Rajesh Kumar v. State (GNCT of Delhi)

3. 'l'hc appellant ct1tcrcd tl1c plea of not guilty and clainH:d trial. ·rhc prosecution relted upon the testimonies of 12 witnesses besides e.\.hihits produced before the Inal Cuurt. After considerircg the materials placed before iL the Court com·ictcd the appellant as charged.

4. I.earned counsel for the appellant urges the impugned judgment is unsustainable because the conviction is based on the testimonies of PW-1 and PW-3 which arc unsubstantiated in material particulars. It is urged that the so called demands made on telephone vvcre n~.:vcr proved. ln this regard. karnecl counsel submitted that the combined cf"fcct of testimonies of PWs 5, 6 & 7 shovved that P\V-5 only could identify the cu-accuscd i.e. the juvenile Dincsh as someone who had placed the call (i·mn his PCO booth on 19.02.2006. Similarly, PW-6's testimony merely reveals that the police party had gone to his ]>( '() sometime in l<'ebruary with a hoy who had stated that he made a C:ri.J\. 12/2011 P<:gc 2 phone call from there the previous night and that the v. itness had identi tied that hoy and corroborated what w:..~s stakd by him. The witness identified Dinesh and named another one as Chotu. Similarly. urged the Counsel. the testimony of PW-7 only pr~)ved that someone had called !rom the PCO manned by him on 19.02.2006: it was Dinesh who v.as l"acing trial before the Juvenile Justice Board. Having regard to the combined testimony or these witnesses. stated counsel for the appellant. the prosecution failed to prove that the appellant was in any manner connected with the incident. and certainly had neither demanded any ransom nor was in any way connected 'v\ ith the demand for ransom allegedly made through telephone on two days i.e. 18.2.2006 and 19.2.2006. Learned counsel highlighted that the testimony of PW-1 did not prove the prosecution·s allegation of his having been forcibly abducted. detained against his wishes and threatened either with death or bodily harm so as to fullill the ingredients necessary t<.)r proving ollcnces under Section-364;\ !PC. lt was argued that the PW-1's version of having been encircled and forced to accompanying the accused \Vas highly improbable. Learned counsel highlighted that the spot where the incident occurred was crowded and a weekly market was normally held on Saturdays. Furthermore. submitted the counsel. the possibility of anyone - much less a young healthy hoy aged 18 years - \'oluntarily accompanying or even being forced to accompany three others against his wishes. on fool. f{H more than a kilometer. was extremely remote. This had to he weighed '' ith the prosecution·~ inability to prove a demand for ransom. It was emphasized that even though the prosecution was ahle to specify the telephone numbers where the calls \\'ere received (i.e. the telephone of PW-3). it made no attempt to secure any evidence to corroborate the calls made on the three occasions alleged by that witness. It 'v\as submitted that the entire story of demand having been made over telephone was believed hy the Trial Court \\ hich recorded a cmn iction. in this regard. on the sole uncorrohorakd story of PW-3. ). Learned counsel argued that the prosecution's verswn ab()Ut the raid and the appellant's arrest cannot he believed because the seizure memo l:x.PW-1/B recording rescue of the victim expressly stated where PW-1 was rescued. llo'v\ever. this was not supported either by PW-1 (who deposed that his father \'\as not present at that time) nor Crl.i\. 12/2011 Page 3 by PW- 3. who stated that he \\as in the p~)lice post and ~hat all documcn~s were prepared there. It i~; submitted that this discrepancy or co11tradiction goes to the root of ~he manner and falsified entire prosecution story about the circumstances surrounding about the rescue of PW-1. Learned counsel argued that very crucially PW-3 did not anywhere state in the deposition that while demanding ransom. the abductors had threatened his son - PW-I with bodily harm or threatened to kill or even remotely suggested anything to cause apprehension about the safety ofPW-1. It was submitted that PW-1. in this regard. difiCred from statement recorded by him during the course of investigation i.e. PW-3//\. The prosecution. however. did not choose to seck permission of the Court to put leading questions to the said witness which injected the fatal inlirmity to its allegations.

6. I.earned counsel submitted that PW-3 ·s depositions established that he along witb 4 neighbors went tn the spot around II:20 PM alter receiving the telephone call lim\ ever. the prosecution did not choose to associate any such neighbow· in the investigation nor cite them as witness. !lad anyone in tact accompanied PW-3. their versions were material and would have lent assurance to the Court \vhen it chose to record a conviction as it did. It was further argued that the testimon) of prosecution \VItnesscs also rcn~alcd that the place of incident where the kidnapping incident took place \\as in the midst of the crowded area. PW-1 did not anywhere depose that he \\as iorced to go along '"' ith the abduchn·s against his \\ ishcs or that they had threatened him with ar:y weapon or harm. hnthcrmore, other omission~ such as bilurc to rccov:r a hicyck said to have been used by PW-1 (in the deposition made hy PW-l) and the conl1ieting versions of PW-3 on this, also undermitK' the credibility of prosecution·s allegations.

