This appeal by way of special leave has been filed by Lohit
Kaushal, who along with several others stands convicted for offences
punishable under Sections 364-A, 342 read with Sec.120-B of the IPC and
has been sentenced to undergo imprisonment for life for the offence under
Sec.364-A read with Sec.120-B and to one year's R.I. under Sec.342 read
with Sec.120-B, along with fine in both cases.
The facts of the case are as under:
The appellant is the wife's sister's husband of Harjit Singh
brother of Saravjit Kaur, mother of Arshdeep Kaur, aged four years, the
kidnap victim. Sukhjit Singh, father of Arshdeep, was employed in a
private factory and earning (as per his statement) Rs.70-80 thousand per
month while Saravjit Kaur who was working as a Lecturer in the
Govern ment College, Narayangarh, was also drawing a handso me salary.
As per the prosecution's case the appellant had received a severe set back
in his business and being aware of the financial status of Sukhjit Singh's
family he planned to kidnap Arshdeep Kaur for ransom. As per parents
were employed Arshdeep was left in a Creche in the morning by her
parents and she would return to the ho me of Mohinder Kaur, her maternal grand mother after school hours. Pursuant to a conspiracy hatched by
the appellant, Parminder Mohan @ Pa m mi and Lovepreet Kaur, both well-
known to Mohinder Kaur and her family, went to the house of Mohinder
Kaur at about 1.30 p.m. on 25/8/2002, while Sukhjit Singh and Saravjit
Kaur were at work. They found Mohinder Kaur and Arshdeep in the
courtyard of the first floor of the house, and enquired about Sukhjit Singh
and SaravjitKaur and told Mohinder Kaur that Parminder Mohan had been
blessed with a son and they had come to deliver a box of mithai to
celebrate the occasion. They also asked Mohinder Kaur to give them some
water. In the meantime two other persons, one being Manjit Singh alias
Mithu, also came into the room and also asked for water and as Mohinder
Kaur went into the kitchen, Manjit Singh followed her, caught hold of her
and brought her into the bedroo m. Parminder Mohan, thereafter, caught
hold of her arm whereas Manjit Singh shut her mouth and tied her with a
dupatta and the fourth unna med accused manhandled her. Parminder
Mohan thereafter tied her hands, shifted her to another room and after picking up Arshdeep and a video cassette player from the house, drove
away in a Tata Su m o vehicle. A telephonic
message was conveyed by Mohinder Kaur's neighbour Harjinderpal Singh
to police station, Sector-19, Panchkula on which Sub-Inspector Avtar
Singh reached the kidnap site and recorded the statement of Mohinder
Kaur and on its basis an FIR was registered by Sub-Inspector O m
Parkash. The appellant, alongwith his wife Satnam Kaur, on hearing the
news about the kidnapping and pretending to be concerned relatives, also
visited Mohinder Kaur's house and arranged that she be sent to the
General hospital,Panchkula, for her medical examination.
On 27/2/2002, information was received by Inspector Mange Ra m
that the kidnappers were demanding Rs.60 lakhs as ransom and on receipt of the amount they would free the child near Gurudwara
Dukhniwaran Sahib, Patiala. The matter was however settled at Rs.21
lakhs. Sub-Inspector Mange Ra m acco mpanied by Sukhjit Singh
(Arshdeep's father) reached the pre-determined place, which was a STD
booth near the Gurudwara and found Lovepreet Kaur along with the child
inside the booth. She was immediately arrested and the child was freed
and handed over to her father. Pursuant to Lovepreet Kaur's sustained
interrogation Satnam Kaur was arrested on 28/2/2002, and pursuant to
her interrogation, Lohit Kaushal, the appellant herein, was taken into
custody and a Maruti Car No. CH01-4565, which had allegedly been
used while kidnapping the child, was seized by the police. A Tata Su m o vehicle bearing Registration No.HR01E-7582 was also produced before the
police by its owner, P W.3 Sarwan Singh and was taken into possession.
