Lohit Kaushal vs State of Haryana

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 364A, 342 read with Section 120B of the Indian Penal Code & has been sentenced to undergo imprisonment for life for the offence u/s 364A read with Section 120B & to one year's R.I. u/s 342 read with Section 120B, 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 & earning (as per his statement) Rs. 70-80 thousand per month while Saravjit Kaur who was working as a Lecturer in the Government College, Narayangarh, was also drawing a hand some salary. As per the prosecution's case the Appellant had received a severe set back in his business & 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 & she would return to the home of Mohinder Kaur, her maternal grand mother after school hours. Pursuant to a conspiracy hatched by the Appellant, Parminder Mohan @ Pammi & Lovepreet Kaur, both well known to Mohinder Kaur & her family, went to the house of Mohinder Kaur at about 1.30 p.m. on 25/8/2002, while Sukhjit Singh & Saravjit Kaur were at work. They found Mohinder Kaur & Arshdeep in the Courtyard of the first floor of the house, & enquired about Sukhjit Singh & Saravjit Kaur & told Mohinder Kaur that Parminder Mohan had been blessed with a son & 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 & also asked for water & as Mohinder Kaur went into the kitchen, Manjit Singh followed her, caught hold of her & brought her Into the bed room. Parminder Mohan, thereafter, caught hold of her arm whereas Manjit Singh shut her mouth & tied her with a dupatta & the fourth unnamed accused manhandled her. Parminder Mohan thereafter tied her hands, shifted her to another room & after picking up Arshdeep & a video cassette player from the house, drove away in a Tata Sumo 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 & recorded the statement of Mohinder Kaur & on its basis an FIR was registered by Sub-Inspector am Parkash. The Appellant, alongwith his wife Satnam Kaur, on hearing the news about the kidnapping & pretending to be concerned relatives, also visited Mohinder Kaur's house & arranged that she be sent to the General hospital, Panchkula, for her medical examination.

On 27/2/2002, information was received by Inspector Mange Ram that the kidnappers were demanding Rs. 60 lakhs as ransom & 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 Ram accompanied by Sukhjit Singh (Arshdeep's father) reached the pre-determined place, which was a STD booth near the Gurudwara & found Lovepreet Kaur along with the child inside the booth. She was immediately arrested & the child was freed & handed over to her father. Pursuant to Lovepreet Kaur's sustained interrogation Satnam Kaur was arrested on 28/2/2002, & pursuant to her interrogation, Lohit Kaushal, the Appellant herein, was taken into custody & a Maruti Car No. CH01-4565, which had allegedly been used while kidnapping the child, was seized by the police. A Tata Sumo vehicle bearing Registration No. HR01E-7582 was also produced before the police by its owner, P.W. 3 Sarwan Singh & was taken into possession. On the same day Parminder Mohan, Manjit Singh, Nand Kishore & Sunil Kumar 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 & 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 & 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 & Sunil Kumar @ Rinku for lack of evidence, but proceeded with the trial with 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 Sumo vehicle on 25/2/2002 at about 9.00 a.m. & had returned it the same evening at about 5.00 p.m. as had been promised to by him, P.W. 5-Sub-Inspector Om Prakash, P.W. 11-Sub-Inspector Avtar Singh & P.W. 12 Inspector Mange Ram amongst others. In their statements u/s 313 of Code of Criminal Procedure. the accused pleaded innocence & alleged false implication & further pleaded that they had been involved on account of suspicion. The accused were, however, ultimately convicted & sentenced by the Trial Court 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, & 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 & 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 submitted that neither Mohinder Kaur nor any of the other witnesses had named the Appellant at any stage except at the trial & 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, & Lovepreet Kaur, a co-accused, subsequent to their arrest naming him as the main conspirator & 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 & by advising Sukhjit Singh not to give any information to the police as Arshdeep's life could be in danger & after suspicion had been raised as to his involvement had absconded & had been arrested 3 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 u/s 364A of the Indian Penal Code is a truly reprehensible crime & when a helpless child is kidnapped for ransom & that too by close relatives, the incident becomes all the more unacceptable. The very gravity of the crime & the abhorrence which it creates in the mind of the Court are, however, factors which also tend to militate against the fair trial of 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 & judicial considerations while evaluating the evidence.

