Allahabad High Court
Jitendrra Kumar Chaudhary vs State Of U.P. on 14 March, 2013
Author: Anil Kumar Sharma
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
RESERVED
Court No. 35
Criminal Appeal No. 2047 Of 2007
Jitendra Kumar Chaudhary s/o Satyavir Jat, resident of Shyampur Kiratpur, Police Station Kiratpur, District Bijnor.
.......Appellant
Versus
State of U.P.
......Respondent
Connected with
Criminal Appeal No. 930 Of 2007
Neeraj @ Pintu son of Indrapal, Resident of Amaraja, Bhojpur, Distt. Ghaziabad.
.......Appellant
Versus
State of U.P
.......Respondent
Counsel for appellants : Sri Brajesh Sahai,
Counsel for the AGA : Ms. Usha Kiran, A.G.A
Counsel for the complainant : Sri Rajiv Gupta.
Hon'ble Rakesh Tiwari, J .
Hon'ble Anil Kumar Sharma, J.
(Delivered by Justice Anil Kumar Sharma) Both these appeals emanate from common judgment passed by Additional Sessions Judge, Court No.5, Ghaziabad on 25.01.2007 in S.T. No. 71/2002, so they had been heard together and are being decided by this judgment.
2. The appellants have been found guilty for the offences punishable under section 364-A, 302/34 I.P.C. and 201/34 and each had been sentenced to undergo imprisonment for life each under Section 302/34, 364-A I.P.C. respectively together with fine of Rs. 10,000/- each and three years R.I. for the offence punishable under Section 201/34 I.P.C. In default of payment of fine the further imprisonment has also been awarded.
3. Succinctly stated the prosecution story is that on 24.10.2001 at 9.15 p.m. complainant Sanjay Chaudhary son of Sri Charan Singh, Resident of H.I.G., C-3 , Sector-23, Sanjay Nagar, Police Station Kavi Nagar, Ghaziabad submitted a missing report of his 8-years' old son Vishal stating that today at 4.30 p.m. leaving him alone in the house they want at the residence of the brother in Sector-9, Raj Nagar and when they returned back at about 5.00 p.m. he was not found in the house, they searched for him but failed. The description of his wearing apparels were also noted in the report.
4. Next day i.e. on 25.10.2001 at about 2-2.30 p.m. the complainant received a call on his mobile from some unknown person who told him that his son is in their possession and they should arrange Rs.30.0 lacs for his release. The complainant informed the police about the aforesaid call. On the basis of this information case Crime No. 661/2002 under Section 364-A I.P.C. against unknown accused was registered at 4.25 p.m. on 25.10.2001 vide G.D. Report No. 32, investigation whereof was entrusted to SI Rohitash Kumar Sharma. During investigation, it was found that the ransom call was made from Mobile No. 9837137677 on complainant's Mobile No. 9810144082 and Land line No. 783396. The Investigating Officer recorded the statement of the complainant but thereafter the investigation was taken over by S.O. Anil Kumar Samaniya. He again interrogated the complainant. Under orders of the CO II, SI Satish Kumar was deputed to make enquiry about ransom calls and put the aforesaid mobile and telephone numbers on surveillance. After deliberations with the surveillance team the Investigating Officer on 28.10.2001 went to the office of the Escotel Company in Meerut to obtain call details of Mobile No. 9837137677 and the printouts were obtained, therefrom it was revealed that the ransom call was made from mobile having IMEI Number 350019320553551. It was further disclosed that in this mobile another Sim Card having connection No. 9837267073 was also being used. The call details further revealed that most of the calls were made on telephone situated in Modi Nagar and main telephone number was 45109. The Investigating Officer from the call details found that on complainant's mobile No. 9810144082 the accused persons made five calls on different times from mobile Number 9837137677, twice each on 26th and 27th Oct., 2001. On 29.10.2001 the Investigating Officer along with other police officials reached Telephone Exchange, Modinagar and came to know that telephone No. 45109 is installed at the residence of Sri S.P. Singh, Advocate, resident of Satyanagar Modinagar. Sri Singh informed Investigating Officer that Jitendra Singh son of Satyavir, resident of Kiratpur, District Bijnor resides in his house on rent and often his phones are received on his telephone number and Jitendra also used to make calls from this telephone. Sri Singh also told the Investigating Officer that a short while ago Jitendra along with his relative Neeraj had left for Ghaziabad in Tata Sumo (U.P. 14H-8790).
5. The police party thereafter left in search of the aforesaid vehicle and at 11.00 a.m. they apprehended the aforesaid Tata Sumo at ALT Mod, Meerut Road, Ghaziabad in presence of public witnesses Subodh and Sushil Kumar. The person siting on driver seat disclosed himself as Neeraj son of Sri Indrapal, Resident of Amaraja, Bhojpur, District Ghaziabad and from the chest pocket of his wearing shirt a Siemens blue colour mobile was recovered. The IMEI No. of the mobile set was 350019320553551, sim card was having no. 8991560010811586364 and service provider connection number was 9837267073. The other person introduced himself as Jitendra son of Satyavir Jat, Resident of Shyampur, Police Station Kiratpur, District Bijnor and from his wearing shirt's pocket a SIM Card No. 8991560106811728251 wrapped in a paper was recovered. The SIM Card disclosed its connection number as 9837137677 which was the number used in demanding ransom from the complainant. Both the accused persons were taken into custody and the recovered articles were sealed on the spot through recovery memo. Both the accused told the police that they used both the SIM cards in the aforesaid mobile set. The accused persons were taken to police station Kavi Nagar where on interrogation they allegedly confessed kidnapping of Vishal and informed the police that after killing him they had thrown his dead body after packing in a gunny bag in Ganga canal and offered to get the same recovered.
