Allowed

Kamlesh v. State of Haryana

Punjab & Haryana HC12 May 2010CRA-D/706/2001

Case brief

AI extract

What is this about?

On an appeal against conviction under Section 364-A IPC, the High Court upheld the trial court's verdict. The appellant was found guilty of kidnapping a minor for ransom and keeping him in detention, despite her contest regarding discrepancies in witness evidence.

What did the court decide?

The appeal was dismissed and the judgment and sentence of the ordeal court of conviction were upheld. Bail bonds were cancelled.

Kamlesh Vs State of Haryana — Child Sexual Offences (POCSO) | Punjab & Haryana HC (2010)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Crl. A. No. 706-DB of 2001

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DATE OF DECISION : 12.05.2010

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Smt. Kamlesh alias Lali

.... APPELLANT

Versus

State of Haryana

..... RESPONDENT

CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH

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Present: Mr. Jaininder Saini, Advocate, for the appellant.

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Mr. S.S. Randhawa, Addl. A.G., Haryana.

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SATISH KUMAR MITTAL , J.

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Appellant Kamlesh alias Lali has filed this appeal against the judgment of conviction dated 10.11.2001 and the order of sentence dated 13.11.2001, passed by the Court of Additional Sessions Judge, Faridabad, whereby she has been convicted under Section 364-A IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of one year.

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Ravi (victim) son of Satpal (complainant) aged about 8 years was studying in LKG class in New Light School, Faridabad. On 14.12.1999, at about 7.45 a.m., he left the house for his school. When he did not return

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to the house after the school hours, then his father enquired from the school, where he was told that on that day, his son did not come to the school. On search, when the child could not be traced, on the same day, his father reported the matter to the police. Thereupon, a missing report (Ex.PA) was recorded in Police Station Old Faridabad at 6.40 PM. Thereafter, extensive search for the child was made and wide publicity was given in the print and electronic media, but no clue of the child could be found. Then, on 17.1.2000, on a written complaint (Ex.PB) made by the father, FIR (Ex.PB/2) under Section 364 IPC was registered against the unknown accused. In the said FIR, it was suspected by the complainant that his son Ravi has been kidnapped for murder. After registration of the case, on 18.1.2000, the complainant handed over a registered letter (Ex.PD) received by him to the police, which was taken into possession vide memo Ex.PC. In the said letter, a ransom of Rs. 3 lacs was demanded by one Raju Kushwah, District Bhind (M.P.). In the court, it was stated by the complainant that he received the said registered letter on 14.1.2000, but he handed over the same to the police on 18.1.2000. Thereafter, extensive search for the kidnapped boy was made, but he could not be recovered. In the meanwhile, on some clue given to the police by Chhote Lal (PW.4), on 12.6.2000, the police party along with complainant Satpal and Amar Chand raided one house belonging to one Jagat Narain in Rajiv Gandhi Nagar, Mainpuri (U.P.), where the boy was recovered from the custody of the appellant, who was residing as a tenant in that house. The recovery memo Ex.PE was prepared.

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The custody of the child was given to his father. The appellant was arrested. She was brought to Faridabad. On 13.6.2000, during interrogation, vide disclosure statement (Ex.PH), she disclosed that her husband Jitender alias Jeetu, her brother Jitender alias Pappu alias Paggu and her Bhabhi (brother's wife) Radha wife of Jitender alias Pappu had kidnapped Ravi under a conspiracy. He was taken in a tempo to Sangam Vihar, Delhi, in the house of Radha, where he was kept for three days. Thereafter, he was taken to Rajiv Gandhi Nagar Colony, Mainpuri (U.P.) and since then, the boy was with them.

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On the same day, statement (Ex.PH/1) of Ravi under Section 164 Cr.P.C., was recorded by Judicial Magistrate Ist Class, Faridabad, wherein he had stated that when he was standing at the gate of his school, then father of Meenu (Jitender-husband of the appellant) came to him and made him to sit on the cycle and took away. Thereafter, he was made to sit in the tempo and was taken to the house of Radha Bai (Bhabhi of the appellant) and he was kept there, from where he was taken to the house of Mishra (Jagat Narain), where he remained till his recovery.