On the same day Parminder Mohan, Manjit Singh, Nand Kishore and Sunil
Ku m ar were also apprehended. On 3/3/2002 Lovepreet Kaur made a
disclosure leading to the recovery of the clothes that Arshdeep had been
wearing at the time of the kidnapping. Likewise and at the instance of
Manjit Singh, a VCP along with its remote control were also recovered.
On the completion of the investigation the accused were charged
for the aforesaid offences. They pleaded not guilty and were brought to
trial.
The Additional Sessions Judge, Panchkula, however, by his order
dated 4/3/2002 discharged Satnam Kaur, Lohit Kaushal's wife, Nand
Kishore @ Mithu and Sunil Ku m ar @ Rinku for lack of evidence, but
proceeded with the trialwith respect to the other accused.
The prosecution in support of its case placed reliance on the
statement of P W.1 Mohinder Kaur, P W.2 Sukhjit Singh, P W.3 Swaran Singh who deposed that Manjit Singh had borrowed his Tata Su m o vehicle on
25/2/2002 at about 9.00 a.m. and had returned itthe same evening at about
5.00 p.m. as had been promised to by him, P W.5-Sub-Inspector O m
Prakash, P W.11-Sub-Inspector Avtar Singh and
P W.12 Inspector Mange Ra m amongst others. In their statements under
Sec.313 of Cr.P.C. the accused pleaded innocence and alleged false
implication and further pleaded that they had been involved on account of
suspicion. The accused were, however, ultimately convicted and
sentenced by the trialCourt as mentioned above. Four appeals filed
at their instance were also dismissed by the High Court leading to the
present appeal by Lohit Kaushl in this Court. We have also been informed by the learned counsel for the parties that the other accused had
absconded after they had been granted bail by the High Court at the time
of the admission of their appeals, and are, as of now, not traceable.
In this situation the learned counsel for the appellant has pointed
out that there was absolutely no evidence against the appellant and that he
appeared to have been roped in on account of suspicion being a close
relative of the complainant party as his adverse circumstances were well
known within the family circle. It has also been sub mitted that neither
Mohinder Kaur nor any of the other witnesses had named the appellant at
any stage except at the trial and that too in uncertain terms that they
suspected that he had been instrumental in arranging the kidnapping for
the purpose of ransom. It has been highlighted that the only two
incriminating circumstances against the appellant
were the so called disclosure statements made by Satnam Kaur the
appellant's wife, and Lovepreet Kaur, a co-accused, subsequent to their
arrest naming him as the main conspirator and secondly the recovery of
the Maruti car from him at the time of his arrest.
The learned State counsel has, however, pointed out that in
addition to the aforesaid evidence, the conduct of the appellant in trying to
distract the police away from the investigation by constantly interfering
therein and by advising Sukhjit Singh not to give any information to the
police as Arshdeep's life could be in danger and after suspicion had been
raised as to his involvement had absconded and had been arrested three
days later,raised grave suspicion with regard to his involvement.
We have considered the arguments advanced by the learned
counsel. It is true that kidnapping as understood under Sec.364-A of the
IPC is a truly reprehensible crime and when a helpless child is kidnapped
for ransom and that too by close relatives, the incident beco mes all the more unacceptable. The very gravity of the crime and the abhorrence
which it creates in the mind of the court are, however, factors which also
tend to militate against the fair trialof an accused in such cases. A Court
must, therefore, guard against the possibility of being influenced in its
judgments by sentiment rather than by objectivity and judicial
considerations while evaluating the evidence.
We have gone through the judgment of the High court and find
that but for three or four stray sentences with regard to the appellant's
involvement, there is virtually nothing which has been brought out with
regard to his role, though the High Court was the first appellate Court. We
have, accordingly, chosen to evaluate the evidence ourselves as if we are
the first Court of appeal.
