Punjab-Haryana High Court
Sonu Sharma & 2 Ors vs State Of Haryana on 19 December, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:172643-DB
CRA-D-278-DB-2014 and CRA-D-229-DB-2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRA-D-278-DB-2014 (O&M)
Date of decision:19.12.2024
Sonu Sharma & others ... Appellants
Vs.
State of Haryana ... Respondent
2. CRA-D-229-DB-2014 (O&M)
Amar Singh ... Appellant
Vs.
State of Haryana ... Respondent
CORAM: HON'BLE MRS. JUSTICE LISA GILL.
HON'BLE MRS. JUSTICE SUKHVINDER KAUR.
Present: Mr. B.S. Saroha, Advocate and
Mr. Gautam Dutt, Advocate for the appellant(s).
Mr. Sukhdeep Parmar, Sr. DAG, Haryana.
...
SUKHVINDER KAUR, J.
1. This order shall dispose of CRA-D-278-DB-2014 (Sonu
Sharma & others Vs. State of Haryana) and CRA-D-229-DB-2014
(Amar Singh Vs. State of Haryana), filed by the accused/appellants,
namely, Sonu Sharma, Sanjay Kumar @ Sanju, Bhura and Amar Singh @
Ravi @ Bablu @ Bhallu against verdict of conviction dated 03.01.2014
and order of sentence dated 08.01.2014 passed by learned Additional
Sessions Judge, Faridabad, vide which accused/appellant, Sonu Sharma
has been held guilty under Section 120-B IPC whereas remaining
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accused/appellants, namely, Amar Singh @ Ravi @ Bablu @ Bhallu,
Sanjay Kumar @ Sanju and Bhura were held guilty under Section 120-B,
364-A/120-B IPC, 420/120-B IPC.
2. The factual scenario as unfolded by prosecution is that on
20.08.2012, complainant Rajinder Sharma got entered DDR No.3 dated
20.08.2012 Ex.PA at Police Post Sector-8, Faridabad in the roznamacha
regarding missing of his son Yash Sharma, aged about 6 years on
19.08.2012 at about 4:30 P.M. when he was playing in the street in front
of his house. On 21.08.2012, he submitted a written complaint Ex.PC
with the police alleging therein that he is resident of village Sihi, Sector-8,
Faridabad and runs a taxi stand near Hanuman Mandir, Sector-8,
Faridabad. He has one daughter and two sons. His son Yash Sharma, aged
about 6 years, who was younger to his elder child and studying in 1 st
standard in Divine Public School, Sector-9, Faridabad went missing on
19.08.2012 at about 4:30 P.M., when he was playing in front of his house.
He searched for his son at several places but could not trace him. He
suspected that his son had been kidnapped by some unknown persons and
prayed for taking legal action. Description regarding appearance of his
son Yash Sharma was given. On the basis of aforesaid application Ex.PC,
formal FIR Ex.PC/1 under Section 363 IPC was registered. Investigation
was set in motion. During the investigation, statements of witnesses,
namely, Shyam S/o Man Singh and Amit S/o Mahender Singh under
Section 161 Cr.P.C. were recorded on 22.08.2012, who disclosed that they
had seen the missing child Yash Sharma going with a person. Witness
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Shyam also disclosed that the said person purchased patties for the child
from his shop. Complainant Rajinder Sharma got recorded his
supplementary statement on 24.08.2012, stating that he received a ransom
call for Rs.20 lakhs on his Mobile phone No.9810246982 from mobile
phone No.9058889628, upon which offence under Section 364-A IPC was
added. After obtaining location of the aforesaid mobile number, police
reached at Kanpur in search of the child. On 25.08.2012 when SI Ishwar
Singh was present at Oriya, U.P., he received information from Itawa
police that the abducted child had been recovered by them and accused
had also been apprehended. Thereafter SI Ishwar Singh along with other
police officials reached at Police Station Ikdil, District Itawa. After
comparison from the photograph in the police file and on disclosing his
name by the child, it was found that he was the same child who was
abducted from Sector-8, Faridabad. On 26.08.2012, complainant Rajinder
Sharma reached at Police Station Ikdil and identified his son Yash.
Accused Amar Singh @ Ravi, Sanjay @ Sanju and Bhure were arrested
and they suffered disclosure statements. On the basis of disclosure
statement of Amar Singh @ Ravi, co-accused Sonu Sharma was also
arrested. Recoveries of mobile phones and motorcycle etc. were also
effected. Statements of the witnesses were recorded. Rough as well as
scaled site plans were prepared. After completion of necessary formalities
and investigation, challan was prepared and presented in the Court of
learned Illaqa Magistrate, who committed the same to the Court of
Sessions for trial.
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3. Learned trial Court after finding a prima facie case, charge
sheeted the accused under Sections 120-B, 364/120-B IPC, 363/120-B
IPC, 420/120-B IPC, 467/120-B IPC and 471/120-B IPC, to which they
pleaded not guilty and claimed trial.
