JUDGMENT
R.S. Sodhi, J.
1. Criminal Appeal No. 376 of 2004 seeks to challenge judgment and order of Additional Sessions Judge. New Delhi in Sessions Case No. 43 of 1999, arising out of F.I.R. No. 141 of 1999, registered at Police Station Inder Puri, whereby the learned Judge vide her judgment dated 30-1-2004 has held the appellant, Pritam Kumar, guilty for offence under Sections 364-A and 302 IPC. Further vide her order dated 5-2-2004, has sentenced the appellant to life imprisonment together with fine of Rs. 5,000/- and in default of payment of fine, simple imprisonment for three months under Section 302 IPC. The appellant was further sentenced to life imprisonment with a fine of Rs. 2000/- and in default of payment of fine, simple imprisonment for one month under Section 364-A IPC. Both the sentence were directed to run concurrently. However, the appellant was awarded the benefit of Section 428 of the Code of Criminal Procedure.
2. Brief facts of the case as have been noted by the learned Additional Sessions Judge in the judgment under challenge are as under:
…that on 29-5-1999, the complainant, Lal Babu came to the Police Station and got recorded his statement to the effect that he is resident of WZ-42, village Das Dhera, New Delhi. He is residing with his family members and is doing the business of book binding in Azad Market. His wife Lalita is doing private job in village Naraina; he has three sons and his elder son Abhilash Kumar is doing private job in Karol Bagh and remaining two sons, named, Tinkoo and Parkash are studying in Rajender Nagar. He has further stated that on 28-5-1999, he along with his wife went for their job and his two sons were at home. His wife got the information in the factory that their son Parkash is missing. Then, his wife came back to the house and searched for her son in the nearby area and when she could not trace him, then, they lodged the report with the police and then, his wife started searching for her son along with the police.
At about 8 p.m., Pritam, who is the son of the brother of their landlord, told his wife that one letter is lying outside their house, then, his wife picked up that letter and she read that letter and after reading the letter, she got perplexed. At about 9 p.m. when he back to home, his wife told him everything and also told that as per the letter, they have to arrange for Rs. 35,000/-. At about 6 a.m., next morning, they have to keep this money near Hanuman Mandir and tie the same on a pole of Mandir. It was also written in that letter that in case some trick is played, then, they will not be able to see the face of their son. On the next morning, at about 6 a.m., he along with his wife went to Hanuman Mandir but could not find any person and then, they came back and he along with his wife had suspicion on Pritam that he might have taken their son with a view to extract money from them. On the basis of this statement, the FIR was got registered. The investigation was handed over to SI K.K. Mishra and he along with Ct. Virender and the complainant went in search of the accused and the Duty Officer sent the information by Special Messenger. During the investigation, the I.O. recorded the statement of Smt. Lalita and interrogated accused Pritam Kumar as the complainant was having suspicion on him and on interrogation, the accused admitted his mistake, then, he was arrested and his disclosure statement was recorded and then, the accused led the police party to DDA park, R. Block hill area Rajender Nagar jungle as per his disclosure statement, took them near electric pole and pointed out towards pit and told the police that the dead body of Golu is underneath the stones. The dead body was recovered from that pit and the complainant identified the dead body of his son. Thereafter, Section 302 IPC was added in the FIR. Crime team was called, the spot was got photographed and the exhibits, i.e., the blood stained stones, blood stained earth and dry earth were taken into possession and post-mortem over the dead body of Parkash @ Golu was got conducted. The cause of death was opined by the doctor as craniocerebral injuries caused by blunt force with a hard and blunt object. Thereafter, the specimen handwriting of the accused was taken and was sent to F.S.L. along with the letter alleged to have been written by the accused and expert opinion was collected in this regard on 28-6-1999. The other exhibits were also sent to F.S.L., Malviya Nagar. After completion of investigation, the challan was filed. The case committed to the Court of Session.
After hearing the accused, the charge under Section 364-A/302 IPC was framed to which the accused pleaded not guilty and claimed trial.