6. The Investigating Officer along with the accused left police station and from the railway crossing of Sector-23 Kavinagar he procured witnesses Rajeev Chaudhary and Ravindra. The police of P.S. Muradnagar was informed on wireless and when they reached at the gate of police station Muradnagar, S.I. P. K. Agnihotri, Constable Magan Singh and Home Guard Ashwani Kumar met them along with panchnama. The accused took the police party near the field of Roop Chandra of village Didauli infront of Ganga canal. The accused persons got down from the jeep and entered into the logged water in bushes of Ganga canal and both of them took out a gunny bag containing the dead body at about 1.15 p.m. and told the police that it contains the dead body of Vishal. The gunny bag was tied with a plastic rope. On opening the bag the dead body of Vishal and pair of Hawai Chappal was found which was identified by the witnesses.
7. S.I., P.K. Agnihotri conducted inquest upon the dead body and sent the same in sealed condition along with usual papers for autopsy. Dr. O.N. Pandey on 29.10.2001 conducted postmortem examination of the cadaver of the deceased at 4.30 p. m. He found that about 8-years old deceased was good built and well nourished. Rigor mortis had passed off and decomposition was present. Eyes were bulging out of socket. Tongue had protruded out from mouth. Skin peeled off all over the body. Nails and scalp hairs were loose. The following ante-mortem injury was noted by the Doctor in his autopsy notes:
"Multiple marks of contusion on front and both sides of neck."
In the internal examination the doctor found that the brain of the deceased was liquefied and hyoid bone was fractured. The pleura and both lungs were congested. The stomach contained 150 gm semi digested food. The small intestines contained semi digested food and gases, while faecal matter and gases were found in the large intestines. The doctor opined that the deceased suffered death about 4-5 days before due to asphyxia as a result of throttling. After recovery of the dead body the case was converted under section 302 and 201 I.P.C. The Investigating Officer thereafter interrogated other witnesses, inspected the place of the recovery of the dead body and his investigation culminated into charge-sheet against both the accused for the offences punishable under Section 364A, 302 and 201 I.P.C.
8. After committal of the case to the Court of Session charges for the offence punishable under Sections 364-A, 302/34 and 201/34 I.P.C. were framed against both the accused persons, who abjured their guilt and claimed trial.
9. In order to substantiate the charges the prosecution examined, complainant Sanjay Chaudhary PW-1, Anil Kumar Singh PW-2, Rajiv Chaudhary PW-3, Sushil PW-4, S.I. Satish Kumar PW-5, Dr. O.N. Pandey PW-6, S.I. Jagvir Singh PW-7, Constable Madan Singh PW-8, S.I. Rohtash Kumar Sharma PW-9, S.I. Nempal Singh PW-10, S.I. Anil Samaniya PW- 11, S.I. Pratap Singh PW-12.
10. In their separate statements under Section 313 Cr.P.C. both the accused persons have denied all the facts and circumstances appearing in the evidence against them in the case and had pleaded false implication. They have also denied any recovery from their possession or on their pointing out stating that they were picked up by the police from their house and have been falsely implicated in the case. They have examined police driver Nepal Singh, D W-1.
11. The learned trial Court after hearing the parties' counsel had convicted and sentenced both the accused appellants as indicated earlier. Aggrieved the appellants have come up in separate appeals.
12. We have heard the learned counsel for the parties at length and perused the original records of the case.
13. There is no direct evidence in the case and the prosecution case rests on circumstantial evidence. In the criminal trial for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the proved circumstances lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid down to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case.
14. Although the trial Court has not listed the circumstances brought by the prosecution on record to prove the guilt of the accused-appellants, however, after perusing the evidence on record we find that the prosecution has relied upon the following circumstances to prove the charges against the accused persons:
i. that 8-years' old Vishal son of complainant was alone in his house in the after-noon of 24.10.2001 and was kidnapped from there, and the missing report was lodged by the complainant in P.S. Kavi Nagar the same night at 9.15 p.m.;
ii. that on 24.10.2001 at about 5.00 p.m. Anil Kumar Singh PW-2 has seen accused Jitendra catching hold hand of Vishal and making him to sit in white colour Tata Sumo near railway crossing of Sector-23 and accused Neeraj was sitting on the driver's seat;
iii. that on 25th October, 2001 the complainant received ransom calls demanding Rs. 30.0 lacs for the release of his son from mobile number 9837137677 and the complainant informed the police about the calls which was entered in G. D. report no. 32 on 25.10.2001 at 16.15 hrs;
iv. that the mobile connection number 9837137677 was put on surveillance through Escotel company and from call details received it was revealed that the IMEI number of the mobile was 350019320553551 and from this set other sim bearing connection number 9837267073 was also being used;
v. From the call details it was further revealed that from mobile number 9837137677, five calls on 25.10.2001, two calls on 26.10.2001 and three calls on 27.10.2001 at different times to complainant's mobile number 9810144082 were made;
vi. That the call details of 9837137677 further informed that most of the calls were made on numbers of Modi Nagar and mostly on basic phone no. 45109 which belonged Sri S. P. Singh, Advocate, who informed the police that accused Jitendra is his tenant and often he used to call on his phone number and also made calls from his phone;
vii. that on 29.10.2001 both the accused were arrested by the police in Tata Sumo vehicle in presence of Sushil PW-4 and from the chest pocket of wearing shirt of Neeraj a blue colour Siemens mobile having Escotel sim card, connection number 9837267073 was recovered. The sim no. was 8991560010811586364 and mobile's IMEI number was 350019320553551. The other accused introduced himself has Jitendra s/o Satyavir Jat r/o Kiratpur, Bijnor and from pocket of his shirt a sim no. 8991560106811728251 was recovered. The sim card on being used disclosed connection no. 9837137677;