As already noted above, the appellant who was well known to
Mohinder Kaur being a close relative, did not invite any suspicion about
his involvement at the time when the FIR had been lodged and her
statement under Sec.161 Cr.P.C. recorded. She however made an
improvement at the time of the trial about her suspicion vis-a-vis the
appellant and was duly confronted with the omission. The only other
effective piece of evidence that the Courts below have relied upon are the
disclosure statements of Satnam Kaur and Lovepreet Kaur, recorded by
the police while they were in police custody as co-accused. The primary
question which calls for consideration is as to whether their statements
can form the basis for a conviction. In addition to the fact that Satnam
Kaur was discharged by the trialJudge on account of lack of evidence, we
are of the opinion that so called disclosure statements made by both these
wo m en are hit by Sections 25 and 26 of the Evidence Act, 1872, as they
had the status of being statements made to the
police, and nothing more and are, thus, not admissible in evidence. It will
be seen that a statement made to the police can only be used to the
limited extent provided under under 27 of the Evidence Act and that too
only against the person making the statement. Ad mittedly the statements,
did not lead to the recovery of any item whatsoever. Satnam Kaur's
statement is on record and we have very carefully perused the same. It
reads as under:
“In 1995 year I was married to Lohit Ku m ar S/o
Diwaker Kaushal r/o Delhi. After 5/6 months of the marriage I
and Lohit started quarreling with each other and it continued
for 1 1/2 year. During this period Lohit went to Australia.
About 6 months back Lohit came back from Australia. During
this period my younger sister Jaspreet Kaur got engaged to
Harjit Singh S/o Sajjan Singh R/o H.No.527 Sector 12-A,
Panchkula. During this period our relatives got patched up our
differences. Lohit and I for distribution of invitation cards for
marriage went to our relatives. I Lohit's relation, his uncle
(Mama) Sh. Jagdish R/o Dhuri was given the invitation card for marriage. There we met Parminder Mohan @ Pa m mi whose conversation impressed me a lot and I in person invited him to attend the marriage. He did come to attend the marriage of my sister at Panchkula with who m I developed relation. After marriage Harjit Singh started torturing my sister nu mber of times he was advised but he used to assault for which my sister complained to me nu mber of times who m my husband Lohit also tried to advice him, he quarreled with Lohit also and uttered nonsense words to Lohit for which Lohit felt upset. Harjit's Sister Sarabjit Kaur with her husband Sukhjit Singh stays at H.No.4079 H 32 Sec.20 Panchkula. Her only daughter aged three year is darling to her. This girl's grand mother (Nani) Mohinder Kaur who stays with her son Harjit Singh and daughter-in-law Jaspreet at H.No.527 Sector 12 A Panchkula, both of them are in service. During that period the old wo m an
stays alone at ho me. There Sukhjit Singh and his wife Sarabjit Kaur are also in service. W hile going for duty they leave the girlat Sector 12 A
Panchkula Creche. The vehicle of the creche leave Arshdeep girl with her Nani who loves her. On their way back from the duty in the evening Mu m m y Pap of Arshdeep taken her to ho me. With the intention of taking revenge from Harpreet and for grabbing money because Lohit was facing much loss in his business. Next day after planning the kidnapping the niece (Bhanji)of Harjit,for ransom I and Lohit went to Pa m mi's house at Dhuri. After meeting Pa m mi and Nand Kishore @ Nittu we four planned that Harjit Singh's sister and Saukhjit Singh is a solid party. Good amount can be got. In order to execute this plan we started keeping an eye on the HarjitSingh's House and the girl. During this period I and Lohit remained at my mothers House No.552 Sector 25 Panchkula. After seeking location, Pa m mi has asked on telephone to reach Panchkula fully prepared for making the plan a success. As per plan, I and Lohit waited after reaching Zirakpur. At about one O' clock in a white coloured Tata Su m o, Pa m mi and Nittu came alongwith a girl and two boys, and on seeing up they halted. I and Lohit advised Pa m mi & Nittu that we will stop our vehicle at about 100 away from the kothi, you run away after doing the work and Pa m mi got a packet of sweets from Zirakpur. We moved ahead our vehicle followed by the vehicle of Pa m mi etc. and reached
Sector 12 A Panchkula. After making plan, Pa m mi etc after carrying out the work went away and we both went to our house. After that on the subject being noised, I and Lohit went to Harjit's house and kept an eye on the happening and the situation was conveyed to Pa m mi but Pa m mi's demand for Rs.60 lacs created horror in the entire family we also never expected that he will demand so much. On seeing the situation worsened, we on phone informed Pa m mi to return the girl. At right time my husband also escaped from there. W hose all where about I know. He can be available with his friend at Delhi, Ghaziabad, Meerut. It can get him apprehended on identification statement of the accused is recorded separately which is signed by the accused and the witnesses.” Lovepreet Kaur's statement has not been filed with the Supreme Court record but it has been paraphrased by the trial Court in its
judgment and we reproduce the same herein below:
“During interrogation, Lovepreet Kaur alias Preeti
wife of Virender Singh made disclosure statement that on
25.02.2002 at about 8.00 P.M. phone was received from her
fast friend namely Pa m mi that she should reach at Dhuri PC O.