4. As many as 21 witnesses were examined by the prosecution
to prove its case. Statements of accused under Section 313 Cr.P.C. were
recorded. Incriminating evidence put to accused was denied by them.
They claimed innocence and false implication. Accused Amar Singh
pleaded that he was an employee at the taxi stand of complainant. Before
the occurrence, complainant had beaten him mercilessly and did not pay
salary to him. Due to enmity, he lodged this false case against him.
Accused Sanjay pleaded that motorcycle had not been recovered by the
police from brick kiln village Mehsar Mau. No ransom call was made
from his phone. He is residing at Delhi near Khajuri Khaas for the last 10
years and had not come to Faridabad at any point of time during the
period of alleged occurrence. I.D. of Devender Kederia was planted by
the police and his mobile was not used in the occurrence. Accused Bhura
pleaded that motorcycle was not recovered by the police from brick kiln
village Mehsar Mau. No ransom call was made from mobile phone of
Sanjay and I.D. of Devender Kederia was planted by the police. His
mobile phone was not used in the occurrence. Accused Sonu Sharma
pleaded that he has been falsely implicated in this case, being relative of
accused Amar Singh @ Ravi. He was not involved in this case in any
manner and he knew nothing about ransom and kidnapping of the child.
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In their defence, accused examined, DW1 Om Pratap Singh and DW2
Prabhash Kumar, Clerk.
5. After considering evidence on record, facts and
circumstances, learned trial Court held accused Sonu Sharma guilty under
Section 120-B IPC whereas remaining accused Amar Singh @ Ravi,
Sanjay @ Sanju and Bhura were held guilty under Sections 120-B, 364-
A/120-B IPC, 420/120-B IPC and convicted accordingly.
6. Aggrieved of the said decision, accused/appellants have
preferred the present appeals against their conviction.
7. Learned counsel for the accused/appellants contended that
there is absolutely no admissible evidence against the accused/appellants.
Infact it is a case of no evidence. Police fabricated and concocted
evidence in order to get undeserved and unjustified credit for allegedly
having solved the crime alleged to have been committed in this case. He
argued that circumstantial evidence in order to sustain conviction must be
complete and incapable of any other hypothesis except guilt of the
accused and should form a chain so complete, that there is no escape from
the conclusion of the crime being committed by the accused and none
else. While relying upon State of Haryana Vs. Jagbir Singh, 2003 (4)
RCR (Criminal) 554; Alamgir Vs. State (NCT, Delhi) 2002 (4) RCR
(Criminal) 834 and Vithal Tukaram More Vs. The State of
Maharashtra 2002 (3) RCR (Criminal) 629, he argued that infact no
one witnessed the alleged occurrence in which Yash was allegedly
kidnapped for ransom. Essential ingredients of the alleged offence of
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kidnapping for ransom were not established and that offence of
kidnapping for ransom as contemplated under Section 364-A IPC is not
proved against the accused. It has not been proved by leading reliable and
admissible evidence that accused had made call for demanding ransom.
Accused Sonu Sharma was not named by accused/appellant Amar Singh
in UP and later on he was falsely implicated being near relative of
accused/appellant Amar Singh. He submitted that neither Yash was
kidnapped by the accused nor he was recovered from their custody. He
argued that no independent witness was joined in the investigation and at
the time of suffering of alleged disclosure statements and the recoveries in
pursuance thereof makes the same doubtful. Confessional statements it is
submitted could not be made the basis for conviction. It was prayed that
all the appeals be accepted, impugned judgment dated 03.01.2014 be set
aside and appellants acquitted of the offences as charged.
8. We heard learned counsel for the parties and have perused the
record carefully and minutely.
9. It is appropriate to refer to the evidence produced on record
by the prosecution.
9.1 PW1 Rajinder Sharma, complainant in this case, is the
father of the child victim. He testified that on 19.08.2012 at about 4:30
P.M. when he was present at the taxi stand, his cousin Dharam Chand
informed him that his son Yash was not traceable. They searched for Yash
but were unable to trace him. At 8:30 P.M., he went to police station to
lodge a report but they told him to find the child at his own. They entered
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missing report of his son Yash on 19.08.2012 Ex. PA. He again went to
police station on 20.08.2012. He further testified that on 24.08.2012 at
9:00 P.M., he received a telephonic call from Mobile No.9058889628 on
his mobile No.9810246982 and caller told him that Yash was with them
and also asked him not to disclose it to anyone and threatened to kill Yash
in case he informed the police. After 4 minutes, he received another call
from same number and caller raised demand of Rs.20 lakhs to release
Yash. On his asking, caller told him that money be delivered at Baliya and
also said that remaining details would follow. He told the caller that he
needed 10-15 days to arrange said amount and when he said that he
wanted to talk to the child, the caller told him not to worry and said the
child was taking meals and asked complainant to inform after 2-3 days
and disconnected the phone. On 26.08.2012, accused was arrested by
police of Ikdil police station Itawa, U.P. Complainant Rajinder Sharma
went there and Yash was handed over to him by the police, vide memo
Ex.PB. He also proved his complaint Ex.PC. They came back to
Faridabad on 27/28.08.2012. He deposed that Amar Singh had kidnapped
his son Yash and Sonu Sharma was giving him the locations. His son Yash
told him that one uncle had taken him away and two other uncles had met
him on motorcycle. Accused Amar Singh told that Bhura and Sanjay
were also with him. Accused Amar Singh, Bhura and Sanjay were present
in police station when he reached there and he identified them in Court.
