Shyam Babu & Ors.
Vs. State of Haryana  INSC 1929 (11 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 308 OF 2006 Shyam
Babu & Ors. .... Appellants Versus State of Haryana .... Respondent
V.S. SIRPURKAR, J.
This Appeal arises
out of the appellate judgment passed by Division Bench of High Court,
dismissing the appeal filed by the appellants herein, confirming their
conviction for offences under Sections 364-A, 325, 323, 384, 342 and 506 IPC
all read with Section 120-B IPC. As many as five accused persons came to be
tried by the Sessions Judge, Faridabad for the above mentioned offences and all
of them were convicted. They were Accused No. 1 (A-1) Shyam Babu, Accused No. 2
(A-2) Brij Bhushan, Accused No. 3 (A-3) Revti Raman, Accused No. 4 (A-4)
Chander Bhan and Accused No. 5 (A-5) Tejpal.
Their conviction was
upheld by the High Court also. However, before us, only Accused Nos. 1, 3, 4
and 5 have come up by way of an appeal.
is reported that A-2 Brij Bhushan has not challenged his conviction, as well as
the appellate order passed by the High Court.
case was that on 24.9.1997, at about 2.30 in the afternoon, Smt. Bhawna made a
statement before S.I. Bishamber Dayal at Ambedkar Chowk, Ballabgarh. It was
alleged that she was a house wife and her husband was working at Faridabad. She
further stated that she had two children, namely, Swati, a daughter and Anchit,
a son. She stated that her son Anchit was 4-= years old and was studying in
Nursery Class in D.A.V. School, Ballabgarh. She claimed that he used to go to
School by School Bus, Route No. 1 at 7.30 a.m. and used to come back at 1.25
p.m. On that day, as usual, after her son returned by bus, she came to her
house and saw two persons in the room behind the door, speaking local language.
She had given their description also. She further stated that she had seen one
white coloured Maruti Van bearing No. DDD-436, standing outside their house in
which two other young men were sitting and they forcibly took away her son, who
was still in his school uniform, and when she tried to stop them, they gave
fist blows to her and one of them also threatened her with knife and while
departing, they also threw a note inside the house demanding Rs.5 lacs as
ransom money for the return of the child and also threatened that in case
police was informed, they would kill the child. She claimed that her hands and
feet were tied with cloth and she was bolted inside the room. She managed to free
herself and after opening the door, had informed the police. She stated that
occurrence had also been witnessed by her neighbour Raju Solanki and she could
identify the culprits. After recording the statement, S.I. Bishamber Dayal sent
the same to the police station with his endorsement, on the basis of which a
formal FIR was registered in Police Station, City Ballabgarh at 2.40 p.m. The
Special Report also reached the Judicial Magistrate, Faridabad on the same day
at about 7 p.m. at his residence.
the basis of this, the police sprang into action and started the usual
investigation by preparing the site plan and executing a spot panchanama. They
found a towel, which was lying on the spot, as also, the ransom note Exh. PD.
Bhawna, the mother was got examined by the Doctor. On the next day, the police
reached house of Shyam Babu, A-1, where they came to know that the said Maruti
Van bearing No. DDD-436 was parked in a place at Nohra of Khichi. The said Van
was seized. Thereafter, the S.H.O. S.I. Bishamber Dayal raided the sugar-cane
fields of village Ranwari and heard the noise of the weeping of a child from
the fields. PW-7 Udham Singh identified the voice and recovered the child. The
accused persons were not found there. They had obviously run away. Later, on
30th September 1997, A-2 Brij Bhushan and A-3 Revti Raman were arrested on
being produced by PW Raghunath, while A-1 Shyam Babu was produced by one Hukam
Singh. By and by, all the accused came to be arrested. On 1.10.1997, 4 S.I.
Bishamber Dayal moved an application for identification of these accused,
namely, Rewati Raman (A-3), Brij Bhushan (A-2) and Shyam Babu (A-1). However,
these accused refused to join the identification parade and made statement on
1.10.1997 vide Exh. PQ. During the investigation, A-2 Brij Bhushan agreed to
discover a country-made pistol, which was recovered after executing the
necessary documents, like disclosure statement and recovery memo, Exh. PR and
PS respectively. A-3 Revti Raman also got recovered one spring actuated knife.
It is thereafter that A-4 Chander Bhan and A-5 Tajpal also came to be arrested.
One of them was found with a knife, which was also seized. A-4 Chander Bhan and
A-5 Tejpal gave their consent for giving the sample handwriting, which was
taken from them, also the specimen handwriting of A-1 Shyam Babu was taken in
Court. After the investigation, the accused were charge sheeted. The plea of
the accused was that of the false implication. The Trial Court, as well as, the
High Court have accepted the prosecution case in toto.
