IN THE  SUPRE M E  COU RT  OF   INDIA           CRIMINAL  APPELLATE  JURISDICTION   

     CRIMINAL  APPEAL  NO. 837   OF  2008            

LOHIT  KAUS H AL ..  APPELLANT(S)

vs.

STATE  OF  HARYA N A ..  RESP O N D E N T(S)

O  R  D  E  R

This  appeal by  way  of special leave  has  been  filed by  Lohit  

Kaushal, who  along  with several others stands  convicted  for offences  

punishable under Sections 364-A, 342 read with Sec.120-B  of the IPC  and   

has been  sentenced  to undergo  imprisonment for life for the offence under  

Sec.364-A  read with Sec.120-B  and  to one  year's R.I. under Sec.342 read  

with Sec.120-B, along with fine in both cases.

The  facts of the case are as under:

The  appellant is the  wife's sister's husband  of Harjit Singh   

brother of Saravjit Kaur, mother of Arshdeep  Kaur, aged  four years, the  

kidnap  victim.  Sukhjit Singh, father of Arshdeep, was  employed  in a  

private factory  and  earning (as per his statement) Rs.70-80 thousand  per  

month  while  Saravjit Kaur  who  was  working  as  a  Lecturer in the  

Government College,  Narayangarh, was  also drawing  a handsome  salary.  

As  per the prosecution's case the appellant had  received a severe set back  

in his business and  being aware of the financial status of Sukhjit Singh's  

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family he  planned  to kidnap  Arshdeep  Kaur   for ransom.  As  per parents  

were  employed  Arshdeep   was  left in a  Creche  in the morning  by  her  

parents and  she  would return to the home  of Mohinder Kaur, her maternal

grand  mother  after school hours.  Pursuant to a conspiracy hatched  by  

the appellant,  Parminder Mohan  @  Pam mi  and  Lovepreet Kaur, both well-

known  to Mohinder Kaur  and  her family, went to the house  of Mohinder  

Kaur  at about 1.30 p.m. on  25/8/2002,   while Sukhjit Singh  and  Saravjit  

Kaur  were  at work. They  found  Mohinder  Kaur  and  Arshdeep  in the  

courtyard of the first floor of the house,  and  enquired about Sukhjit Singh   

and  Saravjit Kaur and  told Mohinder Kaur that Parminder Mohan  had  been   

blessed  with  a  son  and  they  had  come  to deliver a  box  of mithai to  

celebrate the occasion. They also asked  Mohinder Kaur to give them  some   

water.  In the meantime  two  other persons, one  being Manjit Singh  alias  

Mithu, also came  into the room  and  also asked  for water and  as Mohinder  

Kaur went into the kitchen, Manjit Singh  followed  her, caught hold of her  

and  brought her into the bedroom.  Parminder Mohan, thereafter,  caught  

hold of her arm  whereas  Manjit Singh  shut her mouth  and  tied her with a  

dupatta and  the fourth unnamed  accused  manhandled  her.  Parminder  

Mohan  thereafter tied her hands, shifted her  to another room  and  after

picking up   Arshdeep  and  a video cassette player from  the house, drove  

away  in a Tata Sumo  vehicle. A  telephonic  

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message  was  conveyed  by Mohinder Kaur's neighbour Harjinderpal Singh   

to police station, Sector-19, Panchkula  on  which  Sub-Inspector Avtar  

Singh  reached  the kidnap  site and  recorded  the statement of Mohinder  

Kaur  and  on  its  basis  an  FIR  was  registered  by  Sub-Inspector O m   

Parkash. The  appellant, alongwith his wife Satnam  Kaur, on  hearing the  

news  about the kidnapping and  pretending to be concerned  relatives, also  

visited Mohinder  Kaur's house  and  arranged  that she  be  sent to the  

General hospital, Panchkula, for her medical examination.