Complainant stated that his son completed 8 years on 15.08.2012.
9.2 Minor victim Yash was examined as PW2. In order to
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ascertain his credibility and competency to depose, some questions were
put to him by Court and his statement recorded thereafter upon finding
him to be competent witness. PW2 testified that he was playing outside
his house when Amar Singh offered to buy him a kite and patties to eat.
He ate patties and then accused Amar Singh made him sit in a rickshaw
and then in an auto rickshaw. Thereafter he was taken in a bus by Amar
Singh. Then on a motorcycle, he was taken in a jungle. He deposed that
there were three persons but he did not know their names. They took him
to a house and while pointing out towards accused, he stated that Amar
Singh, Bhura and Sanjay offered him rice to eat. They kept him in said
house for 10 days. Then his father met him in the police station and
brought him back home.
9.3 PW3 Shyam Singh deposed that on 19.08.2012 at 04:15
P.M., he was present at his shop of sweets and confectionery. A young
man of 30 years along with one child aged about 6-7 years came to his
shop for purchasing patties which were given to minor child and then they
left the shop. On 29.08.2012, he was called in the police station by the
police and he identified the person present there, who had came to his
shop on 19.08.2012 along with minor child.
9.4 ASI Ishwar Singh PW4 associated in investigation of the
case with SI Ishwar Singh. He deposed about recovery of minor child by
the police of Itawa, calling father of the abducted child and then handing
over the child to him. He also deposed about recoveries of mobile phones
made from the accused persons which were taken into police possession
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and arrest of accused persons in the present case. He also deposed about
suffering of disclosure statements by Amar Singh, Sanjay, Bhura Yadav
accused EX.PG, PH and PI respectively. He deposed that on disclosure
statement of Amar Singh, co-accused Sonu Sharma was arrested, he got
recovered Mobile No.9650585379 make Airtel which was taken into
possession vide memo Ex.PL. He further deposed that in pursuance of the
disclosure statement, Bhura got recovered motorcycle bearing No.UP-75-
D-3064 make Yamaha Crux from Jhuggi of M.S. Bhatta.
9.5 PW5 SI Rohit Tiwari deposed that on 25.08.2012, he was
posted as Incharge, Special Operation Group, at Itawa. They received
secret information that Sanjay and Bhura resident of village Sunderpur
and Amar Singh resident of village Bamhampur had abducted a minor
child from Haryana for ransom and if raid was conducted they could be
apprehended at the spot. After receiving aforesaid information, they
proceeded in the area of Ikdil, where SO Devinder Diwedi along with
police persons met them. He disclosed about said secret information to
him. They tried to associate public witness in the raiding party but none
came forward. As per the secret information, when they proceeded
towards eastern side near railway line, they saw those persons coming and
one of them was carrying minor child in his lap. At instance of informer,
they apprehended those persons. He enquired about identity of the person
carrying the minor child in his lap. He disclosed his name as Amar Singh
@ Ravi. Child disclosed his name as Yash S/o Rajinder Sharma resident
of Faridabad. He also testified about recovery of mobile phones from the
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accused persons.
9.6 PW6 Sarwan Kumar, Draftsman, proved scaled site plan
Ex.PR prepared by him on 05.09.2012.
9.7 PW7 Devinder Kumar @ Dhullan deposed that prior to
registration of this case about 1½ years ago, he had applied for sim card
of Vodafone Mobile Services and for that purpose had provided voter ID
card, which was misplaced. Later on, he had not applied for obtaining any
sim card. He deposed that he had not applied for sim card for mobile
No.9058889628 and did not make any call from said mobile number. He
testified that neither he applied for issuance of said mobile number nor
had provided ID for the said purpose.
9.8 PW8 EHC Satbir Singh deposed that on 24.08.2012, he had
delivered special reports at residence of Illaqa Magistrate and other senior
police officers without any delay.
9.9 PW9 Constable Ravi Kumar deposed that on 21.08.2012, SI
Nand Kishore had handed over the special report to him and the same was
delivered to Illaqa Magistrate and other senior police officers.
9.10 PW10 HC Deepak Kumar stated that on 19.09.2012, he was
posted in Police Line Cyber Cell, Faridabad. On request of SHO, PS
Sector-7, Faridabad, he collected call details of mobile Nos.9873642485,
9650586379, 9758300594, 9058889628, 9810246982 for the period of
18.08.2012 to 25.08.2012 from the concerned companies. He proved the
called details as Ex.PS.