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During investigation, the police identified the aforesaid three accused, namely Jitender alias Jeetu son of Jamadar Singh, Jitender alias Pappu and son of Rajinder Singh and Radha wife of Jitender alias Pappu, but since they could not be arrested, therefore, they were declared proclaimed offenders and challan was filed only against the appellant.

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After presentation of the challan, the appellant was charge

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sheeted for the offence under Section 364-A IPC, to which she did not plead guilty and claimed trial.

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In support of its case, the prosecution examined five witnesses. PW.1 Ravi, the kidnapped boy, has supported the prosecution version. PW.2 Satpal (complainant), father of the kidnapped boy, has also supported the prosecution version and further stated that at one point of time, Jitender and the appellant were his tenants. He further stated that after receiving the registered letter (Ex.PD), accused Jitender, one of the proclaimed offenders, came to his house and told that he can get his son recovered, provided he follow him with Rs. 3 lacs. On this information, the complainant sent his two persons, namely Narain and Chhote Lal to Mainpuri to search the whereabouts of his son. Later on, Narain and Chhote Lal gave information to him that his son was in the house of Jagat Narain Mishra. Thereupon, he along with the police officials and his brother Amar Chand and Chhote Lal went to Mainpuri and got recovered his son from the custody of the appellant. PW.3 Sadhu Ram, SI is the formal witness.

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PW.4 Chhote Lal has also supported the prosecution version, but he stated that when the police party went to Mainpuri in search of child, he did not accompany them, but earlier to that, he went to Mainpuri in search of the child. He has stated that earlier when he returned from Mainpuri, his statement (Ex.DB) was recorded by the police. PW.5 Hem Raj, ASI, is the Investigating Officer of the case. He has also supported the prosecution version and explained that how and in what manner, the child

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was recovered from the custody of the appellant.

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In her statement under Section 313 Cr.P.C., accused Kamlesh denied all the allegations appearing against her in the prosecution evidence. She stated that she is innocent and has been falsely implicated in this case. In defence, she did not lead any evidence.

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The trial court, after considering the evidence on record, while relying upon the statements of PW.1 Ravi, the kidnapped boy, PW.2 Satpal, father of the boy, PW.4 Chhote Lal and PW.5 Hem Raj ASI, convicted and sentenced the appellant, as indicated above.

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We have heard the arguments of learned counsel for both the parties.

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Learned counsel for the appellant argued that even as per the prosecution case, the minor boy Ravi was not kidnapped by the appellant from the gate of his school. As per the allegations and the evidence, he was kidnapped by co-accused Jitender alias Jitu, husband of the appellant, for ransom, and initially, he was kept in Delhi in the house of co-accused Jitender alias Pappu and his wife Radha and thereafter, he was shifted to Mainpuri. Learned counsel argued that though as per the prosecution version, on 12.6.2000, the minor boy was recovered from the custody of the appellant by the police party headed by ASI Hem Raj, in the presence of Satpal and Amar Chand, but the said recovery is highly doubtful, and on the basis of the same, conviction of the appellant is not justified. In this regard, learned counsel pointed out certain discrepancies in the statements of the

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prosecution witnesses. He argued that PW.2 Satpal, in his statement, has stated that when the police party visited Mainpuri in search of the kidnapped boy, Chhote Lal was also accompanying them, whereas when Chhote Lal appeared as PW.4, he had stated that he did not accompany the police party at that time. PW.5 Hem Raj ASI also stated that Chhote Lal did not accompany them. Learned counsel further pointed out that according to the statement of PW.5 Hem Raj ASI, the recovery memo (Ex.PE) was prepared by him in the Police Station, whereas it should have been prepared at the spot. The said witness also stated that before conducting the raid on the house of Jagat Narain Mishra at Mainpuri (U.P.), the local police was associated, but this fact has not been established from the evidence on record. The recovery memo (Ex.PE) was not signed by any police official of Police Station Mainpuri. He further argued that neither Jagat Narain Mishra, the landlord, from whose house the boy was recovered in custody of the appellant, nor Amar Chand, a witness in whose presence the boy was recovered, has been examined by the prosecution. He further submits that as per the prosecution, the police party went to Mainpuri in a private hired taxi, but neither the driver of the taxi has been examined nor the other evidence in this regard has been brought on record. Learned counsel argued that the statement of PW.2 Satpal regarding handing over of the registered letter (Ex.PD) to the police on 18.1.2000 is also doubtful, because according to this witness, he had received the said letter on 14.1.2000, but there is no explanation that when this witness was having the said letter in his

