Delhi District Court
State vs Mohsin on 17 October, 2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 44460/15
FIR No.50/2011
PS Gokal Puri
U/s 364A/120B IPC
State
Versus
1. Mohsin
S/o Mobin
R/o Gadhi Gadana,
PS Modi Nagar, Ghaziabad, UP.
2. Sohanpal
S/o Amar Singh
R/o Village Abupur,
PS Modi Nagar, Ghaziabad, UP.
3. Rameshwar
S/o Mool Chand,
R/o Village Abupur,
PS Modi Nagar, Ghaziabad, UP. ....Accused
FIR No. 50/11 (Parveen Singh)
Judge Spl. Court (POCSO Act)
PS Gokal Puri 1 of 36 ASJ01/NE/KKD: 18.09.2017
Date of committal : 05.09.2011
Date of Arguments : 30.08.2017
Date of Pronouncement : 18.09.2017.
(Section 437A Cr.P.C stands complied with)
JUDGMENT
Briefly stated the case of the prosecution is, that on 14.02.2011, complainant Mohd. Yusuf @ Pappu went to the police station and lodged a complaint that on 13.02.2011, there was marriage ceremony of his daughter Shahiba. After completion of marriage ceremony, at about 9.30pm, when he searched for his son Asif @ Sajid, aged 9 years, his son was found missing. He had searched his son at all possible places but could not find him. He suspected that some unknown person might have kidnapped his son.
2. On the basis of above complaint, the present case was registered under Section 363 IPC. The investigation was carried on. WT messages were flashed and hue and cry notices regarding the missing boy were issued through different police agencies.
3. On 11.05.2011, complainant alongwith his missing son came at the police station and informed that one Kalua from Village Fatfoonda FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 2 of 36 ASJ01/NE/KKD: 18.09.2017 had come and handed the custody of victim to the complainant. Thereafter, statement of victim was recorded and he stated that he was kidnapped by accused Mohsin and then, his custody was transferred to accused Rameshwar and Sohan Pal. Thereafter, after getting clue, all the accused were arrested. After completion of investigation, the chargesheet was filed against accused Mohsin, Sohanpal @ Sonu and Rameshwar, before the Court of Ld. MM, for the offences punishable under Section 363/364A IPC and Section 120B IPC.
4. On 19.10.2011, a charge under Section 120B IPC and Section 364A IPC read with Section 120B IPC was framed against all the three accused to which they pleaded not guilty and claimed trial.
5. To prove its case, the prosecution has examined 19 witnesses.
6. PW1 is the victim. PW3 is Sh. Y, complainant and father of the victim. Their testimonies shall be considered at a later stage as and when required.
7. PW2 is Insp. Bhaskar Sharma. He deposed that on 12.08.2011, he was assigned the investigation of this case by the oral order of the SHO and collected case file from previous IO/Insp. Nikhil. On 27.08.2011, complainant came to the PS and delivered the copy of bill of his phone connection bearing No.9213973125, dated 27.02.2010, Ex.PW2/A. The complainant had also delivered him the photocopy of wedding card of his daughter, Mark X. He seized it vide seizure memo FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 3 of 36 ASJ01/NE/KKD: 18.09.2017 Ex.PW2/B. He further deposed that on the same day, he received the CDR of mobile phone connection numbers 9213973125, 9990792414, 8126380816 and 9720113710. He had received it from concerned mobile companies in pursuance of application dated 19.08.2011, Ex.PW2/C. The call detail records were for the period from 10.02.2011 to 15.06.2011. He proved the CDR of mobile phone connection no. 9213973125 with certificate and photocopy of CAF as Ex.PW2/D collectively (1 to 27); CDR of mobile phone connection no. 8126380816 with certificate and photocopy of CAF as Ex.PW2/E collectively (1 to 9); CDR of mobile phone connection no. 9720113710 with certificate and photocopy of CAF as Ex.PW2/F collectively (1 to 34) and CDR of mobile phone connection no. 9990792414 with certificate and photocopy of CAF as Ex.PW2/D collectively (1 to 27). He further deposed that the aforesaid CDRs were connecting the three accused and showing the locations of their phone in the same area. Ransom call had been made at the mobile number of the complainant through landline phone number 01232251921 on 15.02.2011 by the caller. He recorded the supplementary statement of the complainant, sought JC remand of the accused and after completion of investigation, he prepared chargesheet against the accused.
8. PW4 is Smt. Omwati. She deposed that she ran a grocery shop and PCO between 2009 to 2011. She could not tell the phone number of the PCO. She could tell as to who had come to her shop to make a FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 4 of 36 ASJ01/NE/KKD: 18.09.2017 telephone 15.02.2011 at about 7.00pm. Delhi police officials had come to her shop pertaining to inquiry on aforesaid phone call about one year back from that day (day of her deposition in court on 02.11.2012). She had not delivered any document to Delhi Police pertaining to this case and she did not know any facts of this case. Thereafter, she was crossexamined by the Ld. Addl. PP as she was resiling from her statement under Section 161 CrPC. .
9. PW5 is Sh. Sanjay. He deposed that his sasural was in village Fafoonda, District Meerut UP. One day, in the year 2010, when he was going back in his car to his house, after performing prayer, from Jewarpatti, Bulandsahar, UP, there was a route diversion and the police did not allow him to go ahead on that way. Thereafter, he took another route for his house via Gang Nagar. On the way, one boy met him near village Niwari. The boy was alone and crying. He asked the boy the reason of his crying, but the boy could not tell him anything. Then, he took the boy to his house. However, there was no one at his home who could take care of the boy, therefore, he took the boy and handed him over to his motherinlaw. After seveneight days, he came to know from his motherinlaw that the boy was a resident of Delhi. He further deposed that one person from village Fafoonda apprised him that a boy had been reported to be missing from Delhi and where he used to work. He then asked that person to apprise the parents of the boy about his presence at village Fafoonda.
FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 5 of 36 ASJ01/NE/KKD: 18.09.2017
10. PW6 is Smt. Dayavanti. She deposed that Sanjay (PW5) was her soninlaw. She did not remember the date, month or year. However, it was raining on that day when she alongwith Sanjay and her two family members was returning from a car from a place after attending prayer. On that day, a boy was found by Sanjay and he handed over the boy to her.
11. PW7 is Kalwa. He deposed that Sanjay was her soninlaw. He did not remember the date and month but around two years ago, he alongwith his wife, soninlaw and daughter was returning from a fair, one boy aged about 78 years met them near a nahar. They took the boy to their village Abupur. The boy remained with him for about 78 days (sic). The boy did not tell his name and address to them. However, they searched the address of a person at their best. His one known person, who was residing in Delhi and was also a native of his village, told them that he would try to search the address of that boy. Then they came to know the address of the boy. Later, they reached the house of the boy and handed his custody there.
12. PW8 is W/HC Sudarshan. She deposed that on 14.02.2011, she was working as Duty Officer at PS Gokalpuri from 8.00am to 4.00pm. At around 9.45am, she recorded FIR No.50/2011, under Section 363 IPC on the basis of the rukka which was presented by SI Ishwari Prasad. She proved the copy of the FIR as Ex.PW8/A and her endorsement on the rukka, as Ex.PW8/B. FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 6 of 36 ASJ01/NE/KKD: 18.09.2017
13. PW9 is Sh. Chander Shekhar, Nodal Officer, Bharti Airtel . He deposed that he had been posted as a Nodal Officer with Bharti Airtel since March 2013. He produced the scanned certified copy of CAF (customer application form) of Sohan Pal alongwith scanned copy of his driving license. It was in connection with Airtel mobiel SIM No. 8126380816. He also produced the call detail record in respect of said phone number from 10.02.2011 to 15.06.2011. He proved the said CAF as Ex.PW9/A and the ID proof as Ex.PW9/B and the said call detail record as Ex.PW9/C (running into four pages). He, further, proved his certificate under Section 65B of the Evidence Act as Ex.PW9/D.
14. PW10 is Sh. Rajeev Vashists, Nodal Officer, Tata Tele Services Ltd., 2A, Main Mathrua Road, New Delhi. He deposed that had been working in the said company since 2005 and during the course of his duty, he had seen a number of workers/nodal officers working in the company. He further deposed that he has seen covering letter of the company in respect of submission of CAF alongwith supporting document (identity proof) as well as CDR from 10.02.2011 to 15.06.2011 and certificate under Section 65B. The covering letter and the other documents were already Ex.PW2/D (page 1 to 27). He identified the signatures of the then Nodal Officer, namely Sh. M.N. Vijyan on the said documents.
15. PW11 is Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd., C45, Okhla PhaseII, Delhi. He brought FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 7 of 36 ASJ01/NE/KKD: 18.09.2017 the summoned record in respect of mobile number 9720113710. He deposed that as per their records the said mobile number was issued in the name of Mosin S/o Mobin. He proved the CAF of Mosin as Ex.PW11/2 (two pages) and the copy of ID proof i.e. voter I card of the applicant as Ex.PW11/B. The number was issued in the name of Mosin on 19.09.2008. He proved the call detail record of the said mobile number from 10.02.2011 to 15.06.2011 as Ex.PW11/C (12 pages). He further deposed that he had issued a certificate under Section 65B Evidence Act regarding the said call details which is Ex.PW11/D. He also brought the Cell ID Chart and proved it as Ex.PW11/E (3 pages).
16. PW12 Sh. Surender Kumar is Assistant Nodal Officer, Idea Cellular Ltd., A26/5, Mohan Estate, Sarita Vihar, Delhi. He produced the summoned records in respect of mobile number 9990792414. He deposed that the said number was issued in the name of Mujasmil S/o Abbas on 14.03.2011. He proved the copy of CAF as Ex.PW12/A and the ID proof i.e. Election I card on basis of which the number was issued, as Ex.PW12/B. He further deposed that call detail record of the said number from 10.02.2011 to 15.06.2011 are already Ex.PW2/G (from page 2 to 22). He also deposed that the certificate under Section 65B, issued by him, is already Ex.PW2/G (page 1).
17. PW13 is Ct. Gambheer Singh. He deposed that he used to remain at the PS being Rider of the Addl. SHO. On 02.06.2011, he joined FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 8 of 36 ASJ01/NE/KKD: 18.09.2017 the investigation of this case. At about 11/11.30pm, complainant Mohd. Yusuf @ Pappu produced accused Mohsin before the IO and disclosed that the said accused had kidnapped his son from Delhi. After interrogation, the accused was arrested by the IO. The information regarding arrest of accused, was given to his father through telephone. He further deposed that on 27.08.2011, at around 5/5.30pm, the complainant came at the PS and handed over the copy of a bill respect of a purchase of a telephone and the marriage card of his daughter, which were seized by the IO.
18. PW14 is Insp. Nikil Singh. He deposed that on 23.06.2011, investigation of this case was handed over to him. On 24.06.2011, he sent SI Ishwari Prasad to Tihar Jail for having TIP of accused Sohan Pal and Rameshwar conducted but the accused refused for it. Thereafter, SI Ishwari Prasad returned to the PS and handed over TIP proceeding to him. On 03.07.2011, the victim child Sajid @ Asif identified accused Mohsin, Sohan Pal and Rameshwar in Karkardooma Court Complex and he recorded the statement of the child.
