Delhi District Court
State vs . Kallu, on 27 November, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC, E-COURT :
KARKARDOOMA COURTS: DELHI.
SESSIONS CASE No. 168/10
FIR No. 329/10
U/S 363/364-A IPC
PS: New Ashok Nagar
State Vs. Kallu,
S/o Krishana
R/o Village. Manona,
PS Anwla, Distt. Bareli, U.P.
Date of Institution : 09.11.2012
Judgment reserved on : 24.11.2012
Delivered on : 27.11.2012.
JUDGMENT
1. The prosecution case, in brief, is that Sonu, aged about 11 years, went to the market to buy vegetables on 06.07.2010 at about 9.30 am but did not return back. Ganesh Soni, father of Rahul searched for him but he could not be found. On 07.07.2010 at about 6.25 am, he went at the police station and lodged a FIR No.329/10 Page 1 of 13 report on the basis of which FIR was registered under Section 363 IPC. Complainant received a ransom call from one Kallu. On 09.07.2010, SI Sawai Lal along with complainant and his wife and other police staff went to Bareily to rescue Rahul. The child was recovered from accused from Badayun on the identification of the complainant. The child was handed over to the police. Accused Kallu was arrested. On completion of investigation, charge sheet was filed against him under Section 363/364-A IPC.
2. After compliance of section 207 Cr.P.C, the case was committed to Sessions Court. Charge under Section 363/364-A IPC was framed against the accused to which he pleaded not guilty.
3. In order to prove its case, prosecution examined eight witnesses. PW-1 is HC Rajesh, Duty Officer. He recorded the FIR Exbt. PW-1/A. PW-2 is Ganesh Soni. He is the complainant. He proved his complaint Exbt. PW-2/A. PW-3 is Master Rahul. He deposed that on 06.07.2010 at about 7.00 - 8.00 am, his mother gave him Rs. 10/- for buying vegetables from the market. He went to a vegetable vendor near his house. Accused Kallu, a rickshaw puller who used to come to FIR No.329/10 Page 2 of 13 his house, met him and told him that his mother has told him to bring subzi from Ashok Nagar. He took him on a bicycle to the place where his rickshaw was parked and then in his rickshaw, he took him to Dadri and from Dadri, he was taken in a tempo to the village of accused. He did not know if accused ever called his father on telephone from his village. He further deposed that on 08.07.2010, police along with his parents came there and arrested the accused.
PW-4 is Ram Gopal, owner of STD Booth at Village Saleem Pur. He deposed that on 07.07.2010, accused came at his STD booth at about 6.00 - 7.00 pm and made a call from his STD No. 9719560284 to a number at Delhi and asked the person to whom he made a call to come with money and take away the child. Accused talked for about nine minutes with that person and he charged Rs. 27/- for the call. PW-4 was declared hostile and was cross examined by the learned APP. In the said cross examination, PW-4 stated that he was not having the number 9716494289 at his STD booth.
PW-5 is HC Bhagirath. He deposed that on 07.07.2010, he along with SI Sawai Lal and Constable Shiv Kumar went to Manauna, Police Station Anvla, District Bareily in search of accused Kallu. The parents of the kidnapped boy were also with them. In the village, family members of Kallu met them and told FIR No.329/10 Page 3 of 13 that Kallu had not come there. They came to know that Kallu was at his relative's house near Badayun. Their vehicle developed some defect and therefore they were getting the same repaired near the bus stand. Ganesh Soni, father of the kidnapped boy was sitting with them. On his pointing out, accused crossing from there was apprehended by him with the help of Constable Shiv Pal. The kidnapped boy Rahul Soni was with Kalu. Accused was then arrested and the boy was handed over to his parents.
PW-6 is SI Sawai Lal. He is the IO of this case. On 07.07.2010, he had recorded the statement of Ganesh Soni at the police station, prepared the rukka Exbt. PW-6/A and got registered the FIR. He apprehended the accused from Badayun at the identification of PW-2 & rescued PW-3 from him. They then went to Saleem Pur where the maternal uncle of accused told that Rahul was kept in the house by accused telling him that he had brought Rahul for an outing. The STD owner Ram Gopal also met them and disclosed that accused used to make calls from his STD booth. They returned back to Delhi on 09.07.2010. During investigation, he collected the call details and then prepared the charge sheet.
PW-7 is Manish Kumar Singh, Assistant Nodal Officer, Tata Tele Services Ltd. He deposed that mobile phone No. 9278148492 was in the name of Umesh. He proved the Customer FIR No.329/10 Page 4 of 13 Application Form Exbt. PW-7/A and also proved the call detail record of the aforesaid phone for the period 01.07.2010 to 02.08.2010 as Exbt. PW-7/C. PW-8 is Smt. Asha. She was dropped by the learned APP.
4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that he is innocent. He refused to lead defence evidence.