On  27/2/2002, information was  received by Inspector Mange  Ram   

that the kidnappers  were  demanding  Rs.60  lakhs  as   ransom  and  on  

receipt of  the  amount   they  would  free  the  child near  Gurudwara   

Dukhniwaran  Sahib, Patiala.  The  matter was  however  settled at Rs.21  

lakhs.   Sub-Inspector  Mange  Ram  accompanied  by  Sukhjit Singh   

(Arshdeep's father) reached  the pre-determined  place, which  was  a STD   

booth near the Gurudwara  and  found  Lovepreet Kaur along  with the child  

inside the booth.  She  was  immediately arrested and  the child was  freed  

and  handed  over to her father.  Pursuant to Lovepreet Kaur's sustained  

interrogation   Satnam  Kaur was  arrested on  28/2/2002, and   pursuant to  

her interrogation,   Lohit Kaushal,  the appellant herein, was  taken  into  

custody and  a Maruti Car No. CH01-4565, which had  allegedly been   

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used  while kidnapping  the child, was  seized by the police.  A  Tata Sumo  

vehicle bearing Registration No.HR01E-7582 was  also produced  before the  

police by  its owner, PW.3  Sarwan  Singh  and  was  taken into possession.  

On  the same  day Parminder Mohan, Manjit Singh, Nand  Kishore and  Sunil  

Kumar   were  also apprehended.  On  3/3/2002  Lovepreet Kaur   made  a  

disclosure leading to the  recovery of the clothes that Arshdeep  had  been   

wearing  at the time  of the kidnapping.  Likewise  and  at the instance  of  

Manjit Singh, a VCP  along with its  remote control were also recovered.

On  the completion of the investigation the accused  were charged   

for the aforesaid offences. They  pleaded  not guilty and  were  brought to  

trial.

The  Additional Sessions Judge, Panchkula, however, by his order  

dated  4/3/2002  discharged  Satnam  Kaur,  Lohit Kaushal's wife, Nand   

Kishore  @  Mithu  and  Sunil Kumar  @  Rinku  for lack of evidence, but  

proceeded  with the trial with respect to the other accused.

The  prosecution  in support of its case  placed  reliance on  the  

statement of PW.1  Mohinder Kaur, PW.2  Sukhjit Singh, PW.3  Swaran  Singh  

who  deposed  that Manjit Singh  had  borrowed  his Tata Sumo  vehicle on   

25/2/2002 at about  9.00 a.m. and  had  returned it the same  evening at about  

5.00  p.m. as  had  been  promised  to by  him,  PW.5-Sub-Inspector O m   

Prakash, PW.11-Sub-Inspector Avtar Singh  and   

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PW.12  Inspector Mange  Ram  amongst  others. In their statements  under  

Sec.313  of Cr.P.C. the  accused  pleaded  innocence  and  alleged  false  

implication and  further pleaded  that they had  been  involved on  account of  

suspicion.   The  accused  were,  however,  ultimately  convicted  and   

sentenced  by the trial Court as mentioned  above. Four  appeals  filed  

at their instance  were  also dismissed  by  the High  Court leading  to the  

present appeal  by Lohit Kaushl in this Court. We  have also been  informed  

by  the  learned  counsel  for the  parties that the  other  accused  had   

absconded  after  they had  been  granted bail by the High  Court at the time  

of the admission of their appeals, and  are, as of now, not traceable.   

In this situation the learned counsel for the appellant has pointed  

out that there was  absolutely no  evidence against the appellant and  that he   

appeared  to have  been  roped  in on  account of suspicion being  a close  

relative of the complainant party as his adverse circumstances  were  well  

known  within the family circle.  It has  also been  submitted that neither  

Mohinder Kaur nor any of the other witnesses  had  named  the appellant at  

any  stage  except at the trial and  that too  in uncertain terms  that they  

suspected  that he  had  been  instrumental in arranging the kidnapping  for  

the  purpose  of  ransom.  It has  been  highlighted  that the  only  two  

incriminating circumstances  against  the  appellant   

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were   the  so   called  disclosure statements  made  by  Satnam  Kaur  the  

appellant's wife, and  Lovepreet Kaur, a co-accused, subsequent to their  

arrest naming  him  as the main  conspirator and  secondly the recovery of  

the Maruti car from  him  at the time of his arrest.

