Shishir Kumar @ Chunnu v. State

4. Learned counsel for the appellant submits that the impugned judgment is bad in law and the same is based on surmises and conjectures. Counsel further submits that the trial court has failed to appreciate that the complainant, namely, Sh.Ram Sanjivan Kushwah, had failed to identify the currency note of Rs.100/- when learned counsel for the appellant during cross-examination had handed over a currency note of Rs.100/- but had only stated that it was a plain piece of paper, whereas during the trial he had deposed that he is aware of the difference between a currency note and paper, although he is totally blind.

5. Learned counsel for the appellant contends that there are material contradictions and improvements in the statements made by the witnesses. Counsel further contends that the trial court has failed to appreciate that the complainant had stated that the appellant, Shishir, had asked for the literature book of Amway, however, he was confronted with Exhibit PW- 1/A, wherein this fact was not recorded. Moreover, the complainant had stated that Abhay (Appellant Shishir) had asked for a glass of water from his wife when he was standing outside the house, which statement was also confronted with Exhibit PW-1/A, wherein this fact was not recorded. It is also contended that the complainant had submitted that on 16.8.2004 his son Prateek had told him that uncle (appellant Shishir) was standing and watching him at the gate of Airport Colony, when the gate keeper made the child to enter the gate of the colony, which statement was also confronted with Exhibit PW-1/A, wherein this fact was not recorded. Another contradiction, which has been pointed out, is that the complainant had deposed that he had told the appellant, Abhay (Shishir), that his senior, Sh.K.K. Tiwari, was not coming, since the appellant had come late and the complainant had already informed Sh.K.K. Tiwari not to come, which statement was also confronted with Exhibit PW-1/A, wherein this fact was not recorded.

6. It has also been pointed out by learned counsel for the appellant that the trial court has failed to consider that it has been deposed by the wife of the complainant that she gave Rs.[5] to Prateek to buy some eatables and thereafter, Prateek went out of the house and meanwhile the appellant followed him and told him that he will come in the evening and join the Amway distribution, which does not find mention in the statement made under Section 161 Cr.P.C., Marx-X.

7. It is also pointed out by learned counsel for the appellant that the complainant had told the Police that Krishan Kumar had told him to collect the title documents of his flat at Dwarka, which again does not find mention in Exhibit PW-1/A.

8. Counsel further submits that the evidence of child witness, PW-4, is neither trustworthy nor reliable. It is also contended that the recoveries are doubtful as no reasonable and prudent man would keep the alleged scooter and blank papers in his house. It is next submitted that neither any ransom call was made nor was any monetary benefit derived by the appellant from the complainant. Counsel also submits that the appellant had no relationship with Krishan Kumar and, thus, the story of the prosecution cannot be believed.

9. Ms.Rajdipa Behura, learned counsel for the State, submits that there are no discrepancies in the evidence of PW-1, PW-4 and PW-5, as such, and the contradictions, sought to be pointed out by counsel for the appellant, are not material in nature, and hence, would not dent the case of the prosecution. Counsel further submits that the evidence of PW-4, the child, is reliable as he has identified the appellant and, thus, the prosecution has been able to establish its case beyond doubt.

10. We have heard learned counsels for the parties, considered their rival submissions and also perused the impugned judgment passed by the learned trial court. Before dealing with the rival submissions of the counsels for the parties, we deem it appropriate to discuss the evidence of some of the material witnesses in detail.