viii. that both the accused on interrogation confessed the kidnapping of Vishal and further stated that after killing him they have kept his dead body in a gunny bag and thrown the dead body in the bushes of Ganga canal in logged water and they can get the dead body recovered;
ix. that the investigating officer informed the police of P. S. Muradnagar and along with S. I. P. K. Agnihotri of this police station proceeded with the accused persons. They took the police party in front of village Didauli and near the field of Roop Chand the accused entered into the logged water in bushes of Ganga Canal and took out a gunny bag at about 1.15 p.m. which was tied with a plastic rope and on opening the bag the dead body of Vishal and pair of Hawai chappal were recovered which were identified by Rajiv Chaudhary PW-2 and memo Ex. Ka-2 was prepared;
x. that SI P. K. Agnihotri conducted inquest on the cadaver of Vishal on the direction of SI Anil Kumar Samania PW-11and thereafter it was sent for autopsy in sealed condition;
xi. that Dr. O. N. Pandey PW-6 and Dr. Ajay Agarwal conducted post-mortem examination of the corpse of Vishal on 29.10.2001 and vide report Ex. Ka-5 they opined that the deceased suffered death about 4-5 days before due to asphyxia as a result of throttling.
15. Learned counsel for the appellants has vehemently argued that there is no legal evidence against the appellants to prove that they had kidnapped the victim and have made ransom calls to his father; that the police has fabricated recovery of mobile set and the sims from them and they never retrieved the dead body of Vishal on 29.10.2001 and there is also no evidence that the appellants have killed the deceased or have thrown his dead body in a gunny bag in the Ganga canal. Lastly it has been submitted that all the witnesses examined in the case except the formal witnesses are relatives of the complainant so it is not safe to base conviction of the accused-appellants on the basis of testimony of interested witnesses.
16. Oppugnating the above arguments and reiterating the above listed circumstances learned AGA has submitted that accused Jitendra is close relative of the complainant and Neeraj is distant relative of Jitendra. The complainant never suspected that the accused might have kidnapped his boy, demanded ransom of Rs. 30.0 lacs from him and with his associate have killed the victim. The name of the accused persons have come to light during police investigation through electronic surveillance and the complainant has no animus to falsely rope in any of the accused otherwise he could have named them in the FIR. The mobile set and the sim with which the ransom calls were made had been recovered from the possession of the accused-appellants and the dead body of the deceased was got recovered by the accused-appellants on 29.10.2001 from the logged water of Ganga canal near village Didauli. All the proved circumstances unerringly point towards the guilt of the accused-appellants and they are inconsistent with their innocence, so the learned trial Court has not at all erred in returning guilty verdict against them and they have been appropriately sentenced.
17. In the illustrated case of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 the Apex Court laid down the golden principles of standard of proof, required in a case sought to be established on the basis of circumstantial evidence. In this behalf following observations are worth mentioning:-
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra: 1973 CriLJ 1783 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the 'panchsheel' of the proof of a case based on circumstantial evidence."
In the case of Tanviben Pankajkumar Divetia Vs. State of Gujarat, (1997) 7 SCC 156 following observations were recorded :-
"45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions.(Jaharlal Das Vs. State of Orissa: 1991 3 SCC 27)
18. In the light of the above legal principles we would proceed to examine the evidence on record to adjudge the culpability of the accused-appellants or otherwise in this case.
19. Learned counsel for the appellants has vehemently argued that no case u/s 364-A IPC is made out as there is no evidence on record to conclude that the accused-appellants have in fact kidnapped the victim as alleged by the prosecution and further it has not been proved as to who has made ransom calls to the father of the victim. In this connection we may refer to the provisions of Section 364-A I.P.C., which reads as under:
"364-A. Kidnapping for ransom etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or cause hurt or death to such person in order to compel the Government or a foreign State or international inter- governmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life and shall also be liable to fine."
To attract the provisions of Section 364-A what is required to be proved is (1) that the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom. To pay a ransom as per Blacks Law Dictionary means to 'pay price or demand for ransom'. The word 'demand' means 'to claim as ones due'; 'to require'; 'to ask relief'; 'to summon'; 'to call in Court'; An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act; An asking with authority, claiming. The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made.
Circumstance no. (i):
20. The consistent case of the prosecution is that in the evening of 24.10.2001 there was marriage of niece of the complainant (daughter of Yogendra Singh, brother of the complainant) in Arya Farms, Ghaziabad. The complainant was busy with the marriage arrangements and his wife in the after-noon went to beauty parlour living 8-years' old Vishal alone at home and when they returned at about 5.00 p.m. they did not find him there. Search was made here and there as also at the marriage place, but when he could not be found complainant submitted a missing report at P. S. Kavi Nagar at 9.15 p.m. giving his description and details of his wearing apparels. These facts have been stated by PW-1 proving the written report submitted by him at police station as Ex. Ka-1 in his deposition. It has come in his statement that the marriage was to be solemnized at Arya Farm House and the barat from Meerut was to reach directly at the Farm House and reception was at 7.30-8.00 p.m. The complainant has stated that they are five brothers, he is last but one and they all reside in Raj Nagar, Ghaziabad. The complainant has further stated that after searching the son for 2- 2½ hours, he informed his brothers.