We have gone through the judgment of the High Court & 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 & her statement u/s 161 Code of Criminal Procedure. recorded. She however made an improvement at the time of the trial about her suspicion vis-a-vis the Appellant & 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 & 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 Trial Judge on account of lack of evidence, we are of the opinion that so called disclosure statements made by both these women are hit by Sections 25 & 26 of the Evidence Act, 1872, as they had the status of being statements made to the police, & nothing more & 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 27 of the Evidence Act & that too only against the person making the statement. Admittedly the statements, did not lead to the recovery of any item whatsoever. Satnam Kaur's statement is on record & we have very carefully perused the same. It reads as under:

In 1995 year I was married to Lohit Kumar S/o Diwaker Kaushal ro Delhi. After 5/6 months of the marriage I & Lohit started quarreling with each other & 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 & 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 @ Pammi whose conversation impressed me a lot & I in person invited him to attend the marriage. He did come to attend the marriage of my sister at Panchkula with whom I developed relation. After marriage Harjit Singh started torturing my sister number of times he was advised but he used to assault for which my sister complained to me number of times whom my husband Lohit also tried to advice him, he quarreled with Lohit also & 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 Section 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 & daughterin-law Jaspreet at H. No. 527 Sector 12 A Panchkula, both of them are in service. During that period the old woman stays alone at home. There Sukhjit Singh & his wife Sarabjit Kaur are also in service. While going for duty they leave the girl at 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 Mummy Papa of Arshdeep taken her to home. With the intention of taking revenge from Harpreet & 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 & Lohit went to Pammi's house at Dhuri. After meeting Pammi & Nand Kishore @ Nittu we four planned that Harjit Singh's sister & Saukhjit Singh is a solid party. Good amount can be got. In order to execute this plan we started keeping an eye on the Harjit Singh's House & the girl. During this period I & Lohit remained at my mothers House No. 552 Sector 25 Panchkula. After seeking location, Pammi has asked on telephone to reach Panchkula fully prepared for making the plan a success. As per plan, I & Lohit waited after reaching Zirakpur. At about one O' clock in a white coloured Tata Summo, Pammi & Nittu came alongwith a girl & two boys, & on seeing up they halted. I & Lohit advised Pammi & Nittu that we will stop our vehicle at about 100 away from the kothi, you run away after doing the work & Pammi got a packet of sweets from Zirakpur. We moved ahead our vehicle followed by the vehicle of Pammi etc. & reached Sector 12 A Panchkula. After making plan, Pammi etc after carrying out the work went away & we both went to our house. After that, on the subject being noised, I & Lohit went to Harjit's house & kept an eye on the happening & the situation was conveyed to Pammi but Pammi'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 Pammi to return the girl. At right time my husband also escaped from there. Whose 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 & 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 & 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 Pammi that she should reach at Dhuri PCO. She reached at Dhuri PCO at about 8.30 P.M. from Sangrur. At the time, Pammi son of Jagdish Chand caste Pandit, Nitu son of Naresh Chand residents of Dhri, Sunil Kumar alias Rinku resident of Dhuri were sitting at STD/PCO. Pammi 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 & Semmi, this girl used to come to Rothi No. 527, Section 12-A, Panch kula to her grand mother for four-five hours. After kidnapping her, they could get the good amount & leave the girl. She had to do only that she would take the girl aged about three years in her lap with live & sit in the vehicle. If the girl weeps, then she would keep her mum & she will get Rs. 20,000 for the work. In the mean while, phone from Lohit had come of Pammi. Lohit & Satnam Kaur alias Semmi, who were earlier known to her also told about the planning. She also asked Lohit & Semmi as to whether girl likes chocolates or toffees, so that she may be kept mum on her weeping. As per planning, Mithu who was the Driver brought a Tata Sumo of white colour, whose number she