11. PW-1 Ram Sanjivan has deposed that appellant, Shishir, whom he identified from his voice (as PW-1 is a blind person) came to his house on 15.8.04 and asked him for literature book of Amway as he was also interested in becoming a distributor of Amway. PW-1 gave him a book, and told him that further information with regard to the same can be given by Krishan Kumar, his senior, and asked the appellant to come on 17.8.04 as he will not be available on 16.8.04. However, on 16.8.04 appellant, Shishir, in the absence of PW-1 came to his house and asked his wife to give further literature of „Amway‟, which was refused by her on the plea that her husband is not at home and after having water, accused Shishir Kumar left. In the evening when PW-1 returned to his house he was told by his son that the appellant, Shishir, who had given him a chocolate on 15.08.04, was standing at the gate of the Airport Colony and watching him. He has further stated that on 17.8.2004 he received a telephone call from the appellant, Shishir Kumar, expressing his inability to meet him on account of having sustained injuries in an accident but then he turned up at his house at 2.30 or 3 pm. PW-1 told the appellant that since earlier he had refused to come, PW-1 had already asked the accused, Krishan Kumar, not to come to his house on 17.8.04 and thereafter gave the appellant an appointment for 18.8.2004. On 18.8.2004, accused, Krishan Kumar, came to his house at 1 p.m., and 10 to 15 minutes thereafter, appellant Shishir Kumar also reached there.

12. He has further stated that though the discussion regarding distributorship of „Amway‟ started between all three of them i.e. PW-1; accused, Krishan Kumar; and appellant, Shishir Kumar; however, he found that appellant Shishir Kumar was taking more interest in his son (PW-4) than in the discussion and was trying to be friendly with him asking about his likes and dislikes and after knowing the things liked by Prateek, appellant, told him that he also has a lot of cartoons. His son started playing with the appellant, who eventually offered a sum of Rs.5/- to his son to buy some potato chips, which aspect was told by his son to his wife, who asked her son not to accept the money from the appellant and rather, herself gave a sum of Rs.5/- to Prateek to buy eatables, and then he went outside. In the meantime, accused Shishir also followed his son after representing that he will come in the evening and will join the Amway distribution.

13. He has further deposed that his son did not return and was searched for by his wife, who could not find him. At 3.45 pm, he received a telephone call on his mobile informing him that his son had been kidnapped by the caller who demanded a sum of Rs.30 lakhs for the release of his son. Furthermore, the caller threatened to kill his son, in case the demand was not met.

14. He has further testified that he became dumb and his wife became unconscious. He asked the accused, Krishan Kumar, as to how his son will be rescued as he did not have the money to pay the ransom amount, on which Krishan Kumar asked him to collect the title documents of his House bearing No.294, Part-I, Phase-II, Sector-13, Dwarka, and the ornaments in possession of his wife, and further assured him that wife of Krishan Kumar has also got ornaments worth Rs.4.[5] lakhs which he will collect and that he will also collect a sum of Rs.[5] lakhs from Vijender Sharma, with whom he had invested the same and will also arrange a further sum of Rs.[5] lakhs as loan on interest from Vijender Sharma and thereafter, the complainant (PW-1) collected the ornaments of his wife as well as title documents of his house and accompanied Krishan Kumar.

15. He has further stated that firstly, they reached the house of Krishan Kumar, from where Krishan Kumar collected ornaments belonging to his wife and from there, they proceeded to the house of Vijender at Punjabi Bagh where Vijender handed over a sum of Rs.[5] lakhs, which he owed to Krishan Kumar and a further sum of Rs.[5] lakhs as loan @ 3% interest per month to him and that the notes were in the form of bundles and were given by Vijender to Krishan Kumar.

16. He has further testified that Krishan Kumar told him that the notes were in the denomination of Rs.500/- and though, he touched the notes, he could not say whether they were actual currency notes or merely paper notes and after collecting the said amount, they went to the house of Dinesh Tiwari, who had earlier shown interest to purchase the complainant‟s property at Dwarka for a sum of Rs.14,20,000/-. When the accused, Krishan Kumar, asked Dinesh Kumar to purchase the property, Dinesh said that he will not pay more than Rs.12.[5] lakhs for the property. However, when accused, Krishan Kumar, requested Dinesh Kumar, he agreed to pay Rs.13 lakhs towards consideration amount for purchase of the house and a further sum of Rs.[2] lakhs as loan on the surety of Krishan Kumar and in this manner, a further sum of Rs.15 lakhs was collected by Krishan Kumar and kept in a briefcase. The witness (PW-1) has specifically stated that he had not touched the notes.