21. Learned counsel for the appellants has raised question that why the mother of Vishal left him all alone in the house without taking any precautions? The argument is hypothetical. Vishal was aged 8 years' old and was not an infant. In the developed cities where the people do not live in joint families, it is quite natural that the house-wife some times has to leave children to attend some urgent work. It was not an odd hour of the day, therefore, it was not unnatural, if the mother of the victim leaving him alone had gone to beauty parlour. It is quite common that before attending any marriage or other ceremonial function the ladies used to visit beauty parlour(s) for their make-up.
22. HCP Nempal Singh PW-10 has testified about receipt of missing report of the son Vishal from Sanjay Chaudhary on 24.10.2001 at 9.15 p.m. stating that he had entered the report in GD vide report no. 49 and its enquiry was entrused to SI R. K. Sharma. He has proved the copy of GD report as Ex. Ka-6. It has also come in the statement of PW-1 that accused Jitendra is his maternal uncle's (not real) son. Accused Jitendra has pleaded ignorance about the missing of Vishal and lodging of report by the complainant with the police of P. S. Kavi Nagar on 24.10.2001 at 9.15 p.m. SI Rohtash Kumar Sharma PW-9 has also stated about the lodging of missing report of complainant's son Vishal aged about 8-years by his father Sanjay Chaudhary on 24.10.2001 at 9.15 p.m. and further stated that its enquiry was entrusted to him. Thus, it is proved that Vishal, the victim was missing from his house since 4.30 p.m. of 24.10.2001 and its report was lodged by PW-1 at the police station Kavi Nagar the same night at 9.15 p.m. Circumstance no. (ii):
23. During investigation through the statement of Anil Kumar Singh PW-2 (Bua's son of the complainant) it was revealed that when he came to Ghaziabad from Saharanpur by bus to attend the marriage of the complainant's niece (real brother's daughter), he alighted at ALT crossing on Meerut Road. He boarded rickshaw for the house of complainant and when he reached near the railway crossing of Sector-23 at about 5.00 p.m., he saw a white Tata Sumo which was parked towards Meerut road. Accused Jitendra catching hold Vishal was making him to sit in the vehicle while other accused present in Court namely Neeraj was on the driving seat. He found the house of complainant locked and then through the house Yogendra Singh, who's daughter's marriage was scheduled reached at the marriage place i.e. Arya Farms and after handing over kanyadaan, the same day he returned back to Saharanpur. He has stated that he knows Jitendra from before who is his maternal uncle Sanjay Chaudhary's son and had seen him many times at his house. On 29.10.2001 he came to know from the newspaper about kidnapping and murder of Vishal and then came to Ghaziabad and informed the complainant that he had seen Vishal on 24.10.2001 with Jitendra and person sitting on driver's seat. This witness has been extensively cross-examined on behalf of the defence, wherein he stated that he was employed with Punjab Nataional Bank in Saharanpur. He has further stated that he alone came from Saharanpur to attend marriage; that he stayed at the marriage venue till 7.00 p.m. and returned back by train.
24. Learned counsel for the appellants has doubted the statement of this witness on the ground that he had come from Saharanpur which is distantly situated from Ghaziabad and before the reception of the barat he left the marriage place. This argument does not appeal to us. Perusal of calendar for the year-2001 shows that on 24.10.2001 it was Wedensday and the following day was not a holiday (Dashera was on 26.10.2001). It was almost end of the calendar year, so it was possible that PW-2 may not be having any leave to his credit. Further it has also come in his evidence that his wife usually remains ill, so he had come alone to attend the marriage and that may also be a reason for his quick return to Saharanpur after completing formalities in the marriage. This statement of PW-2 appears to be quite natural. As regards his second visit to Ghazaiabad after knowing about the incident from the news paper, he has corrected himself during cross-examination by saying that he came to Ghaziabad on 30.10.2001. The record shows that both the accused were arrested on 29.10.2001 and the same day the cadaver of the deceased was recovered, so this news item must have been published in the newspapers of 30.10.2001. The witness did not attach much importance to the incident on seeing Vishal in the company of Jitendra, as he was relative of the complainant and further it was marriage day in his family, so he might have thought they were (accused and the deceased) together and may be going some where in connection with some marriage arrangements. Thus, we find that the 2nd circumstance has been fully proved by the prosecution through the testimony of PW-2.
Circumstances no. (iii) to (vi):
25. The prosecution story is that on 25th to 27th October, 2001 the complainant received ransom calls demanding Rs. 30.0 lacs for the release of his son Vishal from mobile number 9837137677 on his mobile and the complainant informed the police about the calls which was entered in G. D. report no. 32 at 16.15 hrs dated 25.10.2001 and case was converted into section 364-A IPC. PW-1 had spoken about this circumstance in his deposition and it is supported by copy of GD report no. 32 (Ex.Ka-7), which has been proved by HCP Nempal Singh PW-10. Learned counsel for the appellants has criticized this story on the ground that the mobile number from which the ransom call was received did not find place in this copy of GD. This fact has been admitted by PW-9, who has enquired the missing report of complainant. However, the answer to this query is very simple because by that time no clue of the missing boy was found neither to complainant nor to the police so for security and secrecy reasons the number of caller mobile was not mentioned in the GD no. 32. However SI Rohtash Kumar Sharma PW-9 had spoken both the mobile numbers i.e. the caller and receiver's mobile in his examination-in-chief before the trial Court, which finds corroboration from the testimony of PW-1.