R.N. Kush, Learned Counsel, appearing on behalf of the appellants, firstly,
submitted that the identity of A-1 and A-3 was not established, while A-5
Tejpal was implicated out of the earlier rivalry.
He tried to feebly
suggest that it was not possible for Bhawna to identify the accused, who had
overpowered her. He also suggested that the said ransom note, which was
allegedly written by one of the accused persons, though was in the custody of
the police earlier, the police took 5 unduly long time in sending it for the
handwriting expert's examination.
The Learned Counsel
tried to suggest that the evidence of Bhawna, as also, the other witnesses was
not reliable at all and had to be rejected, as such. We were taken through the
evidence of Bhawna, who was cross-examined at length from time to time. In her
evidence, she had narrated the whole story that after she returned back from
the School along with her son, two young persons were found hiding and one of
them started beating her and other overpowered her son Anchit. She also
suggested that one of them showed knife to her child and gagged his mouth, as
also her mouth. She identified A-4 Chander Bhan, who had shown knife to her
child and gagged his mouth. She identified A-2 Brij Bhushan as the other
person. She also deposed that she had seen Maruti Van bearing Registration No.
DDD-436, parked nearby her house, when she had gone to pick up her child and
also at the time when she returned back along with her child. She also referred
to the ransom note, being left, in which the demand of 5 lacs of rupees was
made. The witness also identified A-3 Rewti Raman and A-1 Shyam Babu as the
persons, who were occupying the Maruti Van. She also asserted that PW-2 Raju
Solanki had arrived at her house and that his house was only 4-5 houses away
from her house. She also identified A-5 Tejpal as the person, who was their
neighbour, living on the right side of their house. She was cross-examined
extensively. However, the cross-examination is not at all effective, as was
rightly found by the two Courts below. It was tried to feebly suggest that
since the Maruti Van was 200 yards away, the witness could not have seen the
two accused sitting in the Van. Some insignificant omissions have been brought
in her examination, which are of no consequence. Very strangely, there is not a
single question asked about the identification of any of the accused. Since at
least three of the accused persons had refused to join the identification
parade on the very next day of their arrest, it would speak volumes. The three
accused, i.e., A-1 Shyam Babu, A-2 Brij Bhushan and A-3 Revti Raman had refused
to join the identification parade. This fact was not disputed before any of the
Courts below and even before us. As regards the remaining accused persons are
concerned, namely, Chander Bhan (A-4) and Tejpal (A-5), their identity was also
not challenged. It is significant to note that A-5 Tejpal was a neighbour of
Bhawna, while the other had thrown the ransom note. Ultimately, as per the
handwriting expert's report, it is obvious that the ransom note was actually
written by A-4 Chander Bhan. That fact was also not seriously disputed before
us. If that is so, the evidence of the lady was more than sufficient to connect
all the accused. It is true that the lady did not say anything about A-5
We will deal with the
case of A-5 Tejpal at a later stage. However, in respect of the four accused
here, out of whom three are appellants, it is clear that the lady had not only
identified them in the Court, but also had graphically deposed about their
must be noted that the lady had an opportunity to see the accused persons in
broad day light. She was all along with accused persons for considerable time.
She was not only overpowered, but was also injured, which injuries were also
got proved by the prosecution. In fact, the presence of those injuries very
materially corroborated the story told by the witness Bhawna. Lastly, she was
the mother and in her own presence, the child was forcibly taken away by the
criticism was raised that this lady could not have seen two accused persons,
sitting in the Van, because the distance was about 200 yards. In our opinion,
such possibility cannot even be imagined.
Here was a mother,
whose child was being taken away, who had noted the Registration Number of the
Maruti Van correctly, had also described the same correctly and had also noted
that the two persons were sitting and ultimately, that her son was taken away in
that very Maruti Van.
We have scanned the
evidence of this witness very carefully and we find that it is reliable and
further, the Courts below committed no error in relying on that witness, at
least insofar as, A-1, A-3 and A-4 are concerned.
Raju Solanki was a neighbour. He also confirmed that he had heard some noise
and saw the Maruti Van of White colour, bearing Registration No. DDD-436, which
was parked in the street. He also saw the two persons, occupying the Van. He
also correctly recognized A-1 Shyam Babu and A-3 Revti Raman as the occupants
of the Van.
He also correctly
stated that the other two accused, namely, A-2 Brij Bhushan and A-4 Chander
Bhan were holding the child. He also had raised the alarm and tried to catch,
but could not. A criticism was made against the evidence of this person that it
was not possible for him to see the whole incident. We have seen his
cross-examination very carefully and we found nothing in the cross-examination
to disbelieve this witness. He has fully corroborated the evidence of Bhawna.