5. Arguments have been heard from Mohd. Iqrar Ld. APP for the State and from Sh. Rakesh Kochar, Advocate for the accused. The Ld. APP has argued that PW-2 Ganesh Soni, father of PW-3 has proved that his minor son Rahul aged about 11 years was kidnapped on 06.07.2010. He proved that he received a ransom call of Rs.60,000/- for the release of PW-3. PCO owner Ram Gopal (PW-4) has proved that accused made ransom call from his PCO and PW-2, PW-3, PW-5 & PW-6 have proved the recovery of PW-3 from the accused. It is thus argued that prosecution has been able to prove its case against accused beyond doubt. The Ld. Defence counsel has however, argued that testimonies of PW-2 & PW-3 are not reliable. PW-3 is a tutored witness who has deposed falsely at the instance of his parents. It is argued that accused was having illicit relation with FIR No.329/10 Page 5 of 13 the wife of the complainant due to which he was annoyed with him. Accused had also given Rs.60,000/- to the complainant but when he demanded back the said amount, the complainant threatened to implicate him in a false case in connivance with SI Sawai Lal with whom the complainant and his wife were having intimacy. It is further argued that there are improvements in the testimony of PW-4 and the CDRs filed with chargesheet do not support the prosecution version. It is thus submitted that prosecution has failed to prove its case against accused beyond doubt.
6. Section 363 IPC provides punishment for kidnapping. The kidnapping is defined in 361 IPC. The Gravamen of the offence of kidnapping lies in the taking or enticing of a minor under the age of 16 years in case of a male, out of the keeping of the lawful guardian without the consent of such guardian. PW-2 Ganesh Soni is the father of PW-3 Rahul. PW-2 stated that the age of his son was 11 years at the time of occurrence. PW-3 Rahul when examined gave his age as 11 years. There is no cross examination on the point of age of PW-3. There is no challenge to the age of PW-3 and therefore, prosecution has been able to prove that the age of PW-3 Master Rahul at the time of the alleged occurrence was 11 years and thus he was minor.
7. PW-2 Ganesh Soni deposed that on 6th at about 9.00 -
FIR No.329/10 Page 6 of 139.30 am Rahul had gone outside the house to purchase vegetables but did not return back. He searched for him everywhere but could not find him and therefore on 7th he went to police station and made a complaint Ex.PW2/A. He further deposed that on 7th he alongwith police went to village Manauna where he was asked by Kallu to come with ransom money but accused was not found there. From village Manauna while they were going to the village of sister of accused towards Badayun, on the way their vehicle developed defect. He noticed accused Kallu going with his son Rahul. He immediately called his son and told to the police party. Accused tried to run away from there but was apprehended by the police officials. In cross examination PW-2 stated that once his wife and daughter went to village of accused for the treatment of his daughter who was paralytic. He denied that his wife and accused were having relations or that he use to object to it. He denied that 5 - 6 times his wife had gone to the village of accused with his consent and every time they stayed there for 20 days. He further stated that he left for the village of accused with police in the intervening night of 7/8th July 2010 and that accused met them at 5.00 - 6.00 pm at Badayun bus stand. He admitted that there were many persons present at the bus stand from where his son was recovered but police did not record the statement of any of those persons in their presence.
8. The testimony of PW-2 Ganesh Soni to the aforesaid FIR No.329/10 Page 7 of 13 effect is straightforward and cogent. He withstood the test of cross examination. His testimony finds corroboration from the testimony of PW-3 Rahul who also stated that accused took him in a bicycle on the pretext that his mother told him to bring sabji from Ashok Nagar. According to him accused took him in a rikshaw to Dadri and from there in a tempo to his village. He deposed that on being asked accused told him that they would come back in one or two days. He stated that on 08.07.2010 police came there alongwith his parents. He returned with his mother while accused was arrested by the police. In cross examination PW-3 states that he had gone to the village of accused only once with his parents. He stated that he did not complain against accused to any one on the way. He further stated that in the house of accused his maternal uncle and his family were present. He admits that he came to court with his mother but denied that his mother had told him as to what he has to say in court.
9. It is proved from the testimony of PW-3 that he knew the accused prior to the incident and accused took him on the pretext that his mother had told him to bring vegetables from Ashok Nagar. There is an element of enticement and this was the reason why PW-3 did not complain to anybody on the way. Merely because PW-3 came in court with his mother does not prove that he is a tutored witness. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and FIR No.329/10 Page 8 of 13 liable to be influenced easily, shaked and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. A child indisputably, is competent to testify if he understands the questions put to him and gives rational answers thereto. The testimony of PW-3 Rahul is consistent and coherent. He gave rational replies in his testimony. He was capable to understand the test of cross examination and very firmly and categorically denied that he was not taken by the accused. In my opinion flawless description of child witness Rahul is absolutely truthful and unpolluted from external influences, it deserves to be given highest credibility.
