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Lohit Kaushal Vs. State Of Haryana on 4 August, 2009

Lohit Kaushal Vs. State Of Haryana on 4 August, 2009
Bench: Harjit Singh Bedi, J.M. Panchal

C RI MIN A L AP P E L L A T E JU RIS DICTIO N

C RI MIN A L AP P E A L N O. 837 O F 2008

L O HIT K A U S H A L AP P E L L A N T(S) vs.

ST A T E O F H A R Y A N A R E S P O N D E N T( S) O R D E R

This appeal by way of special leave has been filed by Lohit Kaushal, w h o along with several others stands convicted for offences punishable under Sections 364-A, 342 read with Sec.120-B of the IPC and has been sentenced to undergo imprison m e nt for life for the offence under Sec.364-A read with Sec.120-B and to one year’s R.I. under Sec.342 read with Sec.120-B, 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, m other of Arshdeep Kaur, aged four years, the kidnap victim. Sukhjit Singh, father of Arshdeep, was e m ployed in a private factory and earning (as per his statement) Rs.70-80 thousand per m o nth w hile Saravjit Kaur w h o was w orking as a Lecturer in the G overn m e nt College, Narayangarh, was also drawing a handso m e salary. As per the prosecution’s case the appellant had received a severe set back in his business and being aware of the financial status of SukhjitSingh’s -2-

family he planned to kidnap Arshdeep Kaur for ranso m. As per parents were e m ployed Arshdeep was left in a Creche in the m orning by her parents and she w o uld return to the ho m e of M o hinder Kaur, her m aternal grand m other after school hours. Pursuant to a conspiracy hatched by the appellant, Par minder M o h a n @ Pa m m i and Lovepreet Kaur, both well- kno w n to M o hinder Kaur and her family, we nt to the house of M o hinder Kaur at about 1.30 p.m. on 25/8/2002, w hile Sukhjit Singh and Saravjit Kaur were at w ork. They found M o hinder Kaur and Arshdeep in the courtyard of the first floor of the house, and enquired about Sukhjit Singh and SaravjitKaur and told M o hinder Kaur that Par minder M o h a n had been blessed with a son and they had co m e to deliver a box of mithai to celebrate the occasion. They also asked M o hinder Kaur to give the m so m e water. In the m e a ntime two other persons, one being M a njit Singh alias Mithu, also ca m e into the roo m and also asked for water and as M o hinder Kaur went into the kitchen, M a njit Singh followed her, caught hold of her and brought her into the bedroo m. Par minder M o h a n, thereafter, caught hold of her arm w hereas M a njit Singh shut her m o uth and tied her with a dupatta and the fourth unna m e d accused m a n h a n dled her. Par minder M o h a n thereafter tied her hands, shifted her to another roo m and after picking up Arshdeep and a video cassette player from the house, drove away in a Tata Su m o vehicle. A telephonic

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m e ssage was conveyed by M o hinder Kaur’s neighbour Harjinderpal Singh to police station, Sector-19, Panchkula on w hich Sub-Inspector Avtar Singh reached the kidnap site and recorded the statement of M o hinder Kaur and on its basis an FIR was registered by Sub-Inspector O m Parkash. The appellant, along with his wife Satna m Kaur, on hearing the ne w s about the kidnapping and pretending to be concerned relatives, also visited M o hinder Kaur’s house and arranged that she be sent to the General hospital,Panchkula, for her m e dical exa mination. O n 27/2/2002, information was received by Inspector M a n ge Ra m that the kidnappers were de m a n ding Rs.60 lakhs as ranso m and on receipt of the a m o u nt they w o uld free the child near G urud w ara Dukhniwaran Sahib, Patiala. The m atter was ho w ever settled at Rs.21 lakhs. Sub-Inspector M a n ge Ra m acco m p a nied by Sukhjit Singh (Arshdeep’s father) reached the pre-determined place, w hich was a ST D booth near the G urud w ara and found Lovepreet Kaur along with the child inside the booth. She was im m e diately arrested and the child was freed and handed over to her father. Pursuant to Lovepreet Kaur’s sustained interrogation Satna m Kaur was arrested on 28/2/2002, and pursuant to her interrogation, Lohit Kaushal, the appellant herein, was taken into custody and a M aruti Car No. C H 01-4565, w hich had allegedly been -4-

used w hile kidnapping the child, was seized by the police. A Tata Su m o vehicle bearing Registration No.H R01 E- 7582 was also produced before the police by its o w ner, P W.3 Sarwan Singh and was taken into possession. O n the sa m e day Par minder M o h a n, M a njit Singh, Nand Kishore and Sunil Ku m ar were also apprehended. O n 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 and at the instance of M a njit Singh, a V C P along with its remote control were also recovered. O n the co m pletion of the investigation the accused were charged for the aforesaid offences. They pleaded not guilty and were brought to trial.