19. PW15 is Insp. Jai Bhagwan . He deposed that on 05.06.2011, he alongwith Insp. Surender Kumar, two constables and accused Mohsin went to village Abupur, Modi Nagar, Ghaziabad, UP in search of co accused. At the instance of accused Mohsin, they apprehended accused Sohan Pal @ Sonu from a house of that village. Accused Sohan Pal @ Sonu was interrogated by Insp. Surender Singh and thereafter, he was arrested in FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 9 of 36 ASJ01/NE/KKD: 18.09.2017 this case. He proved the arrest memo of accused Sohan Pal as Ex.PW15/A and his personal search memo as Ex.PW15/C. He also proved the disclosure statement of the said accused as Ex.PW15/C.
20. PW16 is Ct. Rajiv. He deposed that on 10.06.2011, he joined the investigation of this case with IO/Insp. Surender Singh and they came to Karkardooma Court where accused Rameshwar had surrendered. After interrogating the accused, the IO formally arrested him. He proved the arrest memo of the accused as Ex.PW16/A, his personal search memo as Ex.PW16/B and his disclosure statement as Ex.PW16/C.
21. PW17 is SI Ishwari Prasad. He deposed that on 14.02.2011, at about 9.15am, complainant Mohd. Yusuf @ Pappu came to the PS and stated that his son, aged about 8 years had been kidnapped. He recorded statement of complainant which is already Ex.PW3/A and prepared a rukka on the statement, which is Ex.PW17/A. On the basis of the rukka, FIR No.50/2011 was recorded and further investigation was handed over to Insp. Surender Kumar. He further stated that on 24.06.2011, on the directions of Insp. Nikhil Kumar, he went to Tihar Jail alongwith the complainant and his son S for TIP of the two accused. The accused persons refused to participate in the TIP proceedings. He obtained the copy of the proceedings and then returned to the PS and handed over the case file to Insp. Nikhil Kumar.
22. PW18 is Sh. Sonu Agnihotri, Ld. CMM, South District, Saket Courts, Delhi. He deposed that on 02.06.2011, he recorded the statement of the victim under Section 164 CrPC after asking preliminary FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 10 of 36 ASJ01/NE/KKD: 18.09.2017 questions from him. The statement under section 164 Cr.P.C is already Ex.PW1/A. He certified the above proceedings as true and correct vide Ex.PW18/A. IO asked the copies of the above proceeding and he allowed the same vide Ex.PW18/B. He further deposed that on 10.06.2011, an application for the TIP proceedings of accused Sohan Pal @ Sonu S/o Amar Singh in case FIR No.50/2011, PS Gokal Puri was marked to him. The said TIP proceedings were fixed for 24.06.2011 and on that day, he conducted the TIP proceedings at Central Jail No.8/9. IO SI Ishwari Prasad identified witness Mohd. Sajid. Accused Sohan Pal refused for the TIP proceedings and stated that his (accused's) photographs were clicked in the PS and he recorded his statement. Copies of the TIP proceedings were Mark P18/1. He certified the proceedings vide Mark P18/2 bearing my signatures at point A and directed the office to send TIP proceedings to concerned court in sealed cover. On 10.06.2011, an application for the TIP proceedings of accused Rameshwar S/o Mool Chand in case FIR No.50/2011, PS Gokal Puri was marked to him. The said TIP proceedings were fixed for 24.06.2011 and on that day. he conducted the TIP proceedings at Central Jail No.8/9. IO SI Ishwari Prasad identified witness Mohd. Sajid. Accused Rameshwar also refused for the TIP proceedings and stated that his photographs were clicked in the PS and he recorded his statement. Copies of the TIP proceedings are Mark P18/3. He certified the proceedings vide Mark P18/4.
FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 11 of 36 ASJ01/NE/KKD: 18.09.2017
23. PW19 is Insp. Surender Kumar. He is the IO of this case. His testimony would be considered at a later state as and when required.
24. Thereafter, on 31.07.2017, statements of accused u/s 313 Cr.P.C were recorded and accused Mohsin preferred to lead evidence in his defence. Accused Sohan Pal and Rameshwar preferred not to lead evidence in their defence. However, on 17.08.2017, accused Mohsin closed his defence evidence.
25. I have heard learned Addl. PP for the State as well as learned counsel for the accused.
26. It has been contended by learned Addl. PP for State that accused had conspired to kidnap the victim is established from the fact, that after the kidnapping of victim, accused Mohsin had handed over the custody of the victim to other two accused Sohan Pal and Rameshwar. These facts have been categorically proved by the testimony of the victim. He has further contended that apart from the testimony of the victim, no other testimonies could have been available for proving these facts as it was only the victim who had seen these accused persons together and for the act of exchanging the custody of the victim. He has further contended that the sole testimony of the victim, who is a minor child of very tender age, is sufficient to convict the accused persons. The victim had categorically deposed that he was kidnapped by accused Mohsin and later on his custody was transferred by accused Mohsin to accused Rameshwar and Sohan Pal.
FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 12 of 36 ASJ01/NE/KKD: 18.09.2017
27. On the contrary, it has been contended by learned counsel for accused Mohsin that accused Mohsin has been falsely implicated in this case. He has further contended that there are many contradictions in the story of the prosecution and the testimony of the victim. He has further contended that the victim initially had stated that he was kidnapped by accused Mohsin on the pretext of buying some gifts. However, in the cross examination, the victim stated that accused Mohsin had kidnapped him forcibly. He has further contended that for the sake of arguments, if it is admitted that accused Mohsin might have succeeded in taking the victim out of the custody of his parents, however, when he was taken away from his home in a tempo, the victim could have shouted for help but the victim did not do so. Admittedly, the victim was not under any threats from accused Mohsin and if that be the case, the testimony of the victim becomes unreliable.
