Delhi District Court
State vs . : Ritu Kapoor & Anr. on 14 September, 2011
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. : RITU KAPOOR & ANR.
FIR No : 311/2009
U/S : 363/34 IPC
P.S : VIKAS PURI
1. Serial No. of the Case : 929/10
2. Unique ID of the Case : 02401R0470462010
3. Date of Commission of Offence : 09.11.2009
4. Date of institution of the case : 13.10.2010
5. Name of the complainant : Smt. Pushpa
6. Name of accused, parentage & : Ritu Kapoor
W/o Sh. Shami Kapoor,
R/oJA, 37A, Hari Nagar, Delhi.
7. Offence complained U/S : 363/34 IPC
8. Plea of Accused : Pleaded Not Guilty.
9. Final Order : Acquitted
10.Date of Final Order : 14.09.2011
J U D G M E N T
1 The Prosecution filed a Chargesheet against the accused Ritu Kapoor and Mohd. Jiayul (since discharged) with the allegations that on 09.11.2009 at around 7.15 AM to 8.00 AM at Patri opposite Brotherhood Apartment, Vikas Puri, Delhi, the accused persons in furtherance of their FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 1/35 common intention kidnapped one child namely Shivam aged about three months, a minor out of lawful guardianship of the complainant namely Smt. Pushpa without her consent. Therefore, a ChargeSheet U/S 363/34 IPC was filed against them.
2 After the compliance of Section 207 Cr.P.C. the arguments on the point of charge heard. Vide Order dated 18.12.2010, accused Mohd. Jiyaul was discharged from this case and charge for offences under Sections 363 IPC on 13.01.2011 was framed to which accused Ritu Kapoor pleaded not guilty and claimed trial.
3 In order to prove its case against the accused, the prosecution examined nine witnesses in all.
4 PW1 W/ASI Mukesh was the Duty Officer who proved the FIR on the record as Ex. PW1/A and the endorsement on the Ruqqa as Ex. PW1/B. 5 PW2 Smt. Pushpa was the complainant of this case. She FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 2/35 deposed that she did not remember the date and month of the incident. On the date of incident at about 7.00 AM, she was present in the Vikas Puri. She laid down her child on a cot and thereafter, she went to Kothi where she was working. She further stated that the accused Ritu Kapoor came to her and asked her that she wanted a boy of 8/9 years of age who can cook the food for her to whom she told that she had nobody of the requirement. She returned to the place where her child was sleeping on the cot and found that her son was missing from there. Her daughter told her that the Aunty who was talking to her in the morning took her son away. Police was called but her child could not be found nor the clue of the accused was found. Later on, she went to Rajouri Garden PS on the information that one child had died. She saw the dead body of the child and found that he was not her son. She correctly identified the accused in the Court. She proved her statement as Ex. PW2/A. 6 In her crossexamination, she could not tell the number of House/Kothi in which she used to work at that time. However, she told the name of the owner as Ms. Anita. She further stated that when she left her son for work, he was accompanied with her little daughter and with her FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 3/35 husband and her husband left the place after getting the passengers. She could not tell the colour of the cloths of her son on that day. She admitted that she doubt the accused lady for lifting my son. No other person was present at the place of incident and when she came back her daughter informed her about the missing of her son. She called the police through her telephone. Police recorded her statement at the place of incident. She admitted that the police officials from PSRajouri Garden visited her Jhuggi and she alongwith him reached the PSRajouri Garden. She could not tell the name of the police persons with whom she met at PSRajouri Garden where her statement was recorded by the police. She denied that she had visited on 09.12.2009 at Tis Hazari Courts. She had not handed over any photograph of her son to the police as she did not possess the same. She further stated the her son was born in village.
7 PW3 Ct. Surendran deposed that on 09.11.2009, he was posted at PSVikas Puri. His duty hours were 8.00 AM to 8.00 PM. At around 8.30 AM on receipt of DD No. 12A he alongwith IO ASI Ishwer Singh reached near Brotherhood Apartment, Vikas Puri where they met Smt. Pushpa wife of Pappu who got recorded her statement about the kidnapping FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 4/35 of her child. IO prepared Ruqqa and same was handed over to him for the registration of the case. He went PS and got registered FIR. He came back at the spot after the registration of the FIR alongwith copy of FIR and original Ruqqa and same were handed over to IO. They searched the boy nearby but he was not found. They came back at PS. Wireless message was flashed. IO recorded his statement. He was not crossexamined by the accused.
8 PW4 ASI Mange Ram deposed that on 07.12.2009, he was posted at PSRajouri Garden. In case FIR No. 384/09 PSRajouri Garden, he alongwith W/SI Usha, Ct. Dharmender and W/Ct. Anita on a secret information reached at Shivaji Enclave, District Park where accused Ritu Kapoor and JiaUlHuque were apprehended at the instance of Secret Informer. Both after interrogation made disclosure statements regarding their involvement in several cases including kidnapping of a 2/3 months child from Brotherhood Apartment, Vikas Puri Patri, Delhi and after two days, the child was left abandon Road No. 236, Vikas Puri Apartment in a bori as he became ill. The disclosure statements of both were recorded vide disclosure memo Ex. PW4/A and Ex. PW4/B respectively. The bori was recovered at the instance of accused Ritu Kapoor from dustbin of Lok Vihar Apartment, FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 5/35 Road No. 236, Vikas Puri and same were taken into police possession vide seizure memo Ex. PW4/C. Point Out memo was prepared at the instance of accused Ritu Kapoor which is Ex. PW4/D and his statement was recorded by the IO of the present case.