9.11 PW11 EHC Mahabir Singh deposed that on 21.08.2012 he
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was posted as MMHC at PS Sector-7, Faridabad. On 27.08.2012 and
06.09.2012, case property of this case was deposited with him by ASI
Ishwar Singh and he kept the same in an intact condition.
9.12 PW12 R.K. Singh Nodal Officer, Bharti Airtel Ltd. Okhla
Phase-III, New Delhi brought the summoned record pertaining to Mobile
No.9650585379 in the name of Birbal S/o Fauzdar and produced call
details of the said mobile number for the period 20.08.2012 to 30.08.2012
as Ex.PV/1. He also brought the customer application form of Mobile
No.9810246982 in the name of Rajinder Sharma S/o Braham Dutt
Sharma and proved the customer application copy as Ex.PW and call
details of the said mobile number for the period from 20.08.2012 to
30.08.2012 as Ex.PW/1. He also brought on record cell ID location and
proved the same as Ex.PW/2 and compliance of Section 65 of the Indian
Evidence Act as PW/3.
9.13 PW13 Nand Kishore SI (retired) stated that on 21.08.2012
when he was posted as SI in PS Sector-7, Faridabad, he recorded formal
FIR Ex.PC/1.
9.14 PW14 Ramesh Chander, ASI (retired) deposed regarding
entering of DDR No.3 dated 30.08.2012 Ex.PA and submitting of
complaint Ex.PC by complainant Rajinder Sharma before him. After
making his endorsement Ex.PC/2A he sent the same for registration of
FIR.
9.15 PW15 SI Ishwar Singh deposed that on 24.08.2012,
complainant told him that he had received a ransom call for Rs.20 lakhs
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and in case of failure, his son would be eliminated. On receiving said call,
he went near taxi stand near Hanuman Mandir, Sector-8, Faridabad, where
supplementary statement of complainant was recorded and offence under
Section 364-A IPC was added. On 25.08.2013, he along with other police
officials went to Kanpur U.P. in search of child. Then they received
information that child had been recovered by the Itawa police and accused
had also been apprehended. Thereafter he along with the police party
went there and Rajinder Sharma father of child was also called. On
26.08.2012, accused Amar Singh, Bhure Yadav and Sanjay @ Sanju were
formally arrested. Child was handed over to his father. Police of Ikdil
handed over to him parcel containing three mobile phones along with
sample seal which was taken into possession vide memo Ex.PE. He
visited the place of occurrence from where child had been recovered and
prepared site plan Ex.PZ. He further deposed that during interrogation
accused Amar Singh, Bhura and Sanjay suffered disclosure statements
Ex.PG, PH and PI respectively admitting their involvement in the present
case. On 28.08.2012, accused Amar Singh was further interrogated and he
suffered disclosure statement Ex.PJ and in pursuance thereof, they led the
police party and got demarcated the place of occurrence from where he
had kidnapped the child. On the same day, as per disclosure statement of
Amar Singh, co-accused Sonu Sharma was also arrested. On 31.08.2012,
disclosure statement of Sanjay Ex.PN was recorded. Then they went to
village Behasermau Bhatta and in that village, from one brick kiln,
accused Bhure Yadav got recovered one motorcycle bearing registration
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No.UP-75-D-3064 which was used in the crime and the same was taken
in possession vide recovery memo Ex.PP. From the tool box of that
motorcycle, accused Sanjay @ Sanju got recovered one voter ID of
Devender which was taken in police possession vide recovery memo
Ex.PO. He prepared rough site plan of place of recovery of motorcycle
Ex.PAA and also deposed about other investigation proceedings
conducted by him.
9.16 PW16 Mahender Bisht, Nodal Officer, Uninor brought
summoned record pertaining to mobile No.9058889628 in the name of
Devender Kumar S/o Radhey Sham and call details of said mobile
number for the period from 20.08.2012 to 30.08.2012 and compliance of
Section 65-B of the Indian Evidence Act as Ex.PAC/2.
9.17 PW17 Deepak, Nodal Officer, Vodafone Mobile Services
Ltd. brought summoned record pertaining to mobile No.9873642485 and
9758300594 in the name of Jakir Ahmad and Rakesh Kumar respectively.
He also produced call details for the period from 01.08.2012 to
31.08.2012 Ex.PAD/1 and call details of mobile No.9758300594 for the
period 01.08.2012 to 31.08.2012 Ex.PAE/1 and compliance of Section 65-
B of the Indian Evidence Act as Ex.PAE/2.
9.18 PW18 Constable Pardeep Kumar brought original record of
DDR No.3 and proved the same as Ex.PA.
9.19 PW19 SI Anup Kumar, stated that on 25.08.2012, a zero
FIR was registered under Sections 364-A/363/420/467/468/471 IPC and
in this connection FIR No.412 dated 21.08.2012 under Sections 363/
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364-A/420/120-B IPC had already been registered at Police Station
Sector-7, Faridabad.
9.20 PW20 Constable Tejbir Singh brought record regarding zero
FIR dated 25.08.2012 registered at PS Ikdil Ex.PZ/1.
