Madhya Pradesh High Court
Ramabai @ Helo vs The State Of Madhya Pradesh on 6 July, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia, Anuradha Shukla
NEUTRAL CITATION NO. 2026:MPHC-GWL:19575
1 CRA-768-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
CRIMINAL APPEAL No. 742 of 2014
DEEPENDRA @ DEEPU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sushil Goswami, Advocate for appellant.
Shri C.P.Singh, Public Prosecutor for respondent/State.
WITH
CRIMINAL APPEAL No. 767 of 2014
RAMVILAS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri A.K.Jain, Advocate for appellant.
Shri C.P.Singh, Public Prosecutor for respondent/State.
CRIMINAL APPEAL No. 768 of 2014
RAMABAI @ HELO
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri A.K.Jain, Advocate for appellant.
Shri C.P.Singh, Public Prosecutor for respondent/State.
CRIMINAL APPEAL No. 962 of 2014
KAMAL KISHORE @ DOCTOR @ MASTER @ K.K.
Versus
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NEUTRAL CITATION NO. 2026:MPHC-GWL:19575
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THE STATE OF MADHYA PRADESH
Appearance:
None for appellant.
Shri C.P.Singh, Public Prosecutor for respondent/State.
Shri Sushil Goswami and Shri A.K.Jain, Advocates as amicus curiae.
Reserved on : 24/06/2026
Pronounced on : /07/2026
JUDGMENT
Per: Justice Gurpal Singh Ahluwalia
By this common judgment, Criminal Appeal No. 742/2014 filed by
Deependra @ Deepu, Criminal Appeal No. 767/2014 filed by Ram Vilas,
Criminal Appeal No. 768/2014 filed by Rama Bai, and Criminal Appeal No.
962/2014 filed by Kamal Kishore @ Doctor @ Master @ K.K., shall be
decided.
2. These four criminal appeals have been filed under Section 374(2) of
the Cr.P.C. against judgment and sentence dated 30.06.2014 passed by the
Special Judge (MPDVPK Act), Gwalior in S.S.T. No. 20/2011, by which all
the four appellants have been convicted and sentenced for the following
offences:
Sentence in
Offence Sentence Fine
default of fine
Life
Section 364A of IPC r/w Section Rs.
Imprisonemnt Six months R.I.
13 of MPDVPK Act 2000/-
with R.I.
Section 419 of IPC Three years R.I. - -
Rs.
Section 66C of I.T. Act Three years R.I. Six months R.I.
3000/-
3. The facts necessary for disposal of present appeals, in short, are that
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one Vijay Tomar of Gwalior met one of the abductees, Sinthil Kumar, in
Gujarat at the house of a friend of Sinthil Kumar. Vijay Tomar offered and
enticed Sinthil Kumar that he could get him good quality of groundnuts at
Gwalior for trading purposes. On this offer, Sinthil Kumar, along with his
employee Karunanidhi (another abductee), left Tamil Nadu on 02.01.2011
for Gwalior. Both the abductees reached Gwalior in the night of 04.01.2011
at 1:30 a.m. Vijay Tomar met them at the station and took them to Sai Guest
House, Padav, Gwalior. On 05.01.2011 at about 10:00 a.m., Vijay Tomar
called one Bolero and took both the abductees to the place of abduction on
the false pretext of showing them good samples of groundnuts in one mill. It
is alleged that while on the way to the mill, four other persons also boarded
the Bolero jeep. On inquiry by the abductees, Vijay Tomar introduced those
four persons as workers of the mill. After the vehicle came to a halt, the
abductees were asked to walk. However, in between, Vijay Tomar left the
abductees in the company of the four persons. The abductees were taken to
some hilly area, and when the abductees saw the light of some tractors, they
rushed towards them and asked for help. However, the abductors told the
tractor persons that the persons asking for help are their abductees, and
therefore, the tractor persons should not help them. Not only this, the
abductors also pointed a gun towards the abductees, and in the meanwhile,
the leader of the gang, namely Rajendra Sehron @ Tiger Baba, also reached
the spot with two to three gunmen. A threat was extended to the abductees
not to even try to leave the place, otherwise they would be killed. Rajendra
Sehron and others also thrashed the abductees and snatched their mobiles,
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ATM cards, and jewellery which they were wearing. The abductors also
inquired about the PIN number of the ATM card from both the abductees.
Since only Sinthil Kumar was aware of the PIN of his card, and accordingly,
the money was also withdrawn from his account. Thereafter, the hands and
feet of the abductees were tied, and food was given to them by Ramabai.
Next day, the abductors demanded Rs. 2 crores. However, after negotiation,
the abductees agreed to pay Rs. 32 lakhs, one gold chain, and one gold ring
by way of ransom. Thereafter, the abductors talked to the elder brother of
Sinthil Kumar and demanded ransom money, and also threatened him not to
inform the police as the abductees are at gunpoint. On this, the family of
Sinthil Kumar arranged an amount of Rs. 35 lakhs. However, prior to this
conversation of ransom, an FIR was already lodged by Mathew Kumaran
along with his son R. Naveen to Police Station Padav, Gwalior on
07.01.2011. Thereafter, the abductors asked Mathew Kumaran to hand over
the money at Jhansi, and accused Kamal Kishore took the slip from abductee
Sinthil Kumar and came along with Karunanidhi to Jhansi. Karunanidhi met
the family members of Sinthil Kumar and handed over the written slip to
them, and called accused Kamal Kishore for collecting the ransom amount.
On this, accused Kamal Kishore sent Deependra for collecting the same, and
after handing over of money to Deependra, Karunanidhi went along with
them. While Karunanidhi was going to the place of abduction along with the
accused persons, accused Kamal Kishore threw him out of the car.
Thereafter, Sinthil Kumar was released by the abductors. The local police,
with the help of Crime Branch, apprehended many abductors and also
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recovered the entire ransom amount from them. The statements of the
witnesses were recorded. On the basis of the complaint of R. Mathew
Kumaran, FIR (Exhibit P-13) was lodged at Police Station Padav. Recovery
memos of abductees were prepared vide Exhibit P-5 and Exhibit P-11. The
accused persons were arrested vide arrest memos (Exhibit P-19 to Exhibit P-
28A). Memorandum of accused Kamal Kishore and acquitted accused Raju
were recorded under Section 27 of the Indian Evidence Act vide Exhibit P-
28 to Exhibit P-30. Articles, ransom money, and other articles were seized
vide seizure memos (Exhibit P-1, Exhibit P-6, Exhibit P-15, Exhibit P-17,
Exhibit P-18, and Exhibit P-31 to Exhibit P-36). Test Identification Parade
(TIP) of accused Kamal Kishore, Deependra @ Deepu, Jandel Singh,
Ramvilas, and Ramabai was conducted vide TIP memos (Exhibit P-7 to
Exhibit P-9), and also of other persons vide Exhibit P-37 and Exhibit P-38.
Statements of witnesses were recorded, and after completing other necessary
formalities, charge sheet was filed against as many as twelve accused
persons for offences under Section 364A of the IPC, Sections 11 and 13 of
the MPDVPK Act, and Sections 66C and 66D of the IT Act.
4. The Trial Court, by order dated 12.04.2012, framed charges against
the four appellants and other co-accused persons who have been acquitted.
5. Appellants and the acquitted accused abjured their guilt and pleaded
not guilty.
6. The prosecution, in order to prove its case, examined Naresh Kumar
Sharma (PW-1), Ravindra Prakash Srivastava (PW-2), Amar Singh (PW-3),
R. Naveen (PW-4), Karunanidhi (PW-5), R. Manoharan (PW-6), R. L.
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Sinthil Kumar (PW-7), T. R. Mathew Kumaran (PW-8), Bala Murugan (PW-
9), Sarnam Singh (PW-10), Sanjay (PW-11), D. S. Bhadoria (PW-12), R. K.
Pandey (PW-13), Bhupendra Singh (PW-14), Rajesh Singh Bhadoria (PW-
15), and G. S. Tomar (PW-16).
7. Appellant Deependra @ Deepu examined Lakshman Singh Parmar
as DW-1.
8. The Trial Court, by judgment and sentence dated 30.06.2014 passed
in S.S.T. No. 20/2011, acquitted co-accused Dilip Singh, Smt. Kiran Bai,
Naval Shakya, Smt. Alphabai, Raju, Ram Singh, and Lakhan. However, it
convicted appellants, namely Kamal Kishore @ Doctor @ Master @ K.K.,
Deependra @ Deepu, Ramvilas, and Smt. Rama Bai. It is not out of place to
mention here that co-accused Jandel Singh died during the pendency of the
trial.
9. Challenging the judgment and sentence passed by the Court below,
it is submitted by counsel for appellants that so far as the identification of the
accused persons by Karunanidhi (PW-5) and R. L. Sinthil Kumar (PW-7) is
concerned, the same is unreliable. The seizure witnesses to the recovery of
incriminating articles have not supported the prosecution case. Thus, it is
submitted that all the four appellants are entitled to acquittal.
10. Per contra, the appeal is vehemently opposed by the counsel for
State. It is submitted that Karunanidhi ( PW-5) and R. L. Sbinthil Kumar
(PW-7) have proved that they were abducted by all the four accused persons.
The currency notes of Rs. 34,50,000/-, which were recovered from the
possession of Kamal Kishore, and Deependra, were duly identified by Bala
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Murugan (PW-9). The currency notes were not only bearing the slip of the
Bank of Tamil Nadu, but Bala Murugan (PW-9) had also put his signatures
on some of the currency notes of each bundle of bank notes. Appellants have
failed to explain the circumstances which were found proved against them,
and accordingly, it is submitted that the Trial Court has rightly convicted all
the four accused persons.
11. Heard learned counsel for the parties.
12. The first question for consideration is as to whether the prosecution
has succeeded in proving the prosecution case against each and every
appellant beyond reasonable doubt or not?
13. Karunanidhi (PW-5) and R. L. Sinthil Kumar (PW-7) have
narrated the same prosecution story in their evidence. Therefore, in order to
avoid burdening the judgment, the story narrated by Karunanidhi (PW-5) and
Sinthil Kumar (PW-7) in their evidence before the Court is not being
reproduced because it was never challenged by any of the accused during the
course of arguments. As already pointed out, the entire prosecution story was
challenged on two aspects: i.e., identification of the accused and recovery of
incriminating articles. Thus, the role alleged against each and every accused
shall be considered separately in order to avoid any confusion.