28. On behalf of accused Sohan Pal and Rameshwar, it has been contended that they have been falsely implicated in this case at the instance of police. It has been contended by learned counsels for accused Sohan Pal and Rameshwar that during the cross examination, the victim had categorically stated that he had identified both these accused at the instance of police. The victim has admitted that he had never seen them prior to him being shown by the police when he was brought to the court for recording of his statement u/s 164 Cr.P.C. The victim has further admitted that he had FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 13 of 36 ASJ01/NE/KKD: 18.09.2017 identified these accused during the TIP at the instance of the police. He has further contended that the victim had also stated that he had never stayed with accused Sohan Pal or accused Rameshwar. Therefore, the prosecution has miserably failed to prove its case against these two accused.
29. I have considered the rival submissions and perused the record very carefully.
30. It is correct that to bring home the guilt of the accused, it is only the testimony of the victim that is available with the prosecution. The victim at the time of his deposition in the year 2012 was a minor child of 08 years. Therefore, at the time of his abduction in the year 2011, he was merely 07 years old.
31. The victim appeared as PW1. In his examination in chief conducted on 18.01.2012, he deposed that on the day of marriage of his sister Sahiba, in the evening time, he was playing in front of his house. Accused Mohsin, whom he correctly identified in the court, took him from there on the pretext that he would get gifts to him. Mohsin took him by a tempo to somewhere else at a long distance. Thereafter, two persons had met accused Mohsin at an unknown place. At this stage, victim pointed towards accused Rameshwar and Sohan Pal. He then deposed that accused Rameshwar and Sohan Pal took him to the house of accused Rameshwar by a motorcycle where he was kept for one day by them. Thereafter, accused Rameshwar and Sohan Pal took him to an unknown place in Meerut, UP.
FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 14 of 36 ASJ01/NE/KKD: 18.09.2017
They left him at the house of one Hindu family in Meerut. There he resided for many days and in that family, he only knew the name of Sumit. He had told his address to one person who was also residing in the aforesaid family. His father brought him back to Delhi. He further deposed that his statement u/s 164 Cr.P.C was recorded, which was exhibited as Ex.PW1/A.
32. Thereafter, he was cross examined by learned Addl. PP. During his cross examination by learned Addl. PP, he denied that he was kept by accused Sohan Pal and Rameshwar for 45 days at their house in the village or that they used to harass him or that they did not provide food to him. He admitted that accused Sohan Pal and Rameshwar had taken him to a place near a canal outside the village or that they ran away when they heard the siren of police. He also admitted that one Sanjay had met him at that place. Sanjay took him to his house and kept him there for 23 days. Thereafter, Sanjay left him at the house of his (Sanjay's) relative where he lived for many days. He denied that he had told his address to Sanjay or that Sanjay had brought him back to Delhi or that Sanjay had handed him to his father. Thereafter, his cross examination on behalf of accused was deferred at the request of learned defence counsel.
33. On 23.02.2012, during his cross examination on behalf of accused Mohsin, he deposed that he could not remember the date and time, however, it was night time when accused Mohsin had taken him from his house. He was playing alone in front of his house. Accused Mohsin had FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 15 of 36 ASJ01/NE/KKD: 18.09.2017 taken him forcibly. Accused Mohsin had taken him at an unknown place. Accused Mohsin had confined him for one day. Accused Mohsin had not made any phone call in his presence. He denied that he was tutored by his father or that he was not taken forcibly by accused Mohsin or that accused Mohsin had not delivered him to any other person.
34. During his cross examination on behalf of accused Sohan Pal, he deposed that he could not tell how many persons were inside the tempo by which he was taken by accused Mohsin to an unknown place. He had not raised any alarm while accused Mohsin was taking him by tempo. He did not remember how many persons were present at the place where tempo had dropped them. he could not tell the time of journey between Modi Nagar to the village where he was confined. In the house where he was kept, some male and female members were present. He had not disclosed anything to any of those persons. He was asked by the court why he had not disclosed anything to any person in that house and he stated that he was directed by accused Mohsin not to disclose anything to any person. He deposed that accused Mohsin had not pressurized or threatened him. Two persons had taken him on black colour motorcycle to village. In response to court question that who were those two persons, he pointed his finger towards accused Sohan Pal and Rameshwar. He further deposed that he was not threatened by anyone of them. He further deposed that on the day of recording of his statement u/s 164 Cr.P.C, accused were FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 16 of 36 ASJ01/NE/KKD: 18.09.2017 produced unmuffled before the court. He admitted that as disclosed by police officials, he had come to know about the names of accused on that very day. He admitted that at the instance of police officials, he had identified accused on the day of recording of his statement u/s 164 Cr.P.C. He admitted that at the instance of police officials, he had identified accused on the day of his statement before the court. He never lived with Sanjay. His further cross examination was deferred.
35. He was again cross examined on 02.11.2012. During his crossexamination on behalf of accused Sohan Pal, he deposed that he had not been with Sanjay at any point of time. On 02.06.2011, police had shown him accused persons sitting outside the court room at Karkardooma Courts. He had seen the accused persons for the first time when he appeared for his statement u/s 164 Cr.P.C. He did not remember the date when he had gone to the police station. He denied that he did not remember how many documents he had signed at the police station and volunteered, that he had signed two documents.
