Sunita Gupta, J.@mdashThe appellants Bijender Singh alias Titoo and Ashok Kumar Yadav challenges the impugned judgment and order on
sentence dated 22.12.2012 and 07.01.2013 passed by learned Additional Sessions Judge in Sessions case No. 51/2011 arising out of FIR No.
571/2004 u/s 363/365/34 IPC vide which they were convicted under Section 365/34 IPC and were sentenced to undergo rigorous imprisonment
for a period of three years and to pay a fine of Rs.1000/- in default, to undergo simple imprisonment for one month.
2. Prosecution case, succinctly stated, is as follows. Anil Kumar (PW-2) made a complaint alleging inter alia that he is running a grocery shop at
Shop No. 302, Krishna Puri, Main Road, Mandawali, Delhi. On 28.10.2004 at 1.00 pm, his son Aman aged about two and a half years was
present at the shop. His nephew Deepak who was also running a grocery shop nearby came to his shop and took Aman with him. Thereafter, Anil
Kumar went to take lunch and when he returned back he did not find his son Aman. He went to the shop of Deepak to enquire but the shutter of
the shop was down. After sometime Deepak came there and on enquiry from him about Aman, Deepak told him that Aman was not with him. He
made a call on 100 number regarding missing of his son. He suspected that his son Aman has been kidnapped.
3. Investigation of the case was conducted by PW-10 SI Swaraj Singh. He got the portrait of the suspect prepared on the basis of description
given by the neighbours. On 02.11.2004, the Investigating Officer received an information from Police Station Ginnore that a child belonging to
Delhi has been recovered from there, as such, he alongwith complainant and other police officials went to Ginnor where Inspector Yogender
Kumar (PW-11) met him and told that boy Aman was recovered from the possession of accused Bijender Singh. Bijender Singh was interrogated
and the child was brought to Delhi. On the intervening night of 2-3.11.2004, accused Deepak was apprehended from his house. Accused Bijender
Singh was also arrested on 25.07.2005. Accused Ashok surrendered in the Court and was arrested. After completing investigation, chargesheet
was filed against all the accused under Section 363/365 IPC.
4. Initially the trial was conducted by the learned Metropolitan Magistrate, however, in view of the notification dated 04.08.2010 victim being
minor at the time of incident and trial of offences concerning Protection of Child Right Act, 2005 was to be conducted by a designated Court, as
such, the case went to Additional Sessions Judge. Charge under Section 365/34 IPC was framed to which accused pleaded not guilty and claimed
trial.
5. In order to substantiate its case, prosecution in all examined 11 witnesses. All the incriminating evidence was put to the accused while recording
their statement under Section 313 Cr.P.C wherein they denied the case of prosecution and alleged false implication in this case. Accused Bijender
Singh took the defence that he was picked up by U.P Police from his shop on 01.11.2004. Thereafter he was falsely implicated in a case under
Section 307 IPC and 25 of Arms Act and thereafter in this case. He examined himself as DW-1 and proved the certified copy of the judgment
Ex.DW1/A vide which he was acquitted for offence under Section 307 IPC and 25 of Arms Act. He also examined DW-2 Ashok Kumar in
support of his case.
6. After scrutinising the evidence led by the prosecution and the defence taken by the accused, vide impugned judgment dated 22.12.2012
accused Deepak was acquitted of the charges levelled against him. However, both the appellants were convicted under Section 365/34 IPC and
sentenced, as mentioned hereinabove.