Rama Bai:
14. According to prosecution case, Rama Bai had provided food to the
abductors as well as the abductees. Karunanidhi (PW-5) is one of the
abductee. Although he identified Rama Bai in Dock, but did not allege
anything against her. As karunanidhi (PW-5) had not stated on multiple
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aspects, therefore, he was declared hostile by the Public Prosecutor and was
cross-examined. Even in the cross-examination, nothing was put to this
witness about the role played by appellant Rama Bai. In cross-examination
by the Public Prosecutor, this witness had merely accepted that he had
identified appellant Rama Bai in jail vide identification memo (Exhibit P-8),
which was conducted inside the jail, but there is no allegation about the role
played by Rama Bai. Even the presence of any lady at the place of
occurrence or at the place where the abductees were kept has not been
alleged by this witness.
15. Another abductee is R. L. Sinthil Kumar (PW-7). This witness has
also not stated anything against appellant Rama Bai in his examination-in-
chief. However, this witness had identified Rama Bai in Dock. Since R.L.
Sinthil Kumar (PW-7) had left certain aspects in his examination-in-chief,
therefore, he was declared partially hostile. No question was put by the
Public Prosecutor to this witness with regard to Rama Bai in his cross-
examination. However, this witness was confronted by counsel for accused
with regard to his omission that he had identified the lady, but he could not
explain as to why that fact was not mentioned in his police statement.
Although there was no allegation against Rama Bai in the examination-in-
chief, still counsel for Rama Bai asked certain questions with regard to
identification of appellant Rama Bai done by this witness in jail. In cross-
examination by counsel for appellant Rama Bai herself, it was stated by this
witness that 6-7 other ladies were also mixed with present appellant Rama
Bai and he identified Rama Bai out of them. However, he admitted that no
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demand was made by Rama bai from this witness. Furthermore, in paragraph
14 again a suicidal question was put by counsel for appellant Rama Bai and
by denying the suggestion that Rama Bai had never met with this witness,
this witness on his own stated that since Rama Bai had come to the forest,
therefore, he knows her name. However, he was unable to point out that for
how many times and on what date, Rama Bai had visited the forest.
However, what was the role by Rama Bai has not been explained by this
witness either in his examination-in-chief or in the sucidal cross-examination
done by counsel for Rama Bai, but one thing is clear that this witness had
identified Rama Bai in jail in a Test Identification Parade conducted by the
police (Exhibit P-8), but in the dock also, appellant Rama Bai was identified
by this witness.
16. Now, the question for consideration is as to whether mere
identification is sufficient to convict Rama Bai or not?
16. No role has been assigned by either of the abductees, i.e.,,
Karunanidhi (PW-5) and R. L. Sinthil Kumar (PW-7). No recovery has been
made from Rama Bai. Even assuming that Rama Bai had visited the forest, in
absence of any material to show that either she was a member of the gang of
abductors or she was sharing any common object, it will not be possible for
this Court to convict Rama Bai only on the basis of the identification done
by Karunanidhi (PW-5) and R. L. Sinthil Kumar (PW-7). Furthermore, in
paragraph 1 of his examination-in-chief, Karunanidhi (PW-5) had also stated
that the officers of the Crime Branch had brought one person from the forest
and he was got identified by this witness, and on query, this witness had
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informed the police personnel of the Crime Branch that he was the person
who had prepared chapatis for this witness. Thus, the allegation made by the
prosecution against Rama Bai that she had provided food also stands falsified
from the aforementioned statement made by Karunanidhi (PW-5) in
paragraph 1 of his examination-in-chief.
17. Under these circumstances, this Court is of considered opinion that
merely because Rama Bai was identified by Karunanidhi (PW-5) and R. L.
Sinthil Kumar (PW-7), without there being any allegation against her, it
would be very hazardous for this Court to convict her for the charges
levelled against her.
18. Accordingly, the conviction of Rama Bai recorded by the Trial
Court by the impugned judgment is hereby set aside.
Ramvilas:
19. Although Karunanidhi (PW-5), in paragraph 2 of his examination-
in-chief, while identifying this appellant in the dock, had stated that this
appellant was also involved in the incident, but he has not clarified what role
was played by Ramvilas. Since he had missed certain aspects in his
examination-in-chief, therefore, he was declared partially hostile. In the
cross-examination by the Public Prosecutor, he stated that in his police
statement (Exhibit P-10), he had disclosed the name of Rajendra Gurjar
being the leader of the gang, as well as the names of Vijay Tomar, V.K.
Master @ Doctor @ Kamal Kishore, Deependra Singh, Jandel Singh,
Ramvilas Singh, Rakesh Gurjar, Lakhan Baghele, Ram Singh, Hublal
Baghele, Manisha @ Manish Baghele, Ram Khiladi Baghele, and Bharat
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Singh. This witness, in paragraph 8 of his cross-examination, has stated that
after he was thrown out of the car, he came to Gwalior, from where he went
to Jhansi and then went to Bhopal. While he was in Bhopal, he received a
telephonic call from Mathew Kumaran directing him to come back to
Gwalior as the accused persons had been arrested. In that regard, the Bhopal
police also went to his room and brought him back to Police Station Padav,
District Gwalior. He claimed that the accused persons were not shown to him
on the day when he came back from Bhopal, but admitted that they were
shown on the next day in the office of the Crime Branch. Further, in
paragraph 13 of his cross-examination, this witness has categorically
admitted that for the first time he saw the accused persons in the office of the
Crime Branch, thereafter in the Polytechnic College, and for the third time in
the Central Jail. It is not out of place to mention here that the police had
conducted the Test Identification Parade of accused Kamal Kishore @
Master @ Doctor @ K.K., Ram Vilas, Deependra @ Deepu, and Jandel
Singh twice. For the first time, the Test Identification Parade was conducted
in the premises of the Government Polytechnic College vide Identification
Parade Memo (Exhibit P-7). This identification parade was conducted on
21.01.2011. Thereafter, another Test Identification Parade was conducted on
23.02.2011 for the identification of Jandel Singh, Deependra, Kamal
Kishore, and Ramvilas. In that identification parade also, Karunanidhi (PW-
5) had identified Ramvilas vide Identification Memo (Exhibit P-9).
20. Now, the only question for consideration is whether the
identification of Ramvilas by Karunanidhi (PW-5) is trustworthy or not?
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21. It is a well-established principle of law that dock identification is
the substantive piece of evidence, and identification by the police is only for
corroboration purposes and for the satisfaction of the police that the
investigation is moving in the right direction. However, in case if the dock
identification is preceded by identification by the police, then the said
circumstance becomes an important piece of evidence against the accused.
However, if the dock identification is not preceded by identification by the
police, or the identification got done by the police is found to be faulty and
unreliable, then the dock identification has to be considered more
cautiously.
The Supreme Court in the case of P. Sasikumar Vs. The State Rep. by
the Inspector of Police, decided on 08.07.2024 in Cr.A. No. 1473/ 2024 has
held as under :
“12. …….. In cases where accused is a stranger to a witness and there has
been no TIP, the trial court should be very cautious while accepting the
dock identification by such a witness (See: Kunjumon v. State of Kerala
(2012) 13 SCC 750).”
The Supreme Court in the case of Sheo Shankar Singh Vs. State of
Jharkhand and another, reported in (2011) 3 SCC 654 , has held as under :
“46. It is fairly well settled that identification of the accused in the court
by the witness constitutes the substantive evidence in a case although any
such identification for the first time at the trial may more often than not
appear to be evidence of a weak character. That being so a test
identification parade is conducted with a view to strengthening the
trustworthiness of the evidence. Such a TIP then provides corroboration to
the witness in the court who claims to identify the accused persons
otherwise unknown to him. Test identification parades, therefore, remain
in the realm of investigation.
47. The Code of Criminal Procedure does not oblige the investigating
agency to necessarily hold a test identification parade nor is there any
provision under which the accused may claim a right to the holding of a
test identification parade. The failure of the investigating agency to hold aSignature Not Verified
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test identification parade does not, in that view, have the effect of
weakening the evidence of identification in the court. As to what should be
the weight attached to such an identification is a matter which the court
will determine in the peculiar facts and circumstances of each case. In
appropriate cases the court may accept the evidence of identification in the
court even without insisting on corroboration.
48. The decisions of this Court on the subject are legion. It is, therefore,
unnecessary to refer to all such decisions. We remain content with a
reference to the following observations made by this Court in
Malkhansingh v. State of M.P. [(2003) 5 SCC 746]: (SCC pp. 751-52, para
7)
“7. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are
relevant under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement
made in court. The evidence of mere identification of the
accused person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a prior
test identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is accordingly considered a
safe rule of prudence to generally look for corroboration of the
sworn testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence, however, is
subject to exceptions, when, for example, the court is
impressed by a particular witness on whose testimony it can
safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation, and
there is no provision in the Code of Criminal Procedure which
obliges the investigating agency to hold, or confers a right
upon the accused to claim a test identification parade. They do
not constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification parade would
not make inadmissible the evidence of identification in court.
The weight to be attached to such identification should be a
matter for the courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on
corroboration. (See Kanta Prashad v. Delhi Admn. [AIR 1958
SC 350], Vaikuntam Chandrappa v. State of A.P. [AIR 1960
SC 1340], Budhsen v. State of U.P. [(1970) 2 SCC 128 ] and
Rameshwar Singh v. State of J&K [(1971) 2 SCC 715].)”
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49. We may also refer to the decision of this Court in Pramod Mandal v.
State of Bihar [(2004) 13 SCC 150 ] where this Court observed: (SCC p.
158, para 20)“20. It is neither possible nor prudent to lay down any
invariable rule as to the period within which a test
identification parade must be held, or the number of witnesses
who must correctly identify the accused, to sustain his
conviction. These matters must be left to the courts of fact to
decide in the facts and circumstances of each case. If a rule is
laid down prescribing a period within which the test
identification parade must be held, it would only benefit the
professional criminals in whose cases the arrests are delayed as
the police have no clear clue about their identity, they being
persons unknown to the victims. They, therefore, have only to
avoid their arrest for the prescribed period to avoid conviction.