9.21 PW21 SI Devinder Kumar Dewati, Crime Branch,
Kanpur deposed regarding receipt of secret information that accused
Sanjay and Bhura had abducted minor child for ransom from Haryana and
accused were apprehended by him as per secret information and one of
them was carrying minor child in his lap. They were apprehended and
during their search, mobile phones were recovered.
10. Statements of accused under Section 313 Cr.P.C. were
recorded whereas all the incriminating evidence was put to them to which
they denied and pleaded innocence.
11. In defence, accused persons examined DW1 Om Pratap
Singh, who deposed that he knew Sanjay since 10-12 years and had
worked under him as a helper. The act and conduct of Sanjay was good
and he was not involved in any criminal case. He has been falsely
implicated in this case.
11.1 DW2 Parbash Kumar, Clerk of Office of ARTO, Itawa,
brought record of motorcycle bearing registration No.UP-75-D-3064 and
stated that as per record as shown at Sr. No.314 registered owner of the
vehicle is Udaiveer Singh S/o Rambir Singh.
12. Accused/appellant Amar Singh @ Ravi, Sanjay Kumar @
Sanju and Bhura have been convicted for offence punishable under
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Section 364-A IPC, which reads as under:
“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 inter-governmental
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.”
13. Hon’ble Supreme Court elaborately considered the necessary
ingredients constituting the offence punishable under Section 364-A IPC in
Shaik Ahmed Vs. State of Telangana, 2021 (3) RCR (Criminal). The
relevant portion of said judgment is extracted as under:
33. After noticing the statutory provision of Section 364A
and the law laid down by this Court in the above noted cases,
we conclude that the essential ingredients to convict an accused
under Section 364A which are required to be proved by
prosecution are as follows:-
(i) Kidnapping or abduction of any person or keeping a person
in detention after such kidnapping or abduction; and
(ii) 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:
(iii) causes hurt or death to such person in order to compel the
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organization or any other person to do or abstain from doing
any act or to pay a ransom.”
14. Hon’ble the Supreme Court in Ravi Dhingra Vs. State of
Haryana, 2023 (2) RCR (Criminal) 153 held that to prove offence under
Section 364-A IPC – kidnapping for ransom, it is necessary to prove not only
that such kidnapping and abetment has taken place but thereafter, the
accused threatened to cause death or hurt to such person or by his conduct
gives rise to a reasonable apprehension of such death or hurt.
15. Unless conditions as enumerated under Section 364-A IPC are
proved, no conviction can be recorded under the said section. The first
essential condition as incorporated under Section 364-A IPC is “whoever
kidnaps or abducts any person or keeps a person in detention after such
kidnapping or abduction.” In the present case, sufficient evidence has been
produced on record by the prosecution that minor child Yash was kidnapped
by the aforesaid three accused persons. From testimony of PW1 Rajinder
Sharma and PW2 Yash the child victim, it stands proved that minor child
was kidnapped by accused Amar Singh, Sanjay Kumar and Bhura. The child
victim Yash while appearing as PW2, has given a graphic account of what
exactly transpired at the time of incident. He stated that he was playing
outside his house. Amar Singh offered to buy him a kite and patties to eat.
He ate the patties bought for him and accused Amar Singh made him sit in a
rickshaw and then in an auto rickshaw. Then Amar Singh took him in a bus
and then took him to jungle on motorcycle. He deposed that there were three
persons but he did not know their names. They took him to a house where he
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was kept for 10 days. Then his father met him in the police station and
brought him back home. Section 361 IPC, defines kidnapping from lawful
guardianship as under:-
“361. Kidnapping from lawful guardianship.-
Whoever takes or entices any minor under sixteen years
of age if a male, or under eighteen years of age if a female, or
any person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without the
consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation.- The words “lawful guardian” in this section
include any person lawfully entrusted with the care or custody
of such minor or other person.
(Exception) -This section does not extend to the act of any
person who in good faith believes himself to be the father of an
illegitimate child, or who in good faith believes himself to be
entitled to lawful custody of such child, unless such act is
committed for an immoral or unlawful purpose.
16. It is thus apparent that first ingredient as contemplated under
Section 364-A IPC is completed and duly proved on record. Now it is to be
examined whether there is any evidence from which it can be proved that the
second ingredient of Section 364-A, i.e. “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”, is established. From statements of
PW1 and PW2, it is apparent that neither PW1, who is complainant and
father of the child victim nor PW2 the victim himself, stated that any of the
accused persons threatened to cause death or hurt to child.
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17. PW1 Rajinder Sharma deposed that he received a ransom call
on 24.08.2012 at about 9:00 PM. on his mobile phone from mobile
No.9058889628. Caller enquired from him about the incident and told him
that Yash was with them. He also asked him not to disclose this fact to
anyone and threatened to kill Yash in case he informed the police. After 4-5
minutes, he again received a call from the same number and caller enquired
about the number of cars he owned. He told the caller that he had only one
Swift car, but caller said that he had several cars and had sold land worth
Rs.2 crores and he demanded Rs.20 lakhs to release Yash. He told the caller
that he needed 10-15 days to arrange said money. When he expressed his
desire to talk to child, the caller told him not to worry and informed that
child was taking meals and further told him to inform them after 2-3 days.