26. On 25.10.2001 after the receipt of ransom calls by the complainant on his mobile number 9810144082 from mobile number 9837137677, the missing report dated 24.10.2001 was converted into case u/s 364-A IPC at crime no. 661/01 and the 2nd I.O. Anil Kumar Samania PW-11 got directions from the C.O. to PW-5 Satish Kumar (Incharge surveillance) to put the mobile number 9837137677 on surveillance through Escotel company. It has come in the deposition of PW-11 that on 28.10.2001 he along with PW-5 went to the office of Escotel Company at Meerut and obtained call details which revealed that the IMEI number of the mobile was 350019320553551 and from this set other sim bearing number 9837267073 (from which ransom calls were received by the complainant) was also being used. This fact finds corroboration from the testimony of PW-5 as well. He has also proved the computer generated print out obtained from Escotel Company as Ex. Ka-4 to Ka-4/10.
27. Learned counsel for the appellants has questioned the authenticity of these documents on the ground that they do not bear the signature of any officer/authority of the Escotel Company. The call records relating to cellular phone are admissible and reliable evidence, as observed by the Apex Court in the case of State (N.C.T. Of Delhi) Vs. Navjot Sandhu @ Afsan Guru 2005 Cri.L.J. (Supreme Court). It was further held that if the printouts pertaining to the call details exhibited by the prosecution are of such regularity and continuity that it would be legitimate to draw a presumption that the system was functional and the output was produced by the computer in regular use, whether this fact was specifically deposed to by the witness or not. In the instant case vague suggestion has been given to PW-5 that in connivance with the S.O. the call details have been fabricated and they do not belong to the company, which had been emphatically denied by him. No doubt the investigating officer may be due to lack of knowledge has not obtained any covering letter from the Escotel Company as was done in the infamous case of Afsan Guru (Attack on Parliament on December 13, 2001), but in the instant case the prosecution has produced documentary electronic evidence, which could have been rebutted by the defence as they had an opportunity to disprove these documents by summoning the official of Escotel Company, if they had any doubt about the authenticity of these documents. Further the call details exhibited in the case has led the police to the recovery of mobile set, the sim cards as also the dead body of the deceased at the instance of both the accused. How the investigating officer was acquainted with the law and procedure about electronic surveillance and collection of evidence in this regard? is clear from his following statement:
" bysDVªkfud losZykUl ds lEcU/k esa dkuwu gS ysfdu ml dkuwu dk uke eq>s ;kn ugha gSA bysDVªkfud losZykUl ij yxkus ds fy, lh0 vks0 dk vkns'k Ik;kZIr ugha gS] blds fy, gkse lssdsVªh ls vuqefr ysuh gksxhA lh0 vks0 us ;g vuqefr izkIr dh rFkk bl laca/k esa ,LdkVsy dEiuh dks vkns'k fn;k ;k ugha eSa ugha tkurkA bldks lh0 vks0 gh crk ldrs gSA lh0 vks0 ds ,sls vkns'k dh udy eSaus dsl Mk;jh esa ugha dh gSA dsl Mk;jh esa ek= vkns'kkuqlkj fy[kk gSA eSa ugha tkurk fd ,p-lh- lrh'k dqekj dks losZykUl dh Vªsfuax gS ;k ughaA mUgsa bldh tkudkjh gSaA izn'kZ d&4@1 ls d&4@10 ,LdksVsy daiuh ds iSM ij ugha gS rFkk dEiuh dh bl ij eqgj ;k vf/kdkjh ds gLrk{kj ugha gSA bu dkxtksa ij DEI;wVj ls eksckby uEcj 9837137677 ugha fy[kk gS gkFk ls fy[kk gS vkSj fdlh ds }kjk izekf.kr ugha gSA ;g dguk xyr gS fd izn'kZ d&4@1 ls d&4@10 QthZ o cukoVh nLrkost gSA"
It is unfortunate to note with concern that the investigating officers in our State are not acquainted or imparted training/education in respect of advance methodology of investigation and the sufferers are the poor victims and marauders get rid of the clutches of law due to poor or designedly defective investigation. However, the other clinching evidence adduced in the case, lead us to the conclusion that it was due to the call-details and none else that the police could nab the culprits and recover the mobile phone and sim-cards with which the calls were made to the complainant for demand of ransom and they also retrieved the corpse of Vishal. The entire case has been worked out by the police through these call details of the Escotel Company, which further revealed that from mobile number 9837137677, 5 calls on 25.10.2001, two calls on 26.10.2001 and three calls on 27.10.2001 at different times to complainant's mobile number 9810144082 were made. It was with the help of the call details of mobile number 9837137677 that the police could reach the residence of Mr. S. P. Singh, Advocate of Modi Nagar, where Jitendra was residing on rent as the call details of 9837137677 informed that most of the calls were made on numbers of Modi Nagar and mostly on basic phone no. 45109 which belonged to aforesaid Advocate, who informed the police that accused Jitendra resides in his house as tenant and often he used to call on his phone number and also made calls from his phone.
28. It is pertinent to note that although accused Jitendra is close relative of the complainant and accused Neeraj is related with Jitendra, but the defence could not bring any material on record which have prompted the complainant to falsely depose against them. In fact there is no named accused in the written report of the incident at the instance of the complainant. He simply informed the police that his minor son is missing since 5 p. m. on 24.10.2001 and thereafter he received ransom calls and then the police has worked out the case through electronic datas of call details of mobile number 9837137677. Thus, we find that the prosecution has successfully proved circumstances no. (iii) to (vi) as noted above.