Similarly, there may be offences which by their very nature
may be witnessed by a single witness, such as rape. The
offender may be unknown to the victim and the case depends
solely on the identification by the victim, who is otherwise
found to be truthful and reliable. What justification can be
pleaded to contend that such cases must necessarily result in
acquittal because of there being only one identifying witness?
Prudence therefore demands that these matters must be left to
the wisdom of the courts of fact which must consider all
aspects of the matter in the light of the evidence on record
before pronouncing upon the acceptability or rejection of such
identification.”
50. The decision of this Court in Malkhansingh case [(2003) 5 SCC 746]:
and Aqeel Ahmad v. State of U.P. [(2008) 16 SCC 372 ] adopt a similar
line of reasoning.
The Supreme Court in the case of Prakash Vs. State of Karnataka
reported in (2014) 12 SCC 133 has held as under :
“15. An identification parade is not mandatory (Ravi Kapur v. State of
Rajasthan, (2012) 9 SCC 284) nor can it be claimed by the suspect as a
matter of right. (R. Shaji v. State of Kerala, (2013) 14 SCC 266 )The
purpose of pre-trial identification evidence is to assure the investigating
agency that the investigation is going on in the right direction and to
provide corroboration of the evidence to be given by the witness or victim
later in court at the trial. ( Rameshwar Singh v. State of J&K, (1971) 2
SCC 715 ) If the suspect is a complete stranger to the witness or victim,
then an identification parade is desirable (Mulla v. State of U.P., (2010) 3
SCC 508,Kishore Chand v. State of H.P., (1991) 1 SCC 286 ) unless the
suspect has been seen by the witness or victim for some length of time.
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(State of U.P. v. Boota Singh, (1979) 1 SCC 31 ) In Malkhansingh v. State
of M.P. (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7)“7. … The identification parades belong to the stage of
investigation, and there is no provision in the Code of Criminal
Procedure which obliges the investigating agency to hold, or
confers a right upon the accused to claim a test identification
parade. They do not constitute substantive evidence and these
parades are essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in
court. The weight to be attached to such identification should
be a matter for the courts of fact.”
The Supreme Court in the case of State of Rajasthan Vs. Daud Khan
reported in (2016) 2 SCC 607 has held as under :
“Dock identification: Submissions and discussion
42. It was contended by Daud Khan that the three chance witnesses, PW 7
Mahabir Singh, PW 23 Narender Singh and PW 24 Rishi Raj Shekhawat
were all from out of town. As such, they could not have identified Daud
Khan or Javed. It was further contended that no test identification parade
(for short “TIP”) was conducted and reliance could not have been placed
only on their dock identification.
43. No such argument was raised by Daud Khan either in the trial court or
in the High Court and we see no reason to permit such an argument being
raised at this stage.
44. That apart, it was recently held in Ashok Debbarma v. State of Tripura
that while the evidence of identification of an accused at a trial is
admissible as a substantive piece of evidence, it would depend on the facts
of a given case whether or not such a piece of evidence could be relied
upon as the sole basis for conviction of an accused. It was held that if the
witnesses are trustworthy and reliable, the mere fact that no TIP was
conducted would not, by itself, be a reason for discarding the evidence of
those witnesses. In arriving at this conclusion, this Court relied upon a
series of decisions. Earlier, a similar view was expressed in Manu Sharma
v. State (NCT of Delhi).
45. In any event, there were two other witnesses to the shooting, namely,
PW 11 Narendra Kumawat and PW 19 Suraj Mal who were local residents
and knew Nand Singh and Daud Khan and could easily identify them.
46. Five witnesses have testified to the events that took place at Bathra
Telecom on the night of 19-6-2004. We see no reason to disbelieve any of
them, particularly since they have all given a consistent statement of the
events. There are some minor discrepancies, which are bound to be there,
such as the distance between the gun and Nand Singh but these do not take
away from the substance of the case of the prosecution nor do they
impinge on the credibility of the witnesses.
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The Supreme Court in the case of Mukesh and another Vs. State (NCT
of Delhi) and others reported in (2017) 6 SCC 1 , has held as under:-
“143. In Santokh Singh v. Izhar Hussain, it has been observed that the
identification can only be used as
corroborative of the statement in court.
144. In Malkhansingh v. State of M.P., it has been held thus:
“7. … The identification parades belong to the stage of
investigation, and there is no provision in the Code of Criminal
Procedure which obliges the investigating agency to hold, or
confers a right upon the accused to claim a test identification
parade. They do not constitute substantive evidence and these
parades are essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in
court. The weight to be attached to such identification should
be a matter for the courts of fact. …”
And again:
“16. It is well settled that the substantive evidence is the
evidence of identification in court and the test identification
parade provides corroboration to the identification of the
witness in court, if required. However, what weight must be
attached to the evidence of identification in court, which is not
preceded by a test identification parade, is a matter for the
courts of fact to examine. …”
145. In this context, reference to a passage from Visveswaran v. State
represented by S.D.M. would be apt. It is as follows:
“11. …The identification of the accused either in test
identification parade or in Court is not a sine qua non in every
case if from the circumstances the guilt is otherwise
established. Many a time, crimes are committed under the
cover of darkness when none is able to identify the accused.
The commission of a crime can be proved also by
circumstantial evidence. …”
146. In Manu Sharma v. State (NCT of Delhi), the Court, after referring to
Munshi Singh Gautam v. State of M.P., Harbhajan Singh v. State of J&K
and Malkhansingh (supra), came to hold that the proposition of law is
quite clear that even if there is no previous TIP, the court may appreciate
the dock identification as being above board and more than conclusive.
147. In the case at hand, the informant, apart from identifying the accused
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who had made themselves available in the TIP, has also identified all of
them in Court. On a careful scrutiny of the evidence on record, we are of
the convinced opinion that it deserves acceptance. Therefore, we hold that
TIP is not dented.”
The Supreme Court in the case of Prakash Vs. State of Karnataka
reported in (2014) 12 SCC 133 , has held as under :
“15. An identification parade is not mandatory (2012) 9 SCC 284 nor can
it be claimed by the suspect as a matter of right. (2013) 14 SCC 266 The
purpose of pre-trial identification evidence is to assure the investigating
agency that the investigation is going on in the right direction and to
provide corroboration of the evidence to be given by the witness or victim
later in court at the trial. (1971) 2 SCC 715 If the suspect is a complete
stranger to the witness or victim, then an identification parade is desirable
(2010) 3 SCC 508 unless the suspect has been seen by the witness or
victim for some length of time. (1979) 1 SCC 31 In Malkhansingh v. State
of M.P. (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7)“7. … The identification parades belong to the stage of
investigation, and there is no provision in the Code of Criminal
Procedure which obliges the investigating agency to hold, or
confers a right upon the accused to claim a test identification
parade. They do not constitute substantive evidence and these
parades are essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in
court. The weight to be attached to such identification should
be a matter for the courts of fact.”
16. However, if the suspect is known to the witness or victim (1970) 3
SCC 518 or they have been shown a photograph of the suspect or the
suspect has been exposed to the public by the media (2013) 14 SCC 266
no identification evidence is necessary. Even so, the failure of a victim or
a witness to identify a suspect is not always fatal to the case of the
prosecution. In Visveswaran v. State (2003) 6 SCC 73 it was held: (SCC
p. 78, para 11)
“11. … The identification of the accused either in a test
identification parade or in court is not a sine qua non in every
case if from the circumstances the guilt is otherwise
established. Many a time, crimes are committed under the
cover of darkness when none is able to identify the accused.
The commission of a crime can be proved also by
circumstantial evidence.”
The Supreme Court in the case of State of Rajasthan Vs. Daud Khan
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reported in (2016) 2 SCC 607 has held as under :
“44. That apart, it was recently held in Ashok Debbarma v. State of
Tripura (2014) 4 SCC 747 that while the evidence of identification of an
accused at a trial is admissible as a substantive piece of evidence, it would
depend on the facts of a given case whether or not such a piece of evidence
could be relied upon as the sole basis for conviction of an accused. It was
held that if the witnesses are trustworthy and reliable, the mere fact that no
TIP was conducted would not, by itself, be a reason for discarding the
evidence of those witnesses. In arriving at this conclusion, this Court
relied upon a series of decisions. AIR 1958 SC 350 Earlier, a similar view
was expressed in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1.”
The Supreme Court in the case of Suraj Pal Vs. State of Haryana
reported in (1995) 2 SCC 64 has held as under:
“14……… It may be pointed out that the holding of identification parades
has been in vogue since long in the past with a view to determine whether
an unknown person accused of an offence is really the culprit or not, to be
identified as such by those who claimed to be the eyewitnesses of the
occurrence so that they would be able to identify the culprit if produced
before them by recalling the impressions of his features left on their mind.
That being so, in the very nature of things, the identification parade in
such cases serves a dual purpose. It enables the investigating agency to
ascertain the correctness or otherwise of the claim of those witnesses who
claimed to have seen the offender of the crime as well as their capacity to
identify him and on the other hand it saves the suspect from the sudden
risk of being identified in the dock by such witnesses during the course of
the trial. This practice of test identification as a mode of identifying an
unknown person charged of an offence is an age-old method and it has
worked well for the past several decades as a satisfactory mode and a
well-founded method of criminal jurisprudence. It may also be noted that
the substantive evidence of identifying witness is his evidence made in the
court but in cases where the accused person is not known to the witnesses
from before who claimed to have seen the incident, in that event
identification of the accused at the earliest possible opportunity after the
occurrence by such witnesses is of vital importance with a view to avoid
the chance of his memory fading away by the time he is examined in the
court after some lapse of time.”
The Supreme Court in the case of Dara Singh Vs. Republic of India
reported in (2011) 2 SCC 490 , it has been held as under :
“40. It is relevant to note that the incident took place in the midnight of
22-1-1999/23-1-1999. Prior to that, a number of investigating officers had
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recorded by PW 55, an officer of CBI. In the statements recorded by
various IOs, particularly the local police and State CID, these
eyewitnesses except few claim to have identified any of the miscreants
involved in the incident. As rightly observed by the High Court, for a long
number of days, many of these eyewitnesses never came forward before
the IOs and the police personnel visiting the village from time to time
claiming that they had seen the occurrence. In these circumstances, no
importance need to be attached on the testimony of these eyewitnesses
about their identification of the appellants other than Dara Singh (A-1) and
Mahendra Hembram (A-3) before the trial court for the first time without
corroboration by previous TIP held by the Magistrate in accordance with
the procedure established.
