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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 695 OF 2016

SURAJSINH ALIAS SONU SURAJSINH COLLECTORSINH ALIAS SEVARAM RAJPUT  .......APPELLANT

VERSUS

STATE OF GUJARAT  ......RESPONDENT

J U D G M E N T  

ASHOK BHUSHAN, J.  

1. This appeal has been filed, challenging the

judgment of  the  Gujarat  High Court dated 01.02.2016

dismissing the Criminal Appeal filed by the appellant,

questioning the order of conviction recorded by

Ahmedabad City Sessions Court under Section 364(A) read

with Section 114 of IPC.

2. The present appellant and another accused Kamlesh

were convicted and sentenced to life imprisonment and a

fine of rupees five hundred by City Sessions Court.

Both the accused had filed appeals before the High

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Court which have been dismissed. We have been informed

that only one of the convicts has come up in this

appeal.

3. The prosecution case in brief is:

On 23.05.2010, one Anurag aged seven years, son of

the complainant alongwith his sister­in­law and her

children had gone to attend a marriage reception of one

Dinesh Sharma's sister at Shakriba Party Plot.  After

the dinner got over, sister­in­law of the complainant,

Smt. Rekhaben when called for the children to return

Anurag was found missing. Smt. Rekhaben and others

started searching for Anurag.   Smt. Rekhaben   called

the complainant on his mobile phone between about 10 to

10.30PM informing about the missing of Anurag.

Complainant and his wife immediately rushed to Shakriba

Party Plot.  In spite of  rigorous search  throughout,

Anurag was nowhere found. On the next day i.e.

24.05.2010 in the afternoon complainant alongwith his

brother­in­law and friends went to Ramol Police Station

and informed about the missing of Anurag.   A missing

complaint was registered being Complaint No. 99/2010.

When the inquiry was going on during that time on

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24.05.2010 in the morning around 9 AM – 9:30 AM someone

called Mr. Dinesh Sharma from mobile No. 8128381274 on

his mobile No. 9825270948 and told him that he had the

information about the boy who went missing from the

marriage reception on 23.5.2010, but he did not want to

reveal the information to him and told him that he will

talk to his aunt only and asked about the mobile number

of complainant's sister­in­law. The conversation didn't

take place as the aunt of the boy was not at home and

was  searching for him. Afterwards around 11  O'clock

brother­in­law of the complainant Satyendrasingh and

his nephew Vikas told her that she will receive a call

on her phone from someone who wanted to talk to her,

but no call was received till 11.30 AM.   After that,

around 01.45 PM a call was received on complainant's

mobile by No. 8128381274 and told him that if you

wanted back the boy (Anurag) then he should keep ready

Rs.10,00,000/­ and at which place you have to bring

money he will call you again.  The complainant told him

that he was a poor person please ask for lesser amount,

but the person from other side told him that nothing

can be done. If you wanted the boy, you should keep

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ready Rs. 10,00,000/­ cash or they will kill the boy.

Afterwards the person again called the complainant, but

as the aunt of the boy had returned home she talked to

that person, who also made her talk to Anurag.   He

again demanded Rs. 10,00,000/­ cash for releasing the

boy, which she told after disconnecting the phone.  

4. The complainant, thereafter, went to the Police

Station and FIR No. 144/2010 under Section 364(A), 114

of IPC was registered on 24.05.2010. Investigation was

taken over by one Police Inspector, Jadeja, who after

recording the statement  of witnesses and taking  the

call details of the mobile number from which call was

received, located the caller at Rajasthan.  Thereafter,

a police team was sent to Rajasthan and inquiry was

also made from one Jayeshbhai Anilbhai Makwan in whose

name the SIM Card was found to be registered. He told,

he had lost his ID Card few months ago, which might

have been misused.

5. A team of Gujarat Police went to Rajasthan in

search of accused persons. The complainant alongwith

few other persons also proceeded to Dausa, Jaipur. On

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28.05.2010, the Rajasthan Police could recover the boy

and also succeeded in arresting the appellant and other

accused Kamlesh. The Rajasthan Police alleging that

accused fired on the police party also registered a

case against both the accused under Section 307, 332,

353 and 34 IPC.

6. After investigation, the police submitted a charge

sheet against both the accused.   Trial proceeded and

prosecution examined as much as nineteen witnesses in

support of its case whereas fifteen documentary

evidences were also produced by the prosecution in

support of its case including statement of call

details. The complainant was examined as PW. 3 where as

Anurag the child witness was also examined as PW. 6.

