JUDGEMENT
Pradeep Nandrajog, J. -
(1.)WRITTEN submissions have been filed by learned Counsel for the appellants. After narrating the facts of the case, the legal submissions made have been penned in paras 6 to 17 of the written submissions. We reproduce the same. They read as under:
6. It is respectfully submitted that the alleged demand of ransom has not been satisfactorily proven by the prosecution in this case and in the absence of the ransom demand (or any direction to do or abstain from doing any act, which is not the case here) the alleged offence would come out of the rigors of Section 364A IPC and would be punishable under Section 365/363 IPC for which the maximum prescribed sentence is 7 years.
7. Admittedly, there is no Ransom Note in this case. No ransom was demanded from the father either on phone or even when he had gone to the Kanth Bus stand. Admittedly the father of the child (PW -1) did not even take the allegedly demanded sum of Rs. 50,000/ - to recover his child from the kidnappers.
8. The prosecution has not led any evidence whatsoever that there was no telephone connection or mobile phone in the residence of PW -1 or that it was out of order at the relevant time.
9. That PW -2, who was residing in a different gali near the house of PW -1, admittedly did not identify the voice of the caller to be of any accused persons. The prosecution has miserably failed to link the accused persons with the alleged telephone call since neither the telephone number nor the place from where the alleged call was made has been established by the prosecution. Reliance is placed upon the judgment in Netra Pal v. The State (NCT of Delhi), 2001 (2) JCC (Del) 27 wherein in paras 10 and 11 this hon'ble court followed the Division Bench of Bombay High Court in Mohammad Rashid Ansari v. State, II (1998) CCR 608 (DB) as follows:
11. In that case the minor boy was kidnapped and it was alleged by the prosecution that a telephone call came from an anonymous person at the place of business of the uncle of the kidnapped boy. It was disclosed through telephone conversation that the kidnapped boy Gururaj was taken to Agra and that a ransom amount of Rs. 2,50,000/ - was demanded on telephone from the uncle of the kidnapped boy. Court after going through the record concluded that the ransom theory and that of telephone call were not established. There was no corroborative piece of evidence to establish that there was an anonymous call and that ransom demanded. It was in this background the Court observed that:
16. What we are therefore left with is the mere possibility amounting almost to certainty as to there being some motive for the entire exercise. However, what may be there cannot be raised to level of 'must', unless there is material warranting the conclusion.
10. It is respectfully submitted that in the Mohammad Rashid Ansari's case supra, the alleged telephonic ransom demand was not only traced but the same was tape -recorded as well with the aid of Telephone department. However, the said evidence was considered not worth reliance since the voice of the person who allegedly talked at the other end of the telephone when the conversation came to be taped, was not before the court and therefore, it was held that the necessary proof to link the voice recorded and the person whose voice it was supposed to be was missing.
11. It is most humbly and respectfully submitted that in the present case but for a bald statement of PW -2 who happened to reside near the house of PW -1, there is no evidence worth its name that any telephonic demand was made and from which telephone or which place it was made. Needless to mention again that admittedly PW -2 did not even allege the voice of the caller to be of any of the accused persons.
It is submitted that in the absence of any evidence whatsoever, it is virtually impossible to link the appellants with the alleged telephonic demand at the residence of PW -2 and the law laid down in the two judgments mentioned above is squarely applicable to the facts of this case.
12. That it may not be out of place to mention the dictum in Netra Pal's case holds good till date and the very fact that the hon'ble Apex Court in Malleshi v. State of Karnataka : (2004) 8 SCC 95, has distinguished the same on facts, means that the law laid down therein was acceptable to the hon'ble Apex Court.
13. That the learned trial court erroneously held in para 33 of the impugned judgment (Page 69 of the paper book at 4th line from the bottom) that A -1 in his statement Under Section 313 Cr.P.C. did not deny the recovery of the child from the custody of A -2 in pursuance of his disclosure statement, which is factually incorrect as is born out from appellant's answers to Questions 15 to 20 at page 44 to 46 of the paper book.
14. That as regards the Role alleged against accused Sri Om, the prosecution case is that the kidnapped child was recovered from the roof of his house at village Bhitya Poki when he was sleeping with the child at around 3 a.m. in the midnight of 4th and 5th May, 2002.
15. Admittedly, no independent witness was associated with the alleged recovery of the child. According to the deposition of the I.O. PW -8 (at page 26 of the paper book) the villagers had already collected at the spot when accused Sri Om was arrested, however none was associated with either the arrest or the recovery of the child. The I.O. PW -8 as well as PW -1 Anand Prakash Mishra admitted that they had not taken the local police before reaching at the village of the accused and that they did not contact the any village pradhan and sarpanch of the village there. Both the I.O. as well as PW -1 have deposed that they were not aware of the name of Sri Om while leaving from Delhi.
16. That appellant Sri Om has taken an unequivocal stand in his statement Under Section 313 Cr.P.C. wherein in answers to questions 21 and 29 he has categorically stated that he had not made any disclosure statement to the police and that he was lifted from his house in the morning hours and that no child was recovered from his house or at his instance. He stated that his villagers and pradhan also protested before the police about his false implication and that he had no concern or nexus with the kidnapping of the said child in any manner.
17. That appellant Sri Om did not fall short only asserting his stand in his statement Under Section 313 Cr.P.C. and went to the extent of proving the same through leading evidence of his neighbours DW -1 and DW -2 in his defence. Both DW -1 and DW -2 have categorically deposed that accused Sri Om was lifted from his house by the police and that no child was recovered from his house.
(2.)THE appellants have been convicted for the offence punishable under Section 364A IPC. They have also been convicted for the offence punishable under Section 120 -B IPC. Sentences imposed is to undergo imprisonment for life and pay a fine of Rs. 5,000/ -. The sentences awarded for the two offences have been directed to run concurrently.
Briefly stated, case of the prosecution is that the appellants entered into a conspiracy to kidnap Master Abhishek, aged about 3 years, as appellant Kalim Ahmed who was an ex - employee of Abhishek's father knew that Abhishek was the only son of his parents and could fetch a price. In furtherance of the conspiracy, they kidnapped Master Abhishek and demanded ransom in sum of Rs. 50,000/ - to release him. At the designated time and place where ransom amount had to be paid, appellant Kalim Ahmed was apprehended from the place pre -designated where he came to collect the ransom. On interrogation he made a disclosure statement that Master Abhishek was in the house of the co -accused Sri Om. He led the police party to the house of Sri Om where Master Abhishek was recovered.
(3.)INDEED , from the arguments advanced evidenced from the written submissions filed, contents whereof have been noted hereinabove, main thrust of learned Counsel for the appellants was to urge that the demand for ransom has not been proved and hence the appellants cannot be convicted for the offence punishable under Section 364 -A IPC. The plea pertaining to the role of Sri Om as per paras 14 to 16 of the written submissions would be dealt with by us after discussing the evidence led by the prosecution.
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