41. It is a well-settled principle that in the absence of any independent
corroboration like TIP held by the Judicial Magistrate, the evidence of
eyewitnesses as to the identification of the appellant-accused for the first
time before the trial court generally cannot be accepted. As explained in
Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1, that if the case is
supported by other materials, identification of the accused in the dock for
the first time would be permissible subject to confirmation by other
corroborative evidence, which are lacking in the case on hand except for
A- 1 and A-3.
42. In the same manner, showing photographs of the miscreants and
identification for the first time in the trial court without being corroborated
by TIP held before a Magistrate or without any other material may not be
helpful to the prosecution case. To put it clearly, the evidence of witness
given in the court as to the identification may be accepted only if he
identified the same persons in a previously held TIP in the jail.
43. It is true that absence of TIP may not be fatal to the prosecution. In the
case on hand, A-1 and A-3 were identified and also corroborated by the
evidence of slogans given in his name and each one of the witnesses
asserted the said aspect insofar as they are concerned. We have also
adverted to the fact that none of these witnesses named the offenders in
their statements except few recorded by IOs in the course of investigation.
Though an explanation was offered that out of fear they did not name the
offenders, the fact remains, on the next day of the incident, the Executive
Magistrate and top-level police officers were camping in the village for
quite some time. Inasmuch as evidence of the identification of the accused
during trial for the first time is inherently weak in character, as a safe rule
of prudence, generally it is desirable to look for corroboration of the sworn
testimony of witnesses in court as to the identity of the accused who are
strangers to them, in the form of earlier TIP. Though some of them were
identified by the photographs except A-1 and A-3, no other corroborative
material was shown by the prosecution.
44. Now let us discuss the evidentiary value of photo identification and
identifying the accused in the dock for the first time.
45. The learned Additional Solicitor General, in support of the prosecution
case about the photo identification parade and dock identification, heavily
relied on the decision of this Court in Manu Sharma (2010) 6 SCC 1. It
was argued in that case that PW 2, Shyan Munshi had left for Kolkata and
thereafter, photo identification was got done when SI Sharad Kumar, PW
78 went to Kolkata to get the identification done by picking up from the
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photographs wherein he identified the accused Manu Sharma though he
refused to sign the same. However, in the court, PW 2 Shyan Munshi
refused to recognise him. In any case, the factum of photo identification by
PW 2 as witnessed by the officer concerned is a relevant and an
admissible piece of evidence.
46. In SCC para 254, this Court held: (Manu Sharma case (2010) 6 SCC 1,
SCC p. 96)
“254. Even a TIP before a Magistrate is otherwise hit by
Section 162 of the Code. Therefore to say that a photo
identification is hit by Section 162 is wrong. It is not a
substantive piece of evidence. It is only by virtue of Section 9
of the Evidence Act that the same i.e. the act of identification
becomes admissible in court. The logic behind TIP, which will
include photo identification lies in the fact that it is only an aid
to investigation, where an accused is not known to the
witnesses, the IO conducts a TIP to ensure that he has got the
right person as an accused. The practice is not borne out of
procedure, but out of prudence. At best it can be brought under
Section 8 of the Evidence Act, as evidence of conduct of a
witness in photo identifying the accused in the presence of an
IO or the Magistrate, during the course of an investigation.”
47. It was further held: (Manu Sharma case (2010) 6 SCC 1, SCC pp. 98-
99, para 256)
“256. … ‘7. It is trite to say that the substantive evidence is
the evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are
relevant under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement
made in court. The evidence of mere identification of the
accused person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a prior
test identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is accordingly considered a
safe rule of prudence to generally look for corroboration of the
sworn testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence, however, is
subject to exceptions, when, for example, the court is
impressed by a particular witness on whose testimony it can
safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation, and
there is no provision in the Code of Criminal Procedure which
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obliges the investigating agency to hold, or confers a right
upon the accused to claim a test identification parade. They do
not constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification parade would
not make inadmissible the evidence of identification in court.
The weight to be attached to such identification should be a
matter for the courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on
corroboration.’*”
It was further held that: (Manu Sharma case (2010) 6 SCC 1, SCC p. 99,
para 259)“259. … The photo identification and TIP are only aides in the
investigation and do not form substantive evidence. The
substantive evidence is the evidence in the court on oath.”
48. In Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau (2000) 1
SCC 138 the following conclusion is relevant: (SCC p. 143, para 12)
“12. In the present case prosecution does not say that they
would rest with the identification made by Mr Mkhatshwa
when the photograph was shown to him. Prosecution has to
examine him as a witness in the court and he has to identify
the accused in the court. Then alone it would become
substantive evidence. But that does not mean that at this stage
the court is disabled from considering the prospect of such a
witness correctly identifying the appellant during trial. In so
considering the court can take into account the fact that during
investigation the photograph of the appellant was shown to the
witness and he identified that person as the one whom he saw
at the relevant time.”
49. In Dana Yadav v. State of Bihar (2002) 7 SCC 295, SCC para 38, the
following conclusion is relevant: (SCC p. 316)
“(e) Failure to hold test identification parade does not make the
evidence of identification in court inadmissible, rather the
same is very much admissible in law, but ordinarily
identification of an accused by a witness for the first time in
court should not form the basis of conviction, the same being
from its very nature inherently of a weak character unless it is
corroborated by his previous identification in the test
identification parade or any other evidence. The previous
identification in the test identification parade is a check valve
to the evidence of identification in court of an accused by a
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witness and the same is a rule of prudence and not law.”
50. It is clear that identification of accused persons by a witness in the
dock for the first time though permissible but cannot be given credence
without further corroborative evidence. Though some of the witnesses
identified some of the accused in the dock as mentioned above without
corroborative evidence the dock identification alone cannot be treated as
substantial evidence, though it is permissible.”
22. The moot question for consideration is whether the identification
of Ramvilas by Karunanidhi (PW-5) on 21.01.2011 vide Exhibit P-7 is a
reliable piece of evidence or not?
23. Ramvilas was identified for the first time by Karunanidhi (PW-5)
on 21.01.2011 in a Test Identification Parade conducted in the Government
Polytechnic College premises, Padav, District Gwalior. The Identification
Memo is Exhibit P-7. In this identification parade memo, the Tehsildar has
not stated that any other person was also mixed along with the accused
persons. Although R.K. Pandey (PW-13), who had conducted the Test
Identification Parade (Exhibit P-7), has stated that on 21.01.2011, he was
posted as Tehsildar, Gwalior. He received information from the police for
holding the Test Identification Parade. He conducted the Test Identification
Parade for four accused persons, namely Kamal Kishore, Ramvilas,
Deependra, and Jandel. At the time of identification, he had mixed four-four
other persons also. However, this fact was not mentioned in the Identification
Memo (Exhibit P-7). He further stated that Karunanidhi (PW-5) had rightly
identified the accused persons. At the time of the identification parade,
except this witness, the accused persons, and the persons who were mixed,
no other person was present. In the cross-examination, this witness has
admitted that in Identification Memo (Exhibit P-7), it is not mentioned that
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other persons were also mixed with the accused persons. It was also admitted
that no separate column for the said purpose was prepared. He also admitted
that he cannot disclose the names of the persons who were mixed at the time
of identification. He also admitted that it is not mentioned that any other
person was mixed with the accused persons.
24. Now, the only question for consideration is as to whether the oral
evidence by this witness that he had mixed other persons with the accused
persons for identification of Kamal Kishore, Ramvilas, and Deependra vide
Identification Memo (Exhibit P-7) is reliable or not?
25. It is not out of place to mention here that this identification was not
done inside the jail premises, but it was done in the premises of the
Government Polytechnic College. In paragraph 2 of his cross-examination,
this witness has stated that the accused persons were brought by the police
personnel. Although he once again denied the suggestion that no other
person was mixed at the time of identification vide identification memo
Exhibit P-7, but the only question is whether such denial is acceptable or
not?
26. This witness has not stated that the persons who were mixed with
the accused persons were brought by the police. This witness has also not
stated that he himself had arranged for other persons for mixing them with
the accused persons. Under these circumstances, when this witness has failed
to explain that how the persons, who were allegedly mixed with the accused
persons, had come to Polytechnic College for the purpose of T.I.P., then the
non-mentioning of the fact that other persons were also mixed with the
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accused persons in the identification parade memo (Exhibit P-7) assumes
importance.
27. Under these circumstances, this Court is of considered opinion that
since no one was mixed with the accused persons for conducting the
identification of accused persons in the identification parade, then the
identification parade (Exhibit P-7) conducted on 21.01.2011 will lose its
importance because if the witness was not required to exercise his
intelligence and memory to identify the real culprit out of the group of
persons standing before him, and pointing towards all the accused without
there being any exercise of his intelligence and memory, the reliance on test
identification conducted by the police will be very hazardous.
28. Furthermore, at the cost of repetition, it is once again clarified that
in paragraph 13 of his evidence, Karunanidhi (PW-5) had already admitted
that even prior to the identification of the accused in the Polytechnic
College, he had already seen them in the office of the Crime Branch. There is
another test identification of Ramvilas by this witness on 23.02.2011.
29. Now, the question for consideration is as to whether the
identification of the accused persons by Karunanidhi (PW-5) on 23.02.2011
vide Identification Parade Memo (Exhibit P-9) can be said to be reliable or
not?
30. It is the prosecution case itself that first Test Identification Parade
of the accused persons was conducted on 21.01.2011, in which Karunanidhi
(PW-5) had identified the accused persons. Therefore, admittedly,
Karunanidhi (PW-5) had already seen the accused persons on 21.01.2011 at
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the time of the identification parade which was conducted in the premises of
the Government Polytechnic College. Not only Karunanidhi (PW-5) had
admitted that even prior to the Test Identification Parade on 21.01.2011, he
had already seen the accused persons in the office of the Crime Branch, but
one thing is clear that prior to the second identification parade, i.e., on
23.02.2011 vide Exhibit P-9, Karunanidhi (PW-5) had already seen the
accused persons. Thus, where the witness had already seen the accused
persons prior to the holding of Test Identification Parade, then such
identification becomes unreliable. The Supreme Court in the case of Gireesan
Nair and Others Vs. State of Kerala, reported in (2023) 1 SCC 180 , has held
as under:
“30. It is a matter of great importance both for the investigating agency
and for the accused and a fortiori for the proper administration of justice
that a TIP is held without avoidable and unreasonable delay after the
arrest of the accused. This becomes necessary to eliminate the possibility
of the accused being shown to the witnesses before the test identification
parade. This is a very common plea of the accused, and therefore, the
prosecution has to be cautious to ensure that there is no scope for making
such an allegation. If, however, circumstances are beyond control and
there is some delay, it cannot be said to be fatal to the prosecution. But
reasons should be given as to why there was a delay (Mulla v. State of
U.P. [Mulla v. State of U.P., (2010) 3 SCC 508, para 45 : (2010) 2 SCC
(Cri) 1150] and Suresh Chandra Bahri v. State of Bihar [Suresh Chandra
Bahri v. State of Bihar, 1995 Supp (1) SCC 80 : 1995 SCC (Cri) 60] ).
