Delhi District Court
State vs Govind Awasthi & Prashant Awathi (Both ... on 8 March, 2011
FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 291/2006 PS: Anand Parbat U/s 363/34 IPC Unique ID No.: 02401R0260052001 J U D G M E N T:
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(a) S.No. of the case : 286/2
(b) Name of complainant : Shri Nand Lal, S/o Shri Shiv Bahadur, R/o 182/2, Punjabi Basti, Baljeet Nagar, New Delhi.
(c) Date of commission of offence : 07.09.2000
(d) Name of the accused : (i) Govind Awasthi @ Bhoora,
S/o Shri Ram Kishan Awasthi,
R/o Village Khiriya Kalyanpur,
PO: Shamsher Ganj, PS Kisni,
District Manpuri, U.P.
(ii) Prashant @ Deepu,
S/o Shri Ram Avtar Awasthi,
R/o House near Kushmara
Chowki, PS Kisni,
District Manpuri, U.P.
(e) Offence complained of : U/s 363/34 IPC
(f) Plea of accused : Both pleaded not guilty
(g) Final arguments heard on : 08.03.2011
(h) Final Order : Both Acquitted
(i) Date of such order : 08.03.2011
______________________________________________________________ State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 1 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case in brief are that on 08.09.2000, one Shri Nand Lal lodged a report with PS Anand Parbat that his son, aged about four years, namely Vicky, who was studying in S.N Giri Public School did not return home after the school timings on 07.09.2000 and on enquiries made by him, he came to know that one person claiming himself to be "uncle" of the child had gone to school and collected the child on 07.09.2000. On the basis of aforesaid statement, case FIR in the matter U/s 363 IPC was registered.
Thereafter, police investigated the matter. Hue & Cry notices were published for general public and information about missing of the child was also sent to Doordarshan.
2. Thereafter, on 18.09.2000, at about 10.25 AM a telephonic message was received at PS Anand Parbat from one SI Pradeep Kumar Sharma of PS Baha, District Agra, UP that child Vicky, aged about 4 years was recovered in Agra, who was carrying his identity card from where his parentage and address could be known. After receipt of the aforesaid information, local police went to Agra and collected the child from UP police. Thereafter, the custody of the child was restored with his parents. State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 2 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011
3. As per the further case of the prosecution, on 22.09.2000, when mother of the child namely Smt.Usha was cleaning the house, she found two hand written letters, purportedly written by one Deepu @ Bhola, claiming himself to be the King Dacoit of Chambal, asking ransom for the release of child Vicky. The said letters were handed over to the police by the father of the child Shri Nand Lal. Thereafter, on 09.10.2000, accused Govind Awasthi was arrested in the matter, who made confessional statement while in police custody to the effect that he and his associate/coaccused Prashant Awasthi had kidnapped the child Vicky and had written the aforesaid two ransom letters. On the basis of aforesaid disclosure statement of accused Govind Awasthi, accused Prashant Awasthi was also arrested on 03.11.2000 and his confessional statement in the matter was also recorded. Thereafter, both the accused persons stood chargesheeted for offences punishable U/s 364 A/363/34 IPC.
4. In due course, the matter was committed to the court of Sessions, however, vide order dated 24.04.2001, the learned ASJ held that ingredients of offence punishable U/s 364 A IPC were not made out in the matter and as such, the matter was sent back to the court of learned Magistrate.
5. Thereafter the, accused persons were supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 29.09.2003, charge U/s 363/34 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial. State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 3 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011
6. In order to bring home the guilt of accused persons, prosecution examined thirteen witnesses, whereafter the PE in the matter was closed and statements of both the accused persons U/s 313 Cr.P.C were recorded, wherein they abjured all the allegations against them and claimed to have been falsely implicated in the matter. However, they did not lead any defence evidence despite opportunity.
7. Learned Magistrate vide her judgment dated 24.11.2010 convicted both the accused persons for offence punishable U/s 363 IPC and even heard arguments on sentence on 14.12.2010 and found that she would not be able to adequately punish the accused persons (convicts) and as such, in view of the provisions of Section 325 Cr.P.C, this matter was placed before this Court.
8. This court as per law heard the arguments in the matter afresh. The learned defence counsel Shri R.N Sharma, Advocate very vehemently argued that there is no legally sustainable evidence against the accused persons in the matter.
9. Per contra, the learned APP has very vehemently argued that FSL report in the matter, which is admissible per se in evidence U/s 293 Cr.P.C is conclusive proof on record that the accused persons had written the aforesaid ransom letters.
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10. Before adverting to the rival arguments, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
11. PW1, HC Udai Singh was posted as Duty Officer in PS Anand Parbat at the relevant time and he has proved on record the case FIR as Ex.PW1/A.