The Additional Sessions Judge, Panchkula, ho w ever, by his order dated 4/3/2002 discharged Satna m Kaur, Lohit Kaushal’s wife, Nand Kishore @ Mithu and Sunil Ku m ar @ Rinku for lack of evidence, but proceeded with the trialwith respect to the other accused. The prosecution in support of its case placed reliance on the statement of P W.1 M o hinder Kaur, P W.2 SukhjitSingh, P W.3 S w aran Singh w h o deposed that M a njit Singh had borrowed his Tata Su m o vehicle on 25/2/2002 at about 9.00 a.m. and had returned itthe sa m e evening at about 5.00 p.m. as had been pro mised to by him, P W.5-Sub-Inspector O m Prakash, P W.11-Sub-Inspector Avtar Singh and

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P W.12 Inspector M a n ge Ra m a m o n g st others. In their statements under Sec.313 of Cr.P.C. the accused pleaded innocence and alleged false implication and further pleaded that they had been involved on account of suspicion. The accused were, ho w ever, ultimately convicted and sentenced by the trialCourt as m e ntioned 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. W e 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 ad mission of their appeals, and are, as of no w, not traceable. In this situation the learned counsel for the appellant has pointed out that there was absolutely no evidence against the appellant and that he appeared to have been roped in on account of suspicion being a close relative of the co m plainant party as his adverse circu mstances were well kno w n within the family circle. It has also been sub mitted that neither M o hinder Kaur nor any of the other witnesses had na m e d the appellant at any stage except at the trial and that too in uncertain terms that they suspected that he had been instrumental in arranging the kidnapping for the purpose of ranso m. It has been highlighted that the only two incriminating circu mstances against the appellant -6-

were the so called disclosure statements m a d e by Satna m Kaur the appellant’s wife, and Lovepreet Kaur, a co-accused, subsequent to their arrest na ming him as the m ain conspirator and secondly the recovery of the M aruti car from him at the time of his arrest. The learned State counsel has, ho w ever, 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 and by advising Sukhjit Singh not to give any information to the police as Arshdeep’s life could be in danger and after suspicion had been raised as to his involve me nt had absconded and had been arrested three days later,raised grave suspicion with regard to his involve me nt. We have considered the argu m e nts advanced by the learned counsel. It is true that kidnapping as understood under Sec.364-A of the IPC is a truly reprehensible crime and w h e n a helpless child is kidnapped for ranso m and that too by close relatives, the incident beco m e s all the m ore unacceptable. The very gravity of the crime and the abhorrence w hich itcreates in the mind of the court are, ho w ever, factors w hich also tend to militate against the fair trialof an accused in such cases. A Court m u st, therefore, guard against the possibility of being influenced in its judg m e nts by sentiment rather than by objectivity and judicial considerations w hile evaluating the evidence.

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W e have gone through the judg m e nt of the High court and find that but for three or four stray sentences with regard to the appellant’s involve me nt, there is virtually nothing w hich has been brought out with regard to his role, though the High Court was the first appellate Court. W e have, accordingly, chosen to evaluate the evidence ourselves as if we are the firstCourt of appeal.