17. PW-1 has further stated that he took the bag containing jewellery and other articles on the motorcycle of Krishan Kumar and started moving to Mahipal Pur. When they reached Punjabi Bagh, he received a call on his mobile phone bearing No.32744467 and was asked by the caller to come under Punjabi Bagh Flyover, and otherwise, he threatened to slit the throat of his son and throw his body away. PW-1 further stated that he came to know about the place where they had reached on enquiries being made by him from Krishan Kumar, who informed him that they had reached Punjabi Bagh and will be reaching the flyover soon. He handed over the mobile to Krishan Kumar to understand the exact location of meeting the kidnappers, and after Krishan Kumar talked to the caller on the mobile, they reached under Punjabi Bagh Flyover.

18. He has further stated that from the talks, it appeared that two or three persons were talking to each other (as the witness is blind) and on the asking of Krishan Kumar, PW-1 (complainant) handed over the bag containing the jewellery of his wife and of the wife of Krishan Kumar, and one briefcase said to be containing Rs.25 lakhs to one of the said persons.

19. He has further stated that he told the persons to handover his son Prateek to him as he had paid the ransom to them on which he was asked to go towards roadside where his son would be present, but when he reached near roadside along with accused Krishan Kumar, his son was not present. Thereafter he received a telephone call informing him that his son was standing at the Bus Stand of Voltas Company, Moti Nagar, and that they may pick him from there. On reaching there, he found Prateek present at the Bus Stop alone at 11 p.m., who was then picked up and made to board the same motorcycle on which PW-1 and accused krishan Kumar were travelling.

20. The witness has further stated that he called up no.100, and when they reached Uttam Nagar, he was asked to come at P.S. Mahipal Pur, but Krishan Kumar told him not to go to the police station and rather, asked him to proceed towards his house at Dwarka. However, when he told Krishan Kumar that he was going to the police station only because he had received a phone call from PS Mahipal Pur and that he will not lodge any complaint with the police, Krishan Kumar agreed to accompany him to PS Mahipal Pur and they reached PS Mahipal Pur, where enquiries were made from him and he lodged the FIR Ex.PW-1/A bearing No.58/04.

21. He has further testified that police personnel took accused Krishan Kumar to the place from where payments were arranged and the place from where the child was recovered, and Vijender (PW-2) and Dinesh Tiwari (PW-6) also reached the police station, where they were interrogated. Vijender told the police that Rs.10 lakhs did not belong to him but in fact were kept with him by Krishan Kumar saying that whenever he will bring the complainant along with him, Vijender had to say that Rs.[5] lakhs belong to Krishan Kumar and the other Rs.[5] lakhs were being given on loan. Even Dinesh PW-2 informed the police that the sum of Rs.15 lakhs given did not belong to him, but were left by Krishan Kumar Tiwari at his house on the representation that he had to conduct the deal of purchase of the house with the complainant. Thereafter, police interrogated accused Krishan Kumar. This witness (PW-1) was cross examined at length and the Counsel for appellant Shishir Kumar has argued that on all aspects, this witness was confronted with his previous statements made to the police, and as such, his testimony should not be relied upon on account of material discrepancies between the same.

22. We also deem it appropriate to reproduce the testimony of the child witness, PW-4, Prateek who has given a vivid description of the events that unfolded from the time he was kidnapped by the appellant till he was picked up by his father (PW-1) from the bus stop. Testimony of PW-4 reads as under:- “PW-4 Prateek s/o Ram Sanjevan, student, aged 7 years r/o A6/7 AAI Colony, Mahipal Pur New Delhi Q: In which class do you study? A: I study in 2nd class. Q: What is the name of your class teacher? A: My class teacher is Yog Maya. Q: What is name of your school” A: Deep Public School. Q: Where is your school situated> A: In Vasant Kunj. Q: How many children are in your class. A: There are 30 children in my class. Q: What is the name of your mother. A: My mothers name is Kamla.