PW.  13 Pradosh Nandram Meena belonging to Rajasthan

Police and PW. 14 Pradhan Ramjilal Luhar of Dausa as

Panch witness were also examined by prosecution.

Jayeshbhai Anilbhai Makwan in whose name the SIM Card

was registered was also examined as PW. 11 and Micky

alias Gopi from whose shop the SIM Card was purchased,

has also been examined as PW.7. Smt. Rekhaben,

sister­in­law of complainant was examined as P.W.4.

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7. Father of the owner of the Bike No. GJ­1­ED­686

was also examined to prove that bike on which the boy

was kidnapped was stolen on 20.05.2010. The accused did

not lead any evidence in support of their defence.

Statement of the accused under Section 313 Cr.P.C. was

recorded whereas they denied the charge.

8. Additional Sessions Judge, Ahmedabad, Gujarat

after hearing the learned counsel for the parties found

both the accused guilty for offence under Section

364(A) and 114 IPC and sentenced them life

imprisonment. Aggrieved with the judgment of the

Additional Sessions Judge, Ahmedabad, Gujarat both the

accused filed Criminal  Appeal No. 884 of 2011  and

Criminal Appeal No. 961 of 2011. Both the appeals have

been dismissed by the High Court  vide  its judgment

dated 01.02.2016. This appeal has been filed by one of

the accused Surajsinh alias Sonu challenging his

conviction.

9. On the request of this Court, Shri Amarendra

Sharan,  Senior Advocate  assisted by  Shri Amit Anand

Tiwari Advocate have appeared as amicus curiae and ably

assisted the Court. We have also heard learned counsel

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for  the  State. Shri  Amarendra Sharan learned senior

counsel has taken us to relevant materials on record.

Shri Sharan in support of the appeal has raised

following submissions:

Against the appellant alongwith the other accused

an FIR was registered at Dausa, Rajasthan dated

28.05.2010 under Section 307/34, 332 and 353 and 3/25

Arms Act. It was alleged that accused committed the

above offences and had fired on the police party on

28.05.2010.  It is submitted  that appellant had been

acquitted in the above case by judgment and order dated

30.4.2012 of Additional District & Sessions Judge(Fast

Track) Dausa, Rajasthan in Sessions Case No. 67/2010.

Hence, the entire incident of Dausa, Rajasthan as

alleged is not proved. It is further contended that SIM

Card bearing No. 8128381274 from which it is alleged

that ransom call was made, was registered in the name

of other person and no recovery of the said SIM Card

was made from the  appellant. It is further submitted

that with regard to motorcycle by which the boy was

alleged to have been kidnapped, a case under  Section

379 IPC was foisted on appellant in which case also the

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appellant was acquitted. Shri Sharan submitted that the

testimony of the boy Anurag P.W.6 is not reliable and

liable to be discarded as it has number of

discrepancies. He further submits that in case of

testimony of a child witness, it is trite that an

independent corroboration must be looked for. He has

referred to statement of P.W.9 who had stated that he

had recorded the kidnapper's voice when the ransom call

was made which was given to P.W.18. He submits that

examination of kidnapper's voice could have clinched

the  issue. He has further referred to contradiction

with regard to timing as suggested by the prosecution

with respect to recovery of boy at Dausa. He submits

that P.W.5 has stated that he received a phone call

from Dausa Police Station and reached on 28.05.2010 at

around 09:00 to 09:30 AM, he saw the victim P.W.6

sitting with the police. He further stated that he had

also seen the Appellant and Accused No. 2 in the Police

Station. Shri Sharan also submits that the arrest of

the Appellant and Accused No.2  at Dausa Police Station

for the offences u/s 307/34, 332, 353 and 3/25 Arms act

is shown as 12.15 hrs. Shri Sharan has also expressed

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serious doubt in the prosecution case with respect to

SIM Card being purchased by the appellant bearing no.

8128381274. It is submitted that prosecution miserably

failed to prove the guilt against accused beyond the

reasonable doubt and hence the conviction deserved to

be set­aside.

10. Learned counsel appearing for the State refuting

the submission of the  amicus curiae  contends that

prosecution has successfully proved the offences by

cogent evidence which had been correctly appreciated by

the trial court which recorded conviction against the

appellant. It is submitted that taking of the boy

Anurag on 23.05.2010 was proved and further receipt of

ransom call from above mentioned mobile number to the

different persons including the complainant is proved

by the call details, brought on record by the

prosecution. After obtaining the location of the

mobile, police party from Gujarat went to Rajasthan.