As already noted above, the appellant w h o was well kno w n to M o hinder Kaur being a close relative, did not invite any suspicion about his involve ment at the time w he n the FIR had been lodged and her statement under Sec.161 Cr.P.C. recorded. She ho w ever m a d e an improve m e nt at the time of the trial about her suspicion vis-a-vis the appellant and was duly confronted with the o mission. The only other effective piece of evidence that the Courts below have relied upon are the disclosure statements of Satna m Kaur and Lovepreet Kaur, recorded by the police w hile they were in police custody as co-accused. The primary question w hich calls for consideration is as to w h ether their statements can form the basis for a conviction. In addition to the fact that Satna m Kaur was discharged by the trialJudge on account of lack of evidence, we are of the opinion that so called disclosure statements m a d e by both these w o m e n are hit by Sections 25 and 26 of the Evidence Act, 1872, as they had the status of being statements m a d e to the

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police, and nothing m ore and are, thus, not ad missible in evidence. It will be seen that a statement m a d e to the police can only be used to the limited extent provided under under 27 of the Evidence Act and that too only against the person m a king the statement. Ad mittedly the statements, did not lead to the recovery of any item w hatsoever. Satna m Kaur’s statement is on record and we have very carefully perused the sa m e. It reads as under:

"In 1995 year I was m arried to Lohit Ku m ar S/o Diwaker Kaushal r/o Delhi. After 5/6 m o nths of the m arriage I and Lohit started quarreling with each other and it continued for 1 1/2 year. During this period Lohit went to Australia. About 6 m o nths back Lohit ca m e back from Australia. During this period m y 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 and I for distribution of invitation cards for m arriage we nt to our relatives. I Lohit’s relation, his uncle (Ma m a) Sh. Jagdish R/o Dhuri was given the invitation card for m arriage. There we m et Par minder M o h a n @ Pa m m i w h o se conversation impressed m e a lot and I in person invited him to attend the m arriage. He did co m e to attend the m arriage of m y sister at Panchkula with w h o m I developed relation. After m arriage Harjit Singh started torturing m y sister nu m b er of times he was advised but he used to assault for w hich m y sister co m plained to m e nu m b er of times w h o m m y husband Lohit also tried to advice him, he quarreled with Lohit also and uttered nonsense w ords to Lohit for w hich Lohit felt upset. Harjit’s Sister Sarabjit Kaur with her husband Sukhjit Singh stays at H.No.4079 H 32 Sec.20 Panchkula. Her only daughter aged three year is darling to her. This girl’sgrand m other (Nani) M o hinder Kaur w h o stays with her son Harjit Singh and daughter-in- law Jaspreet at H.No.527 Sector 12 A Panchkula, both of the m are in service. During that period the old w o m a n stays alone at ho m e. There Sukhjit Singh and his wife Sarabjit Kaur are also in service. W hile going for duty they leave the girlat Sector 12 A

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Panchkula Creche. The vehicle of the creche leave Arshdeep girl with her Nani w h o loves her. O n their way back from the duty in the evening M u m m y Pap of Arshdeep taken her to ho m e. With the intention of taking revenge from Harpreet and for grabbing m o n ey because Lohit was facing m u c h loss in his business. Next day after planning the kidnapping the niece (Bhanji)of Harjit,for ranso m I and Lohit we nt to Pa m m i’s house at Dhuri. After m e eting Pa m m i and Nand Kishore @ Nittu we four planned that Harjit Singh’s sister and Saukhjit Singh is a solid party. G o o d a m o u nt can be got. In order to execute this plan we started keeping an eye on the HarjitSingh’s House and the girl. During this period I and Lohit remained at m y m others House No.552 Sector 25 Panchkula. After seeking location, Pa m m i has asked on telephone to reach Panchkula fully prepared for m a king the plan a success. As per plan, I and Lohit waited after reaching Zirakpur. At about one O’ clock in a w hite coloured Tata Su m o, Pa m m i and Nittu ca m e along with a girl and two boys, and on seeing up they halted. I and Lohit advised Pa m m i & Nittu that we will stop our vehicle at about 100 away from the kothi,you run away after doing the w ork and Pa m m i got a packet of sweets from Zirakpur. W e m o ve d ahead our vehicle followed by the vehicle of Pa m m i etc. and reached Sector 12 A Panchkula. After m a king plan, Pa m m i etc after carrying out the w ork went away and we both we nt to our house. After that on the subject being noised, I and Lohit we nt to Harjit’s house and kept an eye on the happening and the situation was conveyed to Pa m m i but Pa m m i’s de m a n d for Rs.60 lacs created horror in the entire family we also never expected that he willde m a n d so m u c h. O n seeing the situation w orsened, we on phone informed Pa m m i to return the girl. At right time m y husband also escaped from there. W h o s e all w h ere about I kno w. He can be available with his friend at Delhi, G haziabad, M eerut. It can get him apprehended on identification statement of the accused is recorded separately w hich is signed by the accused and the witnesses." Lovepreet Kaur’s statement has not been filed with the Supre m e Court record but it has been paraphrased by the trial Court in its judg m e nt and we reproduce the sa m e herein below: -10-