She reached at Dhuri PC O at about 8.30 P.M. from Sangrur. At
the time, Pa m mi son of Jagdish Chand caste Pandit, Nitu son
of Naresh Chand residents of Dhri, Sunil Ku mar alias Rinku
resident of Dhuri were sitting at STD/PC O. Pa m mi told her
that she would be given good amount in one trip. He further
told that niece Arshdeep of Harjit Singh, who is sandhu of
Lohit being only one daughter of rich parents. As per
information of Lohit and Se m mi, this girl used to come to
kothi No.527, Section 12-A, Panchkula to her grand mother for
four-five hours. After kidnapping her, they could get the good
amount and leave the girl. She had to do only that she would
take the girl aged about three years in her lap with live and sit
in the vehicle. If the girl weeps, then she would keep her
mu m and she will get Rs.20,000/- for the work. In the
mean w hile, phone from Lohit had come of Pa m mi. Lohit and
Satnam Kaur alias Se m mi, who were earlier known to her also
told about the planning. She also asked Lohit and Se m mi as
to whether girl likes chocolates or toffees, so that she may be kept mu m on her weeping. As per planning, Mithu who was the Driver brought a Tata Su m o of white colour, whose nu mber she did not know but Indian on the front mirror and Deol in English were written. They started at 10.00 A.M. when they reached at Local Bus Stand Zirakpur at about 1.00 P.M. Lohit and Satnam Kaur met them, who were in a Maruti car of blue colour and talked to Lohit and Se m mi, after getting down. Sweets box was also purchased from there. Lohit Kaushal and Se m mi stopped their vehicle on the back turning and as per planning, they stopped their vehicle in front of kothi no.527, Sector 12-A, Panchkulla. She and Pa m mi saw the old wo m an and small girl sitting in the courtyard of first floor of the kothi. Pa m mi and she said Na maste to the wo m a n. Pa m mi asked that where was Sukhjit Singh, who used to work in Lalru and they had come at wrong place.
Pa m mi told that they are his friends and he had been blessed with a son, so they came to give him a sweet box. W o m a n asked them to sit in the drawing room and they
demanded water. The old wo m a n brought two glasses of water from the kitchen and they took it. In the mean w hile, Nitu and Sunil also came up and they also demanded drinking water. Mithu also came up at that time. Pa m mi told him to stand on the gate and she started to feed the girl. They all caught hold of old wo m a n. Pa m mi shut her mouth and she lifted the girl and took her to the vehicle standing down. Mithu kept standing on the upper gate. After sometime, when they came down, she saw a VCP in the hands of Nitu. They all sat in the vehicle and sped away from there in the vehicle. Pa m mi talked on mobile in the way and got the vehicle stopped near A margarh. A man came there on a motorcycle, and Pa m mi took the girl from her and handover to that person who came there on motorcycle. She was dropped at Dhuri bypass and she went to Sangrur. She continued to keep contact on phone and demanded her money. Pa m mi told that money would be given after receipt. She reached at STD/PC O and girl was sitting at the STD/PC O in same clothes. She told Pa m mi to change her clothes and she changed the clothes of the girl and kept the used clothes at the STD/PC O by putting
them in a bag. Pa m mi told her that she may take the girl and to reach at Gurdwara Dukhniwaran Patiala, where father of the girl would come with money and she should handover the girl to the father and take the money. She would also get extra amount for this work and thereafter, she reached at Patiala Bus Stand alongwith the girl. She hired a three-wheeler and reached at the gate of Gurdwara and police caught her. She could tell the place where all other accused persons were stayed and get them arrested and could get recovered the clothes of the girl from STD/PC O. This above referred disclosure statement of accused Lovepreet Kaur was reduced into writing upon which accused and witnesses put their signatures. In view of the disclosure statement of accused Lovepreet Kaur, clothes of girl Arshdeep were got recovered from the STD/PC O, which were taken into police possession.