7. Feeling aggrieved, separate appeals have been preferred by the appellants.
8. Assailing the findings of the learned Trial Court, learned counsel for appellant Bijender Singh alias Titoo submitted that the statement of
complainant PW-2 Anil Kumar does not further the case of the prosecution in as much as his statement is confined to lodging report regarding
missing of his son and that he saw Bijender at the police station. PW-3 Attar Singh is the only public witness who is not hostile. He does not
mention anything against Bijender Singh but speaks about co-accused Ashok Kumar Yadav taking the child. The other two witnesses PW-4 and
PW-5 did not support the case of prosecution. Further, prosecution case is that the child was recovered from the custody of accused Bijender. In
order to substantiate this case, three witnesses PW-6 Constable Chander Pal, PW-8 Constable Omkar Singh and PW-11 Inspector Yogender
Singh were examined. Constable Omkar Singh did not support the case of prosecution whereas testimony of PW-6 and PW-11 suffers from
various discrepancies. Furthermore, the appellant examined himself as DW-1 besides examining DW-2 both of whom deposed that appellant was
falsely implicated in this case because he refused to bribe U.P. police, however, no credence was given to the defence evidence. Furthermore,
according to the prosecution case, accused Bijender Singh fired at the police officials and weapon of offence was recovered from his possession,
however, the same was not believed by the U.P Sessions Court and he was acquitted of the offence alleged against him. Once the incident itself
was found false then the factum of recovery of child from the possession of accused goes. Even assuming that the prosecution has proved that the
child was recovered from the appellant even then offence under Section 365 IPC is not made out. As such, accused is entitled to be acquitted.
9. Challenging the findings of the learned Trial Court, learned counsel for the appellant Ashok Kumar Yadav submitted that the main accused was
Deepak who has been acquitted by the learned Additional Sessions Judge. No recovery has been effected at the instance of this accused. The
Trial Court has primarily relied upon the testimony of PW-3 for convicting the appellant as according to this witness, he had lastly seen the child
with the accused. However, although this witness states that he informed the complainant about this accused taking child with him but complainant
nowhere deposed so. Moreover, according to this witness, he had seen the accused taking the child at 10.30 pm whereas according to the
complainant, the child went missing at about 1.30 pm. Besides that, there is no incriminating evidence against this accused. No test identification of
this accused was got conducted. Under the circumstances, the prosecution has failed to bring home the guilt of accused beyond reasonable doubt
and accused is liable to be acquitted.
10. Rebutting the submissions of learned counsel for the appellants, learned Additional Public Prosecutor for the State submitted that it was a case
of kidnapping of a child of two and a half years but a case of kidnapping for ransom in substance was diluted due to fear of life of child by the
complainant. The child was rescued from the lap of accused Bijender Singh while trying to flee away on apprehending arrest on suspicion by U.P
police at Ginnor after firing at police party and hence onus under Section 106 of Evidence Act lies on the accused which he has not duly
discharged. Testimony of last seen witness establishes that the kidnapped child was last seen in the company of both accused and even the
prosecution witnesses got sketch of the accused prepared. Recovery of child from the custody of both accused by independent police of different
area also establishes the guilt of the accused and as per Section 114(e) of Evidence Act, a presumption arise that all official acts are genuinely
performed. It is further submitted that the maximum sentence under Section 365 IPC is upto 7 years and the learned Trial Court has already
exercised great clemency and has awarded only three years imprisonment which is liable to be enhanced. As such, the appeals be dismissed and
compensation be awarded to the victim of the crime.
11. Before considering the rival submissions of learned counsels for the parties, it will be in fitness of things to have a brief narration of the
testimony of the material witnesses examined by the prosecution.
12. PW-2 Anil Kumar is the complainant and father of victim Master Aman. His testimony is confined to the missing of his child on 28.10.2004 at
about 1-1.30 pm and thereafter recovery of the child on 02.11.2004 from Ginnor. He further deposed that accused Bijender was apprehended by
the local police and he was informed that the child has been recovered from his possession.
13. PW-3 Attar Singh was running a building material shop at Krishna Puri. According to him, on 28.10.2004 at about 10.30 am he saw accused
Ashok taking away a child in a cycle rickshaw. The child was crying and on his questioning, the accused told him that the child usually cry. When
he returned back to his house at about 1-1.30 pm then he came to know that the child of Anil Kumar, his neighbour, was missing. He informed
Anil Kumar that he had seen the child with Ashok Kumar whom he knew by face as he used to sell Golgappas and used to purchase goods from
the shop of Anil Kumar. He gave the description of the said accused and got the portrait of the suspect prepared.
14. PW-4 Ashok Kumar merely deposed that all the three accused were known to him as Deepak was running a grocery shop. Accused Ashok
was selling Golgappas in the area while accused Bijender sells potatoes.
15. Testimony of PW-5 Rawat Singh is confined to the fact that he went alongwith the complainant to police station for lodging the complaint
regarding missing of his son.
