This submission is not without merit. From the statement of Amit Kumar, it is apparent that the active role in his kidnapping was only played by Vinod and Sohan and at best by Virender, who had facilitated the same by taking Amit Kumar to the spot where the motor cycle was parked. The roles played by all other appellants do not show any active participation in the offence and the only way in which they could have possibly been connected with the same was recovery of fruits of kidnapping (i.e. ransom paid) from their possession. Having held that the non-availability of the currency note render it impossible for us to hold that bundles of currency notes duly signed by Madan Mohan had been discovered pursuant to disclosure statements made by the appellants, this piece of evidence which was necessary to bring home the charge is missing. In its absence, even if one were to accept the testimony of Madan Mohan and Amit Kumar regarding how Yashpal had taken the ransom and handed the same over to Vinod, then too there is no admissible evidence of:- a) any one of the accused having retained any part of the ransom;

b) the currency notes recovered from the appellants being the Crl.A.No.255-DB of 2001 (26)

notes which are said to have been given by Madan Mohan to Sanjiv Jain for handing over to Yashpal.

In this view of the matter the conviction of Vikas, Yashpal, Vidya Sagar, Vishav Pal, Pawan Kumar, Sunder Pal and Jagbir Singh under Section 364-A of the Indian Penal Code is not sustainable.

With regard to the roles played by Vinod, Sohan and Virender, as already indicated by us, the defence has not been able to make any dent in the evidence of Amit Kumar and his father Madan Mohan, which would help us to discard the same. The witnesses have clearly spelt out the part played by each one of these accused and also indicated that a demand for ransom had been raised at their behest for release of Amit Kumar. As there is abundant evidence on record to prove that Vinod and Sohan played an active role in the kidnapping of Amit Kumar and the prosecution evidence also proves the manner in which the demand for ransom was made and how it was collected and delivered, the findings of the trial Court in relation to these accused cannot be faulted with. The charges against Vinod and Sohan, in our opinion, have been proved beyond reasonable doubt and to that extent the appeal filed by Vinod has got to be dismissed.

For the reasons recorded above, Crl.A.Nos.255-DB of 2001 filed by Sunder Pal, Crl.A.No.272-DB of 2001 filed by Vidya Sagar, Crl.A.No.302-DB of 2001 filed by Yashpal, Crl.A.No.307-DB of 2001 qua Vikas @ Vicky, Crl.A.No.319-DB of 2001 filed by Jagbir Singh, Crl.A.No.418-DB of 2001 filed by Vishav Pal and Pawan Kumar are allowed and the appellants are acquitted of the charge framed against them whereas Criminal Appeal No.307-DB of 2001 qua Vinod appellant is dismissed.

Before parting with the judgment, we are shocked by the manner in which the case property (in this case currency notes) has been Crl.A.No.255-DB of 2001 (27)

handed over to the complainant by the Station House Officer without obtaining any orders from the Court. Such assumption of powers, which if not malafide, would amount to destruction of material evidence and consequently attract the provisions of Section 201 of the Indian Penal Code, which has got to be deprecated and discouraged. We would ordinarily have withheld the disposal of the appeal until the case property was retrieved and produced in Court but in view of the position taken by the counsel for the State that money recovered had since been handed over to the complainant and there was no possibility of the same being retrieved and in view of the fact that the appellants have already undergone seven years of substantive sentence imposed upon them and as also the view taken by the Delhi High Court in Lala Ram's case (supra), we deem it appropriate to rule out of consideration this part of the evidence.

We,however, feel that an enquiry into the circumstances in which the case property was handed over to the complainant party without obtaining the orders from the Court should be enquired into and, accordingly, direct the Director General of Police, Haryana, to have the same conducted by a Gazetted Officer and on completion thereof initiate departmental/other action against the defaulting persons.