36. During his cross examination on behalf of accused Rameshwar, he admitted that at the instance of police, he had identified accused persons in the court. He further deposed that he was confined at an unknown place in Meerut by an old man aged around 5060 years. He had been shifted in a car with siren for about 02 minutes. He did not remember at what point that car had dropped him. He could not identify the person FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 17 of 36 ASJ01/NE/KKD: 18.09.2017 who was driving the car with siren. He had been at unknown place for about three days. His father had come to collect him at that unknown place. He used to play alongwith other boys at that unknown place. There was no person either elder to or of of age of his father. He denied that none of accused persons had taken him and volunteered, that accused Mohsin had taken him from his house. He had not been at the house of accused Rameshwar or accused Sohan Pal. He admitted that his father had collected him from the house of one Sanjay @ Kalua but he did not remember where that house was. He admitted that accused Mohsin was his cousin. Earlier, he had never gone with accused Mohsin. Accused Mohsin had never given him any gifts. However, accused Mohsin occasionally used to give him toffees.
37. He was cross examined by learned Addl. PP. He admitted that Salma wife of accused Mohsin had visited his house and met his father many times between February 2012 till 02.11.2012. He admitted that he had seen the accused persons at the time when accused persons had handed him to them. He admitted that on that day i.e. on 02.11.2012, at the instance of Salma, he had deposed that he had seen the accused for the first time in Karkardooma Court when he was appearing for his statement u/s 164 Cr.P.C.
38. He was again cross examined on behalf of accused Sohan Pal and he deposed that he did not know the exact dates when Salma had visited his house. He further deposed that the fact, that he had seen all accused at FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 18 of 36 ASJ01/NE/KKD: 18.09.2017 the time when accused Mohsin had handed him to other accused persons, was correct.
39. He was then cross examined on behalf of accused Rameshwar and he denied that the accused had not kidnapped him or that on that day, he had identified accused at the instance of police.
40. Let us analyze the testimony of victim as has been recorded before the court.
41. In his examination in chief dated 18.01.2012, detailed abov, he had deposed that accused Mohsin had kidnapped him and then handed his custody to accused Rameshwar and Sohan Pal. On that day, counsels for accused did not cross examine this witness and at the request of counsels for accused, my learned predecessor deferred the cross examination. Thereafter, victim was recalled for his cross examination on 23.02.2012.
42. On that day also, he deposed that accused Mohsin had handed him to two persons. In response to court query as to who were those two persons, he pointed his finger towards accused Sohan Pal and accused Rameshwar.
43. However, a change in the stand of this witness appeared when during the same cross examination, he deposed that on the day of recording of his statement u/s 164 Cr.P.C, accused persons, who were unmuffled, were produced before the court. He admitted that he had come to know about the names of the accused on that very day as had been disclosed by FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 19 of 36 ASJ01/NE/KKD: 18.09.2017 the police officials. He admitted that at the instance of police, he identified accused persons on the day of recording of his statement u/s 164 Cr.P.C. He admitted that at the instance of police, he identified the accused persons on the day of recording his statement before the court. His further cross examination was deferred.
44. Finally, his cross examination was concluded on 02.11.2012.
45. A perusal of the ordersheets from 26.03.2012 till 02.11.2012 would reveal the continuous adjournments being sought by the father of the victim on one ground or another. On 25.04.2012, the victim was present but he was discharged unexamined as he was not feeling well on that day. The matter was listed for 24.05.2012 and on that day, uncle of victim had appeared and stated that the victim was admitted in hospital due to malaria. The matter was listed for 20.07.2012 when father of victim appeared and stated that due to loose motions, victim could not appear before the court and the matter was posted for 22.08.2012. On 22.08.2012, victim appeared but as he was not well, the matter was adjourned for 17.09.2012. On 17.09.2012, the victim was present but as per record, he was not cross examined and the matter was adjourned for 10.10.2012. On 10.10.2012, victim was again present but was not examined due to absence of regular PP and finally, the victim was cross examined on 02.11.2012.
46. On 02.11.2012, during his cross examination, he reiterated that on 02.06.2011, accused had been shown to him outside Karkardooma FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 20 of 36 ASJ01/NE/KKD: 18.09.2017 Court and he had identified the accused at the instance of police. He denied that accused had not taken him and volunteered, that accused Mohsin had taken him. He stated that he had not been at the house of Rameshwar or Sohan Pal.
47. However, his cross examination by learned Addl. PP revealed that the wife of accused Mohsin had been visiting his house since after his examination in chief and it is at her instance, he had stated that he had seen the accused when he appeared for his statement u/s 164 Cr.P.C
48. He was again being cross examined by learned counsel for accused Sohan Pal. He reiterated that the fact that he had seen all the accused at the time when accused Mohsin handed him to other accused persons was correct.
49. During his cross examination on behalf of accused Rameshwar, he denied that accused persons had not kidnapped him or that on that day, he had accused persons at the instance of police.
50. It has been contended by learned counsels for accused that this witness cannot be trusted as he has been regularly changing his stand. However, I find that when for the first time, victim appeared as PW1 for his examination in chief, he clearly identified accused Mohsin as the person who had taken him from front of his house on the pretext of buying gifts. He also categorically deposed that accused Mohsin had then handed his custody to accused Rameshwar and Sohan Pal and pointed towards accused FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 21 of 36 ASJ01/NE/KKD: 18.09.2017 Rameshwar and Sohan Pal. For reasons which I do not want to guess at this stage, counsels for accused did not cross examine this witness on that day. Two months later, when this witness appeared, he seemed to be a changed witness but he had not completely changed his stand. On that day also, in response to court query regarding the persons to whom accused Mohsin had handed his custody, he pointed towards accused Sohan Pal and Rameshwar. However, during his cross examination, he dented the case of the prosecution by stating that on the date of recording of his statement u/s 164 Cr.P.C, accused were produced in unmuffled face before the court. He also admitted that on the same day, the names of accused were disclosed to him by police. He also admitted that at the time of recording of his statement u/s 164 Cr.P.C, he had identified accused at the instance of police officials. He also admitted that on the day when his examination in chief was recorded, he identified the accused at the instance of police officials.