31. In cases where the witnesses have had ample opportunity to see the
accused before the identification parade is held, it may adversely affect
the trial. It is the duty of the prosecution to establish before the court that
right from the day of arrest, the accused was kept “baparda” to rule out
the possibility of their face being seen while in police custody. If the
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any form i.e. physically, through photographs or via media (newspapers,
television, etc.), the evidence of the TIP is not admissible as a valid piece
of evidence (Lal Singh v. State of U.P. [Lal Singh v. State of U.P., (2003)
12 SCC 554 : 2004 SCC (Cri) Supp 489] and Suryamoorthi v.
Govindaswamy [Suryamoorthi v. Govindaswamy, (1989) 3 SCC 24 :
1989 SCC (Cri) 472] ).
32. If identification in the TIP has taken place after the accused is shown
to the witnesses, then not only is the evidence of TIP inadmissible, even
an identification in a court during trial is meaningless (Sk. Umar Ahmed
Shaikh v. State of Maharashtra [Sk. Umar Ahmed Shaikh v. State of
Maharashtra, (1998) 5 SCC 103 : 1998 SCC (Cri) 1276] ). Even a TIP
conducted in the presence of a police officer is inadmissible in light of
Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v.
State of Chhattisgarh [Chunthuram v. State of Chhattisgarh, (2020) 10
SCC 733 : (2021) 1 SCC (Cri) 9] and Ramkishan Mithanlal Sharma v.
State of Bombay [Ramkishan Mithanlal Sharma v. State of Bombay,
(1955) 1 SCR 903 : AIR 1955 SC 104] ).”
Under these circumstances, the second identification parade got done
by the police vide Identification Memo (Exhibit P-9) cannot be relied upon
by this Court.
31. Accordingly, the Identification Parade Memo (Exhibit P-9) and the
identification done by the police on 23.02.2011 are hereby rejected and
disbelieved.
32. Thus, it is clear that the identification of Ramvilas by Karunanidhi
(PW-5) is unreliable.
33. Sinthil Kumar (PW-7) is the another abductee who had identified.
Sinthil Kumar (PW-7), in his examination-in-chief, has stated that he had
identified Kamal Kishore, Ramvilas, and Deependra, as well as Rama Bai in
the jail, and the Identification Memo of Kamal Kishore, Ramvilas, Jandel,
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and Deependra is Exhibit P-9, and the Identification Memo of Rama Bai is
Exhibit P-8. This witness has also identified Ramvilas in the doc.
34. Although it is submitted by the counsel for appellants that the
prosecution has failed to prove that the accused persons were kept with
covered faces, but in view of the evidence of Sinthil Kumar (PW-7), it is
clear that he had no occasion to see the accused persons prior to the holding
of Test Identification Parade. In paragraph 1 of his examination-in-chief, it
was stated by this witness that he was released by the accused persons in
front of the temple of Patiyawala Baba, where he spent the entire night. On
the next day, he walked for 4 to 5 kilometres, took a lift in a truck, and came
to Gwalior after boarding a mini tempo from the highway. After reaching
Gwalior, he called his wife. It was also stated by this witness that before
releasing him, the accused persons had given him an amount of Rs. 1,000/-
and had also returned his wallet. Since this witness could not get a ticket
directly for Madras, therefore, he took a railway ticket up to Tirupati. After
getting down from the train at Vijayawada, he went to Madras. After
reaching his house, he came to know that Karunanidhi (PW-5) and other
persons who had come to give the ransom amount were already in Gwalior.
Later on, he came to know that the accused persons have been arrested.
Karunanidhi (PW-5) also completed the formalities and he came back to
Madras. Thereafter, on 21st of February, he was called by the police. He
gave his police statement and went to jail to identify the accused persons. In
jail, Tehsildar, who had conducted the T.I.P., Doctor, and two more accused
persons, who had helped him to eat food ( ज ह ने मुझे खाने म मेर मदद क थी ), and
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one lady were there, who were identified by this witness. After participating
in the identification parade, they went back. Later on, he moved an
application for Supurdgi of the money and got the money back from the
Court.
35. Thus, it is clear that immediately after Sinthil Kumar (PW-7) was
released by the accused persons, he came down to Gwalior and went back to
his house at Madras. Only on 21.02.2011, he came back to Gwalior and
participated in the Test Identification Parade. Since this witness had no
occasion to see the accused persons, therefore, the submission made by
counsel for appellant that there is nothing on record to suggest that the
accused persons were kept with covered faces does not assume importance.
36. This witness had also stated that although the news regarding the
arrest of the accused persons was flashed on the national news channel, but
he denied the fact that the photographs of the accused were also displayed.
However, one thing is clear that this witness had failed to identify co-accused
Deependra. Thus, it is held that the Test Identification Parade of Kamal
Kishore and Ramvilas vide Exhibit P-9 is a reliable document, and hence it is
held so.
37. Now, the only question for consideration is that what role was
played by Ramvilas in the entire incident?
38. The witnesses have not assigned any specific role to this accused.
Nothing incriminating has been recovered from this witness. Vide Seizure
Memo (Exhibit P-35), two old mobile phones worth Rs. 500/- each were
seized from the possession of this witness.
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39. It is not the case of the prosecution that the mobile phones seized
from the possession of Ramvilas were ever used for the commission of
crime. The prosecution has not relied upon any CDR to show that Ramvilas
was ever in touch with the accused persons. Even the CDR to show the
location of Ramvilas has also not been placed on record. Merely because two
old mobile phones were recovered, by itself, cannot be treated as an
incriminating circumstance against appellant Ramvilas. Even during the
identification parade or even in his evidence, no specific role was assigned to
this accused.
40. Under these circumstances, this Court is of considered opinion that
the prosecution has failed to prove the guilt of Ramvilas beyond reasonable
doubt and the solitary circumstance of identification of this witness cannot
be sufficient to hold this witness guilty of the charges levelled against him.
41. Accordingly, the conviction of appellant Ramvilas vide impugned
judgment and sentence is hereby set aside, and Ramvilas is acquitted of all
the charges.
Deependra:
42. As already pointed out, Deependra was identified by Karunanidhi
(PW-5) on two occasions, i.e., on 21.01.2011 vide Identification Memo
(Exhibit P-7) and on 23.02.2011 vide Identification Memo (Exhibit P-9). So
far as the identification of Deependra by Karunanidhi (PW-5) on 21.01.2011
is concerned, this Court has already disbelieved the said identification while
considering the case of appellant Ramvilas because in paragraph 13 of his
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cross-examination, Karunanidhi (PW-5) had already admitted that prior to
participating in the Test Identification Parade held on 21.01.2011, he had
already seen the accused persons. Furthermore, the Test Identification Parade
held on 21.01.2011 (Exhibit P-7) has also been disbelieved on the ground
that there is nothing on record to suggest that any other person was mixed
with the accused persons. Second Test Identification Parade held on
23.02.2011 (Exhibit P-9), in which Karunanidhi (PW-5) had identified
Deependra, has also been disbelieved on the ground that admittedly on
21.01.2011, Karunanidhi (PW-5) had already seen the appellant while
participating in the Test Identification Parade (Exhibit P-7). Further, in view
of the categorical admission made in paragraph 13 of his cross-examination,
according to which Karunanidhi (PW-5) had already seen the accused
persons twice, i.e., firstly in the office of the Crime Branch, and secondly
while participating in the Test Identification Parade held on 21.01.2011
(Exhibit P-7), the test identification by Karunanidhi on 23.02.2011 vide
Exhibit P-9 also becomes unreliable as he had already seen the accused
person before the Test Identification Parade dated 23.02.2011.
43. Thus, the identification of accused / appellant Deependra by
Karunanidhi vide Exhibit P-7 and Exhibit P-9 loses its effect and are
accordingly rejected.
44. So far as the identification by R. L. Sinthil Kumar (PW-7) is
concerned, it is suffice to mention here that R. L. Sinthil Kumar (PW-7)
could not identify Deependra in the Test Identification Parade which was
held on 23.02.2011 vide Exhibit P-9. Furthermore, R.L. Sinthil Kumar (PW-
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7) also could not identify Deependra in the dock. Thus, it is clear that the
prosecution has failed to prove the identification of Deependra.
45. Another circumstance against Deependra is the recovery of the
currency notes of Rs. 40,000/-. Eighty currency notes of the denomination of
Rs. 500/- each were seized from Deependra vide Seizure Memo (Exhibit P-
34). In the seizure memo itself, it is mentioned that a bundle containing 80
currency notes of the denomination of Rs. 500/- was seized, and on one of
the notes, there were signatures in English. Apart from that, one old used
Nokia mobile phone worth Rs. 500/- was also seized from the possession of
appellant Deependra. So far as the seizure of the Nokia phone is concerned,
the prosecution has failed to connect the same with the commission of the
offence.
46. Sanjay and Chuttan are the attesting witnesses of seizure and the
memorandum of Deependra. Sanjay (PW-11) has turned hostile and has not
supported the seizure of currency notes. However, he admitted his signatures
on various documents, including the Seizure Memo (Exhibit P-34). In the
cross-examination by the counsel for appellant Deependra, it was claimed by
this witness that he resides in front of Police Station Padav, and the police
had obtained his signatures on Exhibit P-19 to Exhibit P-36 in the police
station itself, and he was not aware of the contents of these documents.
Chuttan was not examined by the prosecution.
47. Thus, it is clear that the seizure of the amount of Rs. 40,000/- was
not supported by independent attesting witnesses. G. S. Tomar (PW-16), who
is the Investigating Officer, has proved the seizure of currency notes of Rs.