I have put specific questions to the witness. He looks quite intelligent but keeping in view his tender age the oath is not being administered to the witness as he is very young in age and he does not appear to understand the sanctity of the oath. (Without oath) On 18.8.04 at about 2.30 pm I was playing at my house, one uncle came and he offered me Rs.[5] and then I told to my mother who had told to me not to accept that. I can identify that person who offered Rs.5, the child witness has correctly identified by pointing out towards the accused Shishir. Then my mother gave me money and when I was going to purchase some eatables and the uncle met me near the temple who had earlier offered me Rs.[5] note the witness is again pointed out towards the accused Shishir Kumar correctly. Then he took me on a two wheeler scooter to a far distance. That uncle gave me Mazza to drink and cheetos to eat. That uncle made me to stand on the bus stand and he went to make a telephone call. After some time my father came there where I and accused Shishir were already present. The accused Shishir had also come to our house and so I knew him earlier.

XXXXXX by Sh.Dharamraj Counsel for accused Subash and Krishan It is wrong to say that I had told the colour of scooter as green in my statement U/s 161 Cr.P.C. Vol The accused was having blue helmet. Confronted with statement Ex.PW4/DA where the colour of the scooter is mentioned as blue. It is wrong to say that I have been tutored by my mother and father. xxxxx by Sh.RS Jain adv for accused Shishir I do not know if the name of the uncle who had kidnapped me is Shishir. The uncle Shishir, accused present in Court, had come to our house on 15th August only. It is wrong to say that I came back to my house along with accused Shishir. My father did not have any friendship with accused Shishir. After the arrest of accused Shishir police had taken me and accused to PS. One day after the incident, I identified the accused Shishir in the PS. It is wrong to say that police had told me that accused Shishir had kidnapped me. Vol. I was already knowing that accused Shishir had kidnapped me. There is security guard on the gate of our society. Police had never taken me with the IO to the court for TIP. Accused Shishir had not given me beatings. Accused had offered of Maza and Chocolate to me. The scooter kept on roaming for about half an hour after the kidnapping. The accused had taken me to a room where was offered food etc. and by that time it has become dark and I was taken to the bus stand. It is wrong to say that I had gone with accused Shishir on the asking of my father.”

23. Testimony of PW-5, Kamla Kushwaha, reads as under: “PW-5 Kamla Kushwaha w/o Ram Sanjivan aged 30 years, housewife r/o A-6/7 AI Colony Mahipal Pur New Delhi On SA: On 15.8.03 accused Shishir present in the court came at my house. I was not present at my house. On 16.8.03 he again came and he ring up the door bell and asked that whether Ram Sanjivan was at home. I told him that he had gone for his duty. The accused Shishir asked that he had to take a book and I told him that my husband had not told me about this thing. I asked him to come on next day as my husband was not at home, then he asked for a glass of water. I did not open the door and asked him to remain outside. I brought a glass of water and gave him. After taking water he went. When I went to take my son at bus stand where he used to come from his school at 12.30 pm, my son was with the chowkidar and my son Pratik told me that the uncle who had given him the chocolate on 15.8.03 at my house was standing near the bus stand near Safal. I came with my child to my house on 16.8.03. Accused Shishir present in court again came at my house on 17.8.03. My husband also present at the house. Shishir was taking to my husband regarding Amway company. My husband told him that Krishan Kumar can tell him better in this regard. On 18.8.03 Krishan Kumar also came at about 1 pm. Shishir telephoned to my husband and asked about whether Krishan had come then my husband told that Krishan present in court had come and then accused Shishir present in court also came to my house at about