10. The Ld. Defence counsel has argued that no permission of the ACP to go out station has been produced, no arrival entry was made at the local police station at Badayun, no DD entry was made regarding the recovery of PW-3 at the police station and therefore the recovery of PW-3 from accused from Badayun as stated appears to be doubtful. However, I am unable to accept the submission of the defence in view of the fact that testimonies of PW-5 & PW-6 that Rahul was rescued from accused at Badayun finds corroboration from the testimonies of PW-2 & PW-
3. Accused failed to prove his defence that he has been falsely implicated because he was having illicit relationship with the wife FIR No.329/10 Page 9 of 13 of the complainant or because he was demanding back Rs.60,000/- which he had earlier given to the complainant. In my view it has been proved beyond doubt that accused had enticed away PW-3 Master Rahul, minor aged about 11 years out of the lawful guardianship of his father Ganesh Soni (PW-2) without his consent.
11. As per the prosecution case accused made ransom call of Rs.60,000/- from the STD Booth of PW-4 Ram Gopal from his STD phone No. 9716494289 to the mobile phone of the complainant bearing number 9278148492 on 06.07.2010 but if the testimony of PW-2 Ganesh Soni is to be believed, his son was missing since 6th and he lodged the FIR on 7th and received the ransom call on his mobile phone at 6.00 - 6.30 pm on 7th. In cross examination PW-2 states that the ransom call was received by him on 07.07.2010 at about 6.00 - 6.30 pm while he was coming back to his house from the police station after lodging the complaint. Thus according to PW-2, the ransom call was received on 07.07.2010 and not on 06.07.2010 which is in contradiction to the case set up by the prosecution.
12. PW-4 Ram Gopal, the owner of STD Booth at village Salimpur states that on 07.07.2010 accused made a telephone call from his booth to a number at Delhi telling the person to come with money and take away the child. In cross examination he FIR No.329/10 Page 10 of 13 admits that he did not tell the police that accused had told the person on the other side to come with money and take his child. He admits not having told the police that accused made the call on 07.07.2010 from his STD Booth at 6.00 - 7.00 pm. Thus the testimony of PW-4 that accused was asking for money for the release of child is a material improvement in the testimony of PW- 4 from the statement given to the police and therefore, his testimony to that extent is not believable. Moreover, as per PW-4 the number of his STD Phone was 9719560284 whereas the prosecution case is that the ransom call was made from PCO No.9716494289 He was declared hostile by the Ld. APP and was subjected to cross examination. In the said cross examination he stated that he was not having the number 9716494289 at his STD Booth. IO has placed on record the CDR of the mobile phone of the complainant. PW-7 Manish Kumar Singh, Nodal Officer Tata Tele Services has proved that mobile phone No.9278148492 on which the ransom call was allegedly received by the complainant is in the name of Umesh S/o Jille Singh. Umesh has neither been cited nor examined as a witness to prove that the complainant was the authorized user of his mobile number. PW-7 has proved the call detail records of mobile no. 9278148492 for the period 01.07.2010 to 02.08.2010 as Ex.PW7/C. As per CDR Ex.PW7/C an incoming call was received on the mobile phone No.927848492 from Mobile phone No.9719560284 at about 8.53 am. This is contrary to the prosecution case that ransom call was FIR No.329/10 Page 11 of 13 made at about 6.00 - 6.30 pm from telephone No.9716494289.
13. On a close scrutiny of Ex.PW7/C it is found that an incoming call was received on the mobile phone of the complainant bearing No.927848492 from phone No.9716494289 on 06.07.2010 at about 6.25 pm. Relying on this call, the Ld. APP has argued that it is proved that ransom call was made at the mobile phone of complainant on 06.07.2010 at about 6.25 pm from 9716494289. Assuming for the sake of arguments it is accepted that complainant was using mobile phone No. 9278148492 and he had received a call from 9716494289 on 06.07.2010 at about 6.25 pm and if the said call was a ransom call, why the complainant did not report the matter to the police on 06.07.2010 itself having come to know that his child was kidnapped for ransom? Even in the FIR dated 07.07.2010 there is no mention of receipt of any ransom call on 06.07.2010. Complainant himself has stated in his cross examination that he had not received any ransom call from accused before he went to police station and therefore, the call received at 6.25 pm from phone no. 9716494289 cannot be the ransom call.
14. In cross examination PW-2 states that he had not received the ransom call from accused before going to police station. However, in further cross examination, he states that he had told the police about the ransom demand of Rs.60,000/- in his FIR No.329/10 Page 12 of 13 complaint which is improbable. In further cross examination he stated that he had got recorded the fact of ransom call in his statement given to the police after coming back to Delhi from the village of the accused on 09.07.2010. At another place in cross examination he admitted that after the recovery of his son he did not tell the police that accused was demanding Rs.60,000/- for the release of his son, thus the testimony of PW-2 with regard to the ransom demand does not inspire confidence and is not believable.
15. Hence, in view of my aforesaid discussion prosecution has not been able to prove the offence u/s 364-A IPC but has successfully proved the charge u/s 363 IPC. I, therefore, hold the accused guilty and convict him u/s 363 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT-KKD/DELHI. ANNOUNCED IN THE OPEN COURT ON 27.11.2012.
FIR No.329/10 Page 13 of 13