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40,000/-. However, the important aspect is that the memorandum of
Deependra was never recorded. According to G. S. Tomar (PW-16),
Deependra was brought by the raiding party and, accordingly, he was
arrested by this witness vide Arrest Memo (Exhibit P-20). In paragraph 6, he
has stated that ASI Chauhan had brought appellant Deependra and had also
brought the currency notes. Chauhan had not prepared any seizure memo.
This witness has further stated that he had not recorded the statements of ASI
Chauhan. He also admitted that in the arrest memo or in the seizure memo, it
was nowhere mentioned that at what place ASI Chauhan had recovered the
amount from appellant Deependra. However, he denied that that Seizure
Memo (Exhibit P-34) was fraudulently prepared. He further admitted that it
is not mentioned in the Seizure Memo (Exhibit P-34) that accused
Deependra had given the money to ASI Chauhan. Even in the arrest memo,
there is no mention that the currency notes of Rs. 40,000/- were recovered
from the body of appellant Deependra. Thus, the seizure of currency notes of
Rs. 40,000/- from Deependra becomes doubtful because the seizure was not
preceded by any disclosure statement and was not on account of disclosure
made by Deependra, coupled with the fact that there is nothing on record that
the amount was seized from the body of the accused at the time of his arrest.
On the contrary, the evidence of G. S. Tomar (PW-16) indicates that accused
Deependra and the currency notes were brought to the police station by ASI
Chauhan. No seizure memo was prepared by ASI Chauhan. No statement of
ASI Chauhan was recorded. Even ASI Chauhan was not examined by the
prosecution. Although the amount of Rs. 40,000/- allegedly recovered from
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the possession of Deependra was identified by Karunanidhi vide
Identification Memo Exhibit P-37 and Bala Murugan vide Identification
Memo Exhibit P-38, but once the prosecution has failed to prove that seizure
of Rs. 40,000/- from appellant Deependra was on account of disclosure made
by him, then the identification of said currency notes lost its efficacy.
48. Thus, it is clear that the prosecution has failed to prove the
identification of appellant Deependra and has also failed to prove the seizure
of currency notes of Rs. 40,000/- from Deependra.
49. Under these circumstances, the conviction and sentence awarded
by the Trial Court to Deependra are hereby set aside, and Deependra is
acquitted of all the charges.
Kamal Kishore @ Doctor @ Master @ K.K.:
50. This Court has already disbelieved the identification of accused
persons by Karunanidhi (PW-5). According to the prosecution case, Kamal
Kishore was also identified by Karunanidhi (PW-5) in the Test Identification
Parade conducted on 21.01.2011 vide Exhibit P-7. In view of the categorical
admission made by Karunanidhi in paragraph 13 of his cross-examination
that prior to holding of the first Test Identification Parade on 21.01.2011, he
had already seen the accused in the office of Crime Branch, coupled with the
fact that no other person was mixed with the accused persons while
conducting the Test Identification Parade on 21.01.2011, therefore, the test
identification done on 21.01.2011 vide Exhibit P-7 by Karunanidhi has
already been disbelieved by this Court in respect of the other co-accused
persons. For similar reasons, the identification of Kamal Kishore @ Doctor
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@ Master @ K.K. by Karunanidhi (PW-5) is hereby disbelieved.
Furthermore, another identification done for the second time by Karunanidhi
(PW-5) on 23.02.2011 has also been disbelieved by this Court for the reason
that Karunanidhi (PW-5) had already seen the accused persons prior to the
holding of Test Identification Parade on 23.02.2011 (Exhibit P-9), i.e., firstly
in the office of the Crime Branch and secondly in the premises of the
Government Polytechnic College while participating in the first Test
Identification Parade held on 21.01.2011 (Exhibit P-7).
51. As the dock identification of the accused in absence of T.I.P.
during trial is to be considered cautiously and the identification of Kamal
Kishore by Karunanidhi during the investigation has already been
disbelieved, accordingly, this Court is of considered opinion that the
prosecution has failed to prove that Kamal Kishore was duly identified by
Karunanidhi (PW-5).
52. However, Kamal Kishore @ Doctor @ Master @ K.K. was also
identified by another abductee, R. L. Sinthil Kumar (PW-7). R. L. Sinthil
Kumar (PW-7) in his evidence has stated that after he was released by the
abductors in front of the temple of Patiyawala Baba, he spent the entire
night. Then, after walking for 4 to 5 kilometres, he took a lift in a truck,
came to the highway, and thereafter, by boarding a tempo, he came to
Gwalior. It was also stated by this witness that before releasing him, the
abductors had also given him an amount of Rs. 1,000/- and had also returned
his wallet. Accordingly, he purchased a train ticket for Tirupati, deboarded
the train at Vijayawada, and from there he went to Madras. On 21st of
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February, he got an information to come to Gwalior and, accordingly, he
came down to Gwalior, got his statement recorded, and participated in the
Test Identification Parade held on 23.02.2011, in which he had identified
Kamal Kishore @ Doctor @ Master @ K.K. vide Identification Memo
(Exhibit P-9). Although the counsel for appellant tried to dislodge the
identification of Kamal Kishore @ Doctor @ Master @ K.K. vide Exhibit P-
9 by submitting that the details of the persons who were mixed at the time of
the identification have not been clarified in the Identification Parade Memo
(Exhibit P-9), but this Court is of considered opinion that the arguments
advanced by counsel for appellant for dislodging the evidence cannot be
accepted.
53. Bhupendra Singh Kushwaha, Tehsildar (PW-14), had conducted
the Test Identification Parade of appellant Kamal Kishore @ Doctor @
Master @ K.K. on 23.02.2011 inside the jail premises. Kamal Kishore @
Doctor @ Master @ K.K. was duly identified by Sinthil Kumar (PW-7) vide
Identification Parade Memo (Exhibit P-9). This witness has specifically
stated that other persons were also mixed along with the accused while
conducting the Test Identification Parade. He denied the suggestion that the
Test Identification Memo (Exhibit P-9) was fraudulently prepared. He denied
the suggestion that the accused persons were already shown to the witnesses
prior to the holding of the Test Identification Parade. He admitted that the
persons, who were mixed along with the accused, as well as the accused,
were not known to this witness. In absence of any infirmity committed by
Bhupendra Singh Kushwaha (PW-14) while conducting the test identification
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of Kamal Kishore @ Doctor @ Master @ K.K. vide Test Identification
Parade (Exhibit P-9), this Court is of considered opinion that the test
identification conducted during the investigation v i d e Exhibit P-9 is a
relevant fact. Furthermore, it is not out of place to mention here that the
identification of the accused in the dock is a substantive piece of evidence,
and it becomes a vital piece of the chain when it is preceded by a test
identification conducted by the police during the investigation. Furthermore,
the identification of Kamal Kishore @ Doctor @ Master @ K.K. by Sinthil
Kumar (PW-7) is natural because Sinthil Kumar (PW-7) had spent a
considerably long time along with this accused.
54. Furthermore, Kamal Kishore was arrested by the police on
16.01.2011 at 17:15 vide Arrest Memo (Exhibit P-19). The memorandum of
Kamal Kishore @ Doctor @ Master @ K.K. (Exhibit P-29) was recorded on
26.01.2011 at 13:35, in which he had stated thathe had collected the ransom
amount from the abductees on 13.01.2011 along with his brother Raju. The
remaining amount out of the ransom amount, i.e., Rs. 32,90,000/-, one gold
ring, and one gold chain, have been kept by him in the house of his sister
Kiran and her husband Naval Shakya, situated in village Devri, Police
Station Narwar, Police Outpost Mangrol, District Shivpuri, by burying them
in the ground, and they would have distributed it amongst themselves after
things had settled down. Accordingly, on 26.01.2011 at 16:15, an amount of
Rs. 32,90,000/-, as well as one gold chain weighing five tolas and one gold
ring, were recovered on the disclosure made by Kamal Kishore @ Doctor @
Master @ K.K., vide Seizure Memo (Exhibit P-36) from the house of Naval
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Shakya situated in village Devri, Narwar, District Shivpuri. Prior thereto, at
the time of the arrest of Kamal Kishore, an amount of Rs. 1,15,500/- was
also seized by the police vide Seizure Memo (Exhibit P-33). The bundles of
currency notes which were seized from appellant Kamal Kishore @ Doctor
@ Master @ K.K. on 16.01.2011 vide Seizure Memo (Exhibit P-33) and on
26.01.2011 vide Seizure Memo (Exhibit P-36) were also containing the slips
of the banks of Chennai, and some of the currency notes were also bearing
signatures in English.
55. Although Sanjay (PW-11), who was the attesting witness to the
memorandum and the seizure memo, has turned hostile, and another attesting
witness Chuttan has not been examined by the prosecution, but it is suffice to
mention here that the seizure memo can also be proved by the Investigating
Officer.
The Supreme Court in the case of Yakub Abdul Razak Memon v.
State of Maharashtra, reported in (2013) 13 SCC 1 , has held that there is no
ground to discard prosecution, if police witness is found acceptable.
However, the duty of Court is to adopt a greater care while scrutinizing the
evidence of police official. If the evidence of police official is found
acceptable, then it would be erroneous proposition that the Court must reject
his evidence solely on the ground that no independent witness was examined.
Similarly, the Supreme Court in the case of Govindaraju v. State ,
reported in (2012) 4 SCC 722 , has held that if the testimony of a police
witness is reliable, trustworthy, cogent and duly corroborated or admissible
evidence, then the statement of such witness cannot be discarded only on the
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ground that he is a police officer and he may have some interest in success of
the case.
A similar law has been laid down by the Supreme Court in the case of
Rohitash Kumar v. State of Haryana , reported in (2013) 14 SCC 434 , and
has held that a witness is normally considered to be independent, unless he
springs from sources, which are likely to be tented and this usually means
that said witness has caused to bear such enmity against the accused so as to
implicate him falsely. It has also been held that there cannot be any
prohibition to the effect that a policeman cannot be a witness or that his
deposition cannot be relied upon.