16. PW-11 Inspector Yogender Singh, then SHO, PS Ginnore, Distt. Badayun has deposed that on 02.11.2004 he alongwith his staff reached at
Indra Chowk, Babrala Chowk for searching criminals. On receipt of secret information that two persons who kidnapped one child were sitting
near Bhola Crasher at Dhanari road, they reached there. On seeing them, one of the accused ran away while the other who was holding a baby in
his lap fired upon them with the intention to kill them. They saved themselves and apprehended accused Bijender. One countrymade pistol of.315
bore was recovered from right hand of accused and baby was recovered from left side lap of accused. On formal search of accused, two live
cartridges were recovered from right pocket of his pant and one empty cartridge was found in the chamber of countrymade pistol. Accused
disclosed the name of other accused who ran away from there as Ashok Kumar Yadav. He also disclosed that he, accused Ashok and his
associates had brought the child from Delhi. He got FIR under Section 307 IPC and 25 of Arms Act registered at police station Ginnor. He also
informed police station Mandawali. Concerned investigating officer alongwith the complainant came to police station Ginnor. After completing all
legal formalities custody of the child was handed over to his father.
17. PW-6 Constable Chander Pal was accompanying PW-11 at the time of incident and has corroborated the testimony of PW-11.
18. PW-8, retired driver Constable Omkar Singh was also accompanying PW-11 and PW-6. He deposed that at Indra Chowk, SHO received a
phone call thereafter they reached at Bhola Crasher. After some time he heard noise of fire. Thereafter SHO and other staff members came back
to the vehicle alongwith one person and one small child. However, he did not depose about the alleged incident of firing by accused Bijender and
recovery of child from his possession, as such, was declared hostile.
19. So far as accused Ashok Kumar Yadav is concerned, the prosecution case rest on the testimony of PW-3 Attar Singh who, as seen above,
has deposed that he saw accused Ashok taking a child in a cycle rickshaw at about 10.30 am and thereafter on coming to know that child of Anil
Kumar is missing, he informed him that he had seen the child with Ashok Kumar who used to sell Golgappas and used to purchase goods from the
shop of Anil Kumar. Except for the testimony of this witness, there is no other incriminating evidence against Ashok Kumar Yadav. A minute
scrutiny of of testimony of this witness goes to show that the same is not sufficient to establish the guilt of the accused beyond reasonable doubt in
as much as according to the complainant, the child went missing at about 1.30 pm whereas according to this witness, he had seen accused Ashok
taking a child at about 10.30 am. Moreover, he nowhere deposed that the child who was being taken by Ashok Kumar Yadav was the child of
the complainant. Furthermore, according to him, on coming to know that child of Anil Kumar was missing, he informed Anil Kumar that he had
seen accused Ashok Kumar who used to sell Golgappas with him. However, testimony of complainant is conspicuously silent regarding any such
information given to him by PW-3 Attar Singh. Not only that, if the testimony of this witness is believed as correct that on the very day of missing
of the child i.e., 28.10.2004, he had informed the complainant regarding taking away of his child by Ashok Kumar then as per rukka only an
information was given by the complainant regarding missing of his child, on the basis of which DD No. 25A was recorded. Thereafter, on
29.10.2004 the complainant went to police station and gave a statement regarding missing of his child by some person on which the FIR was
registered at 10.45 pm. Had PW-3 Attar Singh informed the complainant as deposed by him then there was no occasion for the complainant not
to mention the name of Ashok Kumar Yadav in the initial complaint Ex.PW-1/A. Not only that, even in his deposition before the Court he
nowhere deposed so. Furthermore, there is material improvement in the testimony of this witness that Ashok Kumar Yadav used to sell Golgappas
in the area and also used to purchase goods from the shop of Anil Kumar whereas no such statement was made by him under Section 161
Cr.P.C. Besides that the complainant did not even identify Ashok Kumar Yadav in the Court. He only identified accused Deepak since he was his
nephew and Bijender who met him at the police station. Under the circumstances, his sole testimony implicating accused Ashok Kumar Yadav
which does not find corroboration from any other material on record is not sufficient to establish beyond reasonable doubt that this accused
kidnapped the child belonging to Anil Kumar. That being so, findings of learned Additional Sessions Judge qua this accused cannot be sustained.