51. Thereafter, as if something was happening behind the screen, the witness on the one ground or the other was not produced before the court by his parents till 22.08.2012 and he was finally cross examined on 02.11.2012.
52. In this cross examination which had taken place after a gap of around 09 months, the witness took a complete about turn with regard to accused Rameshwar and Sohan Pal. During his cross examination on behalf of accused Sohan Pal, he again stated that accused were shown to him by FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 22 of 36 ASJ01/NE/KKD: 18.09.2017 police officials when they were sitting outside the court room at Karkardooma court and that for the first time, he had seen them outside the court room. He denied that none of the accused persons had taken him and reiterated that accused Mohsin had taken him. He stated that neither had he been at the house of accused Rameshwar nor had he been at the house of accused Sohan Pal.
53. The suspicion of the court, that the witness was not being produced because something was happening which was not above board, is to some extent fortified by the cross examination of this witness which was conducted by learned Addl. PP which established that this witness was influenced by wife of accused Mohsin and his changed testimony was at her instance. Thereafter, though he was again cross examined for accused Sohan Pal and Rameshwar, he struck to his original story and denied having identified accused Sohan Pal and Rameshwar at the instance of police.
54. It is well settled that in cases where after a long gap, the witness turns hostile, the possibility that the witness was influenced, approached or managed cannot be ruled out and his testimony has to be carefully analyzed to find out the truth.
55. In this regard, Hon'ble Supreme Court in Selvaraj v. State, MANU/SC/1137/2014 : (2015) 2 SCC 662 has held as under:
19. It is settled principle of law that benefit of reasonable doubt is required to be given to the accused only if the reasonable doubt emerges out from the evidence on record. Merely for the reason that FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 23 of 36 ASJ01/NE/KKD: 18.09.2017 witnesses have turned hostile in their cross examination, the testimony in examination in chief cannot be outright discarded provided the same (Statement in examination in chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused (sic witness), only one of the two is believable, and what has been stated in the crossexamination is false, eve if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination in chief. However, such evidence is required to be examined with great caution.
56. Further, in Khujji v. State, MANU/SC/0418/1991 : (1991) 3 SCc 627, it was observed that :
......the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
57. In view of the above law laid and the evidence before me, I find that following facts have emerged before the court:
(a) First is, that the witness / victim has been consistent in his stand that accused Mohsin was the person who had initially kidnapped him;
(b) Second is, that victim in his examination in chief had categorically identified accused Rameshwar and Sohan Pal as the persons to whom his custody was transferred after being kidnapped;
(c) Third is, this witness changed his stand when he came up for his cross examination after two months and stated that accused were shown to FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 24 of 36 ASJ01/NE/KKD: 18.09.2017 him by the police on the day when his statement u/s 164 Cr.P.C was recorded;
(d) Fourth is, when he was finally cross examined in detail on 02.11.2012 i.e. after a gap of around 09 months, he completely absolved accused Rameshwar and Sohan Pal and stated that he had identified them at the instance of police and that he had never been in their custody and;
(e) Fifth is, that reason of his volte face was the influence exercised by the wife of accused Mohsin, who was related to him.
58. In view of the legal propositions cited above, in such cases, the testimony of witness in examination in chief can be relied upon to arrive at a finding of guilt as as there are many plays which might have taken place since the day of his examination in chief till the day he was cross examined.
59. In this case, suspicion of these plays arises by the perusal of various ordersheets which shows that family of the victim on various dates did not produce the victim for his cross examination. Could it be because efforts were on to influence him? The answer is in affirmative and came up in the cross examination of the victim by learned Addl. PP when he admitted that wife of accused Mohsin had been consistently approaching his father and it is at her instance, he stated that he had identified accused at the instance of police officials. Therefore, it is apparent that the victim, when he tried to absolve accused Rameshwar and Sohan Pal, did so under the FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 25 of 36 ASJ01/NE/KKD: 18.09.2017 influence or pressure.
60. That this part of the testimony of the victim was under
influence, is otherwise proved from the record.
61. It is to be seen that the statement of the victim u/s 164 Cr.P.C was recorded on 02.06.2011. Till that time, neither accused Sohan Pal nor accused Rameshwar had been arrested. If they had not been arrested or apprehended by the police by that time, there is no question or possibility of them being shown to the victim on 02.06.2011.
62. An argument could have been made that the accused were already in illegal custody of police. However, as per their statements u/s 313 Cr.P.C, the accused had not taken any such stand. Not only this, when accused Sohan Pal was questioned regarding his arrest and it was put to him that he was arrested vide memo Ex.PW15/A, he stated that he was lifted from his house and thereafter, he was arrested. He had never stated that he was not arrested vide this memo or on that date or that he was already in custody of police. As regards accused Rameshwar, he himself had surrendered before the court on 10.06.2011 and therefore, the question of him being in custody of police on 02.06.2011, when statement of victim u/s 164 Cr.P.C was recorded, does not arise.
63. Therefore, the testimony of the victim with regard to the accused being shown to him on the day of recording of his statement u/s 164 Cr.P.C seems to be tutored one especially in view of the fact, that it FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 26 of 36 ASJ01/NE/KKD: 18.09.2017 came before the court after his examination in chief had been deferred for two months and in view of the fact that an effort was made by wife of accused Mohsin to influence this witness.