Circumstances no. (vii) to (ix)
29. Learned AGA has contended that after getting input from S. P. Singh, on 29.10.2001 both the accused were arrested by the police in white Tata Sumo vehicle in presence of Sushil PW-4 and from the chest pocket of wearing shirt of Jitendra a sim-card, connection no. 9837137677 was recovered.
30. The other accused introduced himself as Neeraj and from his shirt's chest pocket a blue colour mobile set and sim card no. 8991560106811728251 was found. The sim-card's service provider connection no. was 9837267073. The sim's number was 8991560010811586364 and mobile's IMEI (International Mobile Station Equiptment Identity) number was 350019320553551. The prosecution has relied upon the testimony of Sushil PW-4 and SO Anil Kumar Samania PW-11 to prove these circumstances. Mr. Samania PW-11 has stated that after getting call details from Escotel Company he found that most of the calls were made from Modi Nagar, so he reached Telephone Exchange, Modi Nagar on 29.10.2001 and came to know that telephone number 45109 belongs to Sri S. P. Singh and on enquiry from Sri Singh he came to know that accused Jitendra is tenant in his house who had used his telephone number for incoming and outgoing calls. He further told him that Jitendra had just left along with his relative Neeraj in Tata Sumo for Ghaziabad. He chased them and at about 11.00 a.m. he apprehended the aforesaid Tata Sumo in presence public witnesses Subodh and Sushil Kumar near ALT Centre and in their presence both the accused were arrested. On personal search of Neeraj a blue colour Siemens mobile having Escotel sim card connection no. 9837267073 was recovered and the serial number of sim-card was 8991560010811586364 and IMEI number of mobile was 350019320553551. From the possession of accused Jitendra a sim card wrapped in a paper was recovered and its number was 8991560106811728251. On checking the connection number of sim-card it was found to be 9837137673, which was used for making ransom calls from the complainant. The recovery memo was prepared and the articles were sealed.
31. Sushil PW-4 has testified the arrest of both the accused and recoveries made by the police from there person. According to this witness on 29.10.2001 he along with his friend Subodh Malik were coming to Ghaziabad from Meerut and when they reached at ALT turn the police over took their vehicle and Tata Sumo UP 14H/8790 at about 11.00 a.m. The police arrested two persons from the vehicle who introduced themselves as Jitendra and Neeraj. He has also corroborated the recovery of moblie set and two sim-cards from their possession as also preparation of memo Ex. Ka-3, which bears his signature. The testimony of Sushil PW-4 has been criticized by the appellants' counsel on the ground that he is close relative of Rajiv Chaudhary (brother of the complainant) being his brother-in-law. Learned counsel for the appellants has castigated the testimony of this witness on the ground of his interested being close relative of complainant's brother.
32. It is not the law that the testimony of a related witness be rejected on the ground of his relationship with the complainant or the victim. However, the deposition of such a witness needs close and careful scrutiny.
33. We have thoroughly examined the cross-examination of Sushil PW-4. He has stated that from Meerut to Delhi thousands of vehicle ply on the road, but the police did not stop any other vehicle. The reason is obvious as the police while overtaking the Tata Sumo the vehicle of this witness also came to halt, so the police had taken inmates of this car for being witness of arrest and recovery. This conduct of police or this witness is not unnatural. He has been extensively cross-examined by the defence counsel but the learned counsel for the appellants could not point out any infirmity or inconsistency with the other part of the prosecution story except his relationship with the family of the complainant.
34. Certain part of the statement of this witness has been referred to by learned counsel for the appellants stating that it is an improvement as such statement was not given by him to the investigating officer. True it is, but on perusal of the impugned judgement we find that the learned trial court has also discussed this alleged improvement and has repelled the argument of defence counsel stating that on this ground the testimony of this witness cannot be discarded. In the recovery memo Ex. Ka-10 it has been mentioned that as soon as the police got the Tata Sumo vehicle stopped, then witnesses Sushil and Subodh Malik arrived there. At that time the attention of the police was in nabbing the accused persons as the vehicle tallied in description which was disclosed to them by Sri S. P. Singh Advocate in Modi Nagar, so they might not have seen as to how the witnesses have stopped their vehicle and came there. Thus we find that the arrest of both the accused and recovery of mobile set and two sim-cards as noted earlier is fully proved by the evidence on record.
35. In the recovery memo Ex. Ka-10 it has been mentioned that after checking of sim cards their particulars and IMEI number of mobile set the police came to know that the mobile set and sim have been used in making ransom calls demanding Rs. 30.0 lacs from the complainant for return of his son Vishal, the police informed both the accused before arresting them that they have kidnapped the 8-years' old Vishal. After the accused were taken to police station, IO interrogated them there and they allegedly confessed kidnapping of Vishal and further stated that after killing him they have kept his dead body in a gunny bag and thrown the it in the bushes of Ganga canal in logged water and they can get the dead body recovered. IO PW-11 has testified about the interrogation of the accused persons in police station on 29.10.2001. He has stated in examination-in-chief that the details of interrogation of accused persons had been entered in GD report no. 27 at 11.35 a.m. on 29.10.2001, copy whereof has been proved by him as Ex. Ka-9. According to him, thereafter he along with the accused persons in order to get the recovery of dead body of Vishal came at crossing of Section-23 and took public witnesses Rajiv Chaudhary and Ravindra with them and also informed P.S. Murad Nagar through wireless set. At Murad Nagar police station gate SI P. K. Agnihotri along with jild panchayatnama, and other police personnel met them and the accused persons took them in front of Ganga canal near the field of Roop Chand. Both the accused persons after getting down from the jeep entered into the logged water of Ganga canal and took out a gunny bag at about 1.15 p.m. and stated that it contained the dead body of Vishal. The bag was tied with plastic rope and on opening it, the dead body of Vishal and a pair of Hawai chappal were recovered and the witnesses identified them. The wearing apparels found on the corpse of the deceased tallied with the missing report of the complainant.