20. As regards accused Bijender Singh is concerned, the material witnesses are PW-6, PW-8 and PW-11. It has come in their testimony that on
the basis of secret information that two persons who kidnapped one child were sitting near Bhola Crasher at Dhanari Road, the police party
reached the spot where on seeing them, one of the accused ran away while accused Bijender Singh who was holding a baby in his lap fired at the
police officials however he was apprehended and countrymade pistol was also recovered from him. Slight discrepancies have appeared in their
testimony, however, the same do not go to the substratum of the case. Moreover, it is to be kept in mind that the incident took place on
02.11.2004 whereas these witnesses came to depose in the Court in the year 2012 i.e. after a lapse of about 8 years. Human memory is bound to
lapse due to passage of time and some concession has to be given which occurs due to this passage of time. Moreover, there are catena of
decisions to the effect that minor discrepancies and inconsistencies cannot be given undue importance. The Court has to see whether
inconsistencies go to the root of the matter and affect the truthfulness of the witnesses while keeping in view that discrepancies are inevitable in case
of evidence of witnesses, who speak thereafter long lapse of time.
21. Hon''ble Supreme Court in Gangabhavani v. Rayapati Venkat Reddy and Ors. 2013(11) SCALE 132 held:
9. In State of U.P. Vs. Naresh and Others, (2011) CriLJ 2162 : (2011) 3 JT 508 : (2011) 2 RCR(Criminal) 364 : (2011) 3 SCALE 425 :
(2011) 4 SCC 324 : (2011) 2 SCC(Cri) 216 : (2011) AIRSCW 1877 , this Court after considering a large number of its earlier judgments held:
In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors
of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in
the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial
matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.
The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the
entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the
statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially
affect the trial or core of the prosecution''s case, render the testimony of the witness liable to be discredited.
A similar view has been reiterated by this Court in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, AIR 1959 SC 1012 : (1959)
CriLJ 1231 : (1959) 2 SCR 875 Supp ; Pudhu Raja and Another Vs. State, rep. by Inspector of Police, (2012) 4 JCC 2751 : (2012) 9 JT 252 :
(2012) 9 SCALE 177 : (2012) 11 SCC 196 ; and Lal Bahadur and Others Vs. State (NCT of Delhi), (2013) 4 AD 416 : (2013) CriLJ 2205 :
(2013) 2 Crimes 209 : (2013) 2 RCR(Criminal) 620 : (2013) 5 SCALE 467 : (2013) 4 SCC 557 .
10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same
cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the
contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to
form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence.
22. Similar view was taken in Sidhan v. State of Kerala, 1988 Cr.L.J. 470 ; Krishna Pillai Sree Kumar and Another Vs. State of Kerala, AIR
1981 SC 1237 : (1981) SCC 31 Supp : (1981) SCC(Cri) 669 ; Kuria and Another Vs. State of Rajasthan, AIR 2013 SC 1085 : (2012) CriLJ
4707 : (2012) 4 JCC 2644 : (2012) 9 JT 296 : (2013) 2 RCR(Criminal) 108 : (2012) 9 SCALE 42 : (2012) 10 SCC 433 : (2012) AIRSCW
5259 ; Sohrab and Another Vs. The State of Madhya Pradesh, AIR 1972 SC 2020 : (1972) CriLJ 1302 : (1972) 3 SCC 751 : (1972) SCC(Cri)
819 : (1973) 1 SCR 472 : (1973) 5 UJ 43 ; Krishna Mochi and Others Vs. State of Bihar, AIR 2002 SC 1965 : (2002) CriLJ 2645 : (2002) 2
Crimes 236 : (2002) 4 JT 186 : (2002) 3 SCALE 602 : (2002) 6 SCC 81 : (2002) 3 SCR 1 : (2002) AIRSCW 1909 : (2002) 3 Supreme 369 .