7. Learned counsel argued that for any prosecution to succeed in a case involving Scction-364A. it necessarily had to establish threat of death or bodily in.iury or reasonable apprehension of harm to the victim. a demand for ransom and a threat of bodily injury or death of the abducted person. In this case all that the prosecution at best could be said to have proved was the abduction of the appellant. lt neither proved the demand nor threat C:rl A 12/2011 Page 11 l • ofhodilv injurv to the victim- PW-1. ln these circumstances. the conviction and sentence -. returned hy the impugned judgment is unsustainable.

8. The learned APP submitted that the prosecution did establish all the necessary ingredients to make out the offence. lt \vas submitted that the combined testimony of PW-5. 6 & 7 established that the co-accused Dinesh and another hoy had indeed made telephone calls on the three occasions - two in the night of I 8.02.2006 and one at 07:30 AM on 19.02.2006. The identity of Dinesh i.e. the co-accused was established through the testimonies of PWs 5. 6 & 7. So far as the appellant is concerned. there was no doubt about his identity or role since he was apprehended fi·om the premises ti·mn \vhere the victim PW-1 \Vas rescued; it v.as as if he was caught red handed. Learned APP urged that PW-3"s testimony read along with that of PW-8 and PW-12 also established that in the morning of 19.02.2006. after receiving the call from the telephone numher-25185671. the police was informed. the latter (PW-12) made a call and ascertained that the caller had returned the telephone call and immediately ascertained the locality fi·om where the abductors were operating. The police party therea11er reached the spot at 02:30 and caught the appellant as well as Dincsh and at the same time rescued the victim- PW-1.

9. Learned counsel submitted that in all material particuIars. the necessary ingredients for proving the offence under Section-364-/\ IPC had been established i.e. abduction which was proved hy PW-1 who clearly deposed having been encircled at the relevant time and taken away. detained overnight and thereafter kicked on face. It is submitted that depositions of PW-3 also established that ransom demand had been made. !laving regard to the peculiar facts whereby PW-1 was kept against his wishes and the t'urther circumstance of his h<.tving been kicked on the face. the prosecution also established a reasonable apprehension that in the event of failure to fuJjjlJ the ransom demand. the victim v.ould he harmed or would receive bodily injury.

10. lt was argued that the appellant's submissions to undermine the credibility of PW-l"s depo~ition cannot be accepted because he stayed overnight and could identify all the four abductors. The appellant could not despite cross examination shake that part of his Cri.J\ 12/2011 Page 5 deposition. Similarly. the testimony of PW-5. 7 & 8. if read together vvith that of P\V-3. corroborated the telephonic demands made on the three occasions. l'he learned APP highlighted that there was no necessity to identify the appellant since the prosecution had never alleged that he went to make a telephone call or demanded ransom ti·om PW-3. !lis role was that of an accomplice \Vho had the common intention along with the other accused and. therefore. was implicated under Section-34 IPC.

II. The learned APP submitted that so far as the question of place ot' arrest or recovery etc. arc concerned. the discrepancies pointed out in this regard are neither substantial nor grave as to undermine the prosecution's story altogether. Learned counsel argued that minor variations between the statements recorded during imestigation- l)fthc witnesses- and m depositions before the Court. arc bound to happen due to passage of time and unless they arc of fundamental character. the Court should not be S\\ayed by the minutiae.

12. The prosecution case about abduction of PW· I was attacked ti·om inception. by the Appellant. In this regard. the improbability of such events. was highlighted. Nmv. according to the prosecution story. the witness was encircled and forced to accompany Sl)J11C boys. l'he prosecution could arrest only two; the present Appcllant's role was cdlcgcd h> be that of an accomplice. PW-l's father received two phone calls. The PCO "'itncsscs. who manned the instruments. fi·nm,,vhich the calls "'CIT made three times. did not identify the present appellant. PW-12. a policeman. Llaims to have placed a call l\) the telephone number. '"hich ulLimatcly led to the rescue of PW-1. No scientific i1westigation. in the form of voice ~ampies of the indi,·idual '' ho answered the call made by PW-12. ''as recorded or produced in court: nor was apparently any effort made even to record the convcrsdtion. It is PW-12 who placed the call. according to his deposition. If that were the correct position. there is nothing to link the present Appellant \vith the demand allegedly made to PW-l's father. telephonically. Similar]). the prosecution \\itncsses· inability to identii~' the present Appellant as one Yvho placed the call on the night of'the incident. demanding ransom. has not been proved. Crl.i\. 12/2011 Page 6