Thus from statement of complainant itself, it is clear that the kidnappers did
not give threat to kill or cause hurt to child rather he was told not to worry
and was informed that child was taking meals. When he told them that he
would be able to arrange the ransom amount only within 10-15 days, he was
not asked to arrange it immediately on the peril of hurt or death of the child.
There is nothing in deposition of PW1 that his son PW2 Yash ever revealed
any ill-treatment meted out to him or any threat to cause hurt or to kill him
being meted out by the persons who kidnapped him. In his cross-
examination, this witness spontaneously stated that when Yash was handed
over to him by Ikdil police station the child was quite comfortable but then
stated that child was frightened. No injury was detected on person of the
child and neither was he reported to be traumatized. There is no evidence to
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this effect.
18. PW2 Yash, the child victim, stated that when he was playing
outside his house, Amar Singh offered to buy him a kite and patties to eat.
He ate patties bought for him. Then accused took him in a rickshaw, an auto
rickshaw and then on a bus and thereafter he was taken to a jungle on a
motorcycle. They took him to a house. They offered him little rice which he
ate. They kept him confined to that house for 10 days. His father met him at
the police station and brought him home. In the examination- in-chief of the
child there is not a whisper about extending of any threat to kill or cause hurt
by the accused persons. Rather, the victim stated that during his stay in the
house, he was being given adequate food. In his cross-examination, he
categorically stated that he did not cry or complain to anybody when he was
being taken in the rickshaw or other modes of conveyance and he did not
invite anybody’s attention during this journey. He categorically stated that
during the journey and thereafter, he was not beaten or threatened and that
during his captivity, he stayed idle.
19. Learned trial Court has thus failed to notice that the victim child
was treated well and there is no evidence of any threat to cause death or hurt.
Furthermore there is no evidence on record to indicate that conduct of the
accused persons was such which gave rise to a reasonable apprehension
regarding hurt to or death of victim, as the complainant himself testified that
the accused/kidnappers asked him not to worry and informed him that the
child was taking meals. When the child was recovered, there were no injury
marks on the person of the child. PW3, Shyam Singh, deposed that on
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19.08.2012 a young person aged about 30 years along with one child aged
about 6-7 years came to his shop for purchasing patties, which were
delivered to minor child. From the statement of this witness also, it is clear
that the victim was not in a traumatized state, when he came along with the
accused to his shop for purchasing patties. PW5 SI Rohit Tiwari stated that
child was recovered in his presence and one of the accused was carrying the
child in his lap. The victim was not tied up etc.
20. SI, Ishwar Singh, EOW, clearly stated that there was no
evidence forthcoming in his investigation that child witness was threatened
or beaten. Hon’ble Supreme Court in the case of Shaik Ahmed (supra) held
that merely because a child of tender age is kidnapped/abducted for ransom,
it cannot be presumed that there is an inherent threat to cause death or hurt to
such a child and it is imperative that this second condition should be proved
on record. While considering its earlier judgment in Arvind Singh Vs. State
of Maharashtra, (2020) SCC online SC 400, it was held that no such ratio
regarding presumption of inherent threat to cause death or hurt as above has
been laid down in the case of Arvind Singh. Subsequently, in the case of
William Stephen Vs. State of The Tamilnadu and others, SCC 2024 (5)
SCC 258, Hon’ble the Supreme Court considered the controversy, wherein
as per prosecution case a minor child of about 08 years was abducted by the
two accused, when he was coming back from his tuition class, on the pretext
that his father was going to purchase a car from them, therefore he should
accompany them. It was the case of prosecution that a phone call was
received from a particular cell phone demanding ransom for
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release of the child. It was held by the Hon’ble Supreme Court, in the said
case, that when prosecution was not able to connect the alleged demand and
the threat with the accused, ingredients of Section 364-A IPC were not
proved, inasmuch as it failed to lead cogent evidence to establish the second
part of Section 364-A IPC in respect to threat given by the accused to cause
death or hurt to such person. Conviction of the accused therein for offence
punishable under Section 364-A IPC was held to be unsustainable, hence set
aside and appellants convicted for the offence punishable under Section 363
IPC.
21. Learned counsel for the State had vehemently argued that
appellant Amar Singh had threatened to kill the child when he called PW1
on 24.08.2012 to demand ransom and that this in itself is sufficient to
complete the second ingredient of Section 364-A IPC. On careful scrutiny of
the evidence on record, we find this argument being devoid of any merit.