"During interrogation, Lovepreet Kaur alias Preeti wife of Virender Singh m a d e disclosure statement that on 25.02.2002 at about 8.00 P.M. phone was received from her fast friend na m ely Pa m m i that she should reach at Dhuri P C O. She reached at Dhuri P C O at about 8.30 P.M. from Sangrur. At the time, Pa m m i son of Jagdish Chand caste Pandit, Nitu son of Naresh Chand residents of Dhri, Sunil Ku m ar alias Rinku resident of Dhuri were sitting at ST D/P C O. Pa m m i told her that she w o uld be given good a m o u nt in one trip. He further told that niece Arshdeep of Harjit Singh, w h o is sandhu of Lohit being only one daughter of rich parents. As per information of Lohit and Se m m i, this girl used to co m e to kothi No.527, Section 12-A, Panchkula to her grand m other for four- five hours. After kidnapping her, they could get the good a m o u nt and leave the girl. She had to do only that she w o uld take the girlaged about three years in her lap with live and sit in the vehicle. If the girl weeps, then she w o uld keep her m u m and she will get Rs.20,000/- for the w ork. In the m e a n w hile, phone from Lohit had co m e of Pa m m i. Lohit and Satna m Kaur alias Se m m i, w h o were earlier kno w n to her also told about the planning. She also asked Lohit and Se m m i as to w h ether girllikes chocolates or toffees, so that she m ay be kept m u m on her weeping. As per planning, Mithu w h o was the Driver brought a Tata Su m o of w hite colour, w h ose nu m b er she did not kno w but Indian on the front mirror and Deol in English were written. They started at 10.00 A.M. w he n they reached at Local Bus Stand Zirakpur at about 1.00 P.M. Lohit and Satna m Kaur m et the m, w h o were in a M aruti car of blue colour and talked to Lohit and Se m m i, after getting do w n. S w eets box was also purchased from there. Lohit Kaushal and Se m m i stopped their vehicle on the back turning and as per planning, they stopped their vehicle in front of kothi no.527, Sector 12-A, Panchkulla. She and Pa m m i sa w the old w o m a n and s m all girl sitting in the courtyard of first floor of the kothi. Pa m m i and she said Na m a ste to the w o m a n. Pa m m i asked that w here was Sukhjit Singh, w h o used to w ork in Lalru and they had co m e at wrong place. Pa m m i told that they are his friends and he had been blessed with a son, so they ca m e to give him a sweet box. W o m a n asked the m to sit in the drawing roo m and they

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de m a n d e d water. The old w o m a n brought two glasses of water from the kitchen and they took it. In the m e a n w hile, Nitu and Sunil also ca m e up and they also de m a n d e d drinking water. Mithu also ca m e up at that time. Pa m m i told him to stand on the gate and she started to feed the girl. They all caught hold of old w o m a n. Pa m m i shut her m o uth and she lifted the girl and took her to the vehicle standing do w n. Mithu kept standing on the upper gate. After so m etime, w he n they ca m e do w n, she sa w a V C P in the hands of Nitu. They all sat in the vehicle and sped away from there in the vehicle. Pa m m i talked on m o bile in the way and got the vehicle stopped near A m argarh. A m a n ca m e there on a m otorcycle, and Pa m m i took the girlfrom her and handover to that person w h o ca m e there on m otorcycle. She was dropped at Dhuri by- pass and she went to Sangrur. She continued to keep contact on phone and de m a n d e d her m o n ey. Pa m m i told that m o n ey w o uld be given after receipt. She reached at ST D/P C O and girl was sitting at the ST D/P C O in sa m e clothes. She told Pa m m i to change her clothes and she changed the clothes of the girl and kept the used clothes at the ST D/P C O by putting the m in a bag. Pa m m i told her that she m ay take the girl and to reach at G urd w ara Dukhniwaran Patiala,w h ere father of the girlw o uld co m e with m o n ey and she should handover the girl to the father and take the m o n ey. She w o uld also get extra a m o u nt for this w ork and thereafter, she reached at Patiala Bus Stand along with the girl. She hired a three-w h eeler and reached at the gate of G urd w ara and police caught her. She could tell the place w here all other accused persons were stayed and get the m arrested and could get recovered the clothes of the girl from ST D/P C O. This above referred disclosure statement of accused Lovepreet Kaur was reduced into writing upon w hich accused and witnesses put their signatures. In view of the disclosure statement of accused Lovepreet Kaur, clothes of girl Arshdeep were got recovered from the ST D/P C O, w hich were taken into police possession. Arshdeep was also recovered from accused Lovepreet Kaur outside the gate of Dukhniwaran G urd w ara Patiala and girl was taken into possession vide recovery m e m o dated 27.2.2002."