13. The second important inference which the Court draws hom the evidence is that PW-l and PW-3 have contradicted themselves materially about the rescue and its immediate aftermath. The former says that his father (PW-3) did not accompan: the police. as a witness. when he was rescued: the latter (i.e. the father) deposed to the contrary. Besides. PW-3 stated in cross examination. during his deposition that all papers pertaining to the raid of the premises and rescue of PW-1,~·et-c prepared in the police station. subsequently. and were signed by him there. Seemingly. this may appear to he a minor discrepancy: yet. if viewed cumulatively '"/ith PW-I's deposition. the raid and rescue of that witness. said to have been conducted in the presence of PW-3. becomes suspect. These two contradictions amount to serious material variations. which undermine the prosecution case. l.f. The Appellant's counsel had urged during the hearing that in order to prove the offence under Section 36.f-A the prosecution has to prove not only demand. hut also a demand coupled Vvith USC or force or threat of USC of force that \\OUJd lead to apprehension of bodily injury in the mind of the victim. or of" his relatives and family members. Acwrding to him. no prosecution witness deposed about the threat of usc of force that could lead to apprehension of bodily injury to the victim. The APP urged. on the other hand. that the deposition of PW-1 clearly was that when in captivity. one of his abductors had kicked him whether it was the present Appellant or not. his role of an accomplice. by \ irtuc of Section 34 IPC stooJ established.