64. I accordingly find that the part of the testimony of the victim, that he was kidnapped by accused Mohsin and later on his custody was handed to accused Rameshwar and Sohan Pal, has to be relied upon.
65. It has further been contended on behalf of accused persons that the case of the prosecution falls apart because of the manner in which the victim has been stated to have fallen into the hands of PW5 Sanjay and thereafter, recovered by his parents. Learned counsels for accused have contended that the victim has stated that while accused Sohan Pal and Rameshwar were shifting him, they heard police siren near a canal. On hearing the police siren, they left him near the canal and fled away. That is how, PW5 Sanjay had found the victim. They have further contended that the conduct of Sanjay and his inlaws in keeping the boy with them and not informing the police is highly suspicious. They have further contended that the recovery of the victim is also doubtful because according to the victim, his father went to the village and brought him back. However, father of victim has deposed that somebody from village Fatfoonda came to him and informed him that he had seen the victim in a party at Fatfoonda. Father of victim further deposed that he had shown the photograph of the victim to that man who recognized the victim whereafter, he went that village and FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 27 of 36 ASJ01/NE/KKD: 18.09.2017 brought the victim back. During his cross examination by learned Addl. PP, he stated that the person who had come from village Fatfoonda was Sanjay. Contrary to this, PW5 Sanjay deposed that one day, his fatherinlaw asked him on telephone to come to his (in laws) home and to take that boy to Delhi so that victim could identify his house. One person, who was resident of village Fatfoonda, apprised him that one boy was reported to be missing from the area of Delhi where that man used to work. Therefore, he asked that person to apprise the parents of that boy so that they could identify the victim as their missing son. Learned counsels for accused have thus contended that witness Sanjay had stated that he had not informed the father of the victim about the presence of victim at village Fatfoonda whereas father of victim had stated that it was Sanjay who had informed him about the presence of victim at village Fatfoonda. They have further contended that on the contrary, the stand of the prosecution is that father in law of PW5 Sanjay had himself taken the victim Delhi and handed the custody of victim to his parents and this fact was admitted by PW6 Smt. Dayawati (mother in law of Sanjay) in her cross examination by learned Addl. PP. Therefore, there are material contradictions on how this victim was recovered.
66. I have considered the contentions made on behalf of accused and I find that there may be certain variations in the testimonies of the witnesses as to how the victim was recovered but this does not go to the FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 28 of 36 ASJ01/NE/KKD: 18.09.2017 root of the matter. It does not in any manner affect the testimony of the victim that he was kidnapped by accused Mohsin and thereafter, his custody was transferred to accused Sohan Pal and Rameshwar i.e. the part of his testimony which has been found by the court to be credible.
67. The next question is whether the accused had kidnapped the victim for ransom and had demanded ransom by putting a threat of death or hurt to this victim?
68. In this regard, the important testimony is of father of the victim, who appeared as PW3. During his examination in chief, he did not depose anything about any ransom call. However, during his cross examination by learned Addl. PP, he admitted that his mobile number is 9213973125 and volunteered, that he was also having another mobile number i.e. 9910427357. He admitted that he had told the police in his statement that he had received phone call from phone number 01232 251921, but he could not talk. He denied that he told the police in his statement that they had his child and had asked him to make arrangement of Rs.20 lacs. He was confronted with his statement u/s 161 Cr.P.C, which was Ex.PW3/H, where it was recorded. He denied that he had told to police in his statement that he had informed the police regarding receiving of ransom call. He was confronted with portion B to B of his statement u/s 161 Cr.P.C, which was Ex.PW3/H, where it was recorded. He denied that he had received a ransom call of RS.20 lacs from phone no. 01232251921 FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 29 of 36 ASJ01/NE/KKD: 18.09.2017 on his mobile number 9213973125 or that he was deposing falsely in this regard.
69. The phone number 01232251921 wherefrom the alleged ransom call was made belonged to PW4 Omwati. She deposed that she was running a PCO and she could not tell who had come to her shop to make a telephone call on 15.02.2011 at around 07.00 p.m.
70. She was cross examined by learned Addl. PP and she denied that on 15.02.2011 at about 07.00 p.m., one person aged about 35 years had come to her PCO booth to make a call at phone number 9213973125. She denied that accused Rameshwar had come to her shop to make the aforesaid call. She denied that she was intentionally not identifying accused Rameshwar or that she had been won over by accused.
71. In view of the aforesaid testimonies, two facts have emerged. One is, that the prosecution has failed to establish that on 15.02.2011 at around 07.00 p.m., from PCO of PW4 Omwati having number 01232 251921, a call was made by accused Rameshwar to the mobile number 9213973125, which was of father of victim. Second is, that the prosecution has not been able to establish that in that call, ransom was demanded. I accordingly find that the prosecution has failed to establish the ingredients of section 364A.
72. However, in view of the earlier discussion and in view of the reliable testimony of victim, I find that the prosecution beyond all FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 30 of 36 ASJ01/NE/KKD: 18.09.2017 reasonable doubts has proved that on 13.02.2011 at about 09.30 p.m., accused Mohsin had kidnapped the victim from in front of H. No. D148, Gali No. 2, Chand Bagh, Delhi and further, that accused Mohsin had handed the custody of victim to accused Rameshwar and accused Sohan Pal, who had kept the child in their custody for 45 days.
73. The circumstances around this offence are, that after kidnapping the victim, accused Mohsin took him straight to accused Rameshwar and Sohan Pal. It clearly reflects and proves a pre existing conspiracy between these three persons to kidnap the victim.