The  learned  State counsel has, however, pointed  out that in  

addition to the aforesaid evidence, the conduct of the appellant in trying to  

distract the police away  from  the investigation by  constantly interfering  

therein and   by advising Sukhjit Singh  not to give any  information to the  

police as Arshdeep's life could be in danger and  after suspicion had  been   

raised as to his involvement had  absconded  and  had  been  arrested three  

days later, raised grave  suspicion with regard to his involvement.

We  have  considered  the  arguments  advanced  by  the  learned  

counsel. It is true that kidnapping  as understood  under  Sec.364-A  of the  

IPC  is a truly reprehensible crime  and  when  a helpless child is kidnapped   

for ransom  and  that too by  close relatives, the incident becomes  all the

more  unacceptable.  The  very gravity of the crime  and  the abhorrence  

which  it creates in  the mind  of the court are, however, factors which  also  

tend to militate against the fair trial of an accused  in such  cases.  A  Court  

must, therefore, guard  against the possibility of being  influenced  in its  

judgments  by  sentiment  rather  than  by  objectivity and   judicial  

considerations while evaluating the evidence.

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We  have  gone  through  the judgment  of the High  court and  find  

that but for three or four stray sentences  with regard to the appellant's  

involvement,  there is virtually nothing which  has  been  brought out with  

regard to his role, though  the High Court was  the first appellate Court. We   

have, accordingly, chosen  to evaluate the evidence  ourselves as if we  are  

the first Court of appeal.

As  already noted  above, the  appellant who  was  well known  to  

Mohinder Kaur being  a close relative, did not invite any  suspicion about  

his involvement  at the  time  when  the  FIR  had  been  lodged  and  her  

statement  under  Sec.161  Cr.P.C. recorded.   She  however  made  an  

improvement   at the time  of the trial about her suspicion  vis-a-vis the  

appellant and  was  duly confronted  with  the omission. The  only other  

effective piece of evidence that the Courts below  have relied upon  are the  

disclosure statements  of Satnam  Kaur  and  Lovepreet Kaur, recorded  by  

the police while they were  in police custody as co-accused.   The  primary  

question which  calls for consideration is as to whether their statements  

can  form  the basis for a conviction.  In addition to the fact that Satnam   

Kaur was  discharged  by the trial Judge  on  account of lack of evidence, we   

are of the opinion that so called disclosure statements made  by both these  

wo men  are hit by  Sections 25 and  26 of the Evidence  Act, 1872, as they  

had  the status of being statements made  to the

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police, and  nothing more  and  are, thus, not admissible in evidence. It will  

be  seen  that a  statement  made  to the police can  only be  used  to the  

limited extent provided  under under 27 of the Evidence  Act and  that too  

only against the person  making  the statement.  Admittedly the statements,  

did  not lead  to the  recovery  of any  item  whatsoever. Satnam  Kaur's  

statement is on  record and  we  have  very carefully perused  the same. It  

reads as under:

“In 1995  year I was  married  to Lohit Kumar  S/o  Diwaker Kaushal r/o Delhi.  After 5/6 months  of the marriage  I  and  Lohit started quarreling with each  other and  it continued  for 1  1/2 year.  During  this period  Lohit went  to Australia.  About 6 months  back  Lohit came  back  from  Australia.  During  this period my  younger  sister Jaspreet Kaur  got engaged  to  Harjit Singh  S/o  Sajjan  Singh  R/o  H.No.527  Sector  12-A,  Panchkula.  During this period our relatives got patched  up  our  differences.  Lohit and  I for distribution of invitation cards for  marriage  went  to our  relatives.  I Lohit's relation, his uncle  (Mama) Sh. Jagdish R/o Dhuri was  given the invitation card for

marriage.  There  we  met  Parminder Mohan  @  Pam mi  whose   conversation impressed  me  a lot and  I in person  invited him  to  attend the marriage.  He  did come  to attend the marriage of my   sister at Panchkula  with  who m  I developed  relation.  After  marriage  Harjit Singh  started torturing my  sister number  of  times  he  was  advised  but he  used  to assault for which  my   sister complained  to me  number  of times  who m  my  husband   Lohit also tried to advice him, he quarreled with Lohit also and   uttered nonsense  words  to Lohit for which  Lohit felt upset.  Harjit's Sister Sarabjit Kaur  with her husband  Sukhjit Singh   stays at H.No.4079 H  32 Sec.20 Panchkula.  Her only daughter  aged  three year is darling to her.  This girl's grandmother (Nani)  Mohinder  Kaur  who   stays  with  her  son  Harjit Singh  and   daughter-in-law  Jaspreet at H.No.527  Sector 12  A  Panchkula,  both of them  are in service.  During that period the old wo man   

stays alone at home.  There Sukhjit Singh  and  his wife Sarabjit  Kaur  are also in service.  While going  for duty they leave the  girl at Sector 12 A   

