Kafil Ahmed vs State of Haryana

M.L. Singhal, J.

Facts of the prosecution case briefly stated are as follows :

On 19.1.1990, Amit, son of Jai Parkash Sharma PW1 was returning to his house after getting private coaching. He stopped on the way with a view to purchase bread. Vijay, coaccused who had been working with his father met him and told him that he would take him for enjoying movie. Vijay seated him on his cycle. He took him to a house where foundations were being dug. Kafil (petitioner herein) also met them. Vijay and Kafil took him on cycle to railway station, Faridabad. There they kept that cycle and took him to bus stand. He was seated in bus and taken to a distant place. In the evening on 20.1.90, Vijay left him in an open space of Sector 10 from where he returned to his house No. 946, Sector 9, Faridabad. On 18.1.90 at about 9.15 P.M., somebody had thrown letter Ex. PA in the house of Jai Parkash demanding ransom in the amount of Rs. 60,000/ from him for the release of his son, Amit. On 18.1.90 at about 11 P.M. Jai Parkash addressed complaint Ex. PC to Incharge, Police Post, Sector 7, Faridabad mentioning therein that at about 6 P.M., that day, his son Amit @ Milky aged 67 years had gone outside his house for playing and that when he had not turned up though an hour had elapsed, he started searching him. He further mentioned in that complaint that at about 9.15 P.M., letter Ex. PA had been thrown in his house asking for ransom in the sum of Rs. 60,000/ for the release of Amit. On complaint Ex. PC, case FIR No. 54 was registered on 18.1.90 at PS Central, Faridabad under Section 363/365 IPC. Letter Ex. PA was taken into possession vide memo Ex. PB during investigation. In letter Ex. PA it was mentioned that if they were interested in Amit remaining alive, a sum of Rs. 60,000/ brought near the culvert of Sihi village and that the said amount be put in an attache case to be placed along the rear wheel of the car and the boy would be returned safe within one hour of the receipt of the money.

After investigation, Vijay and Kafil were challaned. They were charged under section 363/365/386 IPC by the Magistrate on 28.5.90. They pleaded not guilty to the charge and claimed trial. With a view to bring home to the accused the charge levelled against them, the prosecution examined Amit, Jai Parkash, SI Duli Chand, Mrs. Anita Choudhary, Additional Chief Judicial Magistrate, Faridabad. Accused when examined under Section 313 Cr.P.C. denied the imputations appearing in prosecution evidence against them and stated that it is a false case. They did not lead any evidence in defence.

After the conclusion of the trial, Additional Chief Judicial Magistrate, Faridabad found the charge under Section 363/365/386 IPC proved against them. He accordingly convicted them thereunder and sentenced them as follows :

Section Substantive Sentence Fine Sl in default of payment of fine.

363 IPC 5 years Rs. 500/ each 15 days

365 IPC 3 years Rs. 500/ each 15 days

386 IPC 6 years Rs. 500/ each 15 days.

Aggrieved from this order dated 27.9.95 passed by Additional Chief Judicial Magistrate, Faridabad convicting and sentencing them, Vijay and Kafil knocked the door of the court of Session through appeal namely CrI. Appeal No. 54 of 1995. Additional Sessions Judge, Faridabad dismissed their appeal so far as conviction is concerned. He, however, reduced the sentence to 3 years RI on each count. He directed the sentence of fine to remain intact. He further directed the substantive sentences to run concurrently. Kafil has still not relented and has come up in revision to this court in the hope of earning acquittal.

Amit PW who is a child aged 67 years is a star witness of the prosecution. He has stated that Vijay had taken him along on the pretext of showing him movie. Kafil met Vijay on the way. Both of them took him to railway station on their cycle. They deposited their cycle at the railway station. Thereafter, they took him to bus stand. They took him to some unknown place. Jai Parkash who is father of this child, stated that on 18.1.90 at about 6 P.M., his son had gone outside his house for playing. He did not return after an hour or so. At about 9.15 P.M., he came across letter Ex. PA having been thrown in his house by some one. In that letter, there was a mention of a demand of Rs. 60,000/ if they were interested in the restoration of the child to them alive. Vijay and Kafil were taken to Smt. Anita Choudhary, Additional Chief Judicial Magistrate, Faridabad with a view to furnishing their sepcific writing before her. They declined to furnish their specimen handwriting before her. In this behalf, she recorded their separate statements. They were sought to be put up at test identification parade. At that test identification parade, they were to be identified by Amit. Both of them declined to participate in the test identification parade. In this behalf also Mrs. Anita Choudhary recorded their statements. Refusal to participate at the test identification parade by them will seriously impinge upon their innocence. Similarly, the refusal to furnish their specimen handwriting before the Magistrate will seriously impinge upon their nonauthorship of letter Ex. PA through which ransom had been asked from Jai Parkash.

Faced with this situation, learned counsel for the petitioner submitted that Amit PW has himself attributed the authorship of that letter to Vijay alone. He has not attributed the authorship of that letter to Kafil at all. It was submitted that when Amit has not attributed any participation to Kafil so far as the authorship of that letter is concerned, it cannot be said that he was privy to the act of kidnaping of Amit with a view to extract ransom. Suffice it to say, Kafil was all along with Vijay when Amit was being taken by them from one place to another Kafil was also there when Vijay authored letter Ex. PA asking for ransom. It was submitted by the learned counsel for the appellant that Amit was only a child of 67 years old. It would be dangerous to accept the testimony of a child witness without corroboration as a child witness is prone to divulge exactly the tutored version. He is prone to memorise events which he is called upon to learn by cramming. Suffice it to say, this case does not rest on the statement of child witness alone. Testimony of the child derives support from circumstantial evidence. Circumstantial evidence is imbued in letter Ex. PA. If letter Ex. PA had not been authored by Vijay, he would have given specimen, handwriting before the Magistrate and the Magistrate would have sent that letter together with his specimen handwriting for comparison to the handwriting expert. If Vijay and Kafil had not been concerned in the kidnaping of the child for ransom, they would have readily agreed to be put up at test identification parade.

It was next submitted by the learned counsel for the appellant that in this case the investigating officer was not examined by the prosecution. Suffice it to say, what did the investigating officer, do ? He recorded only the statements of witnesses under Section 161 Cr.P.C. He challaned the accused and sent them for trial to the court. It is the statement of Amit, Jai Parkash and Mrs. Anita Choudhary which are talltale and on which fate of the prosecution case hinged.

For the reasons given above, I am of the opinion that the learned Additional Sessions Judge justifiably found the charge proved against the accused and convicted him. Learned Additional Sessions Judge has already taken a lenient view. Keeping, however, in view that the fate of the petitioner has been hanging in the balance for the last 7 years, I think some further leniency should be shown to the petitioner in the matter of sentence. So, the sentence is reduced to RI for 2 years on each count. However, the sentence of fine on each count shall remain intact. Substantive sentences of imprisonment shall run concurrently.

For the aforementioned reasons, this revision petition fails and is dismissed subject to the reduction in sentence as ordered above.