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possession, why this fact was not mentioned in his written complaint, on the basis of which the FIR was registered on 17.1.2000. He further submits that PW.1 Ravi, the kidnapped boy, has not specifically mentioned the name of the appellant to the effect that she kept him in her custody. According to the learned counsel, all these factors create doubt about the recovery of the minor child from the custody of the appellant, therefore, conviction of the appellant under Section 364-A IPC is not sustainable.

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On the other hand, learned counsel for the respondent-State, while supporting the judgment of conviction and the order of sentence, passed by the trial court, submitted that the recovery of the minor boy from the custody of the appellant has been proved beyond reasonable doubt and the contradictions, as pointed out by learned counsel for the appellant, are minor in nature, and on the basis of the same, the entire prosecution case cannot be discarded.

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After considering the submissions made by learned counsel for the parties and going through the impugned judgment and order, we do not find any merit in the instant appeal.

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From the prosecution evidence, it has been established that on 14.12.1999 at about 7.45 a.m., Ravi, 8 years old son of Satpal complainant, was kidnapped from the gate of the school. On the same day, when the boy did not reach the house, and after a thorough search, a DDR (Ex.PA) was lodged with the police at 6.40 p.m. by his father Satpal (PW.2). Subsequently, in spite of the best efforts made by the family by giving wide

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publicity in the print and electronic media, the boy could not be traced. Thereafter, on 17.1.2000, a written complaint (Ex.PB) was made by the complainant to the police, which led to the registration of the formal FIR (Ex.PB/1). It is true that PW.2 Satpal in his statement has stated that he received a registered letter (Ex.PD) on 14.1.2000, but he handed over the same to the police on 18.1.2000 i.e. one day after registration of the FIR on his written complaint. But no question was asked to this witness by the defence as to why he did not disclose this letter to the police at the time of registration of the FIR. Admittedly, in the letter, a demand of Rs. 3 lacs was raised with a threat that if the said demand is not met, the kidnapped boy would be murdered. Perhaps because of the said threat, the complainant might not have disclosed the letter to the police, as it would have disclosed the name of the person who sent the letter and that fact would have endangered the life of the boy. Therefore, after receipt of the said letter, the complainant sent Chhote Lal and Narain to Mainpuri (U.P.), from where the letter was posted, as they were aware of that area. Even thereafter, they could not get the clue, but ultimately they came to know that the kidnapped boy was kept in the house of Jagat Narain Mishra. Thereupon, the police recorded the statement of Chhote Lal (Ex.DB) under Section 161 Cr.P.C., wherein he gave the information about the boy, on the basis of which the police party along with complainant Satpal, Amar Chand raided the house of Jagat Narain Mishra at Mainpuri and recovered the minor child at the spot from the custody of the appellant. At that time, the appellant was