1.15 pm. Then I prepared tea. My child Pratik started playing with the accused persons, accused Shirishir and Krishan present in court correctly identified. After preparing tea I started working my domestic work. Accused Shirishir asked my child Pratik to wear clothes and my son came to me and told that uncle was giving him Rs.[5] and should he accept. I refused not to accept that money. I gave Rs.[5] to my son and then my son left the house to purchase eatables. After sometimes Shishir also left saying that he will come in the evening and Krishan remained present in the house. My husband asked me where my son had gone and I told that he had gone to purchase some eatables. Then when my child did not come back I searched him in the area but he was not traceable. I came to my house. Krishan Kumar was having mobile phone and he asked me that where I had searched for my son then I told him that I searched Pratik in the nearby areas but he was not traceable. Then he told me that he had received a telephone call was received that my son had been kidnapped and he also disclosed that there was a demand of Rs.30 lacs from the kidnappers and then I started weeping. Accused Krishan asked me to take the papers/documents of my house which was situated in Dwarka and asked me to take my jewelery with me saying that there was no time and the money is to be arranged for the release for child. He also told me not to inform the police otherwise we will not get the child back. I believing him and took the papers and jewelery with me and accompanied accused Krishan and he took me and kept me at his house with his wife at Pappan Kalan sector-13. Accused Krishan Kumar took my husband who is blind with the jewelery and papers of the house. He had also taken the jewelery of his wife with him saying that money is to be arranged by selling the jewelery and the house and by collecting from the persons to those he had given the money on debt. He took my husband but I do not know where he had taken my husband. On 19.8.04 when I had gone to PS I had come to know that the accused who had kidnapped my son had been arrested. When I came to the court I say the accused Shishir present in court in judicial custody. Later some jewelery recovered by the police and I later on released them on superdari. I have brought the jewelery with me today. Three Mangal Sutra Ex.P[1], P[2] and P[3], Ring Ex.P[4] all of gold, one pair of Jhumki Ex.P5/1-2, nose ring Ex.P[6], Kamar Patta Ex.P[7], one Tagri Ex.P[8], one heavy pair of Pazeb Ex.P[9], one pair of light pazeb Ex.P1-, one single Pazeb Ex.P-10, six silver coins Ex.P12, one bichua Ex.P13 correctly identified. Xxxx by Sh.RS Jain counsel for accused Shishir Kumar Police recorded my statement in the PS on 19.8.04. Accused Shishir Kumar present in court had visited my house twice again said thrice. For the first time accused Shishir came to my house on 15.8.04 at about 12 noon when I was not at my house and it was told to me by my husband. It is correct that my husband has told me that Shishir had come at 12 noon. Again Shishir came at about 4 pm when I was present at my house and I served to him and I went into other room and Shishir remained with my husband for about half an hour. Shishir had also visited on 16.8.04 at 12 noon in my presence. My husband had gone for duty. Shishir stayed at my house for about five minutes. Accused Shishir was not known to me prior to his visit at my house. It is wrong to say that my husband and Shishir were friends for the last about two years. Statement mark X was recorded by the police on 19.8.04. I gave my correct statement to the police. The bus stand is at a distance of five minutes distance from my house. But stand is not visible from my house. There is a mother dairy shop near the bus stand. It is wrong to say that my son did not tell me that Shishir met him and he had offered chocolate to him or that I have given a wrong statement at the instance of my husband Ram Sanjivan to falsely implicate the accused in this case. It is wrong to say that I deposed false;y. It is wrong to say that Shishir did not come at any time after 16.8.04. It is wrong to say that my son was not kidnapped by anybody and it was a concocted story just to frame the accused persons in this case. I did not see accused Shishir taking away my son nor my son recovered from the possession of Shishir. It is wrong to say that I deposed falsely. Xxxxx on behalf of accused Krishan, Subash Nil. Opp. Given. …………… PW-5 Kamla Kushwaha recalled for further cross examination on behalf of accused Krishan and Subhash on S.A. Xxxxxx by Shri Dharam Raj counsel for accused Krishan and Subhash The accused Shishir came to my house on 15-08-2004 and not on 15-8-2003 which has wrongly been recorded earlier. I had gone to Sunday bazaar. I had gone to Sunday Bazaar from 12 noon to 1 pm. I had gone to the Independence Day function but it was over by 11 am. It was in colony itself and my son had also accompanied me. However, my son did not go with me in the market. The Sunday Bazaar is nearby to our colony which is within a distance of 10 minutes walking near the police station. It is incorrect that on 18-8-2004 accused Krishan Kumar did not come to my house. It is incorrect that no jewellery was taken by accused Krishan from me. The accused has taken my husband with him and not me. Since I did not accompany the accused as such I cannot say where they have taken my husband. It is incorrect to suggest that I am deposing falsely. It is incorrect that the accused has not taken the documents of ownership of the flat. It is incorrect to suggest that I have falsely implicated the accused persons as accused Krishan was not vacating the house which was on rent with him. It is incorrect that the value of jewellery was not more than Rs.5,000/-.”