12. PW2, Shri Nand Lal, the father of the child in his evidence has reiterated the contents of his statement made by him before the police on the basis of which the FIR in the matter was recorded and has further stated that when his son Vicky did not return till evening at house from the school, he made enquiries from the Principal of the school, who communicated him that one person who had half broken tooth had come to the school at about 12.30 PM and taken the child Vicky alongwith him. He also deposed about his wife having received two letters after the restoration of the child and he having handed over the same to the police. He further stated that he had gone to Agra alongwith the police party, where the police party came to know that both the accused persons had kept the child in Agra and had written ransom letters to him. In his crossexamination, he was confronted with his statement about the description of the person who had kidnapped his son about he having a broken tooth, which was never stated by him to police. He categorically admitted that police did not record his statement on 22.09.2000, State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 5 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011 when he had handed over two ransom letters. He further stated that at Agra one Rampal Nai had told the police that accused persons had kept the child there. He further admitted that no writing work was done by the police in UP.
13. PW3, Smt.Usha, the mother of the child in her evidence stated on the lines of PW1 as far as the missing of the child is concerned. She further stated that two days' after the restoration of the custody of Vicky, at the time of cleaning the house, she came in possession of two ransom letters, which she handed over to her husband, who in turn handed the same to the police. In her crossexamination, this witness categorically admitted that police did not record her statement in the matter. She further stated that her statement regarding recovery of two ransom letters was also not recorded by the police. She further admitted that she did not disclose the identity of the kidnapper to the police (as told to her by her daughter and teacher).
14. PW4, SI Pradeep Kumar Sharma in his evidence stated that on 18.09.2000, he was posted at PS Baha, District Agra, UP, on which day, he received a secret information that one child, aged about 6 years, wearing school uniform was present in the temple of Bade Gaon with some persons, who were armed with weapons. He constituted a raiding party and raided that mandir. The armed persons fled away from the spot, leaving the child there. Thereafter, he took the child in his custody, took him to PS Baha and from the possession of child he recovered his identity card, from where he State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 6 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011 came to know of his parentage and address and as such, he made a call to PS Anand Parbat in Delhi, from where the police party went to Agra and to whom he handed over the custody of the child.
15. PW5, Ct.Sardar Singh in his evidence deposed that on 27.09.2000 PW2 had handed over two ransom letters to SI Manish Kumar, which were taken into police possession and thereafter, he alongwith Ct.Rakesh Kumar and IO, SI Manish Kumar arrested accused Govind Awasthi on 09.10.2000. He also stated about IO having taken the sample handwriting of accused Govind Awasthi.
16. PW6, Smt.Sushma, the Principal of S.N Giri Public School in her evidence did not identify the accused persons to be the kidnappers.
17. PW7, Smt.Laxmi, the teacher in S.N Giri Public School also could not identify the accused persons, however, she stated that child Vicky and his sister Shallu were acquainted with the person who had come to take them away, as they addressed them as "uncle".
18. PW8, HC Rattan Singh has proved the telephonic message from PS Baha, District Agra, UP, which was received in PS Anand Parbat on 18.09.2000.
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19. PW9, Ms.Gudiya, the sister of child Vicky in her evidence stated that her brother and sister were studying in S.N Giri Public School and on the date of incident, i.e, 07.09.2000, only her sister had returned back home, but brother Vicky had not returned home.
20. PW10, Ct.Rajbir in his evidence stated about the arrest of accused Prashant Awasthi on 03.11.2000.
21. PW11, Shri Babu Ram, the star witness of the prosecution turned turtle to the prosecution story and stated that his nephew Veerpal told him that some boy had come to his shop. As there was nobody with the said boy, he took the child to village Pramukh.
22. PW12, Shri Virender @ Veerpal, the nephew of PW11 Shri Babu Ram in his evidence deposed on the lines of PW11 and did not support the prosecution case.
23. PW12 (wrongly written) HC Sansar Singh, in his evidence stated that on 18.09.2000, after receipt of telephonic message from PS Baha, District Agra, UP he alongwith police party had gone to UP and took the custody of child Vicky and brought him back to Delhi.
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24. PW13, HC Rakesh Kumar is again a witness of arrest of accused Govind Awasthi on 09.10.2000 by the police.
25. The defence taken by both the accused persons in their statements recorded U/s 313 Cr.P.C is that there was an enmity between them and the family of complainant, as a consequence whereof they have falsely implicated them in this case.
26. Now, let us see what is the legally sustainable evidence against the accused persons in the matter.
27. With a view to succeed in proving charges U/s 363 IPC against the accused persons, the prosecution is required to prove through cogent evidence that the accused persons took away the child Vicky from the lawful guardianship of PW2 and 3 without their consent.
28. Admittedly, none of the witnesses examined by the prosecution in the matter saw the accused persons taking away the child from the school. PW6, Smt.Sushma, the Principal of S.N Giri Public School and PW7, Smt.Laxmi, the teacher of child Vicky did not identify any of the accused persons having taken child from the school. The next set of witnesses examined in this regard by the prosecution are PW11 Shri Babu Ram (Babunai) and PW12 Shri Virender, his nephew. Both these witnesses have State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 9 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011 not supported the case of prosecution, either in material particulars or on the identity of the accused persons. Therefore, as regards the taking away of the child Vicky by the accused persons is concerned, there is no material whatsoever. The prosecution did not examine child Vicky either U/s 164 Cr.P.C or before this court, which again goes against the prosecution case.