Boy was recovered and accused were apprehended at

Dausa, Jaipur on 28.05.2010 by the Rajasthan Police.

Accused and boys were thereafter handed over to Gujarat

Police. The trial court had found the guilt proved and

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High Court has also considered all submissions made on

behalf of the appellant and has affirmed the

conviction.

11. We have heard the submission of learned counsel

for parties and perused the record.

12. The arrest  of the accused on 28.5.2010 and  the

recovery of boy from Dausa, Jaipur has been proved by

PW. 13, belonging to Rajasthan Police and PW. 14, Panch

witness. PW. 7 the child witness has narrated the

entire sequence of events from his kidnapping on

23.5.2010 till 28.5.2010 when he was recovered by

Rajasthan Police. Boy was aged seven years at the time

of incident. He has narrated the entire incident and

could not be shaken in the cross­examination. The

testimony of child witness was held to be natural and

true by the court below.

13. Learned amicus curiae has placed much reliance on

judgment of Additional District & Sessions Judge (Fast

Track) Dausa, Rajasthan in Sessions Case No. 67/2010 in

which the appellant was acquitted.   The copy of

judgment of Additional District & Sessions Judge (Fast

Track) Dausa, Rajasthan dated 30.04.2012   has been

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filed as Annexure P. 4.   The case was registered

against both the accused at Police Station, Dausa on

28.5.2010. Boy was recovered and handed over to Gujarat

Police. Accused were also handed over to the Gujarat

Police on transfer remand.

14. The perusal of the above judgment would indicate

that the Court has not disbelieved the incident and

arrest of the accused on 28.5.2010. The Court, however,

held that the prosecution could not prove charges under

Section 307, 332 and 353 IPC.

15. Before the Additional District & Sessions

Judge(Fast Track) Dausa, Rajasthan Anurag had also

appeared as PW. 17 and had identified the accused. The

Court, however, disbelieved the story of firing on

police by the accused. But the Court has convicted

other accused Kamlesh. It is useful to extract the last

paragraph  of the order of the   Additional District &

Sessions   Judge(Fast Track) Dausa, Rajasthan which is

to the following effect:

“Considered the arguments of both the sides, the accused Rajesh alias Kamlesh had kidnapped the child from Gujrat and brought him in Dausa from where the kidnapped child was

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recovered from his custody and a Katta 315 Bore Fire Arms was recovered from him.   There is serious charge of demanding ransom of 10 lakh rupees, in which the Gujrat Court has given him life imprisonment punishment. On seeing the serious charges of kidnapping and recovery of dangerous arms such as recovery of Katta from the accused Rajesh alias Kamlesh, I am of the opinion that in such serious type of offence there will be no just to have any leniency towards the accused.”

16. The other accused from whom country made Katta was

recovered, was awarded sentence of two years

imprisonment and a fine of rupees ten thousand. The

appellant was acquitted by giving the benefit of doubt.

Thus, the judgment of Additional District & Sessions

Judge(Fast Track) Dausa, Rajasthan does not help the

accused insofar as offence for which he has been

charged in the present case and which has been found

proved by the evidence on record.

17. The fact that appellant was acquitted from charges

under Section 307, 332 and 353 IPC by giving benefit of

doubt does not in any manner help the appellant insofar

as conviction recorded against him under Section 364(A)

and 114 IPC is concerned.

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18. Learned counsel, further contended that appellant

was also acquitted in the case under Section 379 IPC

which was registered against him, alleging theft of the

bike which is claimed to be used in kidnapping. The

copy of the order by which accused was acquitted from

379 IPC is not on the record except Letter dated

01.03.2016 written by Deputy Superintendent, Ahmedabad

Central Prison, Ahmedabad to the  appellant  giving

information under the Right to Information Act, 2005

with regard to case under Section 379 IPC.

19. The use of motorcycle which was found at Dausa,

Rajasthan, when accused were apprehended in no manner

is affected by acquittal of appellant from charges of

theft.

20. The submission of learned counsel for the

appellant that SIM Card of the mobile number from which

the ransom call was given has neither been recovered

nor the SIM Card was registered in the name of the

accused, hence the theory of the demand of ransom ought

not to have been believed.

21. The trial court had elaborately considered the

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evidence on record and had noted that from the mobile

no. 8128381274 several calls were made for ransom. Call

was received from the said number to the owner of

Shakriba Party Plot as well as Shri Dinesh Sharma whose

sister's marriage function was organised on the date of

incident. Complainant received several calls on his

mobile. The demand of ransom by telephonic calls has

been proved by oral evidence. Complainant as well as

his  sister­in­law talked to  callers  on mobile. Call

details of the mobiles were produced before the court

below which was mentioned at Item No. 11 and 12 of the

documentary evidence as extracted by the High Court in

para 6 of the judgment.