24. Testimony of PW-6 reads as under: “PW[6], Dinesh Kumar Tiwari, s/o Chander Bhan Tiwari, 43 years, private service, r/o 67, Pocket E 15, Sector 8, Rohini Delhi. On SA: I know accused Krishan Kumar who is present in the court who is the neighbourer of my in laws and who used to reside at SBM Colony Karampura. On 17/8/2004 at about 9.30 pm, accused Krishan Kumar came at my residence at Rohini having a brief case with me which was locked and asked me to keep that brief and that it was containing money and also told me that he would collect the same the next morning. The reason accused tendered to me was that it was not safe for him to carry the brief case as it was having huge money and that he had to go to Dwarka. Believing him, I kept the brief case with me and after about ten minutes he left my house. Next day, in the evening, he came about 8.30-9 pm along with a blind man on „motor cycle‟. That blind man was made to sit in the drawing room and accused Krishan Kumar took me in a corner of the house. He told that blind was in difficulty and he (blind man) had to sell his house as he was facing some financial constraint. He asked me that I should agree to purchase the house for a consideration of 12 to 13 lac and in addition to it he also asked to give consent to give Rs 2 lac to that blind man. He told me that he had arranged the money. I initially refused but when he insisted that blind man was his friend, I agreed to his proposal. I gave the brief case to Krishan Kumar which was left with me and he left with blind man within ten minutes. The was however no transaction carried out between us. On 19/8/2004, in the morning at about 4.35 am some police officers came from the PS Mahipalpur and I was instructed to come to the police station. I reached there at about 10.30 am. Then I came to know about this case. Then my statement was recorded at 12.30 pm. XXX by Sh. RS Jain counsel for accused Shishir Kumar My statement was recorded in PS on 18/19.8.04. I first time saw Ram Sanjivan when he came with accused Krishan at my residence on 18.8.04. It is wrong to say that I have deposed falsely at the instance of Ram Sanjivan. It is wrong to say that I deposed falsely. Xxxxxx on behalf of accused Krishan, Subash Nil. Opp. Given.”

25. We have carefully examined the evidence of all the witnesses and for the sake of convenience reproduced the evidence of some of the material witnesses. PW-1, Ram Sanjivan, father of the victim, is a blind person. During his testimony, he identified the appellant from his voice, as the person, who came to his house on 15.8.2004 and asked for the literature book of Amway being interested in becoming a distributor. The evidence of PW-1 read with the evidence of his wife, PW-5, Kamla Kushwaha clearly establishes that the appellant had visited their house on 15.8.2004, 16.8.2004 and 17.8.2004; and their testimonies also establish the keen interest taken by the appellant in their son. The appellant also enquired from their son about his likes and dislikes. PW-1 has also given a detailed account of how his son did not return home and thereafter he received a telephone call on his mobile informing him that his son had been kidnapped by the caller and in case Rs.30.0 lacs were not paid, he would find his son dead.

26. PW-1 has also given a vivid description of the role of Kishan Kumar, the co-accused, who has been declared a Proclaimed Offender. PW-1 has also described the second ransom call received by him on his phone no.32744467, asking him to reach under Punjabi Bagh Flyover, otherwise threatening to slit the throat of his son. PW-1 has also described how the briefcase containing Rs.25.0 lacs and jewellery were handed over on the asking of Kishan Kumar by PW-1. And finally PW-1 has described how a third phone call was received by him informing him that his son was standing at the bus stop at Voltas Company, Moti Nagar where they finally found his son.