3. The prosecution in order to establish its case examined as many as 18 witnesses. Of these, the most material one’s are PW-5, Lal Babu, father of the deceased; PW-6, Lalita, mother of the deceased; PW-11, Surender, neighbour, as also the medical evidence and scientific evidence. It is contended by learned Counsel for the appellant that there are considerable contradictions in the statement of PW-5, Lal Babu, whose statement ought not to be relied upon. He submits that Lal Babu has grossly improved his case in Court which clearly shows that Lal Babu would go to any length to have the appellant convicted. He compares the statement of PW-5, Lal Babu, with statement of PW-6, Lalita, mother of the deceased, to show that Lal Babu’s statement is in contradiction with that of Lalita inasmuch as after having received the ransom letter, both husband and wife, on the following morning placed Rs. 3,000/- at the appointed place and saw the appellant coming to take it. According to Lal Babu, he apprehended the accused at the Hanuman Maradir itself and handed him over to the police along with letter whereas Lalita states that the accused ran away after seeing them and that both came back home and thereafter her husband Lal Babu went to inform the police. Learned Counsel submits that this contradiction goes to the root of the matter which makes the prosecution’s case doubtful.
4. Learned Counsel has also attacked the recovery of the ransom note by PW-6, Lalita, by pointing out that, in the first instance, Lalita picked up the ransom note herself while in the later part of her statement, the ransom note was picked up by the accused and handed over to Lalita who handed it over to Surender for the purposes of knowing its contents. He also draws heavily upon the statement of PW-2, Chiranji Lal, who was the gardener at the DDA Park and does not identify the accused to be the person who pointed out to the dead body. Even though, he is a witness to the recovery of the dead body and to the pointing out memo. Further, counsel relied upon PW-7, Dr. Alexander, who conduced the postmortem examination on the body of the deceased, Prakash @ Golu. The postmortem report states that the body was in advanced decomposed state which indicates that the child had died prior to the date on which the child was stated to have gone missing and lastly, he contends to the effect that since the accused was sleeping in his house on 28-5-1999 shows that he was innocent. According to counsel, a killer would not display such behavior. Learned Counsel also attacked the opinion of the handwriting expert saying that it was not a complete science and that the handwriting expert has not been examined.
5. We have heard learned Counsel for the parties and with their assistance have been taken through the record of the case. There is no doubt that there are some contradictions in the statement of PW-5, Lal Babu and PW-6, Lalita, viz-a-viz., at the Hanuman Mandir but the cross-examination of PW-6 is so extensive and exhaustive as to elicit from her the entire story without pointing out any contradictions, improvements or omissions that her statement can hardly be doubted. We may usefully set down cross-examination of PW-6:
PW-6, Smt. Lalita, wife of Shri Lal Babu. aged 27 years, private service, resident of WZ-42, village Das Ghar, New Delhi made the following statement on S.A.:
I had gone to attend to my duty at 8.45 a.m. On the said date, we had got up late. As such we had gone to attend to the duty late. The school timing of the boy commences from 8.00 a.m. I had not seen Golu after 8.15 a.m. As usual, I had gone to my duty. That was time of summer vacation. The child had gone to the roof for playing after taking meal. I had gone to the place of my duty and reached there at 9.05 a.m. I had received a message at 1.00 p.m. to the effect that Golu had disappeared. We reached at 1.30 p.m. The house of Pritam is situated at a distance of about 200-250 yards from my house. I made an inquiry from my neighbour and kept searching for him but could not trace him up to 4.00 p.m. Then I lodged a missing report with the police station. Nobody told me about the whereabouts of the boy. My children were searching him for going to tuition.
By the time, I had gone to lodge the report with the police station, I did not know as to where he had gone, he used to play on the roof of the house or in the street. He had never gone away from the house. When I had gone, he was all alone in the house. He started playing on the roof of the house where we reside. We used to reside in the house of uncle Jai Singh. We had enquired about him from all the children. He used to play with the children if they were playing in the Gali. He never used to go out. I am not educated one. Pritam was sleeping in the house when I returned at 1.30 p.m. Vikas and Golu used to go together to attend the tuition. When Vikas could not find him by 9.00 a.m., he went alone to attend the tuition. After returning from there, he enquired from his neighbour. Thereupon they replied that they had not seen Golu since morning. Then the children started manhunt for Golu in the adjoining areas. Thereafter. Pritam, the accused present in the Court met them in the street and he told Vikas that he had seen his brother going from there while clinging to a Rehari. My elder son made a search for Golu up to Rejender Nagar but in vain. We had not seen Rehariwala. The accused present in the Court, namely. Pritam, witnessed the boy in the morning on the day of occurrence. I went to the house of accused and asked him the description of the Rehariwala whereupon, the accused present in the Court replied that he did not know him. First of all we ourselves searched the boy. I was present all alone in the house at that time. The police did not come to my house. Pritam, the accused present in the Court, suggested in the evening that they should look whether some letter was lying near the door. Then the accused lifted the letter and handed over the same to me which was read over to me by Surender. Surender told me that a ransom of Rs. 35,000/- has been demanded in the letter with the directions that the ransom should be kept near Hanuman Mandir; that the police should not be informed of the ransom. At this, I started weeping at night time out of fear.