Arshdeep was also recovered from accused Lovepreet Kaur
outside the gate of Dukhniwaran Gurdwara Patiala and girl
was taken into possession vide recovery me m o dated
27.2.2002.”
The two statements above-quoted cannot by any stretch be read
into evidence against the appellants, as they have the status of being
statements made to the police while the two were in custody. Ad mittedly,
the two were also co-accused at that stage (as Satnam Kaur was later
discharged by the trialCourt) for lack of evidence against her.
We are now leftwith the recovery of the Maruti car allegedly used
in the kidnapping. In this connection it is relevant to observe that as per
the statement of Mohinder Kaur made to the police which formed the basis
of the First Information Report, as also in her statement in Court, the four
accused who had come to her ho me had taken the child away in a Tata Su m o vehicle. That this vehicle was apparently used in the kidnapping is
impliedly supported by its owner Swaran Singh P W.6 who deposed that it
had been borrowed by Manjit Singh accused, on the morning of 25/2/2002
with a promise to return it by the evening and the vehicle had indeed been
returned to him. It is, therefore, clear that the Maruti Car No. CH01-4565
recovered from the appellant did not figure at the initial stage in the
kidnapping of the child. Furthermore, there is absolutely no evidence to
suggest that the Maruti Car had been used in the kidnapping at any later
state. We have also perused the arrest me m o pertaining to the appellant
and the recovery of
the Maruti Car on 28/2/2002. It is obvious that this too is not a statement
under Sec.27 of the Evidence Act as the vehicle had been seized from the appellant at the time of his arrest.
As will be apparent from what has been written above the charge
against the appellant is primarily under Sec.364-A, 342 read with Sec.120-B
of the IPC. Concededly, also as per the prosecution story, the appellant
had not been present at the time when the child had been kidnapped by
the four co-accused and he had been roped in as the main conspirator,
with the aid of Section 120-B of the IPC. We find no evidence to indicate
that such a conspiracy had been hatched by the appellant as the
statements of Satnam Kaur and Lovepreet Kaur cannot be read as
evidence and there is no other circumstance suggested against the
appellant.
The learned counsel for the State has, however, in addition,
pointed out that the very conduct of the appellant indicated his guilt and
that the fact that he had attempted to dissuade Sukhjit Singh from
informing the police about the kidnapping and that he had absconded after
the police had arrived, were indications that he was involved in the crime.
We find that these circumstances by themselves cannot be taken
against the appellant. It needs to be kept in mind that in a case of
kidnapping for ransom there are
two very clear schools of thought; one that the law enforcement agencies
should be informed as soon as possible so that the victim can be
recovered without loss of time and the second, and an equally meritorious
one, given that that the police investigations are often tardy and clumsy,
that the police should not be informed as the victim would then be gravely
endangered and that the best option was to pay up and recover the victim.
It hardly needs mention that the second option is the more preferred one
in India. Assu ming, therefore, that the appellant, as a close relative, had
advised Arshdeep's family to adopt the second course, cannot by itselfbe a circumstance to be taken against him. It has also come in evidence,
(and so argued by the learned counsel for the State) that the appellant had
absconded after the police had arrived. We, however, find that in the
backdrop of all the other circumstances, this factor may raise some
suspicion but cannot by itself constitute sufficient evidence for
conviction. We, thus allow, the appeal, set aside the conviction and
sentence of the appellant and order his acquittal. He shall be released
forthwith ifin custody and is not wanted in any other case.
(J.M. PAN C H A L) New Delhi, August 4, 2009.