22. Court did not commit any error in believing the

PW. 11 whose identity card was used for obtaining SIM

Card who appeared and has stated that he had lost his

ID Card and  Driving Licence  six to seven months ago,

which was utilised for obtaining SIM Card. The Court

has rightly believed the PW.11 whose no connection was

found with the entire episode of kidnapping and ransom

call.

23. Learned  amicus curiae  submitted that the shop

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keeper PW. 7 Micky alias Gopi who had identified the

accused in the court, stating that they had purchased

the SIM Card from his shop, had himself in his

cross­examination stated that he visited the police

station and was shown the accused since before. Even

if, we ignore the evidence of PW. 7, the guilt of the

accused has been proved by other relevant and material

evidence as noticed by court below.

24. Learned amicus curiae has tried to point out some

inconsistencies between the oral statements of

witnesses to contend that entire incident is not

proved, as alleged. The following inconsistencies in

the statements of witnesses i.e. victim have been

pointed out:­

"a. The boy was of age 7 when he gave his testimony and being a child witness was prone to being tutored and influenced.

b. In the very first statement the victim did not name the appellant(pg 106, Vol.2) and (pg 8, Vol. 3).

c. The victim in his examination U/S 164 Cr.PC (pg 44, Vol.2) before the Ahmedabad Court has stated that the Dausa Police had fired at the present Appellant and Accused No.2. Whereas in the proceedings in Dausa

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he states that accused fired and threw chili powder in the Dausa police(pg 138, Vol.2).

d. The victim states in the proceedings in Ahmedabad  (Pg 49, Vol.2, Para 14)  states that the Appellant and Accused No.2 was brought after one, one and a  half hour to Dausa Police Station and while in the proceedings at Dausa(pg.140, Vol.2)  he states he has seen the accused for the first time in the Police Station.

e. Ld. Trial Court at Dausa has rightly disregarded his statement due to serious contradictions. In fact this led to entire prosecution case regarding recovery of child from accused persons as doubtful.”

25. Now, we look into above inconsistencies as pointed

out by Shri Sharan. The submission is that the boy

being aged 7 years only, he was prone to being tutored

and influenced. The Trial Court has found that

complainant and accused were not known to each other

and there was no reason for complainant and his

relatives to give false evidence against the accused.

26. In the cross­examination of P.W.6, not even a

suggestion was given that he was giving evidence on

tutoring by someone. It is further submitted that the

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victim has not named the appellant in his first

statement. Shri Sharan refers to statement of victim

u/s 161 CPC recorded by I.O. The question   “by what

name they call to each other”. The child witness

answered “the person who drives the bike call Kamlesh

to other person”.  In his statement before the court,

P.W.6 has specifically named both the appellant  and

accused being present in the court by narrating the

entire incident of 23.5.2010. P.W.6 made following

statement:

“...that person offered for Ice­cream, but I did not accept it, but he caught hold of my hand and thereafter he put me on bike and closed on my mouth, that vehicle was driven by Sonu From there they look me to Dhaba and after taking food slept there I had taken food there...”

27. Further he stated in his evidence “...I recognise

that whose names are Sonu and Kamlesh”. We thus are of

the view that appellant was named by accused.

28. Learned Counsel further states that victim in his

examination before Ahmedabad Court has stated that the

Dausa Police has fired at the present Appellant and the

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Accused No.2. Whereas in the proceedings in Dausa he

states that accused fired and threw chilli powder at

Dausa Police.

29. We have already noticed that offences against

accused u/s 307, 332 and 353 IPC were not found to be

proved before Dausa Court. Hence, contradiction in the

statement of victim at page 49 before the Ahmedabad

Court is of no significance.  

30. Learned Counsel has referred to the statement of

victim before Dausa Court at page 4 where he stated

that 'I had seen the accused for the first time in the

police station'. The statement has to be read as a

whole. Reading one sentence here and there does not

give full purport of evidence. In his statement before

Dausa Court he has narrated the entire incident

including that when he was standing at Shakriba Party,

two gundas kidnapped him and they took him to

Rajasthan. The entire incident has been narrated in his

statement and in the cross­examination his evidence

remained unshaken. Much importance cannot be given to

one isolated sentence. As far as recovery of child from

accused person, there is no doubt regarding the

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recovery of child from the accused from Dausa,

Rajasthan which has been proved by the Police personnel

of Rajasthan and evidence given by complainant and his

brother who also went to Dausa after they were called

by kidnapper to come to Dausa.