Next day in the morning, the contents of the letter had been brought to the notice of the police. It is wrong to suggest that the police was informed of the fact that 1 had lifted the letter from near the door and the same was read over by Surender. Confronted with portion A to A of PW-6/A, where it is so recorded. The witness stated that accused had delivered the letter after lifting the same. Surender, my neighbour had come at about 7/7.15 o’clock. Surender was also residing in the house. Before missing of the child there were no talking terms with the accused present in the Court. Accused person came in order to realize rent. Accused was strolling in the area itself. We were having formal relation with the accused. We were also having good term with Surender like other people of the locality. Children also used to visit Surender. Wife of Surender also looking after our children. I did not narrate this to anyone that we had taken Rs. 2,000/-from Surender and Rs. 1000/- were with us. I, after taking a sum of Rs. 3,000/- along with us, went to Hanuman Mandir along with my husband and kept the said sum near the pole as per the instructions given in the said letter. The temple is situated adjacent to the pole. The Mandir is single storeyed. It is not so high. We were standing near the wall of the Mandir with a view that in case some one comes, we would try to request him. There is not any boundary of the said Mandir. On one side there is Pusa (sic) and on the other side Mandir is situated. Generally, the said Mandir has no crowed of people rather it is at a lonely place. The accused, Pritam present in Court came after sealing the wall of Pusa and when he was just going to pick up the money, we saw him and his man went away without lifting the money from there. Pritam, the accused present in Court, had reached near the pole. Pritam, who is present in the Court, reached near the pillar. We did not say anything to the accused and came back to our house after picking up the money as we were fully confident that it was his act. It is wrong to suggest that Pritam, present in the Court, did not arrive there. I narrated this fact to the Police. I did not disclose to the police about the money that the money was kept near the pillar of the Mandir and that the accused present in the Court arrived there for taking the money. However, I narrated to the police that the accused present in Court had told me in the evening of 29th that children were being kidnapped; that one child was kidnapped; that a sum of Rs. 2 lac was demanded for his release and that he was murdered for not paying the ransom money whereupon I said that as to how a poor person can arrange a sum of Rs. 1 lac and told him that if he had to demand for ransom he should have demanded lesser amount. Three /four days subsequent to that, same incident happened to me. Surender read over the letter to me and the letter was given to the Police on the following day. The aforesaid letter was with me in the night. When I received the said letter, my husband was not at home. At 6.00 a.m. we had reached Hanuman Mandir, picked up the money and returned to our house. We did not tell anything to the family members of the accused or neighbours after returning to our house. However, we informed Surender in this regard. After discussing the issue, my husband and Surender went to inform the Police. At that time our neighbour as well as two-three other persons were present there. The discussions in this regard had taken place in the courtyard. Thereafter, my husband and Surender went to inform the police. I do not remember as to when the police arrived. I cannot tell exactly as to how much time police had taken to arrive. The police station is situated at much distance from the house. Perhaps police would have taken one/two hours. There is no direct bus service to the locality and we have to take a conveyance. My husband and Surender had gone to the police station. Thereafter the police arrived there at about 12.00 noon. I cannot remember the time as 1 was worried about my child.