did not know but Indian on the front mirror & 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 & Satnam Kaur met them, who were in a Maruti car of blue colour & talked to Lohit & Semmi, after getting down. Sweets box was also purchased from there. Lohit Kaushal & Semmi stopped their vehicle on the back turning & as per planning, they stopped their vehicle in front of kothi No. 527, Sector 12-A, Panchkulla. She & Pammi saw the old woman & small girl sitting in the Courtyard of first floor of the kothi. Pammi & she said Namaste to the woman. Pammi asked that where was Sukhjit Singh, who used to work in Lalru & they had come at wrong place. Pammi told that they are his friends & he had been blessed with a son, so they came to give him a sweet box. Woman asked them to sit in the drawing room & they demanded water. The old woman brought two glasses of water from the kitchen & they took it. In the mean while, Nitu & Sunil also came up & they also demanded drinking water. Mithu also came up at that time. Pammi told him to stand on the gate & she started to feed the girl. They all caught hold of old woman. Pammi shut her mouth & she lifted the girl & 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 & sped away from there in the vehicle. Pammi talked on mobile in the way & got the vehicle stopped near A margarh. A man came there on a motorcycle, & Pammi took the girl from her & handover to that person who came there on motorcycle. She was dropped at Dhuri bypass & she went to Sangrur. She continued to keep contact on phone & demanded her money. Pammi told that money would be given after receipt. She reached at STD/PCO & girl was sitting at the STD/PCO in same clothes. She told Pammi to change her clothes & she changed the clothes of the girl & kept the used clothes at the STD/PCO by putting them in a bag. Pammi told her that she may take the girl & to reach at Gurdwara Dukhniwaran Patiala, where father of the girl would come with money & she should handover the girl to the father & take the money. She would also get extra amount for this work & thereafter, she reached at Patiala Bus Stand alongwith the girl. She hired a three-wheeler & reached at the gate of Gurdwara & police caught her. She could tell the place where all other accused persons were stayed & get them arrested & could get recovered the clothes of the girl from STD/PCO. This above referred disclosure statement of accused Lovepreet Kaur was reduced into writing upon which accused & witnesses put their signatures. In view of the disclosure statement of accused Lovepreet Kaur, clothes of girl Arshdeep were got recovered from the STD/PCO, which were taken into police possession. Arshdeep was also recovered from accused Lovepreet Kaur outside the gate of Dukhniwaran Gurdwara Patiala & girl was taken into possession vide recovery memo 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. Admittedly, the two were also co-accused at that stage (as Satnam Kaur was later discharged by the Trial Court) for lack of evidence against her.

We are now left with 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 home had taken the child away in a Tata Sumo 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 & 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 memo pertaining to the Appellant & the recovery of the Maruti Car on 28/2/2002. It is obvious that this too is not a statement u/s 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 u/s 364A, 342 read with Section 120B of the Indian Penal Code. 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 & he had been roped in as the main conspirator, with the aid of Section 120B of the Indian Penal Code. We find no evidence to indicate that such a conspiracy had been hatched by the Appellant as the statements of Satnam Kaur & Lovepreet Kaur cannot be read as evidence & 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 & that the fact that he had attempted to dissuade Sukhjit Singh from informing the police about the kidnapping & 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 & the second, & an equally meritorious one, given that the police investigations are often tardy & clumsy, that the police should not be informed as the victim would then be gravely endangered & that the best option was to pay up & recover the victim. It hardly needs mention that the second option is the more preferred one in India. Assuming, therefore, that the Appellant, as a close relative, had advised Arshdeep's family to adopt the second course, cannot by itself be a circumstance to be taken against him. It has also come in evidence, (& 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 & sentence of the Appellant & order his acquittal. He shall be released forthwith if in custody & is not wanted in any other case.