27. The first submission of counsel for the appellant is that there are material contradictions and improvements in the evidence of PW-1, father of the victim and PW-5, the mother of the victim. This submission of counsel for the appellant is without any force. The contradictions which have been pointed out and have been noticed by this court are minor contradictions, which do not touch the core issue and the contradictions are of such a nature which do not shake the case of the prosecution. Whether the appellant had asked for the literature book of Amway or not or whether he had asked for a glass of water from the wife of the complainant or not cannot be treated as material contradictions. It has been repeatedly held that to reach a conclusion that there are material contradictions and improvements in the case of the prosecution, courts must read the evidence as a whole and must consider only those improvements and contradictions which go to the core of the issue and not any and every contradiction should be a ground to doubt the case of the prosecution.

28. The Apex Court in the case of Shyamal Ghosh Vs. State of West Bengal reported at (2012) 7 SCC 646, has held as under:

29. Applying the law to the facts of this case, we find that the contradictions pointed out by counsel for the appellant are minor in nature and cannot be a ground to set aside the order of conviction passed by the trial court.

30. Another argument raised before us is that the evidence of PW-4 is neither trustworthy nor reliable by virtue of him being a child witness. This submission of counsel for the appellant is also without any force. We have extracted the evidence of PW-4 and carefully examined the same. The law with regard to reliance on the evidence of a child witness is well settled. The Apex Court in the case of Ratansinh Dalsukhbhai Nayak v. State of Gujarat, reported at 2004 CriLJ 19, held that a child witness, if found competent to depose, his / her testimony can be the basis of conviction. Relevant portion of the judgment reads as under:

31. This question was also the subject matter of a judgment of the Supreme Court in Acharaparambath Pradeepan and Anr. v. State of Kerala, reported at 2007 (1) JCC 828. Relevant portion of the judgment reads as under:-

32. In the case at hand, the court had put specific questions to the child witness and reached a conclusion that he had answered the questions in an intelligent manner. The questions put by the court have also been reproduced and we find that the court has put material questions to the child and has rightly been able to assess that he was in a position to testify. We find the evidence of the child witness to be reliable, cogent and trustworthy. The child witness has identified the appellant as the person, who had taken him on a scooter to a far away place and had also offered him Rs.5/-. The identity of the appellant stands duly established by the testimony of the child witness, which is further corroborated by the evidence of PW-5 and voice identification by PW-1. It may also be noticed that the appellant had refused to take part in the TIP.

33. The version of PW-1 regarding selling of the property at Dwarka to Dinesh Kumar is duly corroborated by Dinesh Kumar, who has been examined as PW-6. PW-6 has deposed that he knew accused Krishan Kumar being a neighour of his in-laws. He stated that on 17.8.04 i.e. a day prior to 18.8.04, accused Krishan had come to his house with a briefcase containing money which was locked and he requested him to keep that briefcase in his safe custody. He represented that he will collect the same on the next morning and that he had to leave it behind with him that night as he had to go to Dwarka and since the brief case contained money it was not safe for him to carry it at night all the way to Dwarka. PW-6 has also deposed that on the next day i.e. 18.8.04 in the evening, accused Krishan Kumar came with a blind person on a motorcycle. The blind person was made to sit in the drawing room and accused Krishan Kumar took PW-6 to a corner and told him that the blind person was in difficulty and had to sell his house as he was facing some financial constraints and asked him to agree to purchase the house for consideration of Rs.12 lakhs to Rs.13 lakhs and in addition to give Rs.[2] lakhs to that blind man for which money had already been arranged by Krishan Kumar. PW-6 further deposed that he initially refused but when Krishan Kumar insisted that the blind person is his friend, he agreed and handed over the briefcase to Krishan Kumar, which was left in his custody on the previous day by him but in fact, no transaction was carried out between him and the blind man. PW-6 has also deposed that on 19.8.04 he was called to the police station and thereafter he came to know about the real facts and he made a statement. This witness was also not cross examined on the material aspects and in his cross examination, he categorically stated that for the first time, he saw Ram Sanjivan at his residence on 18.8.04 and has denied the suggestion that he had deposed falsely. In view of the testimony of PW-6, the version of a fake deal with Dinesh Kumar at the instance of accused Krishan Kumar regarding purchase of property at Dwarka for consideration of Rs.12 lakhs to Rs.13 lakhs and further making Ram Sanjivan indebted to a sum of Rs.[2] lakhs and as such arrangement of Rs.15 lakhs from Dinesh Kumar stands duly established, and it is also clear that the same was done at the behest and asking of accused Krishan Kumar (P.O.)