The police made enquiries and saw the letter. The man had taken the letter to the police station. The statement was not recorded at my residence. My statement was recorded at the police station. The letter was given to the police by my husband when he went to the police station along with Surender. When the police arrived at (my) residence, it asked as to where from we got the letter whereupon I told the police. Thereafter, I went to the police station and got (my) statement recorded. When the police arrived at the place of occurrence, it arrested Pritam from the residence and took him along. Therefore, we went to the police station. There, neither me nor my husband had any conversation with Pritam. The statements were recorded at the police station and only my statement was recorded in my presence. Then, we came to (our) residence. I came alone to the residence while my husband was still there at the police station. I do not know as to what happened thereafter at the police station. The accused received the rent proceeds for 6/7 months and thereafter, Jai Singh approached (us) and asked us not to give the rent to Pritam any more and further said that it should not be give to him (Jai Singh). It is wrong to suggest that quarrel used to take place between us and Pritam on the issue of rent. We did not give the rent on time but he demanded for the same and that was the bone of contention and hence was falsely implicated. At about 8.30 p.m., accused came to our house and told us about the letter. I am not recollecting the exact time. It was around 8.30 p.m. because at that time we were asked to arrange for the money. I do not know as to how much time was spent while coming from temple to house. It may have taken 30-45 minutes. I do not know at what time the police came….(sic). Accused was present at the house at 1.30 p.m. Thereafter, I do not know. The accused had been lying on the cot at his house at 1.30 p.m. Accused walks through in front of our house for going to forest for tying his buffalo over there. I have not seen the accused from 1.30 p.m. to 8.30 p.m. The accused told Vikas at 10.30 that he did not see the deceased hanging on the cart. The letter was not given to the police in the night so that (he) might not kill our child. We had seen the accused in the morning and the money was not there, hence considering the prevailing circumstances (we presumed) that it was the handiwork of the accused. The accused borrowed a sum of Rs. 1,000/- from Surender on the evening of Durga Puja on the pretext that his mother was ill but his mother was, in fact, not ill. After taking the money, he eloped for six months. He did not return Rs. 1,000/- to Surender. We have been living in that very house even now. We sleep at night somewhere else because Jai Singh has threatened (us). I do not know as to why Jai Singh forbade (us) to give the rent to the accused. It is wrong to state that I am making a false statement.
6. The cross examination itself is directed to establish the guilt of the accused. The witness has been made to say far more than what she had stated in her examination-in-chief which cannot be termed as contradiction nor improvements. She is corroborated on material aspects by PW-11, Surender, who was present when the ransom note was collected by PW-6 and handed over to him to read the same as PW-6 was illiterate. Minor contradictions as to how the note was recovered are inconsequential. Further, even though the gardener who does not identify the accused as the person at whose instance the body was recovered, does not deny the recovery of the body nor the placement of the body in the van. He also signs the memo of pointing out as also recovery. His lack of identification of the accused in Court does not spell disaster for the prosecution. PW-5 and PW-11 categorically state that the accused led the police party and had the body recovered pursuant to a disclosure statement. This is also testified by the police witnesses. Further, the ransom note is proved to have been written by the accused. Merely because the handwriting expert was not examined, though his report was tendered into evidence, would not destroy the prosecution’s case. Surely, the accused could have summoned him for cross-examination. Even otherwise, it is not the case of the accused that the ransom note was got written by him by the police.
7. Considering and re-examining the testimony and material on record, we find that it stands proved that the deceased went missing on 28-5-1999 which matter was reported to the police and search continued. A ransom note was recovered on 28-5-1999 with the assistance of the accused person which note was handed over to PW-11, Surender, by PW-6, Lalita, to ascertain its contents and in which demand for Rs. 35,000/ was made. The accused, on being arrested, made a disclosure statement which led to the recovery of the dead body of the child. The admitted handwriting of the accused matched with that of the ransom note. With these circumstances taken together, they make out a case strong enough to point to the guilt of the accused. There is only one hypothesis that can be drawn from the chain of circumstances which positively points towards the guilt of the accused.
8. We have not deliberately burdened this judgment with extensive quotations from the depositions of all witnesses which has been amply set out in the judgment under challenge. Re appraising the entire depositions and material on record, we find that the trial Court has correctly analyzed the same to arrive at its conclusion which cannot be faulted with.
9. We, therefore, have no hesitation in upholding the judgment of the trial Court dated 30-1-2004 and order on sentence dated 5-2-2004. In view thereof, Criminal Appeal No. 376 of 2004 is dismissed.