36. The testimony of PW-11 further finds support from the deposition of Rajiv Chaudhary PW-3, who has stated that on coming to know about murder of Vishal on 29.10.2001 he reached at crossing of Sector-23, where S.O., Kavi Nagar along with Jeep met him. He told that the accused persons sitting in the jeep are Jitendra and Neeraj. In cross-examination he has stated that Sushil has informed him about the arrest of accused persons at about 11.30 a.m. on 29.10.2001 through mobile phone and at that time his friend Ravindra Chaudhary was also with him. This witness has fully corroborated the manner in which both the accused took out the gunny bag from logged water of Ganga canal and presence of Murad Nagar police at the time of recovery of the dead body of Vishal as also identification of the corpse of the deceased by them. In cross-examination he has reiterated that the police got identification of cadaver of Vishal, his clothes and chappal after its recovery. He has also identified his signature on recovery memo Ex. Ka-2. No doubt this witness is the real brother of the complainant and uncle of the deceased, but the police also require such persons who are acquainted with the decesed at the time of prospective recovery of his dead body. In this manner we find that circumstances no. (vii) to (ix) are duly proved.
Circumstance no. (x) and (xi) :
37. After the recovery of the cadaver of the deceased by the accused, its inquest was conducted by S.I. P. K. Agnihotri on the direction of SI Anil Kumar Samania PW-11 and thereafter it was sent for autopsy in sealed condition. PW-11 has proved the inquest report Ex. Ka-10 and other related papers as Ex. Ka-11 to Ka-15 which bear his signature also. The autopsy on the corpse of the deceased was conducted Dr. O. N. Pandey PW-6 and Dr. Ajay Agarwal on 29.10.2001 and vide report Ex. Ka-5 they opined that the deceased suffered death about 4-5 days before due to asphyxia as a result of throttling. The autopsy notes have been proved by Dr. Pandey PW-6 as Ex. Ka-5. The doctors have found that the brain of the deceased was liquefied and hyoid bone was fractured. The pleura and both lungs were congested. The stomach contained semi digested food 150 gm. The small intestines contained semi digested food and gases, while faecal matter and gases were found in the large intestines. The doctor opined that the deceased suffered death about 4-5 days before due to asphyxia as a result of throttling. The time gap since death noted by the doctors tallies with the date of kidnapping of the deceased. The dead body was identifiable and no otherwise suggestion had been given to Dr. Pandey in this regard by the defence. Since corpse of the deceased was lying in water so decomposition was delayed. Dr. Pandey had been cross examined on this point and his relevant statement is as under:
" BaMs ikuh esa 'kjhj ds iM+s jgus ij fMdEiksth'ku 4&5 fnu ds ckn 'kq: gksxkA iwjh rjg BaMs ikuh esa iM+s jgus ij fMdEiksth'ku esa 3&4 fnu yx tk,xsaA fMdEiksth'ku 24 ?kaVs ckn gh 'kq: gks tkrk gSA ef"rLd fyfDoQkbZM gks x;k FkkA ;g fMdEiksth'ku 'kq: gksus ij gh gks tkrk gSA I;wVªhQSD'ku o fMdEiksth'ku esjs fy, Ik;kZ; 'kCn gSA e`R;q ds le; ds izLrqr ekeys esa le; 3-1@2 fnu ls 5-1@2 fnu ds vanj dk Hkh gks ldrk gSA"
The defence has not disputed that the dead body got recovered by the accused persons to the police on 29.10.2001 is not of Vishal. Multiple marks of contusion on front and both sides of neck were found as ante-mortem injuries by the doctors on the corpse of the deceased which show use of violence at the time of his killing. Thus the medical evidence available on record also corroborates the other part of the prosecution story, therefore, circumstances no. (x) and (xi) have been proved beyond any doubt
38. Learned counsel for the appellants in his concluding arguments has also placed the following points before us:
i) that no body had seen the accused carrying the victim;
ii) that it is not proved that mobile connection no. 9837137673 belongs to accused Jitendra;
iii) that till 29.10.2001 the identity of the accused was not ascertained;
iv) that the I.O. has not recorded the statements of Sri S. P. Singh, Advocate on 29.10.2001;
v) that SI P. K. Agnihotri, the author of inquest report had not been examined;
vi) that in the inquest report it is not mentioned that the dead body of Vishal was found in a gunny bag closed with a plastic rope.
