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Subrahmanium v/s State


    Crl.A. No. 140 of 2003

    Decided On, 12 July 2018

    At, High Court of Delhi

    By, THE HONOURABLE DR. JUSTICE S. MURALIDHAR & THE HONOURABLE MR. JUSTICE VINOD GOEL

    For the Appellant: N. Qureshi, Advocate. For the Respondent: Kewal Singh Ahuja, APP.



Judgment Text

Dr. S. Muralidhar, J.

1. This appeal is directed against the judgment dated 5th February 2003 passed by the learned Additional Sessions Judge, Karkardooma Courts, Delhi in Sessions Case No.91/02 arising out of an FIR No.655/97 registered at PS Nandnagri convicting the Appellant for the offences punishable under Sections 363/364A IPC and the order on sentence dated 6th February 2003 whereby he was sentenced for each of the aforementioned offences to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.15,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a further 18 months. The sentences were directed to run concurrently.

2. The Appellant was charged with having taken away the minor child of Gopal (PW-3) aged 2.5 years from his lawful custody at around 2:30 pm on 23rd September 1997 when he was playing outside his house in Priyadarshni Vihar, Kodi Colony. The police was given information about the child having gone missing when PW-3 lodged a complaint at around 10:10 pm on 24th September 1997.

3. In a subsequent statement to the police, given on the same date, PW-3 stated that he suspected the Appellant. He explained that, at around 3 pm on 23rd September 1997, he was with the Appellant as they were making preparations to search for the missing child. PW-3 asked the Appellant to call one Munna and went to the toilet which was on the roof of the house. When he was on the roof of the house, he heard the voice of a lady residing 4-5 houses away who said that a ransom letter had been found in front of his house. The Appellant picked up the letter which was written in Hindi. The letter instructed PW-3 to send Rs.15,000/- through the Appellant to GTB Hospital and also stated that PW-3 should not come there himself nor should he mention the matter to the police.

4. PW-3 managed to collect Rs.7,000/- and borrowed Rs.8,000/- from Girija Shankar (PW-7). He then handed over the entire amount to the Appellant in the presence of three persons. The Appellant set out but did not return for about three hours. PW-3 learned that the Appellant had been taken to GTB Hospital in a PCR van. When he met the Appellant at the hospital, the Appellant refused to return the money as he claimed that he had been beaten up by the occupants of a Maruti van who had snatched the money from him.

5. In the meanwhile, ASI Basant Kumar (PW-18), while he was on duty at Shantivan Gate, managed to recover the child at 6 pm. He was informed by a tea vendor there that a young boy aged about 4-5 years had been abandoned when he was sitting near his tea shop. The boy told PW-18 that his brother had left him there. PW-18 then informed the PCR and then took the boy to PS Kotwali and handed him over to ASI Bhopal Singh (PW-14). Upon inquiry, the boy told PW-14 that he was the son of PW-3. He told him that he had been left by ‘one bhaiyya’. The boy was got admitted in ‘Palna’, an orphanage.

6. SI Subir (PW-16) was posted at PS Nandnagri and he was entrusted with the investigation of the complaint made by PW-3. When he visited the site, he recorded the statements of some public witnesses. When he returned to the PS, the Appellant had already been brought there by some persons on suspicion of being involved in the case. After formally interrogating him, PW-16 took the Appellant to GTB Hospital as he did not appear to be well. Thereafter, the investigation was handed over to SI Yogesh Malhotra (PW-17).

7. PW-17 recorded the statements of two ladies who had seen the child with the Appellant. On 28th September 1997, PW-3 brought the child to the PS stating that he had found him at Palna. The child told PW-17 that he had been taken by ‘bhaiyya’ and in the course of his investigation PW-17 learned that the child used to refer to the Appellant as ‘bhaiyya’. On 30th September 1997, PW-17 reached the house of PW-3. The child pointed towards the house of the Appellant as that of ‘bhaiyya’.

8. On 13th October 1997, the Appellant was arrested by PW-17. His disclosure statement was recorded in the presence of certain witnesses. PW-17 obtained the specimen handwriting of the Appellant (S1 to S10). He then sent them along with the questioned documents, i.e. the ransom letter, for comparison of the handwriting. Thereafter, PW-17 was transferred and the investigation was entrusted to SI Tanvir Ashraf (PW-12) who again took the specimen handwriting on 21st January 2000 and sent it to the FSL Malviya Nagar. The file was thereafter handed over to the SHO for filing the charge-sheet.

9. The Court has perused the evidence in detail. In particular, the Court has examined the evidence of the child, who testified as PW-4. The child clearly stated that he used to call the Appellant as ‘bhaiyya’ and that the Appellant used to reside near their house. He stated that he was playing outside his house when he had been taken away by the Appellant who left him in an ‘anaath ashram’ and that his father had brought him back from there. Much was made by the learned counsel for the Appellant about a statement made by the child in his cross-examination that 'I was told by my father as to what I have to depose. I have deposed accordingly'. It has to be seen in the context of his other statements. The fact remains that the child’s previous statement was not used to confront him during his deposition in Court to bring about any contradiction. He was clear that the Appellant who he referred to as ‘bhaiyya’ had taken him away while he was playing. He corroborated the testimony of ASI Basant Kumar (PW-18) and SI Subir (PW-16) about being taken near the Rajghat and thereafter placed in the ‘anaath ashram’.

10. The FSL report of the handwriting expert was unable to confirm that the writing on the ransom letter was that of the Appellant. The trial Court while dealing with this submission has noted that while the FSL report may not be categorical, it was quite possible that it was sent by the Appellant and no one else. The contents of the letter pointed to his involvement particularly when it stated that the ransom amount should be sent through a 'wise neighbour' who should not be old and that the complainant should not accompany him and the police should not informed of the matter.

11. The testimonies of the neighbours partly supported the prosecution with Girija Shankar (PW-7) confirming that he had lent Rs.8,000/- to PW-3. He, however, turned hostile on the aspect of Rs.15,000/- being given to the Appellant. Radhey Shyam (PW-6) stated that after the recovery of PW-4, the latter had disclosed that he had been taken away by one ‘bhaiyya’ and on inquiry the child had pointed out towards the Appellant. HC Rishi Pal (PW-8) also confirmed that when he went along with SI Yogesh Malhotra (PW-17) to the house of PW-3 on 13th October 1997, the child had pointed out towards the house of the Appellant and stated that it was the Appellant who had taken him away.

12. The story put forth by the Appellant that he had been beaten up by some persons who had come in a van and had snatched Rs.15,000/- was proved to be false. When the doctor removed the bandages from the Appellant, it was found that there was not even a scratch on his body. The MLC noted that when the bandage applied on the right leg was opened, 'no detectible injury was noticed'. Dr. V.K. Jain (PW-2), who had examined him and noted as above, was not even cross-examined by the Appellant.

13. The Court concurs with th

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e conclusion reached by the learned trial Court that the involvement of the Appellant in the abduction of the child is writ large and there can be no doubt that the prosecution has proved every link in the chain of circumstances that unmistakably proved the guilt of the Appellant and no one else. The Court is unable to find any legal infirmity in the impugned judgment and the consequent order on sentence of the trial Court. 14. The appeal is accordingly dismissed. The bail bonds and surety bonds furnished by the Appellant are hereby cancelled. The Appellant should surrender not later than 19th July 2018 failing which the SHO of the concerned PS will take immediate steps to apprehend him and send him to prison for serving out the remaining sentence. The trial Court record be returned together with a certified copy of this judgment.
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