The Supreme Court in the case of Mukesh Singh v. State (Narcotic
Branch of Delhi), reported in (2020) 10 SCC 120 , has held that testimony of
police personnel will be treated in the same manner as testimony of any
other witness and there is no principle of law that without corroboration by
independent witnesses, his testimony cannot be relied upon. The
presumption that a person acts honestly applies as such in favour of a police
officer as of other persons, and it is not judicial approach to disturb and
suspect him without there being grounds therefore.
The Supreme Court in the case of Tahir v. State (Delhi) , reported in
(1996) 3 SCC 338 , has held that if no infirmity is attached to the testimony
of police officials, then because they belong to police force, there is no rule
or evidence which lays down that conviction cannot be recorded on the
evidence of police officials, if found reliable, unless corroborated by some
independent witness. The rule of prudence however only requires a more
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careful scrutiny of their evidence.
A similar law has been laid down by the Supreme Court in the case of
Girja Prasad v. State of M.P. , reported in (2007) 7 SCC 625 , Praveen Kumar
v. State of Karnataka , reported in (2003) 12 SCC 199 and Karamjit Singh v.
State (Delhi Admn.), reported in AIR 2003 SC 1311 .”
56. Counsel for appellant could not point out any discrepancy in the
evidence of G. S. Tomar (PW-16) to show that the recording of
memorandum or the seizure of Rs. 32,90,000/- on 26.01.2011 vide Seizure
Memo (Exhibit P-36) and Rs.1,15,500/- on 16.01.2011 vide Seizure Memo
(Exhibit P-33) was unreliable. Furthermore, the bundles of currency notes
which were seized from the possession of Kamal Kishore @ Doctor @
Master @ K.K. were containing the slips of the banks of Chennai, and some
of the currency notes were also containing some signatures in English.
Admittedly, the abductees were from Chennai, and they had brought the
money from Chennai to pay ransom to the accused persons. Kamal Kishore
@ Doctor @ Master @ K.K. has also not given any explanation about the
source of the amount of Rs. 32,90,000/- + Rs. 1,15,500/- which was
recovered from him on 26.01.2011 and 16.01.2011 respectively.
57. Now, the next question for consideration is as to whether the
amount of Rs. 32,90,000/- + Rs. 1,15,500/- seized from the possession of
Kamal Kishore @ Doctor @ Master @ K.K. vide Seizure Memos (Exhibit P-
36 and Exhibit P-33) respectively can be said to be the amount of ransom
paid by the abductees to this accused or not?
58. As already pointed out, in the Seizure Memos (Exhibit P-33 and
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Exhibit P-36), it was specifically mentioned that the bundles of notes were
carrying the slips of a bank at Chennai and also some signatures in English,
therefore, it is clear that the currency notes which were seized from the
possession of Kamal Kishore @ Doctor @ Master @ K.K. vide Seizure
Memos (Exhibit P-33 and Exhibit P-36) contained specific and peculiar
identification marks. The amount of ransom was handed over by
Karunanidhi. Vide identification parade conducted on 22.02.2011 (Exhibit P-
37), the currency notes seized from the possession of Kamal Kishore @
Doctor @ Master @ K.K., were got identified from Karunanidhi. The
currency notes were duly identified by Karunanidhi (PW-5). Although in the
same test identification parade, the currency notes of Rs. 40,000/- allegedly
seized from the possession of Deependra were also got identified, but since
the prosecution has failed to prove the seizure of the currency notes of Rs.
40,000/- from Deependra, therefore, this Court has already held that the
identification of the currency notes of Rs. 40,000/- from Deependra by
Karunanidhi has lost its efficacy, but the seizure of Rs. 32,90,000/- + Rs.
1,15,500/- = Rs. 34,40,500/- from appellant Kamal Kishore @ Doctor @
Master @ K.K. has been duly proved by the prosecution. Furthermore,
according to prosecution case, the ransom amount was brought by Bala
Murugan (PW-9) from Chennai. The currency notes seized from the
possession of Kamal Kishore @ Doctor @ Master @ K.K. were also got
identified from Bala Murugan (PW-9) vide Identification Memo (Exhibit P-
38).
59. Bala Murugan (PW-9) has stated that when he was informed that
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the abductors are demanding Rs. 1 crore, then his father had instructed him
to make arrangements for money. Then he arranged for the money and came
to Jhansi along with the money. In the cross-examination, he has stated that
they left for Jhansi on the 11th by GT Express train and deboarded at Jhansi
on the 12th. In paragraph 8 of his cross-examination, he had clarified that it
is incorrect to say that after reaching Gwalior, he had signed on the notes, but
he has specifically stated that he had already signed on the notes prior to
leaving his village. No question was put to this witness with regard to the
details of the bank from where or the bank accounts from which the amount
of Rs. 35 lakhs was withdrawn by this witness. Thus, it is clear that not only
Bala Murugan (PW-9) had made arrangements for the ransom amount, but
he brought it from Chennai to Gwalior and had already put his signatures on
some of the currency notes by way of specific marks, and the currency notes
of Rs. 34,40,500/- seized from Kamal Kishore were also identified by Bala
Murugan (PW-9) vide Identification Memo (Exhibit P-38), and it is also held
that not only the recovery of Rs. 34,40,500/- from Kamal Kishore was
proved by the prosecution vide Seizure Memos (Exhibit P-33 and Exhibit P-
36), but the identification of the said currency notes vide Identification
Memos (Exhibit P-37 and Exhibit P-38) has also been proved by the
prosecution.
60. However, this Court would like to clarify one thing: i.e., the
currency notes were never produced in the Court for their identification.
61. Now, the question for consideration is whether the identification
got done by the police during the investigation vide Identification Memos
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(Exhibit P-37 and Exhibit P-38) from Karunanidhi (PW-5) and Bala
Murugan (PW-9) respectively can be relied upon or not?
62. From the record, it is clear that after the currency notes were
recovered, an application was made by Sinthil Kumar (PW-7) for the release
of the currency notes, as well as the gold chain and the gold ring. A total
amount of Rs. 34,80,500/- was seized from Kamal Kishore @ Doctor @
Master @ K.K. and Deependra. The application filed by R. L. Sinthil Kumar
was allowed by the Special Judge by order dated 28.02.2011, which reads as
under:
“आवेदक आर. एल. िसंिथल कुमार क ओर से ी आर. ह . घुरैया अिधव ा
उप थत ।
अिभयोजन क ओर से ी जे. एस. भदौ रया, अपर लोक अिभयोजक उप थत
।
पुिलस थाना पडाव से अपराध कृ . 15/2011 क केसडायर मय कै फयत के
ा ।
उभय प के तक आवेदक क ओर से तुत आवेदन-प अ तगत धारा
451,457 द. .सं. के संबंध म सुने गये ।
आवेदक क और ते उ आवेदन इस आशय का पेश कया गया है क आवेदक
यापार के िसलिसले म वािलयर आया हुआ था । उसे मूग ं फली दखाने के िलये
वजय नामक य लेकर गया और उसे जंगल म डकैत को स प दया। आवेदक
क णािनिध डकैत को 35,00,000/- पये फरौती क रकम अदा कर मु हुए ।
उ करण म पुिलस ारा फरौती क रािश म 34,80,000/- पये एवं सोने क
जंजीर एवं अंगूठ ज कर िलये गये ह। उ रकम एवं सोने का सामान आवेदक का
है । अतः उ रकम एवं सोने के जेवरात आवेदक को सुपुदगी पर दान कये जाय
।
उभय प के तक पर वचार कया गया तथा ा केस डायर एवं कै फयत
का अवलोकन कया। फ रयाद मु थूकुमार क रपोट के आधार पर पुिलस थाना
पड़ाव म िसं दलकुमार एवं क णािनिध का फरौती के िलये अपहरण करने के संबंध
म धारा 364-ए भा.दा.सा. एवं धारा 11, 13 म य दे श डकैती एवं यपहरण भा वत
े अिधिनयम का अपराध पंजीब कया गया है । उ अपराध पुिलस दारा
आरोपीगण को िगर तार कर कुल 34,80,000/- पये क रकम एवं एक सोने क
चेन एवं एक सोने क अंगूठ ज क गयी है । आवेदक क और से आवेदन-प के
साथ जो द तावेज तुत कये गये ह, उनके अवलोकन से उ रकम आवेदक के
वािम व क होना तीत होता है । केसडायर एवं कै फयत के अवलोकन से करणं
म ज गुदा सोने क चेन एवं एक सोने क अंगूठ भी आवेदक के वािम व क
होना तीत होता है ।
करण के आरोपीगण ारा उ रकम एवं सोने के जेवरात आवेदक को सुपुदगी
पर दये जाने म कोई आप न होना य कया गया है तथा पुिलस थाना पडाव
ारा कै पयत रपोट म उ रकम एवं सोने के जेवरात आवेदक को दान करने म
कोई आप न होना य कया गया है । ऐसी थित म उ रकम एवं सोने के
जेवरात आवेदक को सुपुदगी पर दान कया जाना यायोिचत तीत होता है ।
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 07-07-2026
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43 CRA-768-2014
अतः वचारोपरा त आवेदक आर. एल. िसंिथल कुमार क ओर से तुत उ
आवेदन वीकार कया जाता है और आदे िशत कया जाता है क य द आवेदक क
ओर से 50,00,000/- पये {पचास लाख पये} का सुपुदगीनामा पेश कया जाये,
तो उसे पुिलस थाना पडाव के अपराध कुमांक 15/2011 म ज शुदा कुल
34,80,000/- पये चौतीस लाख अ सी हजार पये } तथा एक सोने क चेन एवं
एक सोने क अंगुठ िन न शत के अधीन सुपुदगी पर दान कये जायेः-
1- यह क आवेदक उ सोने क चैन एवं सोने क अंगुठ को न तो कह ं व य
करे गा और न ह उसके व प म कोई प रवतन करे गा ।
2- यह क यायालय ारा आहूत कये जाने पर आवेदक उ सोने क चेन एवं
सोने क अंगूठ यायालय म तुत करे गा ।
आदे श क ित ब डल करण म संल न क जाये ।
यह एम. जे. सी. करण दा खल रकाड हो । ”
It is clear from the said order that the accused persons had not
expressed any objection to the handing over of the currency notes to Sinthil
Kumar.
63. Kamal Kishore never claimed his right or title over the property
seized from his possession. Once the accused had given their no-objection to
the Supurdgi of the currency notes and did not raise any doubt or objection
with regard to the identity of the currency notes, then under these
circumstances, this Court is of considered opinion that even in absence of
any identification of the currency notes in the Court, the identification got
done by the police during the investigation can be relied upon. Even
otherwise, Sinthil Kumar (PW-7) has also supported the prosecution case.