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Panchkula Creche.  The  vehicle of the creche  leave Arshdeep   girl with her Nani who  loves her.  On  their way  back  from  the  duty in the evening  Mu m m y  Pap  of Arshdeep  taken  her to  home.  With the intention of taking revenge  from  Harpreet and   for grabbing money  because  Lohit was  facing much  loss in his  business.  Next day  after planning  the kidnapping  the niece  (Bhanji) of Harjit, for ransom  I and  Lohit went to Pam mi's house  

at Dhuri.  After meeting Pam mi  and  Nand  Kishore @  Nittu we   four planned  that Harjit Singh's sister and  Saukhjit Singh  is a  solid party.  Good  amount can  be got.  In order to execute this  plan we  started keeping an eye on  the Harjit Singh's House  and   the girl.  During this period I and  Lohit remained  at my  mothers  House  No.552  Sector 25  Panchkula.  After seeking  location,  Pam mi  has  asked  on  telephone  to  reach  Panchkula  fully  prepared  for making  the plan a success.  As  per plan, I and   Lohit waited after reaching Zirakpur.  At about one  O' clock in a  white coloured Tata Sumo,  Pam mi  and  Nittu came  alongwith a  girl and  two  boys, and  on  seeing  up  they halted.  I and  Lohit  advised  Pam mi  &  Nittu that we  will stop  our vehicle at about  100 away  from  the kothi, you  run away  after doing the work and   Pam mi  got a packet of sweets from  Zirakpur.  We  moved  ahead   our vehicle followed  by the vehicle of Pam mi  etc. and  reached   

Sector 12  A  Panchkula.  After making  plan, Pam mi  etc after  carrying out the work  went  away  and  we  both  went  to our  house.  After that on  the subject being noised, I and  Lohit went  to Harjit's house  and  kept an  eye  on  the happening  and  the  situation was  conveyed  to Pam mi  but Pam mi's  demand  for  Rs.60  lacs created  horror in the entire family we  also never  expected that he will demand  so much.  On  seeing the situation  worsened, we  on  phone  informed  Pam mi  to return the girl.  At  right time  my  husband  also escaped  from  there.  Whose  all  where  about I know.   He  can  be  available with his friend at  Delhi, Ghaziabad, Meerut.  It can  get him  apprehended  on  identification statement of the accused  is recorded  separately  which is signed by the accused  and  the witnesses.” Lovepreet Kaur's statement has not been  filed with the  Supreme  

Court  record  but it has  been  paraphrased   by  the  trial Court in its  

judgment and  we  reproduce  the same  herein below:

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“During  interrogation, Lovepreet Kaur  alias Preeti  wife of Virender Singh  made  disclosure  statement  that on   25.02.2002  at about 8.00 P.M. phone  was  received  from  her  fast friend namely Pam mi  that she should reach at Dhuri PCO.   She  reached  at Dhuri PCO  at about 8.30 P.M. from  Sangrur.  At  the time, Pam mi  son  of Jagdish Chand  caste Pandit, Nitu son   of Naresh  Chand  residents of Dhri, Sunil Ku mar  alias Rinku   