34. From the testimony of PW-6 it is also clear that accused Krishan Kumar had come with Ram Sanjivan, PW-1 on a motorcycle and thus, the version of Ram Sanjivan that he was taken by accused Krishan Kumar on a motorcycle also stands duly corroborated. This very motorcycle was seized by the police at the instance of accused Krishan Kumar.

35. PW-16, S.I. Randhir Singh has also testified that appellant Shishir was apprehended while coming on a Scooter at the instance of accused Krishan Kumar and that at that time accused Shishir Kumar was carrying a VIP bag on his left shoulder and a briefcase was lying on a two-wheeler scooter bearing No.DL-1SH-4014. The bag and the briefcase were checked and the bag was found to contain gold and silver jewellery and some artificial jewellery, while in the briefcase rubber-bands and bundles giving appearance as if they are bundles of notes were found and the said bag was in turn found to contain another bag full of bundles of papers giving appearance of bundles of currency notes wrapped in newspaper and tied with rubber-bands and the total number of such bundles were thirty. PW-16 has also testified that from amongst the jewellery recovered from the bag, accused Krishan Kumar identified certain jewellery to be belonging to his wife Anju and certain jewellery belonging to Kamla, wife of complainant and the jewellery was separated and while jewellery belonging to Anju was taken into possession vide seizure memo Ex.PW-15/E, the jewellery of Kamla was taken into possession separately by giving Nos.[6] & 7 separately to the pullandas which were sealed with the seal of RS.

36. PW-16 has also testified that the appellant Shishir Kumar was arrested vide memo Ex.PW-15/A and disclosure statement of accused Shishir Kumar was recorded, who pointed out the place from where Prateek was kidnapped and the pointing out memo Ex.PW-15/F was prepared, and Shishir Kumar also pointed out the place near Punjabi Bagh Flyover where ransom money was paid and memo Ex.PW-15/K[6] was prepared in this regard. PW-16 has also testified that accused Subhash (acquitted) was arrested on 21.8.04 and his disclosure statement was recorded. This witness was not cross-examined on behalf of any of the accused.

37. The conspiracy is further established from the fact that Krishan Kumar and Shishir Kumar are both related to each other and are cousins, and this aspect has been admitted by appellant Shishir Kumar in his statement under Section 313 Cr.P.C. and the fact remains that neither was this disclosed by Shishir Kumar or by Krishan Kumar to Ram Sanjivan that they are relatives nor was such a question put to PW-1 or PW-5 in their cross-examination.

38. In view of the testimonies of the witnesses, the fact that the victim has clearly identified the appellant as the person who had kidnapped him and also made a call from the phone booth, the evidence of parents of the victim, who have identified appellant as the person who had come to their house and had shown keen interest in their son and the evidence of PW- 16, it can be concluded that the prosecution has been able to prove its case beyond any reasonable doubt. No grounds are made out to set aside the impugned judgment and order on sentence. Accordingly, the appeal is dismissed.

(G.S.SISTANI) JUDGE (G.P.MITTAL) JUDGE 16th May, 2014 msr