BALI, J. - (1.) HARBHAN on 6. 6. 2002 went from his home to sell vegetables in the market of Govindgarh. No trace of him has been found till date.
(2.) RAHIS and Natthi Singh, appellants herein, were tried u/s 364a IPC - kidnapping for ransom. Sec. 365 IPC - kidnapping or abduction with an intent to secretary and wrongfully confine a person and u/s 384 IPC - for extortion. Resultant trial culminated into their conviction u/s 364a read with Sec. 120b IPC for which they were sentenced to life as also to pay fine of Rs. 1,000/- and in default of payment of fine, to further undergo SI for six months. They were also held guilty u/s 365 IPC and sentenced to undergo RI for seven years as also to pay fine of Rs. 1000/- and in default of payment of fine, to further undergo SI for a period of six months. They have also been held guilty u/s 384 IPC and sentenced to undergo R. I. for three years as also to pay fine of Rs. 1,000/- and in default of payment of fine, to further undergo SI for six months. This order of conviction was recorded against them on 25. 11. 2003 and 27. 11. 2003 by the Additional Sessions Judge (Fast Track), Kama. It is significant to mention here that the police after investigation had filed challan u/s 173 (2) Cr. P. C. for offences u/s 365 and 384 IPC. The matter was being tried before the Magistrate who after recording statements of four prosecution witnesses thought that the appellants should also be tried for offence u/s 364-A IPC for which he took cognizance read with Sec. 120b IPC and on 28. 4. 2003 committed the case to the court of Sessions, which framed charges u/s 364-A r/w 120-B, Sec. 365 and Sec. 384 IPC. Prosecution version was disclosed for the first time by father of hapless young boy Harbhan on 14. 7. 2002 when he lodged a written report before the concerned police official. In the FIR lodged by him, he stated that his son Harbhan had gone from Village Rauf in the morning on 6. 6. 2002 like everyday routine to sell vegetables in the market of Govindgarh. After selling vegetables, when he was coming back to his village Rauf, persons of Rauf and neighbouring villages who too used to go in the morning to their shops noticed him on the track of Kaithwada but his son did not reach his house and disappeared between the track of Kaithwada and Village Rauf. He and his family members tried to locate Harbhan amongst their relatives and at other places but could find no clue of him. They then discussed the issue amongst family members and with Natthi on 9. 6. 2002 when he told him and others that Harbhan had been kidnapped and further that whereabouts of his son were in his notice. He (Natthi) further asked the complainant not to report the matter to police or else he would not get his son and if he would eke out an amount of Rs. 1. 25 lacs towards ransom in lieu of return of his son, then on his (Natthi's) guarantee, his son would be brought back. As per the version of Natthi, he passed on amount of Rs. 1. 25 lacs to him as ransom at the shop of Pooran in Village Kaithwada in presence of Vishram, Shivram, Ramswaroop and Paramlal. Natthi continued to desist them from lodging the report to the police. Natthi misled them about the return of Harbhan from the kidnappers in lieu of ransom and now he was saying that neither the kidnappers were returning Harbhan nor the ransom about of Rs. 1. 25 lacs. The first informant further stated that Natthi used to say that he would not be able to bring back his son if he was to lodge report to the police and it might also cause hurt to his son and because of fear, he could not lodge the report earlier. Now that he was making report, legal action should be taken. During the course of trial, Babu, father of Harbhan, was examined as PW-1. He deposed in tune with the FIR lodged by him. He also stated that Natthi had made demand of money in presence of Paramlal, Shivram, Vishram, Pooran and some other persons of the village. He had informed the whole village with regard to the demand made by Natthi. Villagers had given their opinion that he should make arrangement of money and pay to him (Natthi ). When ransom amount was paid to Natthi, he had told that Harbhan would come back within eight days but later he told that the concerned persons were neither returning Harbhan nor were they returning money. He stated name of the person who was not returning either the child or money, as Rahis. In cross-examination, he stated that Natthi was related to his son (Phuphaya Sasur ). He denied the suggestion that Natthi was called by them, rather he came to the complainant party. He denied having made statement to the police from portion `a' to `b' wherein he stated that they had sent for Natthi. He denied having made any such statement. He admitted that when Natthi had come for the first time, he had gone back after stating that he was going to make a search of Harbhan. He came on the third day and then told about the demand of money. Natthi had told them that Harbhan had been kidnapped. With regard to the demand of money, Natthi had told them as was told to him by the kidnappers. He was unable to give the exact date when Natthi had come to him. He stated that he was illiterate. He denied the suggestion that Natthi had taken him to Rahis and made him to talk over with him. He denied having made statement before the Magistrate that his son was with Rahis or that on two occasions when he had met Rahis, he had promised him that Harbhan would be returned. He denied having made such statement in Ex. D. 1. . . . . . . . statement made by him before the Magistrate. Vishram, uncle of Harbhan, who was examined as PW-2, stated that on the day when when Harbhan had gone to sell vegetables he was not in Village Rauf. He had received a telephonic call on 6. 