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2008 DIGILAW 772 (PNJ)

Ismile v. State of Haryana

2008-03-26

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:-This judgment shall dispose of Crl. Appeal No. 128-SB of 1997 filed by Ismile s/o Rashid, appellant-accused, against the judgment of conviction dated 5.10.1996, and the order of sentence dated 19.10.1996 rendered by the Court of Addl. Sessions Judge, Faridabad, vide which it convicted the accused/appellant Ismile for the offence punishable under Section 364 IPC and sentenced him to undergo rigorous imprisonment for a period of five years, and to pay a fine of Rs.200/- and further sentenced him to undergo RI for a period of four years, and to pay a fine of Rs.100/-, under Section 386 IPC, and in default of payment of fine to further undergo RI for a period of one month, for an amount of Rs.100/- each and Criminal Revision No.404 of 1997 treated suo-motu by the Court for the enhancement-of sentence awarded to the accused by the trial Court, to the maximum. The substantive sentences were ordered to run concurrently. 2. The facts, in brief, are that on 22.2.1994, at about 8.00 A.M., Lakshmi Kant Sahu, left his house, for his shop, in the area of Faridabad leaving behind his wife and son, aged about two years. In the after-noon, a person came to his house, and told his wife, that he had been sent by Doctor Sahu to repair the door. The said person sat in the house of the complainant. The son of the complainant started playing there. After sometime, wife of the complainant went to the bathroom to take bath and after taking, bath when she came out, she found her son Chandan, and that stranger missing from the house. She informed the complainant, about the incident, at his shop. The complainant tried to trace his son at his own level, but was unsuccessful. On 23.2.1994 at about 10.00 A.M., Sheela Gupta, a tenant in the house of complainant, handed over a letter to him, stating that the said letter had been given to her, by a person. There was a message, in the letter, that the complainant alone should come with Rs.20,000/- to Madangir, Delhi, and in case he tried to befool, his son would be killed. On receipt of the said letter the complainant produced the same before Ram Dutt, ASI. Ram Dutt, ASI recorded his statement Ex. There was a message, in the letter, that the complainant alone should come with Rs.20,000/- to Madangir, Delhi, and in case he tried to befool, his son would be killed. On receipt of the said letter the complainant produced the same before Ram Dutt, ASI. Ram Dutt, ASI recorded his statement Ex. PE, and sent the same with his endorsement, to the Police Station, on the basis of which, FIR Ex. PE/1 was recorded by Rajpal, S.I. The letter was taken into possession vide memo Ex. P-1. Another letter was taken into possession memo Ex. PF and third letter was taken into possession vide memo Ex.PD. All the three letters contained an invitation to the complainant, to bring Rs.20,000/- with him, to different places, for payment to the accused. 3. In pursuance to the letter dated 23.2.1994, the complainant accompanied by the police, in white clothes, visited Madangir, Delhi, but the accused did not turn up. Again another letter dated 24.2.1994 was received requiring the complainant to come along with Rs.20,000/-. Accordingly, he visited the aforesaid place but the accused did not turn up. Thereafter, on receipt of letter dated 27.2.1994, requiring him to come along with money, referred to above, the complainant went there along with money when the accused along with the child was apprehended by the police. The child, after recovery, from the accused, was handed over to the complainant vide memo Ex.P1. Site plan Ex. PB of the place of occurrence, was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 4. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Sections 364 and 386 IPC, was framed against him, to which he pleaded not guilty and claimed judicial trial. 5. The prosecution, in support of its case, examined Raj Singh, PW-1, Inspector, who submitted the report under Section 173 Cr.P.C. after the completion of investigation, Sher Mohammad, Constable, PW-2, who was handed over two sealed envelopes, and he deposited the same with the FSL., Madhuban on the same day, and did not tamper with the same till the same remained in his custody, Sohan Singh, PW-3, who prepared the scaled site plan Ex. PB, with correct marginal notes, on the pointing out of PW Lakhmi Kant, Promila, PW-4, wife of Lakhmi Kant Sahu, complainant, Sheela Gupta, PW-5, a tenant in the house of the complainant and Lakhmi Kant Sahu, PW-6, complainant, whose son was kidnapped for ransom. Raj Pal, SI, PW-7, who recorded the FIR, on the receipt of ruqa, Ram Dutt, ASI, PW-8, who investigated the case, Raghuvinder Singh, Chief Judicial Magistrate, PW-9, who gave the permission to obtain specimen signatures of the accused, Budh Singh, SI, PW-10, who partly investigated this case. Thereafter, the Public Prosecutor for the State, tendered into evidence the report of the FSL., Madhuban, Ex. PX, and closed the same. 6. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put, all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He examined Abdul Rashid, DW-1, Aash Mohammad, DW-2, and closed the defence evidence. 7. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal was filed by the accused/appellant. 9. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The question, that requires determination, in this appeal, is as to whether, the prosecution was successful in proving its case, beyond a reasonable doubt or not. Promila, wife of the complainant, namely Lakhmi Kant Sahu, who appeared, as PW-4, in her statement stated that on 22.2.1994 at about 12.00 noon, when she was present in her house along with her son Chandan, a person came to their house, and told her that he had been sent by her husband for the purpose of repair of door. She identified that person in the Court as Ismile, accused. She further stated that she went to take bath, leaving behind the accused and her son Chandan playing. She further stated that when she came back, after taking bath, she found that the accused and her son were missing. She, thereafter, immediately, as was expected, rushed to the shop of her husband, and narrated to him, the entire incident. She further stated that she went to take bath, leaving behind the accused and her son Chandan playing. She further stated that when she came back, after taking bath, she found that the accused and her son were missing. She, thereafter, immediately, as was expected, rushed to the shop of her husband, and narrated to him, the entire incident. Her husband told her that he had not sent any person, for the purpose of repair of door. Sheela Gupta, PW-5, a tenant in the house of the complainant, in clear-cut terms, stated that on 23.2.1994 Ismile came to the house at 10.00 a.m., and gave her letter, for being delivered to Lakhmit Kant Sahu, whose son was abducted. She further stated that she handed over the letter Ex.PC to the doctor. Lakhmi Kant Sahu, PW-6, is the complainant, who reported the matter to the police. The second letter Ex.PG was found by him, in the Court-yard of his house, on 24.2.1994. He handed over the same to the police, which was taken into possession vide Ex. PF. He further stated that on 27.2.1994, he received the third letter Ex. PH, which was lying in the court-yard of his house, and he handed over the same to the police, which was taken into possession vide memo Ex.PM. It was further stated by him, in the first letter Ex.PC, he was required by the culprit, to bring a sum of Rs.20,000/-, at Madangir, at 8.00 P.M. for the release of his son Chandan. He further stated that when he reached the destination, he did not find anybody there, including the child. Thereafter, he along with the police returned. On receipt of the third letter Ex.PH, he again contacted the police and reached the disclosed place i.e. at Suraj Kund. He was standing alone waiting for the accused and his son. He further stated that accused Ismile, came there, with his son in his lap. He raised alarm that he was his son. Upon this, the police came there. The accused fired at the police. The first fire missed and when the accused was loading the pistol for the second time, the police gave a danda blow, on his hand, whereupon, the pistol fell down, and he was apprehended. The child was recovered from his custody, and handed over to Lakhmi Kant Sahu, vide memo Ex.Pl. The accused fired at the police. The first fire missed and when the accused was loading the pistol for the second time, the police gave a danda blow, on his hand, whereupon, the pistol fell down, and he was apprehended. The child was recovered from his custody, and handed over to Lakhmi Kant Sahu, vide memo Ex.Pl. Pistol Ex.P-1 and cartridge Ex.P-2 were also taken into possession. The apprehension of the accused and recovery of the child namely Chandan son of Lakhmi Kant Sahu from him, was further proved from the statement of Ram Dutt, ASI, the Investigating Officer and Budh Singh, SI (P’W-10). There was no reason, on the part of Promila, PW-4 wife of Lakhmi Kant Sahu, Sheela Gupta, PW­5, and Lakhmi Kant Sahu, PW-6 to depose falsely. They had no ill-will, grudge arid enmity against the accused, to falsely implicate him, in the present case. Even, the Investigating Officer, had no ill-will, grudge or enmity against the accused. The evidence of these witnesses, carry a ring of truth. Their evidence inspires confidence, in the mind of the Court. From the cogent, convincing and trustworthy evidence of these witnesses, it was proved that it was the accused who abducted Chandan son of Lakhmi Kant Sahu and demanded ransom of Rs.20,000/-, for his release. From their evidence, it was also proved, that the child was recovered from the accused. The prosecution was, thus, successful in proving that child Chandan of Lakhmi Kant Sahu, was abducted by the accused for ransom. 11. The next question, that arises for consideration, is, as to whether the letters Ex.PC, PG and PH were written by the accused demanding therein ransom, from the complainant, for the release of his son Chandan or not. These letters were produced by the complainant, before the police, as and when the same were received by him, and Sheela Gupta, PW-5, a tenant in the house. These letters were taken into possession by the police. When the accused was arrested, he was produced before Raghuvinder Singh, Chief Judicial Magistrate, PW-9, for obtaining his specimen handwriting. The application so moved by the police Ex.PL, for obtaining specimen handwriting of the accused, was allowed vide order dated Ex.PM. He further stated that the specimen handwriting of the accused vide Ex. PN were taken. When the accused was arrested, he was produced before Raghuvinder Singh, Chief Judicial Magistrate, PW-9, for obtaining his specimen handwriting. The application so moved by the police Ex.PL, for obtaining specimen handwriting of the accused, was allowed vide order dated Ex.PM. He further stated that the specimen handwriting of the accused vide Ex. PN were taken. When the letters allegedly written by the accused demanding ransom for the release of Chandan, along with the specimen handwriting of the accused, were sent to FSL, Haryana, Madhuban, report Ex. PX was received. According to the report, all the documents were carefully and thoroughly examined with scientific instruments, such