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feeding milk to her baby and the kidnapped boy was sitting by her side. The said recovery of the boy was made by the police in the presence of PW.2 Satpal and PW.4 Chhote Lal. All the three material witnesses, examined by the prosecution, namely PW.2 Satpal, PW.4 Chhote Lal and PW.5 Hem Raj ASI have fully supported the prosecution case that on 12.6.2000, recovery of the kidnapped boy was effected from the custody of the appellant, from the house where she along with her co-accused was residing on rent. 15. Though the disclosure statement (Ex.PH) made by the appellant is not admissible under Section 27 of the Indian Evidence Act, 1872, but the fact that the kidnapped boy was recovered from the custody of the appellant is a relevant circumstance and is admissible under Section 8 of the Act. Moreover, on the same day, statement (Ex.PH/1) of Ravi, the kidnapped boy, was also recorded under Section 164 Cr.P.C., wherein he gave the version as to how he was kidnapped. PW.1 Ravi, though a minor, had appeared before the court. Before recording his statement, the court recorded its satisfaction that the child was mature enough to understand the nature of questions. In his statement, he again explained how he was kidnapped. Though in his statement, he gave name of the kidnapper, which appears to be tutored, but he has proved that he was kidnapped on 14.12.1999 from the gate of the scooter by father of Meenu i.e. Jitender alias Jitu, the husband of the appellant. From the registered letter (Ex.PD), which was posted from Mainpuri, it has been proved that the said kidnapping was for ransom of Rs. 3 lacs and a threat was given that in case

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the said amount is not paid, the kidnapped boy will be killed. Though as per the evidence of the prosecution, the minor child was kidnapped by Jitender alias Jitu, but from the evidence it has been proved that he was kept in custody of the appellant at Mainpuri in the house, which was taken on rent by her husband. In these facts and circumstances, we are of the opinion that the appellant has committed the offence under Section 364-A IPC, which reads as under :

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364-A. Kidnapping for ransom, etc. - Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

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The aforesaid provision was introduced by way of amendment providing severe punishments in the cases where the offence of abduction or kidnapping is done or the person is kept continuously under detention and the accused threatens to cause death or hurt to such a person detained or creates a reasonable apprehension that such person may be put to death or hurt or causes hurt or death in order to pay ransom as demanded by the accused.

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A perusal of the aforesaid provision makes it clear that before a

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person is convicted for this offence, the prosecution must prove the following ingredients :-

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(1) The accused must have kidnapped, abducted or detained any person;

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(2) He/she must have kept such person under custody or detention; and

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(3) Kidnapping, abduction or detention must have been for ransom.

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Though in the present case, initially the boy was not kidnapped by the appellant, but it has been established on record by reliable and trustworthy evidence that he was kidnapped by the husband of the appellant for ransom and was kept in the custody of the appellant at Mainpuri for a long time, in order to extract the amount of ransom by giving threat that in case the said demand was not met, the boy will be killed. It is but natural that after kidnapping the child, keeping in view his tender age, the kidnapper will hand over the child to some lady. Even otherwise, the appellant has not been able to explain that how the minor boy came in her custody. After receiving the registered letter (Ex.PD), the father of the boy remained under apprehension that for the said illegal demand, his son may be killed by the accused.

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So far as the contention of learned counsel for the appellant that recovery of the child from the appellant is not justified, is concerned, we do not find any merit in the same. Though there are certain minor contradictions in the statements of the prosecution witnesses, but that itself is not sufficient to discard the prosecution version regarding recovery of the minor boy from the custody of the appellant. There was no reason for the

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prosecution to prepare the false document showing false recovery of the boy from Mainpuri (U.P.). Actually, on the raid conducted by the police, in the presence of Satpal and Amar Chand, the minor boy was recovered from the custody of the appellant who was kept in the house of Jagat Narain Mishra. Therefore, in these circumstances, the non-examination of the landlord and Amar Chand does not create any doubt in the prosecution version. Thus, it has been proved that Ravi, the minor son of Satpal, was kidnapped by Jitender alias Jitu (husband of the appellant) for ransom and the appellant kept him in her detention for ransom. In view of this, the appellant is liable to be convicted for the offence under Section 364-A IPC.

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In view of the above, we do not find any illegality or infirmity in the impugned judgment and order, and the same is, therefore, upheld. Since the appellant is on bail, her bail bonds stand cancelled. She is directed to surrender herself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against her in accordance with law.

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( SATISH KUMAR MITTAL ) JUDGE May 12, 2010 ( JORA SINGH ) ndj JUDGE

Kamlesh v. State of Haryana

Case brief

What is this about?

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Kamlesh v. State of Haryana

Case brief

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