31. The submissions that without any evidence High

Court has presumed that custody of victim P.W.6 was

with the Appellant and accused no. 2 without any

material witness to corroborate. Both the Courts have

come to the conclusion that victim was kidnapped by

appellant and accused No.2 with whom he remained till

28.5.2010 which is proved by ample evidence on record.

32. The next submission of  amicus curiae  that victim

being a child witness an independent corroboration has

to be looked into. The sequences of event as narrated

by child witness are fully proved by the incident which

happened at  Dausa, Rajasthan i.e. recovery of child

along with two accused. Thus, the prosecution case of

kidnapping the victim and taking victim from Shakriba

Plot Ahmedabad to Dausa Rajasthan has been fully proved

and the evidence of child witness has been corroborated

by evidence of P.W.3, P.W.5, P.W.13, P.W.14 and

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evidence of P.W.17.

33. The  Amicus Curiae  has further referred to

contradictions with regard to timing as suggested by

the prosecution with respect to recovery of boy.

Statement of P.W. 5 has been referred where he has

stated that he saw the boy at police station at around

09:00 to 09:30 AM  whereas time of arrest of appellant

at Dausa Police Station is shown as 12.15 hrs.   The

above minor discrepancy in time when PW. 5 reached

police station and saw the victim and accused, does not

make theory of victim and accused being present

incredible.  Further the fact that prosecution case is

that ransom  call was made from Airtel No.8128381274

whereas this SIM Card was not recovered from the

accused and SIM Card bearing No. 9785612832 belonging

to Idea along with Nokia Mobile 1600 was recovered.

When the call from above Airtel number was made to

several  mobile numbers i.e.  owner of Shakriba Party

Plot, Mukesh Sharma and the complainant, the call

details of which have been produced before the court,

non­recovery of SIM Card is not of much significance.

The Nokia phone which was recovered with Idea SIM was

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the phone which belonged to Mr. Suresh Chand Ramjilal

who has stated that the phone was stolen. The above

circumstances in no manner make the prosecution story

incredible.

34. It is useful to refer to judgment of this Court in

Chandrappa and Others versus State of Karnataka, (2008)

11 SCC 328 where this Court has laid down that it is

unreasonable to expect from a witness to give picture

perfect report of the incident and minor discrepancies

have to be ignored. In para 17 and 18 following was

stated by this Court:

“17. It has been contended by the learned Counsel for the appellants that the discrepancies between the statements of the eyewitnesses inter se would go to show that they had not seen the incident and no reliance could thus be placed on their testimony. It has been pointed out that their statements were discrepant as to the actual manner of assault and as to the injuries caused by each of the accused to the deceased and to PW3, the injured eyewitness. We are of the opinion that in such matters it would be unreasonable to expect a witness to give a picture perfect report of the injuries caused by each accused to the deceased or the injured more particularly where it has been

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proved on record that the injuries had been caused by several accused armed with different kinds of weapons.  

18. We also find that with the passage of time the memory of an eyewitness tends to dim and it is perhaps difficult for a witness to recall events with precision. We have gone through the record and find that the evidence had been recorded more than five years after the incident and if the memory had partly failed the eye witnesses and if they had not been able to give an exact description of the injuries, it would not detract from the substratum of their evidence. It is however very significant that PW 2 is the sister of the four appellants, the deceased and PW 3 Devendrappa and in the dispute between the brothers she had continued to reside with her father Navilapa who was residing with the appellants, but she has nevertheless still supported the prosecution. We are of the opinion that in normal circumstances she would not have given evidence against the appellants but she has come forth as an eyewitness and supported the prosecution in all material particulars.”

35. The trial court has thoroughly marshalled the oral

and documentary evidence on record. High court on

re­appreciation of such evidence has affirmed the order

of conviction of the appellant. We do not find any

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error in the judgment of court below, warranting

interference by this Court in exercise of its

jurisdiction under Article 136 of the Constitution. The

appeal lacks merit and is consequently dismissed.

Before we close we record our appreciation for the

valuable assistance rendered by Shri Amarendra Sharan,

Senior Advocate  assisted by  Shri Amit Anand  Tiwari,

Advocate.

.................J   [A. K. SIKRI]

..................J   [ASHOK BHUSHAN]

New Delhi April 18, 2017.