29. The learned APP has very voice forcily argued that the FSL report in the matter is against both the accused persons and the said report has conclusively established on record that the accused persons had written ransom letters to the parents (PW2 and PW3) of child Vicky.
30. I have perused the FSL report which is admissible U/s 293 Cr.P.C in evidence. A perusal of the documents, i.e sample documents (admitted signatures of both the accused persons) would reveal that the same were not taken with the permission of the court, the same do not bear the signatures of any independent witness, the same also do not bear the date on which these signatures were taken. The only piece of evidence available with regard to taking of the aforesaid specimen signatures is the evidence of PW5 Ct.Sardar Singh, who in his examinationinchief stated that on 09.10.2000, the sample handwriting of accused Govind Awasthi were taken by the IO. There is no evidence as to on which date the sample handwritings of accused Prashant Awasthi were taken. A careful scrutiny of the admitted signatures of both the accused persons would reveal that the same are in identical ink and appear to State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 10 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011 have been taken on a single day. Unfortunately, the IO of the case expired before he could be examined in court and as such, the mystery of taking specimen handwriting of accused persons could not be clarified with regard to date and timing of taking of specimen handwriting.
31. Now, let us see the law laid down by the superior courts with regard to consideration of FSL report and the admissibility thereof. This is the admitted case of prosecution that the specimen handwriting/signatures of the accused persons were not taken in presence of any independent witness and the permission of the court was also not obtained before taking the same.
32. In case reported as, "109 (2004) DLT 130", titled as, "Rakesh Kumar V/s State", the Hon'ble High Court of Delhi has been pleased to held that if the specimen signatures/handwriting/thumb impression/finger print impression of the accused are obtained during investigation by IO without the permission of the court, then the same cannot be used against the accused and the report of handwriting expert thereupon would be of no consequences and the same cannot be used to connect the accused with the crime. In this regard, para 17 of the judgment, containing the law on the aforesaid point is reproduced as under:
xxxxx "17. Moreover, the alleged specimen signatures/ handwriting/thumb/finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the I.O without prior permission from the court. Facts in he case of Sukhwinder Singh and Others Vs. State of Punjab, II (1994) CCR State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 11 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011 531(SC)=(1994) 5SCC 152, were that specimen handwriting of the appellant were taken under the direction of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime. In the present case the specimen signatures/writing/thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhwinder Singh (supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhwinder Singh (supra) if follows that the specimen writing/thumb impression/finger print impression of the appellant Sri Chand, Chandra Shekhar could not be made use of during the trial. The report of the handwriting expert/Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime".
xxxxx (Underlining emphasized)
33. Further, in case reported as, "2004 Cr.LJ 242", titled as, "M/s Durga Prasad V/s State of Andhra Pradesh", the Hon'ble High Court of Gujarat has been pleased to hold that if the specimen signatures of the accused were not obtained by the prosecution in presence of Presiding Officer and even if the signatures obtained by the police tallies with that of signatures on the said documents, the same cannot be the basis of the conviction of the accused.
34. I have gone through the aforesaid judgments. If the law laid down in the aforesaid judgments is applied to the facts of the present case, then it would be apparent that this case solely rests on the circumstantial evidence. It is well settled by the Apex Court that the principles governing State V/s Govind Awasthi & Prashant Awathi (Both accused "Acquitted") Page 12 of 14 FIR No.291/2006: U/s 363/34 IPC: PS Anand Parbat DOD: 08.03.2011 the appreciation of evidence in a case of circumstantial evidence are that each circumstance relied on by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied on by the prosecution must be such as cannot be explained on any hypothesis, except the guilt of the accused. In other words, circumstances must be of incriminating character. All the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point towards the guilt of the accused and exclude any hypothesis consistent with his innocence. In order to prove the FSL report against the accused, it was imperative upon the prosecuting agency to have obtained the permission of the court before taking the specimen signatures/handwriting of the accused. The rule of prudence further demands that the specimen signatures should have been taken in presence of some other independent witness.
35. It is well settled now that it is unsafe to base conviction solely on expert opinion and it has almost become a rule of law (reference judgment reported as, "AIR 2003 SC 282", titled as, "Alamgir V/s State of Delhi").
36. It is apparent on record that except for this FSL report (which is not admissible in evidence), there is no other evidence against the accused persons in this case. Thus, there is no independent corroboration of the FSL report from any corner.
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37. The undisputed conclusion, therefore, is that the prosecution has miserably failed in proving charges U/s 363 IPC against both the accused persons. Both the accused persons are, therefore, acquitted of the charges in this case. Their B/Bs stand cancelled, surety(ies) stand discharged. Endorsement(s), if any, either on the documents of surety(ies) or of accused persons be cancelled forthwith. Original documents, if any, either of surety(ies) or of accused persons be returned to its rightful owner forthwith. File be consigned to record room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 08.03.2011 Chief Metropolitan Magistrate:
Delhi
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