PW1 Rajinder Sharma, stated in his cross examination that on 24.08.2012,
he received a ransom call from mobile No.9058889628 on his mobile phone
No.9810246982, but he did not know the caller and neither was the
conversation recorded. Investigating Officer did not ask him to identify the
caller or his voice. Perusal of his cross-examination reveals that PW1 while
stating that accused Amar Singh had never been his employee, admitted that
he was employed as a driver by one Chauhan PW-1, admitted it to be
correct, that the car being driven by accused Amar Singh was in the fleet of
his taxi stand and that Amar Singh was known to him for about 2½ years
prior to the incident. It is to be noted that as per DDR No.3 dated
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20.08.2012, complainant PWI had recorded that his son had gone away from
the house at his own will and despite having searched for him, he could not
be found. Thereafter on 21.08.2012, complainant submitted a complaint that
a missing report had been recorded on 20.08.2012 but his son could not be
found and he feared that he had been kidnapped by some unknown person.
22. PW15 SI Ishwar Singh stated that on 30.08.2012, police party
along with accused had gone to district Oriya for further investigation about
mobile phone from which the ransom call was received. Near Muradganj
turn, accused Amar Singh further suffered disclosure statement Ex.PM.
When they came to Oriya they inquired about the sim that from where it had
been purchased. Then they came to Ajitmal town. There Devinder Kumar in
whose name sim was allotted, was joined in the investigation. In his cross-
examination, PW15 SI Ishwar Singh further stated that complainant had
informed him that ransom of Rs. 20 lakhs had been demanded through
phone call on his mobile on 24.08.2012. Не trusted statement of complainant
who had shown him his mobile number from which call was received.
There was no recording of conversation regarding demand of ransom. There
was no such record and evidence except the phone call which was received
by the complainant. There was no such plan and any mode of payment
informed to PW1 on such date and the caller had not revealed his name and
address and that no email, message, SMS was available on mobile. He could
not recover the sim from which the alleged ransom call was made. He tried
his best but could not succeed as Amar Singh suffered disclosure statement
that he had thrown that sim in the drain after breaking it. He could not find
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the whereabouts of shopkeeper from whom the sim had been purchased.
23. PW7 Devinder Kumar in whose name sim card No.9058889628
was existing, deposed that prior to registration of this case about 1½ years
ago, he had applied for sim card of Vodafone mobile services and for that he
had provided voter ID card which was misplaced by him. Lateron, he did not
apply for obtaining sim card of any mobile number. In his cross-
examination, he stated that he did not know on which date his voter ID card
had been lost. He did not lodge any report regarding missing of his voter ID
card. He did not know who possessed his voter ID card.
24. Thus from the aforesaid evidence, it transpires that sim
No.9058889628 was not in the name of any of the accused persons and it
was in the name of PW7 Devinder Kumar, who claims that his voter ID card
had been lost. Admittedly PW7 did not lodge any report regarding loss of his
voter ID card, when it was allegedly lost. He also clearly stated that he did
not know who possessed his voter ID card. PWI also stated that on
24.08.2012 when he received ransom call he did not know the caller and did
not record the conversation. Investigating Officer did not ask him to identify
the caller and his voice. PW15 SI Ishwar Singh stated that he merely trusted
statement of complainant that he had received ransom call from the said
phone number. It is pertinent to note that the child victim had allegedly been
missing since 20.08.2012 in respect to which missing report had first been
lodged and thereafter FIR was lodged on 21.08.2012 under Section 363 IPC.
In such circumstances, it is opposed to all probability that the calls could not
be recorded, either at the instance of the police or by the complainant
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himself.
25. Admittedly the sim card from which the ransom call was
allegedly made was not recovered. Even said shop was not traced from
where the said sim card had been allegedly purchased by the accused
persons by using voter ID of PW7 Devinder Kumar. In this factual matrix,
ransom call allegedly received by the complainant on 24.08.2012 cannot be
connected with the accused persons. It is also not proved by the evidence on
record that accused had obtained sim card No.9058889628 after using voter
ID card of PW7 which he had allegedly lost. Offence under Section 420 IPC
against the accused is hence not proved on record beyond reasonable doubt.
26. Evidence on record qua accused Sonu Sharma, who has been
held guilty under Section 120-B IPC has been carefully considered by us. It
has been held by learned trial Court that accused Sonu Sharma was giving
information to accused Amar Singh on his mobile phone No.9873642485
from mobile phone No.9650585379 regarding activities of police in respect
to search of missing child, Yash. Learned trial Court relied upon evidence
produced by the prosecution in the form of disclosure statement of co-
accused Amar Singh Ex.PJ and call details Ex.PS. In this context, learned
trial Court also held that contention raised on behalf of accused Sonu
Sharma that mobile No.9650585379 was not in his name and was in the
name of Birbal, was not tenable, as accused have failed to examine said
Birbal to prove that such mobile number was not being used by Sonu
Sharma and was being used by said Birbal.
27. From the evidence on record, it transpires that Mobile No.
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9650585379 is not in the name of accused Sonu Sharma but in the name of
one Birbal. There is no evidence to indicate as to who is this Birbal or his
connection with the appellant Sonu. He was not examined as a prosecution
witness in order to prove that aforesaid phone number was being used by
Sonu Sharma and not by him.