His statement was also recorded along with Bhawna's statement. He had also seen
the towel, the ransom note, as also the broken glass. He frankly admitted that
he had not given the description of the accused to the police. Further, he
stated that the description was already told by Bhawna to police in his
presence. We find nothing in the cross- examination of this independent
witness, which would shake the substratum of the story in this case.
of PW-3 Raj Kumar is of extreme importance. He was a witness, who had seen A-5
Tejpal, boarding the Van, bearing Registration No. DDD-436. This witness
directly connects A-5 Tejpal with the crime. He had seen Tejpal boarding the
Van and at that time, the other 4 accused persons were also in the Van. There
was absolutely no reason for A-5 Tejpal to join the accused persons,
immediately after the crime, when the kidnapped boy was also present in the
Van. He had deposed about the enmity between A-5 Tejpal and the father of the
boy Udham Singh. He also confirmed that A-2 Brij Bhushan used to visit A-4
Chander Bhan, A-5 Tejpal and the other accused were also seen by him a few days
earlier. He was also cross- examined at length. However, the evidence of the
witness remained unshaken. In fact, in the cross-examination, it had come that
he had seen A-5 Tejpal only from the distance of three paces, when he boarded
the Van. Barring the few negative suggestions, nothing significant was asked to
this witness. We do not see anything wrong in the witness being believed by the
Courts below. PW-7 is the father of the kidnapped child, who was present when
the child was retrieved by police. Even this witness had spoken about his
rivalry with A-5 Tejpal.
The said rivalry was
on account of the Workshop of Tejpal, being in that residential area and Udham
Singh had made many complaints against the said Workshop. The witness stated
that his son died hardly 17 days after the incident on account of the shock
that he had received.
This witness was
obviously not present, when the kidnapping took place, but was informed by PW-3
Raj Kumar on telephone. We do not find anything to disbelieve this witness. We
were also taken through the evidence of PW-12 S.I. Bishamber Dayal, who was the
Investigating Officer. He had stated about the statement of Bhawna, having been
made to him, recording of the First Information Report, finding the Maruti Van
No. DDD-436, which was parked in the Nohra of Khichi, as also the recovery of
the child. He had also stated about the arrest of the accused persons, as also
the refusal on the part of the A- 1, A-2 and A-3 to join the identification
parade. He had spoken about the disclosure statements and recovery of pistol
from A-2 Brij Bhushan and the knife from A-3 Revti Raman. He had also spoken
about Ransom note, which was found in the house of Bhawna, the same being Exh.
PD. In short, this witness has given a correct picture of the investigation.
Again, the cross-examination is completely lackluster, without any significant
fact being brought on record. In short, the prosecution evidence was rightly
believed by the Courts below and the accused were rightly convicted.
Kush, Learned Counsel concentrated on the nature of the offence. According to
him, the ingredients of Section 364A IPC were not proved in this case and at
the most, the conviction could be under Section 364. Section 363 deals with the
punishment for kidnapping, which offence is defined in Section 359. The
punishment is seven years. Section 364 provides for kidnapping or abducting in
order to murder, while Section 364A deals with kidnapping for ransom. The
wording is as under:- "Kidnapping for ransom, etc. - Whoever kidnaps or
abducts any person or keeps a person in detention after such kidnapping or
abduction and threatens to cause death or hurt to such person, or by his
conduct gives rise to a reasonable apprehension that such person may be put to
death or hurt, or causes hurt or death to such person in order to compel the
Government or any foreign State or international inter-governmental
organization or any other person to do or abstain from doing any act or to pay
a ransom, shall be punishable with death, or imprisonment for life, and shall
also be liable to fine."
The wording itself
suggests that when kidnapping is done with the threat to cause death or hurt to
the kidnapped person or gives a reasonable apprehension that some person may be
done to death or hurt or compels any Government, any foreign State or international
inter-governmental organization or any person to pay a ransom, the offence is
complete. Here was a case, where the accused persons in a daring day light bid
kidnapped a child, right in the presence of his mother and caused hurt to her,
which was in the nature of grievous hurt and on the top of it, demanded a
ransom of 5 lacs of rupees in writing for the life of the child. We have gone
through the original note Exh.
PD, which clearly
brings out the threat to the life of the child in case the ransom money is not
paid. In our considered opinion, there would be no other offence, but the one
under Section 364A. The ransom note is proved to be in handwriting of A-4
Chander Bhan and it was not an individual act of Chander Bhan, but as many as 3
appellants, who were together in whisking away the child from his mother. A-5
Tejpal must be presumed to have the idea, because he immediately and knowingly
joined the bandwagon. It is, therefore, clear that all the accused persons
have, undoubtedly, committed the offence under Section 364A and the Courts
below were right in convicting them for the offence, as also awarding them the
life imprisonment for the same. We find no merit in the Appeal. The Appeal is
( D.K. Jain )
Digital Performa Case No. : Criminal Appeal No. 308 of 2006.
of Decision : 11.11.2008 Cause Title : Shyam Babu & Ors.