resident of Dhuri were  sitting at STD/PCO.   Pam mi  told her  that she  would  be  given good  amount in one  trip.  He  further  told that niece  Arshdeep  of Harjit Singh, who  is sandhu  of  Lohit being  only  one  daughter  of  rich  parents.  As  per  information  of Lohit and  Sem mi,  this girl used  to come  to  kothi No.527, Section 12-A, Panchkula to her grand  mother for  four-five hours.  After kidnapping her, they could get the good   amount and  leave the girl.  She  had  to do  only that she would   take the girl aged  about three years in her lap with live and  sit  in the vehicle.  If the girl weeps, then  she  would  keep  her  mu m  and  she  will get  Rs.20,000/- for the  work.  In the  meanwhile, phone  from  Lohit had  come  of Pam mi.  Lohit and   Satnam  Kaur alias Sem mi, who  were earlier known  to her also  told about the planning.  She  also asked  Lohit and  Sem mi  as  to whether girl likes chocolates or toffees, so that she may  be

kept mu m  on  her weeping.  As  per planning, Mithu who  was   the  Driver brought  a  Tata  Sumo  of white  colour, whose   number  she  did not know  but Indian on  the front mirror and   Deol in English were written.  They started at 10.00 A.M. when   they reached  at Local Bus  Stand  Zirakpur at about 1.00 P.M.  Lohit and  Satnam  Kaur met them, who  were in a Maruti car of  blue  colour and  talked  to Lohit and  Sem mi,  after getting  down.   Sweets  box  was  also purchased  from  there.  Lohit  Kaushal and  Sem mi  stopped  their vehicle on  the back  turning  and  as  per planning, they stopped  their vehicle in front of  kothi no.527, Sector 12-A, Panchkulla.  She  and  Pam mi  saw   the old wo man  and  small girl sitting in the courtyard of first  floor of the  kothi.  Pam mi  and  she  said  Namaste  to the  wo man.   Pam mi  asked  that where  was  Sukhjit Singh, who   used  to work  in Lalru and  they had  come  at wrong  place.  

Pam mi  told that they are his friends and  he had  been  blessed  with a son, so  they came  to give him  a sweet box.  Wo m an   asked  them  to sit in the drawing room  and  they  

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demanded  water.  The  old wo man  brought two  glasses  of  water from  the kitchen  and  they took  it.  In the meanwhile,  Nitu and  Sunil also came  up  and  they also demanded  drinking  water.  Mithu  also came  up  at that time. Pam mi  told him  to  stand  on  the gate and  she  started to feed the girl.  They  all

caught hold of old wo man.   Pam mi  shut her mouth  and  she   lifted the  girl and  took  her to the vehicle standing  down.  Mithu kept standing on  the upper gate.  After sometime, when   they came  down, she saw  a VCP  in the hands  of Nitu.  They all  sat in the vehicle and  sped  away  from  there in the vehicle.  Pam mi  talked  on  mobile in the  way  and  got  the  vehicle  stopped  near Amargarh.  A  man  came  there on  a motorcycle,  and  Pam mi  took the girl from  her and  handover to that person   who  came  there on  motorcycle.  She  was  dropped  at Dhuri by- pass and  she went to Sangrur.  She  continued to keep contact  on  phone  and  demanded  her money.  Pam mi  told that money   would  be  given  after receipt.  She  reached  at STD/PCO  and   girl was  sitting at the STD/PCO  in same  clothes.  She  told  Pam mi  to change  her clothes and  she changed  the clothes of  the girl and  kept the used  clothes at the STD/PCO  by putting  

them  in a bag.  Pam mi  told her that she  may  take the girl and   to reach at Gurdwara Dukhniwaran Patiala, where father of the  girl would come  with money  and  she should handover the girl  to the father and  take the money.  She  would  also get extra  amount  for this work  and  thereafter, she  reached  at Patiala  Bus  Stand  alongwith the girl.  She  hired a three-wheeler and   reached  at the gate of Gurdwara  and  police caught her.  She   could  tell the place  where  all other accused  persons  were  stayed  and  get them  arrested  and  could  get recovered  the  clothes  of  the  girl from  STD/PCO.   This  above  referred  disclosure statement of accused  Lovepreet Kaur was  reduced   into writing upon  which  accused  and  witnesses  put their  signatures.  In view  of the disclosure statement of accused   Lovepreet Kaur, clothes of girl Arshdeep  were  got recovered  from  the STD/PCO,  which  were  taken into police possession.