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The two statements above-quoted cannot by any stretch be read into evidence against the appellants, as they have the status of being statements m a d e to the police w hile the two were in custody. Ad mittedly, the two were also co-accused at that stage (as Satna m Kaur was later discharged by the trialCourt) for lack of evidence against her. W e are no w leftwith the recovery of the M aruti car allegedly used in the kidnapping. In this connection it is relevant to observe that as per the statement of M o hinder Kaur m a d e to the police w hich formed the basis of the First Information Report, as also in her statement in Court, the four accused w h o had co m e to her ho m e had taken the child away in a Tata Su m o vehicle. That this vehicle was apparently used in the kidnapping is impliedly supported by its o w ner S w aran Singh P W.6 w h o deposed that it had been borrowed by M a njit Singh accused, on the m orning of 25/2/2002 with a pro mise to return itby the evening and the vehicle had indeed been returned to him. It is, therefore, clear that the M aruti Car No. C H 01-4565 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 M aruti Car had been used in the kidnapping at any later state. W e have also perused the arrest m e m o pertaining to the appellant and the recovery of

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the M aruti Car on 28/2/2002. Itis obvious that this too is not a statement under Sec.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 w hat has been written above the charge against the appellant is primarily under Sec.364-A, 342 read with Sec.120-B of the IPC. Concededly, also as per the prosecution story, the appellant had not been present at the time w h en the child had been kidnapped by the four co-accused and he had been roped in as the m ain conspirator, with the aid of Section 120-B of the IPC. W e find no evidence to indicate that such a conspiracy had been hatched by the appellant as the statements of Satna m Kaur and Lovepreet Kaur cannot be read as evidence and there is no other circu mstance suggested against the appellant.

The learned counsel for the State has, ho w ever, in addition, pointed out that the very conduct of the appellant indicated his guilt and that the fact that he had attempted to dissuade Sukhjit Singh from informing the police about the kidnapping and that he had absconded after the police had arrived, were indications that he was involved in the crime. W e find that these circu mstances by the mselves cannot be taken against the appellant. It needs to be kept in mind that in a case of kidnapping for ranso m there are

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two very clear schools of thought; one that the law enforce m e nt agencies should be informed as soon as possible so that the victim can be recovered without loss of time and the second, and an equally m eritorious one, given that that the police investigations are often tardy and clu msy, that the police should not be informed as the victim w o uld then be gravely endangered and that the best option was to pay up and recover the victim. It hardly needs m e ntion that the second option is the m ore preferred one in India. Assu ming, therefore, that the appellant, as a close relative, had advised Arshdeep’s family to adopt the second course, cannot by itselfbe a circu mstance to be taken against him. It has also co m e in evidence, (and so argued by the learned counsel for the State) that the appellant had absconded after the police had arrived. W e, ho w ever, find that in the backdrop of all the other circu mstances, this factor m ay raise so m e suspicion but cannot by itself constitute sufficient evidence for conviction. W e, thus allow, the appeal, set aside the conviction and sentence of the appellant and order his acquittal. He shall be released forthwith ifin custody and is not wanted in any other case. . . . . . . .

. . . . . . .J

(HA RJIT SIN G H B E DI)

. . . . . . .

. . . . . . .J

(J.M. PA N C H A L)

Ne w Delhi,

August 4, 2009.

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