Therefore, it is proved that not only an amount of Rs. 34,40,500/- was seized
from the possession of Kamal Kishore @ Doctor @ Master @ K.K. vide
Seizure Memos (Exhibit P-33 and Exhibit P-36) respectively, but they were
duly identified by Karunanidhi (PW-5) vide Identification Memo (Exhibit P-
37) and Bala Murugan (PW-9) vide Identification Memo (Exhibit P-38).
64. So far as the identification of the gold chain and gold ring is
concerned, it is clear from the order passed by the Special Judge at the time
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44 CRA-768-2014
of handing over the articles on Supurdgi that it was specifically mentioned
that R. L. Sinthil Kumar (PW-7) will be required to produce the articles as
and when they are directed by the Court. From the evidence, it appears that
the gold ring and the gold chain could not be identified by the witnesses in
the Court as they were not produced. Therefore, although the seizure of the
gold ring and gold chain from Kamal Kishore vide Exhibit P-33 and Exhibit
P-36 has been proved by the prosecution, but in the absence of any
substantive evidence, i.e., the identification of the gold chain and gold ring in
the Court, it cannot be said that the gold ring and gold chain were duly
identified by the witnesses. Therefore, by disbelieving the identification of
the gold chain and gold ring by the witnesses on the ground of lack of
substantive evidence, it is held that the one gold chain and gold ring were
also seized from Kamal Kishore @ Doctor @ Master @ K.K. vide Seizure
Memos (Exhibit P-34 and Exhibit P-36). However, Kamal Kishore @ Doctor
@ Master @ K.K. did not claim any ownership in respect of the gold chain
and gold ring.
65. Under these circumstances, although the prosecution has failed to
prove the identification of the gold chain and gold ring, still in absence of
any claim regarding the ownership in respect of the gold chain and gold ring,
this Court is of considered opinion that the prosecution has successfully
proved that the gold chain and gold ring belonging to the abductees were
also recovered from the possession of Kamal Kishore @ Doctor @ Master @
K.K.
66. It is also the case of the prosecution that one person had called
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Mathew Kumaran on the mobile phone of his brother and had talked to him
in English by demanding a ransom of Rs. 1 crore. It is the case of
Karunanidhi (PW-5) and R. L. Sinthil Kumar (PW-7) that although Rs. 2
crores and plus were demanded by way of ransom, but only after negotiation
they agreed to accept Rs. 32 lakhs. Mathew Kumaran (PW-8), who had
lodged the FIR, has stated that on 07.01.2011 at about 3:30 p.m., he received
a call on his mobile from the mobile phone of his brother. The person who
was on the other side of the mobile phone was talking in English and
demanded a ransom of Rs. 1 crore. Although there is no identification of the
voice of the person who had called from the other side thereby demanding a
ransom of Rs. 1 crore, but statement of accused Kamal Kishore recorded
under Section 313 of the Cr.P.C. assumes importance. In his statement, he
has admitted that he had made a ransom call, but he claimed that he was
forced to make that call. The recovery of huge amount of Rs. 34,40,500/-
from Kamal Kishore clearly indicates that he was involved in the
commission of the offence. The acceptance by Kamal Kishore in his
statement under Section 313 of the Cr.P.C. that he had made a ransom call
by talking in English proves the prosecution case that one unknown person
had called Mathew Kumaran (PW-8) from the mobile phone of Sinthil
Kumar (PW-7) and had made a demand for a ransom of Rs. 1 crore. The
explanation given by Kamal Kishore that he was forced to make such a call
cannot be accepted in the light of the recovery of the huge amount of Rs.
34,40,500/- from his possession. Once Kamal Kishore has admitted his act of
making a ransom call, thereby demanding an amount of Rs. 1 crore, it is also
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46 CRA-768-2014
held that the prosecution has successfully proved that it was Kamal Kishore
@ Doctor @ Master @ K.K. who had made a ransom call from the mobile
phone of one of the abductees, Sinthil Kumar (PW-7), to Mathew Kumaran
(PW-8).
67. Furthermore, it is the case of one of the abductee R.L. Sinthil
Kumar (PW-7) that he had handed over his ATM card along with the PIN
code. Karunanidhi (PW5) has also stated that their ATM cards were taken
by abductors and abductors had also asked for PIN of ATM card.
Karunanidhi (PW5) had forgotten his PIN number, but Sinthil Kumar (PW7)
gave PIN number of his ATM Card. Karunanidhi (PW5) and R.L. Sinthil
Kumar (PW7) were abducted on 04.01.2011. Naresh Kumar Sharma (PW1),
who was the Manager of HDFC Bank, Dhaulpur, has stated that amount was
withdrawn by using ATM from the account maintained in the Bank on 5 th,
6 th and 07.01.2011. The details of transaction are Exhibit P-2 and seizure
memo is Exhibit P-1. This witness has also stated that footage of CCTV
installed in the ATM booth was also handed over to Police in a floppy, but
that floppy was never produced by the Police and in spite of opportunity
given by the trial Court, it was informed that the same is not traceable.
Naresh Kumar Sharma (PW-1) was cross-examined by the accused. He
stated that the amount of Rs. 25,000/- was withdrawn on 05.01.2011 from
A/c No.608101501388, on 06.01.2011 Rs. 25,000/- was withdrawn from the
same account and on 07.01.2011, Rs. 23,000/- was withdrawn from the same
account. Thus, in all, Rs. 73,000/- were withdrawn. None of the appellants
has claimed that A/c No.608101501388 belongs to them.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 07-07-2026
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68. The Trial Court has also noticed various lapses committed by
Investigating Office G.S.Tomar (PW-16) and also condemned his conduct.
Although vide seizure memo (Exhibit P-1), CCTV footage of the ATM
booth, which was saved in a floppy, was seized by the Police, but the floppy
was never produced along with the charge-sheet or even at later stage.
69. Be that whatever it may be. Trial Court has already taken note of
faulty investigation done by G.S.Tomar (PW-16), therefore, no further
observations are required.
70. Section 66-C of the Information Techonology Act, 2000 reads as
under:-
“66C. Punishment for identity theft. -Whoever, fraudulently or
dishonestly make use of the electronic signature, password or any
other unique identification feature of any other person, shall be
punished with imprisonment of either description for a term which
may extend to three years and shall also be liable to fine which
may extend to rupees one lakh.”
71. Since the PIN number of ATM Card of R.L. Sinthil Kumar (PW-
7) was taken by Kamal Kishore @ Doctor @ Master @ K.K. on 04/01/2011
and as per the evidence of Naresh Kumar Sharma (PW-1) supported by
details of transactions done on 5th, 6 th and 07.01.2011 from A/c
No. 608101501388 which have been duly proved, it is clear that Kamal
Kishore @ Doctor @ Master @ K.K. was primarily responsible for using the
ATM card of R.L. Sinthil Kumar (PW-7). Although it may be possible
that Kamal Kishore @ Doctor @ Master @ K.K. might not have used the
ATM card personally but even if he had handed over the same to somebody
else (whose identity could not be established on account of non filing of
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CCTV footage of ATM booth), the guilt of Kamal Kishore @ Doctor @
Master @ K.K. would not get diluted because he had not only collected the
ATM card but also its PIN number from R.L. Sinthil Kumar (PW-7).
72. Considering the totality of facts and circumstanes of the case, it is
held that the trial Court did not commit any mistake by convicting the
appellant Kamal Kishore @ Doctor @ Master @ K.K. under Section 364A
of IPC r/w S.13 of the MPDVPK Act, Section 419 of IPC and Section 66C
of the Information Techonology Act, and the same are hereby affirmed.
73. The manner in which the offence was committed, huge amount of
ransom was demanded and ATM Card of R.K.Sinthil Kumar (PW-7) was
used and the manner in which complainant party was compelled to come
from Tamilnadu to satisfy the demand of ransom made by appellant Kamal
Kishore @ Doctor @ Master @ K.K., this Court is of considered opinion that
life imprisonment awarded by the trial Court to him for offence under
sections 364A of IPC r/w S.13 of MPDVPK Act does not call for any
interference. So far as 3 years’ RI awarded of offence under Section 419 of
IPC and Section 66C of IT Act are concerned, the same are also hereby
affirmed.
74. From the record, it appears that appellant Kamal Kishore @
Doctor @ Master @ K.K. was arrested on 16/1/2011 vide arrest memo
(Ex.P/19). It is clear from the certificate issued by the trial Court under
section 428 of Cr.P.C. that appellant Kamal Kishore @ Doctor @ Master @
K.K. was never granted bail during trial. From the record of appeal also it
appears that Kamal Kishore @ Doctor @ Master @ K.K. was never granted
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Signing time: 07-07-2026
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49 CRA-768-2014
bail. Thus, it is clear that he has already undergone actual jail sentence of
more than 15 years. Whether he has been released by the State after
undergoing actual jail sentence of 14 years after applying the remission
policy or not is not known because the appeal by Kamalkishore @ Doctor @
Master @ K.K. was filed through jail, and his counsel has not appeared
therefore, Shri Sushil Goswami and Shri A.K.Jain, Advocates, were
appointed as amicus curaie.
75. Accordingly, it is held that in case of appellant Kamal Kishore @
Doctor @ Master @ K.K. has already been released after extending the
benefit of remission, then no further action is required. However, if
appellant Kamal Kishore @ Doctor @ Master @ K.K. is still in Jail and has
not been released in the present case, then he shall undergo the remaining jail
sentence. It is made clear that this Court has not imposed punishment of life
imprisonment without remission. Therefore, the State shall be free to apply
the policy for premature release.
76. Accordingly, Cr.A. Nos. 742/2014, 767/2014 and 768/2014 are
hereby allowed and appellants Deependra @ Deepu, Ramvilas and Ramabai
@ Helo are acquitted of all the charges. Their bail bonds and surety bonds
are hereby discharged. Cr.A. No.962/2014 filed by Kamal Kishore @ Doctor
@ Master @ K.K. is hereby dismissed with observations made in Paragrah
75.
(G. S. AHLUWALIA) (ANURADHA SHUKLA)
JUDGE JUDGE
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 07-07-2026
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AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 07-07-2026
10:37:38 AM