74. I accordingly find that the prosecution has successfully proved beyond all reasonable doubts that accused Rameshwar, Sohan Pal and Mohsin had entered into a criminal conspiracy to kidnap the victim; that in pursuant to the common object of the criminal conspiracy, on 13.02.2011 at about 9/9.30 p.m. accused Mohsin kidnapped the victim from in front of H. No. D148, Gali No. 2, Chand Bagh, Delhi whereafter, in pursuance of the common object of the criminal conspiracy, accused Mohsin handed the custody of the victim to accused Rameshwar and accused Sohan Pal. I accordingly find that the prosecution has proved beyond reasonable doubts that all the accused have committed offence punishable u/s 120B IPC and offence punishable u/s 363 r/w section 120B IPC. Accused Mohsin is accordingly convicted for offences punishable u/s 120B IPC and section 363 IPC. Accused Rameshwar and Sohan Pal are accordingly convicted for FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 31 of 36 ASJ01/NE/KKD: 18.09.2017 offences punishable u/s 120B IPC and section 363 r/w section 120B IPC.
75. Be heard separately on the point of sentence.
Announced in open court (Parveen Singh) today on 18.09.2017. Judge Special Court (POCSO Act) (This judgment contains 32 pages ASJ01, North East Distt., and each page bears my signatures.) Karkardooma Court, Delhi.
FIR No. 50/11 (Parveen Singh)
Judge Spl. Court (POCSO Act)
PS Gokal Puri 32 of 36 ASJ01/NE/KKD: 18.09.2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 44460/15
FIR No.50/2011
PS Gokal Puri
U/s 364A/120B IPC
State
Versus
1. Mohsin
S/o Mobin
R/o Gadhi Gadana,
PS Modi Nagar, Ghaziabad, UP.
2. Sohanpal
S/o Amar Singh
R/o Village Abupur,
PS Modi Nagar, Ghaziabad, UP.
3. Rameshwar
S/o Mool Chand,
R/o Village Abupur,
PS Modi Nagar, Ghaziabad, UP. ....Convicts
FIR No. 50/11 (Parveen Singh)
Judge Spl. Court (POCSO Act)
PS Gokal Puri 33 of 36 ASJ01/NE/KKD: 18.09.2017
ORDER ON SENTENCE
Convict Mohsin has been convicted for offence punishable u/s 120B IPC and section 363 IPC and convicts Rameshwar and Sohan Pal have been convicted for offences punishable u/s 120B IPC and section 363 r/w section 120B IPC.
2. Arguments on sentence have been heard.
3. It has been contended by learned Addl. PP that the convicts had kidnapped a minor child, who at the time of incident was merely 9 years old. convict Mohsin was related to the accused and had betrayed his faith and two other convicts had kept the child in their custody. This had led to severe mental trauma to the child which may haunt him throughout his life. Ld. Addl. PP has therefore prayed that maximum imprisonment should be awarded to all the convicts and heavy fine should be imposed upon them.
4. On the other hand, learned counsels for convicts had contended that convicts, at the time of commission of offence were very young and had no criminal antecedents. They had also contended that even after the alleged crime, they had never been involved in any criminal activity. They had further contended that the convicts are the sole bread earners of their families and thus prayed that the convicts be released on probation.
5. Considering the prayer of learned counsels for convicts, probation report of all the convicts was called from the probation officer.
FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 34 of 36 ASJ01/NE/KKD: 18.09.2017
6. Report of the probation officer regarding all the convicts has been received.
7. As regards convict Mohsin, it is reported that the family of convict Mohsin consists of his mother, father, wife, two minor brothers and three daughters aged about 13 years, 11 years and 01 year. The monthly income of the family is around Rs.15,000/. It is further reported that the convict never had any formal education. It is further reported that inquiries from the neighbours revealed that convict does not have any criminal antecedents. It is further reported that after being released on bail in this matter, convict had never been involved in any criminal activity.
8. As regards convict Sohan Pal, it is reported that the family of convict has his father, mother, wife, six brothers and three children aged around 10 years, 04 years and 07 years. It is further reported that the convict is studied upto class 5 and for a very long time, he has been working as a labour to feed his family. It is further reported that the family of the convict is facing financial difficulties. It is further reported that on being inquired from neighbours, it is revealed that convict does not have any criminal antecedents. It is further reported that after being released on bail in this matter, he had never involved in any criminal activity.
9. As regards convict Rameshwar, it is reported that the family of convict consists of his mother, father, wife, one brother, one sister and three children aged about 14 years, 15 years and 10 years. It is further FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 35 of 36 ASJ01/NE/KKD: 18.09.2017 reported that the convict is studied upto class 5 and earning his livelihood from labour activities. His family is facing financial difficulties. The convict has no criminal antecedents.
10. Considering the overall facts and circumstances of the case, the fact that at the time of commission of offence, the convicts were very young, the fact that after being released on bail in this matter, they had not been involved in any criminal activity and further considering the socio economic and financial report of the convicts, I find that this is a fit case for grant of probation to the convicts. All the convicts are hereby ordered to be released on probation on furnishing a personal bond of good conduct to the tune of Rs.30,000/ each. The bond shall be binding for a period of one year from today. In case of violation of any of the conditions of the bond, the convicts shall surrender before the court to receive their sentence. File be consigned to record room.
Announced in open court (Parveen Singh) today on 17.10.2017. Judge Special Court (POCSO Act) (This order contains 04 pages ASJ01, North East Distt., and each page bears my signatures.) Karkardooma Court, Delhi.
FIR No. 50/11 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 36 of 36 ASJ01/NE/KKD: 18.09.2017