15. Section 364-i\ IPC reads as i(>llows: "Whoever kidnups or abducts any person or keeps a person in detention after such kidnapping or abduction. and threatens to cause death or hun to such person. or hy his conduct gires rise to u reasonahle apprehension that such person may he put to death or hurt. or causes hurt or dealh to such person in order to compel the Government or (any.fhreign Stale or internotionol intergm·ernmel1/al organi::ation or any other f}('rson) to do or ahslwn from doing any act or to puy a ransom. shall h<! punishahle H'ith dealh. or nnprisonmentfor life. and shall also he liahle to fine. " l (>. !\. reading of the provision makes it dear that to prove the offence. it should be established that the abducted person. was. after abduction. either killed. or injured. or \\as C:rl.J\ 12/2011 Page 7 \~ threatened with such acts, or the conduct of the abductors would result in reasonable apprehension of such consequence. The demand for ran~om is an integral part of the offence. The conveying of ransom, coupled with threat to life, or bodily injur) to the victim. either overtly. or by conduct (of the abductors) is sullicicnt to complete prm ing the offence. The object of the provision, introduced through the amendment of 1993 is to tackle the menace of kidnapping for ransom. or holding people f()rcibly to achieve a specific illegal objective. lt is not necessary that the abducted individual's family or friends arc asked to pay: the object may he totally unconnected vvith them: yet. the demand would not he lavv ful. The injury or threat to injury part of the offence is couched in such vv ide terms that it is inessential l()[ the prosecutwn to prove that the threat clement \vas conveyed along with the demand f()r ransom. As long as the threat is disccrnable. and proved. the o!Tcnce is said to have been established. In Rufiq r State, ILR (2008) 2 Del534 a Division Bench of this court held that: '"i'hat apart. a mere demand o(runsom ummmlfor release of a kidnapped person. is not sufficient to a!fracl application of,",'ection 36-1.'liP(' wiles.\ il is also pro\'ed thar the kidnupped person was threatened H'ith death or hurt or that the conduct of the kidnuppers was such which could raise a reasonahle apprehension that he could be put to death or hurt if the ransom amount ll'as not pmd In the present case !he child did not state that the appellants had at any point oftime threatened to cause his death o,· hurt /:"ven the (ather of the child at no place in his stotcment testifies thui the jJerson making ronsom c.:ulls fwd (:/1 ony occusion threal..:ned to kt!lthe kidnuJJpeJ child or cause hur.' to him. '/he UfJiJelhmts ut no stage hy their conduct.'<OVL rise to u reasonahle apprehemwn to the father or any member of fw (wni~r that in the event o(ransom amount heing not paid, the kidnapped child would he pur to death or hurt. The learned trial court in the impugned JUdgmenT \l'hile finding that the appellants from their conduct gare rise to reasonahle upprehension that the kidnapped child mmld be put to death or hurl, did not spell out their particular conduct ~which could have gh·en nse to the reasonahle apprehension us aforesaid ihere heing total absence oj"el·idence in regard to uny threat to cuuse death or hurt to the kidnapped child und also for luck of n·idence in rep,ard to the appellants conductmg themselw.s in a \I'Ll)' that could gin' rise to u rewonahle apprehension that the child \l'ould he 1m[1] to deoth or hurt, the ransom demands simplicitur couid no! lun·e hrought the offence \l'ithin the mnhit of'Scction 36-1 A !PC " Crll\.12/2011 Page B \) In the decision reported as Mal/eslu \'..">'tate of Karnataka. (2004) 8 SCC 95. the Supreme Court discussed the necessary ingredients for the offence under Section 364-!\ IPC in the J(lllowing terms: "In the instant case as the.factual position fhzmd hy the trial court and !he I figh ('our/ goes to show. Ihe ohjecl of' ahduction was for ransom. this 11·as clear(\' com·e_\·ed to the victim PW 2. /le was e1·en com·eyed the Ll/7101/nl to he paid It cannot he laid dmrn as a straitjacket fimnula that the demand for payments has to he made to a person 11'110 ultinwle~\' pays. By li"LIJ' of illustratwn it can he said tlzat a rich husinessman is ahducted Ile is told that for his release his.fami(v memhers have to pay a certain amount o; money: hut money actual(\' belong\· to the penon ahducted. 17ze payment fhr release is made by the persons to 1rhom the demand is made. The demand orif!:inally is made to the person ahducted or kidnapped "1fter making the demand to the kidnapped or ahducted person mere(\ hecause the demand could not he com·eyed to some other person. us the acutsed 1s arrested in the meantime. does not take mt·ay the offence out of the pliiTIC1t' of Section J(y-/-•1. It has 10 he seen in such a cw<' as to \t'hat \\'US the ohjcct of kidnapping or ahduction The essenct> of ahduction as noted ahore is causing to sllzr in isolation and demand (or ransom. The demand in the present case has already heen made hy conveying it to lhe rictim. In Netra Pal easel the lligh Court noted that there \\'as no demand to pay. The factual position in thar case as noted ahm·e is that the \'ictim H'as a child to whom 110 demand collld hcn·e heen nuwc. in that hackgrozmd the High Court took the \'ielt' thw Section 3()-/-.,[1] lws no appliL·caion a.\ no demand had hecn comnwnicated J/1e Jmsirion factually is diff'erent /Jere l/ltimate(\·the qunlion 10 I.e decided is "~t-!wr \\'as the intention/ Was it demand of ransom!" /.here can he no definite manner in ll'hich denwnd is to he made. Who j)(Z\'S the ransom is not the de~erminutivc.fact. as dis~·ussed supra. The above observations 'AWe followed in f'inod 1' Stale ol I!armna 2008 (2) sec ~46 and J> Uaquat.[1] /i Khan,. State of.IP 2009 ( 12) sec 707. In,\'hram 8ahu,, State of f/wyunLI, (2008) 1) SeC 418. the CS~ence ofthe provis;on WaS explained as t"oJJnv,s: "'!he H ordmg itself suggests thut H-lzen kidnapping 1s done \\'ith the threat to cuuse death or hurt to the kidnapped person or give.•· u reasonable apprehension that some person may be done to death or hurl or compels L//1)' Gm·ernment. any foreign.\'tate or international intergorernrnental organisation or any person to jJay a ransom. !he offence is complete."

17. l'he lack of evidence to connect the present Appellant with the ransom call: the failure of the prosecution v,itncs~es to identify him. the improbability of the prosecution version about abduction of PW-1. (having regard to the age. and the distance which the Crl /\. 12/?011 Page CJ accused and he had to travel. on toot. and the further allegation that he was forced to walk through a market. and to the abductor's hideout. for more than one lwur). the contradiction in the prosecution evidence regarding the manner of rescue of the victim arc material and ~criou~, But apart from these. in this Court's opinion. no prosecution \vitncs~ including PW-l tcstiiied that he was in apprehension for his lite. or threatened with bodily injury. or apprehended it. through an: overt or covert act by the present Appellant in the event the alleged demand f(H ransom of~ 50.000/- \\as not met with, The prosecution thus did not prove. beyond reasonable doubt. that the Appellant had committed the offence punishable under Section 364-A IPC,

18. h)r the above reason. this court holds that the impugned judgment cannot be sustained: it is accordingly set aside. The AppeaL is thcrcf()JT. allovved. (S. RAVINDRA BIIAT).JUDGE ~-,Jlt L Y 06, 20 11 (G.P.MITTAL) (.JtiDGE)