SHASHI BHUSHAN Vs. STATE

JUDGEMENT

(1.) THESE appeals have been filed by the two convicted accused assailing the judgment dated 7th April, 1999 and order dated 8th April, 1999 passed by an additional Sessions Judge, Delhi whereby both of them alongwith one Rajinder were held guilty of the commission of the offence punishable under Section 366 read with Section 34 IPC and have been awarded two years rigorous imprisonment and a fine also of Rs. 3000/- each with a default stipulation.

(2.) THE relevant facts leading to the trial and conviction of the appellants have been noted by the learned trial court in para nos. 4-6 of the impugned judgment and the same are reproduced hereunder:-

(3.) INITIALLY FIR was registered under Section 363 IPC on the complaint of aunt of the kidnapped girl (PW-3 Renuka) who alongwith kidnapped girl's brother rakesh was allegedly with the minor girl Sunita at the time of the incident. Later on the statement of the kidnapped girl was also got recorded by the police under Section 164 Cr. P. C. in which she had named one Ramesh, whom she knew, as one of her kidnappers but he was not be arrested by the police. The police, however, arrested six other persons, including the two appellants. Appellant sanjay @ Laddu was the first one to be arrested by the police on 22/10/89 on the pointing out of PW-12 Raj Kumar, another brother of the kidnapped girl, who as per the prosecution case knew Sanjay and had seen him sitting in a van on the day of the incident and he had also claimed to have chased that van on hearing the noise that his sister had been kidnapped. At the instance of Sanjay other accused persons were arrested. Test identification parade was held in respect of three persons, namely, Manoj Dang, Rajinder Singh and appellant Shashi bhushan. Only Manoj participated in the test identification parade but the complainant did not identify him as one of the culprits. So, he was got discharged by the police. Accused Rajinder Singh and appellant Shashi Bhushan had refused to participate in the test identification. For accused Sanjay no tip was held because he was arrested on the pointing out of the kidnapped girl and her brother Raj Kumar (PW-12 ). After investigation was over four accused were charge-sheeted in the Court of Magistrate while the case against the fifth accused, namely, Raj Pal @ Rana was filed in Juvenile Court. All the four accused were charged under Section 366/34 IPC. During the trial one of the accused, namely, Paramjit @ Padam @ Kalia absconded and so was declared a proclaimed offender. In order to establish the allegations against the accused persons the prosecution had relied upon the evidence of the complainant (PW-2)who had identified in Court all the three accused to be the persons who had alongwith their other associates kidnapped her. Corroboration of her testimony was sought from the refusal of two accused persons to participate in the test identification parade as also from the statement of accused Rajinder Singh under Section 313 Cr. P. C. to the effect that he was the driver of the van in which the complainant was kidnapped and that his co-accused Sanjay and Shashi bhushan (the two appellants) were also in that van at that time. The learned trial Judge accepted the evidence of the complainant and the refusal of the two accused persons to participate in the test identification parade as well as the aforesaid admission of the accused Rajinder Singh, which was considered as his confession of the crime although he had also claimed that he was forced to drive the van to Tilak Vihar at the point of knife and accordingly the trial court held the two appellants and Rajinder Singh guilty of the charge under section 366 read with Section 34 IPC. Feeling aggrieved, these two appeals were filed. Third convicted accused Rajinder Singh does not appear to have challenged his conviction and the reason for that appears to be his own above-referred admission of certain facts during his statement under Section 313 Cr. P. C.