28. Even if it be presumed for the sake of argument that aforesaid
phone number was being used by Sonu Sharma there is no such evidence on
record that the said phone calls were made by Sonu Sharma to Amar Singh
for the purpose as alleged. It is an admitted fact that Sonu is closely related
to co-accused Amar Singh, thus probability of telephonic conversation
between them cannot be ruled out. In the absence of any evidence, it cannot
be presumed that he had been informing Amar Singh regarding activities of
the police regarding search of missing child Yash. PW4 ASI Ishwar Singh
stated during his cross-examination that on disclosure statement of Amar
Singh recorded on 28.08.2012 in police station, name of Sonu Sharma came
to light. He admitted that disclosure statement of Amar Singh was also
recorded on 27.08.2012 in the police station by the Investigating Officer and
on 27.08.2012, Amar Singh did not disclose name of accused Sonu Sharma,
which creates strong doubt regarding involving him in the present case at a
later stage. It is also to be noted that even as per prosecution case, except
Amar Singh, none of other co-accused stated regarding his involvement in
the commission of crime. PW1, Rajinder Sharma, complainant stated in his
cross-examination that police had told him that Sonu Sharma had assisted
other accused persons by supplying information regarding their movements
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at Faridabad. He categorically stated that he had not seen Sonu Sharma in
the area or around his house. He never received any call on his phone, his
wife’s phone or on the phones of other family members from Sonu Sharma.
He had never been informed by any of the neighbours of the locality, that
Sonu Sharma had been inquiring about him or his family.
29. PW4, ASI Ishwar Singh admitted in his cross-examination that
no other co-accused disclosed name of Sonu Sharma in his disclosure
statement and that no conversation on phone between Sonu Sharma and
Amar Singh was recorded nor any CD was prepared by him. He further
stated that their conversation was not heard by police by using latest
instruments. He did not know in whose name, the mobile phone recovered
from accused Sonu Sharma was purchased and they did not make any effort
to investigate about its owner. They did not verify that this phone number
was being used by accused Sonu Sharma, by making call from this number
to any other person. PW10 Deepak Kumar HC No.2551 admitted it to be
correct during his cross-examination that as per call details Ex.PS, pertaining
to calls of Sonu Sharma, there was no mobile number and ID of Sonu
Sharma in the said call details. As per prosecution version, it was always
Amar Singh who called Sonu and Sonu Sharma never made any call to Amar
Singh. Hence in the given factual matrix, argument that once calls from
Amar Singh on the cell phone number statedly used by Sonu are proved, his
involvement in commission of offence should be presumed, is totally devoid
of any merit, hence rejected.
30. Sufficient cogent evidence is not available on record to prove
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role of accused Sonu Sharma within the ambit of Section 120-B IPC. Perusal
of prosecution evidence on record reveals that there is no admissible
evidence against Sonu Sharma and he has been nominated as accused in this
case basically on the bedrock of disclosure statement of co-accused Amar
Singh. Finding of learned trial Court in the given facts and circumstances is
thus unsustainable. Offence under Section 120-B IPC is not proved against
accused/appellant Sonu Sharma beyond reasonable doubt.
31. It is to be noted that though offence under Section 364-A IPC
has not been proved beyond doubt but offence of kidnapping has been fully
established qua appellants/accused Amar Singh, Sanjay Kumar and Bhura
who are liable to be convicted under Section 363 IPC. Conviction and
sentence imposed upon said appellants for the offence punishable under
Section 364-A IPC is thus set aside and they are held guilty of offence
punishable under Section 363 IPC. Section 363 IPC provides for punishment
which is imprisonment of either description which may be extended to seven
years as well as imprisonment of fine. In the given facts and circumstances,
appellants Amar Singh @ Ravi, Sanjay Kumar @ Sanju and Bhura are
convicted under Section 363 IPC and sentenced to undergo RI of 7 years and
fine of Rs.25,000/- each and in default thereof, to undergo further
imprisonment of 4 months. Appellant Sonu Sharma is acquitted of the
charges against him.
32. It was brought to our notice that appellant Sanjay Kumar @
Sanju and Bhura S/o Rakesh Yadav at the time of suspension of their
sentence on 27.01.2022 and 25.02.2022 respectively, had already undergone
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actual custody of 8 and 9 years respectively at that juncture. As per custody
certificate of May, 2022 available on record, in respect to appellant Amar
Singh @ Ravi Bablu @ Bhallu, he had undergone actual imprisonment for a
period of 8 years, 5 months and 2 days as on 09.05.2022. Appellant Amar
Singh @ Ravi @ Bablu @ Bhallu is still in custody. As he has undergone the
sentence, it is directed that said appellant Amar Singh @ Ravi @ Bablu @
Bhadu be released forthwith, if not wanted in any other case. Bail bonds of
the others be discharged.
33. Appeals filed by appellants Amar Singh, Sanjay Kumar and
Bhura are partly allowed to the extent as above and appeal by appellant Sonu
Sharma is allowed.
34. Pending application(s), if any, also stand disposed of
accordingly.
( SUKHVINDER KAUR ) ( LISA GILL )
JUDGE JUDGE
19.12.2024
harjeet
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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