We have considered all these arguments with the help of the evidence available on record in the light of proved facts and circumstances enumerated above. In our opinion these points are not consistent with the innocence of accused persons. It has come in investigation that mobile connection no. 9837137673 was purchased by Jitendra in the fake name of Yogendra Singh. The deceased was last seen alive in the company of both the accused by PW-2 while making him to sit in a Tata Sumo. The investigating officer has explained the circumstances in which he did not record the statement of Sri S. P. Singh on 29.10.2001, saying that he was in a hurry to nab the accused persons who had left the house of Mr. Singh in Tata Sumo a short while ago. The names of the accused persons came to light on 29.10.2001 during investigation and the same day they were apprehended by the police and the vehicle used in the kidnapping, mobile set and sim-card with which ransom calls were made from the complainant were recovered from them. If SI Agnihotri has not been examined it does not make any difference as the inquest report has been proved PW-11 in whose direction it was prepared by SI Agnihotri. It is true that in the inquest report it ought to have been mentioned that the dead body of the deceased was recovered in a gunny bag closed with a plastic rope, but if the same has not been done, the prosecution story cannot be doubted, as in the recovery memo these facts have been noted by PW-11. Thus, none of the points argued by the learned counsel for the appellants, help any of the appellant.
39. In the facts and circumstances of this case, it has been duly established, that Vishal was last seen in the company of both the accused-appellants and they had kidnapped him for ransom on 24.10.2001, same day he was done to death and keeping his dead body in a closed gunny bag itwas thrown in Ganga canal . The accused-appellants demanded ransom from the mobile which after being kept on surveillance gave its location and thereafter the land-lord of Jitendra resident of Modi Nagar gave his clue and on 29.10.2001 both the appellants were arrested by the police and the mobile set having same IMEI number and sim-cards which were used in making ransom calls were recovered from their possession. After their arrest both the accused-appellants made confession before Rajiv PW-2 and thereafter they retrieved his dead body to the police closed in a gunny bag the same day and in the post-mortem examination his time of death matched with the day of his kidnapping by the accused-appellant and they have not been able to produce any material on the record of this case to show the release of Vishal from their custody. The motive/reason for the accused-appellant, for taking the extreme step was, that accused Jitendra being related to the complainant, the deceased might have identified him. We are therefore, satisfied, that in the facts and circumstances of the present case, there is more than sufficient evidence on the record of this case, on the basis whereof even the factum of murder of Vishal at the hands of the accused-appellant stands fully established. We are fortified in our conclusion with the findings of the Apex Court given in a very recent case of In Criminal Appeal Nos. 300-301 of 2011 Sunder @ Sundararajan vs State Tr. Insp. Of Police decided on 5th February, 2013. In this case, the Hon'ble Court referred to the case of Sucha Singh Vs. State of Punjab, (2001) 4 SCC 375:
"21. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others."
A perusal of the aforesaid determination would reveal, that having proved the factum of kidnapping, the inference of the consequential murder of the kidnapped person, is liable to be presumed. We are one with the aforesaid conclusion. The logic for the aforesaid inference is simple. Once the person concerned has been shown as having been kidnapped, the onus would shift on the kidnapper to establish how and when the kidnapped individual came to be released from his custody. In the absence of any such proof produced by the kidnapper, it would be natural to infer/presume, that the kidnapped person continued in the kidnapper's custody, till he was eliminated. The instant conclusion would also emerge from Section 106 of the Indian Evidence Act, 1872 which is being extracted hereunder :
"106 - Burden of proving fact especially within knowledge-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations - (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
27. Since in the facts and circumstances of this case, it has been duly established, that Suresh had been kidnapped by the accused-appellant; the accused-appellant has not been able to produce any material on the record of this case to show the release of Suresh from his custody. Section 106 of the Indian Evidence Act, 1872 places the onus on him. In the absence of any such material produced by the accused-appellant, it has to be accepted, that the custody of Suresh had remained with the accused-appellant, till he was murdered. The motive/reason for the accused-appellant, for taking the extreme step was, that ransom as demanded by him, had not been paid. We are therefore, satisfied, that in the facts and circumstances of the present case, there is sufficient evidence on the record of this case, on the basis whereof even the factum of murder of Suresh at the hands of the accused-appellant stands established."
40. In view of the aforesaid principles, we find that the prosecution has successfully proved all the circumstances relied upon against the accused-appellants. It has been proved beyond all reasonable doubt that the accused-appellants are involved in kidnapping of complainant's son Vishal, demanding ransom of Rs. 30.0 lacs for his release, his murder and causing disappearance of evidence by throwing the cadaver of the deceased closed in a gunny bag in to the logged water of Ganga canal in the vicinity of village Didauli P. S. Murad Nagar, Distt. Ghaziabad which was retrieved by them to the police on 29.10.2001. This chain of proved facts and circumstances is so complete so as to rule out the possibility of any other person except the accused persons to have committed the crime in question. The proved circumstances are conclusive in nature and tendency and they exclude every other possible hypothesis except the one which is proved. There is no vacuum in the prosecution story. The chain of evidence is so complete as it has not left any reasonable ground for conclusion consistent with the innocence of the accused and it is proved that in all human probability the offences have been committed by both the accused-appellants and none else.
41. As a result of aforesaid discussion, we find that the learned trial Court has not at all erred in returning guilty verdict against both the appellants for the offences punishable u/s 364-A, 302/34 and 201/34 I.P.C. Proper sentences have also been awarded to each accused. In these circumstances, the appeals have no force and are hereby dismissed. Both the appellants, as per office report are in jail, they would serve out the remaining part of their sentence.
42. Certified copy of the Judgement be sent to the Court concerned and the Chief Judicial Magistrate, Ghaziabad for ensuring compliance, which should be reported within 4-weeks.
(Justice Anil Kumar Sharma) (Justice Rakesh Tiwari) March 14, 2013 Imroz/-