6. 2002 from Babulal who enquired if Harbhan had come to him on which the witness replied that Harbhan had not come to him. On 7. 6. 2002, he went to Village Rauf where he came to know that Harbhan had gone to sell vegetables at Govindgarh on cycle but had not come back. They made search of Harbhan at number of places but on clue of the boy was found. After 4-5 days, Natthi came and stated that the body had been kidnapped and was with Rahis of Village Gadarwas. Rahis was demanding an amount of Rs. 1. 25 lacs and if that amount was given to him, Harbhan would be brought back by him. Thereafter, they made payment of Rs. 1. 25 lacs to Natthi at the residence of Pooran in Village Kaithwada. 7-8 days after payment was made, it was promised that the boy would be returned but the boy was not returned. On enquiry, he (Natthi) told them that they should not make report as those persons are dacoits and he and my son would be killed. It is for that reason that they had not lodged report earlier. They have not been able to get their boy. In cross-examination, he stated that they had not gone to Rahis but if Babu might have gone then he would not know. He also stated that they had said that the boy was with Rahis. Shivram, another uncle of Harbhan, examined as PW-3, deposed on the same lines like PW-2 Vishram. Param Lal, (PW-4), also related to Harbhan, corroborated the statements made by Vishram (PW-2) and Shiv Ram (PW-3) and deposed that when search was made for the boy and he was not found, third or fourth day from the day he got missing, Natthi came and told them that he will enquire whereabouts of the boy and if an amount of Rs. 1. 25 lacs would be paid he will bring Harbhan back. This amount was demanded by Natthi in his presence and in presence of Vishram, Shiv Lal and Babu. The amount of Rs. 1. 25 lacs was given to Natthi at the shop of Pooran. He (Natthi) had told them that the boy was with Rahis and would return after few days but neither the boy was returned nor the amount of ransom. During the course of investigation, police is said to have recovered amounts of Rs. 3,500/- and Rs. 16,500/- separately from appellant Natthi. Witnesses of recovery i. e. Azmat, Shahzad and Sallu examined as PW-5, 6 and 7 however did not support the prosecution case. They were declared hostile and cross-examined by the learned Public Prosecutor. Rajendra Singh Chauhan, SHO examined as PW-10 deposed with regard to the steps that he had taken while investigating the case.
(3.) WHEN examined under section 313 Cr. P. C. the accused appellants while denying the incriminating material put to them, pleaded innocence and false implication. Natthi admitted recovery of money from him on two different occasions but stated that it belonged to him. In defence, they relied upon some portions of the statements made by the prosecution witnesses before the police of Magistrate, as the case may be. Mr. Biri Singh who represents Natthi in Criminal Appeal No. 119/2004 and Mr. Sahni who represents Rahis in Criminal Appeal No. 1698/2003 are on a common platform with regard to the contentions pertaining to delay in lodging the FIR and non- applicability of Sec. 364-A IPC. On merits of the case, whereas Mr. Sahni contends that the prosecution has led no evidence to connect appellant Rahis with the crime but for the statement made by his co-accused Natthi and which alone would not be sufficient to sustain conviction, Mr. Biri Singh in support of the appeal filed by Natthi however, contends that the statements made by the first informant and his other relatives like Vishram, Shivram and Param Lal need be discarded as in the first information report or the statements made by them u/s 161 Cr. P. C. they stated that they had gone to make enquiries from Natthi for whereabouts of Harbhan but when they came into the witness box, they changed their version by stating that Natthi had come to them after 3-4 days when Harbhan had gone to sell vegetables in the market. He further contends that Udaibhan and Yadram who as per prosecution version had seen Harbhan up to a particular distance when he was returning after selling vegetables were not produced and therefore, it could not be said whether Harbhan was kidnapped in the market itself where he had gone to sell vegetables or elsewhere. He also contends that PW-5 Azmat, PW-6 Shahzad and PW- 7 Sallu before whom police is stated to have made recovery of part of the ransom amount on two different occasions, turned hostile and did not support the prosecution case. In any case, prosecution led no evidence to identify that the money recovered from the appellant Natthi was the same which was handed over by the complainant party to him. Currency notes had no identification mark, further contends the learned counsel. We have heard learned counsel appearing for the parties and with their assistance examined records of the case. ;