23. In the instant case also, except for minor variations, the witnesses stood the test of cross-examination.
24. Moreover, merely because they are police officials there is no reason to disbelieve their testimony which on material aspect remained
unimpeachable. The testimony of police personnel have to be treated in the same manner as testimony of any other witnesses and there is no
principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts
honestly applies, as much in favour of police personnel as of other person and it is not a proper judicial approach to distrust and suspect them
without good ground. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down as
held in Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311 : (2003) CriLJ 2021 : (2003) 3 JT 249 : (2003) 3 SCALE 398 :
(2003) 5 SCC 291 : (2003) 3 SCR 25 : (2003) 2 UJ 799 : (2003) AIRSCW 1716 : (2003) 3 Supreme 397 , C. Ronald and Another Vs. State,
U.T. of Andaman and Nicobar Islands, (2011) 10 JT 77 : (2011) 9 SCALE 59 . In Dr. Sunil Clifford Daniel Vs. State of Punjab, (2012) CriLJ
4657 : (2012) 8 JT 639 : (2012) 8 SCALE 670 : (2012) 11 SCC 205 : (2013) AIRSCW 131 : (2012) AIRSCW 5180 : (2012) 6 Supreme 630
, Apex Court referred to State, Govt. of NCT of Delhi Vs. Sunil and Another, (2001) CriLJ 504 : (2000) 3 JT 267 Supp : (2000) 7 SCALE 692
: (2000) 5 SCR 144 Supp , wherein Court held as under:-
20.......But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition
of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to
consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own
worth.
21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust.....At any rate, the court cannot
start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way round. That
official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a
police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to
the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of
witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a
particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account
the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police
action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the
documents made contemporaneous with such actions.
25. Although, it is true that this accused was tried for offence under Section 307 IPC and 25 of Arms Act arising out of the same incident wherein
he was acquitted by Ginnor Court but learned Trial Court was right in observing that Court was not bound to accept the appreciation of facts done
by that Court and disbelieve the statements of PW-6 and PW-11. It is not in dispute that the child was recovered from Ginnore which is fortified
by the fact that on receipt of information from PW-11, PW-10 SI Swaraj Singh alongwith other staff and the complainant reached Ginnor where
they were informed that the child Aman was recovered from the possession of accused Bijender Singh. Custody of the child was handed over to
complainant at police station Ginnor vide Ex.PW-2/B. Ex.PW-6/A is the seizure memo regarding recovery of victim Master Aman from the
possession of accused Bijender Singh and recovery of countrymade pistol from the possession of this accused. These documents further support
the statement of police officials that accused Bijender was apprehended by the police of police station Ginnor on 02.11.2004 and victim child was
recovered from his possession.
26. Accused has taken a plea that he was running a Kiryana Shop at Sahu Kara District Badayun, U.P and police officials used to demand money
from him for running the shop and on refusal, he was falsely implicated in this case. He had examined DW-2 Ashok Kumar Gautam in support of
his defence however this witness admitted that police officials never demanded any money from him however the explanation furnished by him is
that his counter was inside the shop whereas goods of accused Bijender used to be kept outside the shop. Accused admitted in his cross-
examination that he could not tell the date when bribe was demanded by the police officials and he did not make any complaint about this fact to
any superior authority at any point of time. Moreover, according to PW-4, accused Bijender used to sell potatoes at Mandawali, Delhi and his
testimony was not challenged by the accused as he was not cross-examined at all. This falsifies the statements of DW-1 and DW-2 that accused
was running a Kiryana shop at Sahu Kara. Even otherwise, there was no reason for them to get the accused implicated in this case as well while
allowing the real culprit to go scot free.
27. Under the circumstances, learned Trial Court was right in observing that so far as this accused is concerned, it was proved that the child who
was kidnapped on 28.10.2004 was recovered from the possession of this accused from the area of Police Station Ginnor, U.P. on 02.11.2004.
Since the recovery of child was effected from the possession of this accused, it was for him to explain as to how child came in his possession which
he has failed to explain. As such, it is to be taken that during this period, he was kept secretly and wrongfully confined. Under the circumstances,
there is no infirmity in the order passed by learned Additional Sessions Judge qua this accused.
28. That being so, Crl. Appeal No. 191/2013 filed by Bijender Singh is dismissed while Crl. Appeal No. 195/2013 filed by Ashok Kumar Yadav
is allowed. His conviction and order on sentence dated 22.12.2012 and 07.01.2013 are set aside. He be set at liberty, if not wanted in any other
case.
Trial Court record be sent back along with the copy of the judgment.
Copy of judgment be sent to Superintendent Jail for information and compliance.