DAVINDER SINGH Vs. STATE OF DELHI

JUDGEMENT

(1.) This appeal has been brought against judgment dated May 2, 1988 of Shri K.S.Gupta, Additional Sessions Judge, Delhi by which he convicted the appellant of an offence punishable under section 363, I.P.C. and vide order dated May 4, 1988 had sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 250/- and in default of payment of fine to further undergo rigorous imprisonment for two months.

(2.) On September 22, 1986 at about 11.46 p.m. Prabhati Lal had given 3 telephone call to Police Station Moti Nagar informing that his daughters son has been kidnapped by one sikh person in Block No. 3, Moti Nagar. This report was recorded at Serial No. 95B of Daily Diary marked TA and the same was entrusted to S.I. Sat Pal who proceeded to the spot and recorded the statement of Prabhati Lal, P.W. 1/ A in which it was mentioned that at about 9.45 p.m. he had heard the shrieks of his grand son coming from the street and he came out and saw the appellant whose name was later learnt as Davinder Singh alias Billa taking away his daughter's son named Kapil Kumar, aged about 4 years and 9 months by catching hold of him from his arm and putting his other arm around his waist and on his asking as to what he was doing the appellant dragged Kapil towards Block No. 4/9 and he along with the help of Laxman Dass managed to apprehend the appellant and rescued the boy after covering the distance of 35 to 40 steps. It was also mentioned that in this scuffle which took place, appellant Davinder Singh also received certain injuries on bill person. It was mentioned that certain males and females had also collected on hearing the noise at the spot. The appellant was arrested and Site Plan Ex. P.W. 5/B was prepared. The appellant was got medically examined as per MLC Ex. DA at about 4.25 a.m. The doctor found following injuries on his person:

(3.) Swelling of big toe on left side. The injuries were found to be simple in nature. It was also found that the appellant had consumed liquor and was under its effect. After investigation the challan was put in by the prosecution for trial under section 364, I.P.C. and the accused was also charged for the said offence. The accused bad pleaded not guilty. The version given by the accused in his statement under section 313, Cr.P.C. is that he was proceeding in lane No. 3 and he was under the influence of liquor and some persons abused him and gave him beating and he also gave abuses to those persons and he was given beating and was taken to the police station and was falsely implicated. 3. The prosecution version was well supported by the testimonies of P.W. 1 Prabhati Lal, the kidnapped boy P.W. 2 Kapil and P.W. 3 Laxman Dass, the eye-witness. Prabhati Lal while referring to the material facts in his testimony mentioned that at about 9.45 pm. he was sleeping in his room in House No. 3/6 in Lane No. 3 when he was called by Laxman Dass and was informed that one sardar was taking away his grand son Kapil and be came out and saw that the appellant lifting the boy was running away towards Block No. 9 and was chased and was apprehended and a crowd had collected. He deposed that the appellant did not receive any injuries but in the same breath he stated that he could not say whether he bad sustained any abrasion. He has also mentioned that Kapil had left the house earlier in order to witness the Ram Lila which was taking place in an open place 20 steps from the said house. He stated that it was some public person who informed the police and after the police reached the spot, he gave the statement Ex. P.W. 1/A on the basis of which the case was registered. In cross-examination he stated that the appellant was living in Block No. 7. Moti Nagar which block is two or three blocks away from Block No. 3 at a distances of 200 or 250 yards. The learned counsel for the appellant Ms. Maldeep Sidhu who was appointed as amicus curiae to represent the appellant in this appeal as the appellant had failed to engage any counsel had argued that in case the appellant was well-known to P.W. 1, there is no reason why his name was not mentioned in the Daily Diary which was recorded on the basis of telephone call given by this witness. It has not been elicited from P.W. 1 in cross-examination as to whether he knew the appellant prior to the occurrence or not. He had stated that he did not know whether the accused was living in the said Block No. 7 for the last 20 years. He also denied the suggestion that the appellant used to purchase any articles from his shop earlier. Nothing came out from his cross- examination to show as to why this witness should have falsely implicated the appellant. The witness could not say whether at the time the appellant was apprehended he was under the influence of any liquor or not. The learned counsel for the appellant has pointed out that this fact stands established from the MLC of the appellant that he was under the effect of liquor even after he was examined by doctor with a gap of about 6 or 7 hours. So, it is not possible that P.W. 1 would not have remained unaware of the fact that appellant was under the influence of liquor at the time he was apprehended. I do not think that this shakes his credibility. The witness had stated that he had seen the appellant for the first time on that day. So, it cannot be urged that in fact the appellant was known to P.W. 1 even prior to the occurrence. Kapil, coming 3S P.W. 2 also pinpointed the appellant who tried to take him away on that day. He has, however, stated that he was kidnapped by the appellant from the place where Ramlila was being played whereas P.W. 1 had stated that he had seen the appellant kidnapping the boy Kapil just a few feet away from his house. Even in the site-plan the place from where the boy had been abducted is shown to be just in front of the house of P.W. 1. From this discrepancy appearing in the case of the prosecution in view of the statement of P.W. I regarding the actual place from where the boy was kidnapped, the learned counsel for the appellant has urged that the whole of the prosecution case is doubtful. She has relied upon Mitter Sen and others v. State of U.P. in which it has been laid down that the discrepancies appearing in the prosecution case, as appearing in evidence vis-avis the FIR. can always be looked into to determine whether the prosecution case is doubtful or not. In Awadh Singh and others v. Emperor, it has been laid down that if there is in consistency between the case set up in the First Information Report and the evidence given by the complainant in trial, it is not necessary that the complainant should be cross-examined by the defence to get explanation for such inconsistencies and it is for the prosecution to get explained in examination- in-chief the said inconsistencies. There is no dispute about the principle of law enunciated in these two rulings. However, it is not possible to accept this contention. After all, the boy was of six years when he gave the testimony after about one year of the occurrence. So, the possibility of this boy making some mistake with regard to the exact place from where he was kidnapped by the appellant cannot be given so much importance. Kapil had also mentioned in cross-examination that he had been seeing the Ramlila for the last few days since he and his mother had come to live at the house of Prabhati Lal and he had seen the appellant also coming to Ramlila earlier but nothing turns on it because it has not been shown that Kapil knew the name and other particulars of the appellant prior to the occurrence. The defence version had not been even suggested to P.W. 1 or P. W. 2 that the appellant was under the influence of liquor and there took place quarrel between the appellant and some public persons on that score alone.