Arshdeep  was  also recovered  from  accused  Lovepreet Kaur  outside the gate of Dukhniwaran  Gurdwara  Patiala and  girl  was  taken  into  possession  vide  recovery  me m o  dated  27.2.2002.”

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The  two  statements above-quoted  cannot by any stretch be  read  

into evidence  against the appellants, as  they have  the status of being  

statements made  to the police while the two  were  in custody. Admittedly,  

the two  were  also co-accused  at that stage  (as Satnam  Kaur  was  later  

discharged by the trial Court) for lack of evidence against her.

We  are now  left with the recovery of the Maruti car allegedly used   

in the kidnapping.  In this connection it is relevant to observe that as per  

the statement of Mohinder Kaur made  to the police which formed  the basis  

of the First Information Report, as also in her statement in Court, the four  

accused  who  had  come  to her home  had  taken  the child away  in a Tata

Sumo  vehicle.  That this vehicle was  apparently used  in the kidnapping  is  

impliedly supported by its owner Swaran  Singh  PW.6  who  deposed  that it  

had  been  borrowed  by Manjit Singh  accused,  on  the morning of 25/2/2002  

with a promise to return it by the evening and  the vehicle had  indeed been   

returned  to him.  It is, therefore, clear that the Maruti Car No. CH01-4565  

recovered  from  the appellant did  not figure at the initial stage  in the  

kidnapping  of the child. Furthermore,  there is absolutely no  evidence  to  

suggest that the Maruti Car had  been  used  in the kidnapping  at any later  

state.  We  have  also perused  the arrest me m o  pertaining to the appellant  

and  the recovery of  

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the Maruti Car  on  28/2/2002.  It is obvious that this too is not  a statement  

under Sec.27 of the Evidence  Act as the vehicle had  been  seized from  the

appellant at the time of his arrest.

As  will be apparent from  what has been  written above  the charge  

against the appellant is primarily under Sec.364-A, 342 read with Sec.120-B   

of the IPC. Concededly, also as  per the prosecution story, the appellant  

had  not been  present at the time when  the  child had  been  kidnapped  by  

the four co-accused  and  he  had  been  roped  in as  the main  conspirator,  

with the aid of Section 120-B  of the IPC. We  find no  evidence  to indicate  

that such  a  conspiracy  had  been  hatched  by  the  appellant as  the  

statements  of Satnam   Kaur  and  Lovepreet Kaur  cannot  be  read  as  

evidence  and  there is   no  other circumstance  suggested  against  the  

appellant.

The  learned  counsel for the  State has, however, in addition,  

pointed out that the very conduct of the appellant indicated his guilt and   

that the  fact that he  had  attempted  to dissuade  Sukhjit Singh  from   

informing the police about the kidnapping and  that he had  absconded  after  

the police had  arrived, were indications that he was  involved in the crime.

We  find that these circumstances  by themselves cannot be taken  

against the appellant.  It needs  to be  kept in mind  that in a  case  of  

kidnapping for ransom  there are  

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two   very clear schools of thought; one  that the law enforcement agencies  

should  be  informed  as  soon  as  possible so  that the  victim  can  be   

recovered without loss of time and  the second,  and  an equally meritorious  

one, given that  that the police investigations are often tardy and  clumsy,  

that  the police should not be informed  as the victim would then be gravely  

endangered  and  that the best option was  to pay up  and  recover the victim.  

It hardly needs  mention that the second  option is the more  preferred one   

in India. Assuming, therefore, that the appellant, as a close relative, had   

advised Arshdeep's family to adopt the  second  course, cannot by itself be

a  circumstance  to be  taken  against him. It has  also come  in evidence,  

(and so  argued  by the learned counsel for the State) that the appellant had   

absconded  after the police had  arrived. We,  however, find that in the  

backdrop  of all the  other circumstances, this factor may  raise some   

suspicion   but  cannot  by  itself constitute  sufficient evidence  for  

conviction.   We,  thus  allow,  the appeal, set aside the conviction and   

sentence  of the appellant and   order his acquittal. He  shall be  released  

forthwith if in custody and   is not wanted in any other case.

                     .................J.          (HARJIT SINGH  BEDI)

.................J.                                      (J.M. PANC H AL) New  Delhi, August 4, 2009.