We would also like to place on record our concern regarding the ease with which the accused are able to approach victims of abduction for ransom, the gravest form of this offence, and we would have expected the police to put into place adequate measures to ensure their safety and protection as they were important witnesses. If this had been done there would have been no question of the affidavits Ex.DB and DC having been executed. A Division Bench of this Court, in an earlier case titled as Dr.Gurvinder Singh Samra vs. Union of India and others, C.W.P.No.8064 of 2003 decided on 5.9.2003, had the occasion of dealing with the question Crl.A.No.255-DB of 2001 (28)

and necessity of witness protection and had after adverting to various Witness Protection Acts,which were in force in the developed countries Malimath Committee report, Navkiran Singh and others vs. State of Punjab through Chief Secretary and another, (1995)4 S.C.C.591, Pinkibasra v.

State of Punjab and others, AIR 2000 S.C.1758 and Kharak Singh vs. State of U.P. and others, AIR 1963 S.C.1295, this Court had observed as under:- "Thus, we have a situation, where although the Courts have in individual cases directed that a particular person be protected, on account of the sensitive nature of the deposition that he is likely to make, from his adversaries, who may be able to wield muscle/money power against him, yet the Legislature/ the Executive authorities have not till date considered it expedient to put into position either an enactment or administrative guidelines following which the authorities responsible for the administration of justice are able in deserving cases to provide protection to witnesses, who on account of the depositions that have been made by them during the investigation, are likely to fall foul with powerful lobbies, who may be able to dissuade them on account of their own interest and the welfare of their loved and near ones to resile from the position taken by them during the investigation. We may also point out that the Committee on Reforms of Criminal Justice System, constituted by the Government of India on 24.11.2000 headed by Dr.Justice V.S.Malimath, in the report submitted by it on 28.3.2003 has, while dealing with this part of Criminal Jurisprudence also, made the following recommendations:- " The prosecution mainly relies on the oral evidence of the witnesses for proving the case against the accused.

Crl.A.No.255-DB of 2001 (29)

Unfortunately there is no dearth of witnesses who come to the courts and give false evidence with impunity. This is a major cause of the failure of the system. The procedure prescribed for taking action against perjury is cumbersome and is unsatisfactory. Many witnesses give false evidence either because of inducement or because of the threats to him or his family members. There is no law to give protection to the witnesses subject to such threats, similar to witness protection laws available in other countries."

Since, it is not for us to direct the administration to formulate such guidelines, rather than leaving the decisions to the absolute discretion of the district authorities, who may or may not like to draw upon the Secret Service Funds, which are placed at their disposal for achieving this laudable goal, we would like to bring on record the desirability of the Legislature/Administration to try and emulate the advances in this field made in other criminal jurisdictions referred to hereinbefore and place in position such guidelines/enactment as they may, in the circumstances of the case, deem fit, as would enable the proper enforcement of law and order and administration of justice, rather than wait for such allegations, as are being made in the Best Bakery case that important witnesses have not supported the case brought out during the investigation for fear of harm to their person, loved ones and families. Having penned down this hope and expressed the desirability of consideration by the authorities that be/of all aspects of the Legislation/guideline, we may now proceed to Crl.A.No.255-DB of 2001 (30)

examine the facts of the case with a view to determine, when seen in the light of the observations of the Apex Court, whether the petitioner deserves the issuance of any favourable directions."

We have no material before us from which it can be ascertained as to whether the States have, at any point of time, considered the feasibility of enacting any legislation in terms of the guidelines referred to by this Court in Dr.Gurvinder Singh Samra's case (supra) but the circumstances in which the affidavits Exs.DB and DC were procured could have been avoided in case the requisite protection had been provided to Madan Mohan and his son Amit Kumar. It is in this view of the matter that we deem it appropriate to request the Inspector General of Police, Union Territory, Chandigarh, the Director Generals of Police of the States of Punjab and Haryana to adopt the norms laid down in the aforesaid judgment and issue requisite executive directions to the officers investigating into such cases for providing requisite protection to the sensitive witnesses so that they are rendered immune to extraneous influence, which persons in conflict with law may like to put for forcing them to resile from their statements.

(Amar Dutt)

Judge

(Kiran Anand Lall)

January 10 ,2006 Judge

Rana

Crl.A.No.255-DB of 2001 (31)


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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