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PUNJAB AND HARYANA HIGH COURT
Mr. S.S. Saron and Mr. Darshan Singh, JJ.
Sayeed Alarm Lari @ Babu —Appellant
versus
State of Haryana —Respondent
CRA-D-70-DB of 2010(O&M)
Decided on 16.05.2017
(B) Indian Penal Code, 1860—Section 364-A—Criminal Procedure Code, 1973—Section 464(1)—Kidnapping of child—Life sentence—In FIR there are no allegations of kidnapping against appellant—Defects pointed out in charge framed by trial Court is merely an irregularity—No finding, sentence or order by a Court of competent jurisdiction shall be deemed to be invalid merely on ground of any error in charge unless a failure of justice has in fact occasioned thereby—Call details are not legally admissible in evidence as requirements of Section 65-B of the Evidence Act are not satisfied—In order to prove the demand of ransom, the prosecution was banking upon the call details. But, those are inadmissible in evidence—Prosecution has not been able to establish ingredients of offence punishable under Section 364-A IPC—It is not even case of prosecution that victim was kidnapped or abducted by co-accused in order to compel his parents to pay ransom—There is no cogent and convincing evidence to establish demand of ransom by accused-appellant—However, victim was confined by accused-appellant after his kidnapping by his co-accused being fully aware of such kidnapping—By virtue of Section 368 IPC, accused appellant shall also been liable for punishment in same manner as if he had kidnapped or abducted victim—Conviction and sentence of appellant for offence punishable under Section 364-A IPC set aside; however, held guilty and convicted for offence punishable under Section 365 read with Section 368 IPC—Appellant accordingly sentenced to rigorous imprisonment for seven years besides, he shall pay fine of Rs.5000/ (Para 22, 23. 24, 27, 28, 32, 33, 35 and 36)
(c) Indian Evidence Act, 1872—Section 65-B—Call details—Admissibility in evidence—Electronic record can only be taken into consideration if requirements of Section 65-B of Evidence Act are complied with—In instant case, call details do not bear any certificate as required under Section 65 B of Evidence Act—Nodal Officer Vodafone Essar has categorically stated in cross-examination that there is no attestation of any officer on call details—Call details relied upon by prosecution cannot be taken into consideration due to non-compliance of Section 65-B of Evidence Act. (Para 26)
Result: Appeal Partly allowed.
JUDGMENT
Darshan Singh, J. - The present appeal has been preferred against the judgment of conviction dated 30.01.2009 passed by the learned Additional Sessions Judge, Faridabad, vide which the accused-appellant has been held guilty and convicted for the offence punishable under Section 364-A of the Indian Penal Code, 1860 (‘IPC’-for short) and the order on the quantum of sentence dated 03.02.2009, vide which he has been sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/-, in default thereof to further undergo rigorous imprisonment for a period of six months.
2. The facts in brief giving rise to this prosecution can be summoned up as under:–
On 26.05.2007, complainant-Kundan Singh (PW-1) moved the application Ex. PA to the SHO, Police Station Sector-55, Faridabad alleging therein that on 13.05.2007 his son-Gauri Shanker aged about 18 years had gone with Sanjay son of Ramjit. Sanjay had returned back to his house safely but his son had not returned so far. They tried their best to search with Sanjay here and there but Gauri Shanker could not be found. They suspected that his son has been kidnapped by someone. On the basis of this application, First Information Report (‘F.I.R.’-for short) Ex. PE was registered.
3. On 26.05.2007, PW-3-Bhagmani, the mother of the abducted child received a miss-call on mobile phone no. 9999434563 of her husband namely Kundan Singh (complainant). Then she dialed the number on the said miss-call and on inquiry he disclosed his name as Sahil and sometime Sahid Alam and sometime Babu Khan. He told that Sanjay and Ramjit had left Gauri Shankar with him after taking some money. That person demanded ransom of Rs.1,50,000/- and asked her to come all alone along with money. He threatened that if they will inform the police, they will not get their son-Gauri Shanker. She informed her husband-Kundan Singh. Thereafter, they brought all these facts to the notice of the police.
4. On 07.10.2007, ASI Jagvir Singh (PW-5) went to Bombay along with complainant-Kundan Singh and HC Dilbag Singh to arrest the present accused-appellant in view of the calls made by the accused-appellant from his mobile no. 9820688671 to the mobile phone of the complainant bearing no. 9999434563. He also took the help of the local police and apprehended the accused from near the Bandra Railway Station, Bombay on 09.10.2007. On interrogation, accused-appellant suffered the disclosure statement Ex.PB. From the personal search of the accused-appellant a mobile phone make Nokia-6030 bearing sim no 9820688671 was recovered, which was taken into possession vide memo Ex.PC. On further interrogation on 13.10.2007, he suffered the disclosure statement Ex.PG dated 13.10.2007 and Ex.PG/1 dated 14.10.2007. Abducted boy Gauri Shanker could not be recovered. The Investigating Officer also obtained the call details and on completion of the investigation, the report under Section 173 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’-for short) was prepared and presented in the Court.
5. It is pertinent to mention that co-accused Sanjay being juvenile was tried by the Juvenile Justice Board, Faridabad.
6. The case against the accused-appellant was committed to the Court of Sessions for trial by the learned Judicial Magistrate Ist Class, Faridabad vide order dated 08.01.2008.
7. The accused-appellant was charge sheeted for the offence punishable under Section 364-A and 34 IPC vide order dated 04.03.08 by the learned trial Court to which the accused-appellant pleaded not guilty and claimed trial.
8. In order to substantiate its case, the prosecution examined as many as six witnesses besides bringing on record the documents.
9. When examined under Section 313 Cr.PC, accused-appellant pleaded that he is innocent and has been falsely implicated.
10. No evidence was led by the accused-appellant in his defence.
11. On appreciation of evidence on record and the contentions raised by learned counsel for the parties, the learned Additional Se
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