as Stereo Micro-scope, Video Spectral comparator, Projectina Universal Comparison Projector etc. in different lighting conditions and the opinion which was tendered by the expert, was to the effect, that the person who wrote red enclosed writings stamped and marked S1 to S15 also wrote the red enclosed writings similarly stamped and marked Q1 to Q16. It was further opined that all the questioned writings incorporated, in the opinion, were freely written, showed natural variations, in the execution of various characters, and did not show any evidence of imitation, in their line quality. Similarities were observed between the questioned and the standard writings, in individual habits. Similarities were also observed, in the general features of writing, such as writing skill, slant, spacing, movement, relative size, proportion of characters etc. It was further observed that no divergence could be observed between the questioned and the standard writings and the aforesaid similarities in the writing habits, were significant, sufficient and could not be attributed to accidental coincidence, and when considered collectively they led the expert, to the opinion, that the questioned writing and the standard writing were written by one and the same person. Thus, from the opinion of the expert, it was proved that the letters, in question, demanding the ransom for the release of Chandan son of Lakhmi Kant Sahu were written by the accused. This also clearly proved that the accused abducted the minor son of Lakhmi Kant Sahu, for ransom, and, ultimately, he (his son) was recovered from him. The trial Court was, thus, right in recording conviction and sentencing the accused, for the offences, punishable under Sections 364 and 386 IPC. 12. This also clearly proved that the accused abducted the minor son of Lakhmi Kant Sahu, for ransom, and, ultimately, he (his son) was recovered from him. The trial Court was, thus, right in recording conviction and sentencing the accused, for the offences, punishable under Sections 364 and 386 IPC. 12. The Counsel for the appellant, however, contended that there was a delay of 1 day in lodging the FIR, which remained un-explained and resulted into concoction of story, false implication of the accused and introduction of false witnesses. It is, no doubt, true that the occurrence took place on 22.2.1994 but the FIR was registered on 23.2.1994. It may be stated here, that the minor son of the complainant was abducted by the accused from his house. He was told about this, by his wife, at his shop, with regard to the same. He made efforts, at his own level, to search the child and that person who abducted him. The matter was very sensitive. Under these circumstances, the complainant tried at his level, to trace the child, before going to the police, as by that time, he could not understand, as to what for his child had been abducted, and by whom. As soon as on 23.2.1994, letter Ex.PC, was handed over to him, by Sheela Gupta, PW-5, a tenant in his house, having been delivered to her by the accused, he came to know that his son had been abducted for ransom, by the author of the letter. Thereafter he did not, lose even a single minute, in getting the case registered. Even otherwise, mere delay in lodging the FIR, is not sufficient to throwa way the case of the prosecution. The evidence of the witnesses was scrutinized carefully and cautiously by the trial Court and the same was rightly found to be reliable and trustworthy. In this view of the matter, the delay in lodging the report, did not cast any doubt, on the prosecution story. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 13. It was further contended by the Counsel for the appellant, that no reliance could be placed on the statement of Promila, PW-4, wife of the complainant, that the accused was not known to her. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 13. It was further contended by the Counsel for the appellant, that no reliance could be placed on the statement of Promila, PW-4, wife of the complainant, that the accused was not known to her. He further contended that according to Lakhmi Kant Sahu, father of the child, the accused did wood work, at his shop, and he had paid Rs.2700/- to him. It may be stated here, that Lakhmi Kant Sahu, PW-6, complainant was running a medical clinic, at Faridabad. If the accused had done some wood work at his shop, his wife could not be expected to know him. Lakhmi Kant Sahu, might have been knowing the accused, on account of the aforesaid reason, but until and unless his descriptive features, had been narrated, to him, by his wife, in whose presence the accused came to the house, he could not suspect him. There is nothing, on the record, that Promila, PW-4, wife of the complainant noted down the descriptive features of the accused, before she went to the bathroom, and, in her absence abducted her son Chandan. There is no evidence, on the record, that the accused came to the house of the complainant in the presence of his wife, earlier to the date of occurrence. In these circumstances, the statement of Promila, PW-4, could not be disbelieved. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. It was next contended by the Counsel for the appellant that Sheela Gupta, PW-5, could not be said to be a reliable witness, as she did not name the accused, in her statement. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The appellant delivered a letter to Sheela Gupta, PW-5. He did not tell his name to her. She had received a letter from the appellant, as a tenant of Lakhmi Kant Sahu, and, as per his instructions, delivered the same to him. She could not be expected to ask the person his name. There is nothing, on the record, that the accused had told his name to Sheela Gupta, PW-5. She had received a letter from the appellant, as a tenant of Lakhmi Kant Sahu, and, as per his instructions, delivered the same to him. She could not be expected to ask the person his name. There is nothing, on the record, that the accused had told his name to Sheela Gupta, PW-5. In these circumstances, there was no occassion for Sheela Gupta, PW-5, to mention the name of the accused, in her statement. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellant that the story, with regard to the apprehension of the accused, and recovery of child from him, being concocted, could not be relied upon, but the trial Court committed an error in doing so. The submission the Counsel for the appellant, in this regard, does not appear to be correct. As many as three letters, written by the accused, for the release of Chandan, son of the complainant were received by him. Naturally, on receipt of the letters, he along with the police went to the places, disclosed therein, by the accused. On two occasions, the accused did not come to the places, disclosed by him. On the third occasion, the accused came along with the child at the place disclosed by him. It was, but natural, that the police officials must have concealed their presence, as they knew that, in case, their presence was suspected by the accused, from a distance, he would not come to the disclosed place, and the very purpose of the raid, would be defeated. It was, under these circumstances, that the police officials concealed their presence and sent the complainant alone with ransom. On seeing the complainant alone, the accused appeared with Chandan, his son. Immediately, thereafter, the police, came to the spot, and apprehended the accused. He fired a shot from the pistol which missed and when he was going to fire another shot, he was apprehended by giving a blow with danda on his hand. The evidence of the prosecution witnesses, regarding the apprehension of the accused, and recovery of child from him, therefore, could not be said to be unreliable. He fired a shot from the pistol which missed and when he was going to fire another shot, he was apprehended by giving a blow with danda on his hand. The evidence of the prosecution witnesses, regarding the apprehension of the accused, and recovery of child from him, therefore, could not be said to be unreliable. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 16. The next submission of the Counsel for the appellant, was to the effect, that the appellant had already undergone four years one month and 14 days sentence, during the period of trial, and after conviction and his sentence be reduced to the period, he had already undergone. The submission of the Counsel for the appellant does not merit acceptance. The accused committed a very heinous offence, by abducting, a minor child of Lakhmi Kant Sahu, for ransom. In this view of the matter, the trial Court, in my opinion, was right in awarding him sentence for the offence punishable under Section 364 IPC for a period of 5 years and for the offence punishable under Section 386 IPC, for a period of four years. The sentence awarded to the accused by the trial Court was commensurate with the offence committed by him. No ground, whatsoever, is made out, for the reduction of sentence to the period already undergone, by the appellant. The submission of the Counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected. 17. It may be stated here, that vide order dated 31.3.1997 the Court treated the revision petition, on its own motion, and ordered the issuance of notice to the appellant, as to why the sentence awarded, by the trial Court, be not enhanced to the maximum prescribed for the offence. As stated above, this order was passed on 31.3.1997. Now it is 2008. A period of about 11 years has already elapsed, since the Court passed the order. The appellant has suffered the ordeal of protracted criminal proceedings, for the last 14 years, as he was arrested on 27.2.1994. Much water has flown under the bridges, since 31.3.1997, the date when the order for issuance of show cause notice, for enhancement of sentence to the appellant, was passed. The appellant has suffered the ordeal of protracted criminal proceedings, for the last 14 years, as he was arrested on 27.2.1994. Much water has flown under the bridges, since 31.3.1997, the date when the order for issuance of show cause notice, for enhancement of sentence to the appellant, was passed. In my opinion, after the lapse of 14 years from the date of arrest of the appellant-accused, and about 11 years since 31.3.1997, it would operate very harsh to him, if the sentence awarded, is enhanced to the maximum at this stage. No ground, whatsoever, is made out, for the enhancement of sentence. The revision petition, treated by the Court, on its own motion, for enhancement of sentence, therefore, does not merit acceptance, and deserves to be dismissed. 18. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, do not suffer from any illegality or infirmity. The same, being based, on the correct appreciation of evidence, and law on the point, warrant no interference and deserve to be upheld. However, the revision petition, treated by the Court, on its own motion, for enhancement of sentence deserves to be dismissed. 19. For the reasons recorded hereinbefore, the appeal is dismissed. The judgment of conviction dated 5.10.1996, and the order of sentence dated 19.10.1996 are upheld. The Chief Judicial Magistrate, Faridabad, shall take necessary steps, to comply with the judgment of this Court, with due promptitude. 20. Revision petition No. 404 of 1997 is dismissed for the reasons recorded, hereinbefore. ----------------------------------