9 PW5 ASI Ishwer Singh was handed over the investigation of the case who deposed that on 09.11.2009, he was posted at PSVikas Puri and he received the DD No. 12A regarding kidnapping of the child. He alongwith Ct. Surender VT went to the spot situated near Brotherhood Apartment, Vikas Puri where Smt. Pushpa was present who got her statement recorded. On the basis of her statement under Section 363 IPC was made out and he prepared a Ruqqa Ex. PW5/A which was handed over to Ct. Surender VT to get the case registered. He accordingly left the PS. After some time he returned to the spot alongwith copy of FIR No. 311/09, under Section 363 IPC with original Ruqqa and gave it to him for investigation. He further deposed that he prepared the site plan on the pointing out of the complainant which is Ex. PW5/B. He Issued a wireless message regarding the facts of the FIR. The message form is MarkB whereas the missing person form is Ex. PW5/C which is in his handwriting. As per the Order of SHO, the further investigation was marked to SI Yogesh FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 6/35 Tyagi and he handed over the case file to MHC(R).
10 In his crossexamination by the Ld. Defence Counsel, he told none of the crowd was eyewitness of the occurrence. Complainant had not told him the premises number of the Kothi where she had gone to work. He had made inquiry from the employers (owners of the kothis) of the complainant for verification of the facts. He told that he did not remember the number of the kothis visited by him. He had not demanded the birth certificate and photographs of the child. He had not asked the complainant to put her signatures on the site plan. He had not received any message from any PS in reply to my wireless message. He denied that he had not conducted the proper investigation 11 PW6 SI Yogesh Tyagi was the second IO of this case who deposed that on 11.11.2009 he was posted at PS Vikas Puri. On that day the present case was handed over to him for further investigation. On 07.12.2009 he received information from PS Rajouri Garden that accused Ritu Kapoor and ZiaUlHaq had been arrested. He moved production warrants and arrested both the accused persons vide arrest memo Ex.PW6/A and Ex.PW6/B respectively. He also moved an application for TIP proceedings FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 7/35 of accused Ritu Kapoor but she refused to participate in the TIP proceedings. Before arrest, he had made efforts to search the accused persons and kidnapped child by making WT message and filled Missing Person Form and making advertisement of suspect photo. He recorded the statements of the witnesses and prepared challan.
12 In his crossexamination, he told that he had not filed any birth record of the missing child as the same was not possessed by the complainant. During the investigation, he had not recorded statement of any witness except the complainant or investigated the fact that the complainant was actually present at the spot from where the missing child was lifted or actually the child was present at the spot on the date of incident. He admitted that the portrait of accused Ritu Kapoor which he had placed on record does not bear the official stamp of State Crime Record Bureau. He denied that that State Crime Bureau had refused to put their official stamp or signatures on the said portrait, however, they supplied the portrait as it is. He had not recorded the disclosure statement of the accused during the interrogation. He admitted that complainant regularly visit the PS Vikas Puri and during the visit she came to know that the accused in the present case has been arrested. He could not tell the exact date on which he recorded the FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 8/35 supplementary statement of the complainant. He had recorded only one supplementary statement of the complainant. He had not examined any person for verifying the fact that complainant used to work in Kothies. He admitted that complainant had met him in the Court on 09.12.2009 when he alongwith accused persons came to the Court for TIP proceedings. He denied that no child was missing and that complainant was knowing the accused Ritu Kapoor before the date of incident.
13 PW7 W/Ct. Anita was the witness who participated in the investigation. She deposed that on 07.12.2009 she was posted at PS Rajouri Garden as a Constable. On that day one secret informer informed W/SI Usha Sharma that a woman who used to kidnap children alongwith her associates are present at District Park, Rajdhani College, Rajouri Garden, Delhi. IO prepared raiding party including her, HC Mange Ram, Ct. Dharmender and secret informer was also accompanied with us. They reached at District park, Rajdhani college where Ritu Kapoor alongwith her associate Mohd. Zia Ul were present. At the instance of secret informer both were apprehended. Accused Ritu Kapoor disclosed that she has kidnapped several children with the help of her associate ZiaUl from several places including the kidnapping of one child from Brotherhood Apartment, Vikas FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 9/35 Puri. She also disclosed that the said child was dropped in dustbin after keeping the child inside one katta at Road no.236, Lok Apartment near Dhobi Ghat after two days of kidnapping. IO recorded the disclosure statement of accused Ritu Kapoor vide already Ex.PW4/B and she was arrested. At the instance of accused Ritu Kapoor one katta was recovered from the dustbin of Road no.236, Lok Apartment near Dhobi Ghat. Same was seized vide memo already Ex.PW4/C and accused also led us to the place of occurrence and pointing out memo was prepared at her instance vide memo already Ex.PW4/D. 14 In her crossexamination, she told that they reached at District Park at about 5 pm on 07.12.2009. They went in a private vehicle to District Park but she could not tell the vehicle number. She did not remember the number of public persons present there. The street lights were lightened on the roadside but there was no street light in the District park. She could not tell the time when the IO arrested the accused persons. She did not remember whether IO inquired from any public person or not. She could not tell the time when IO recorded the disclosure statements of the accused persons however, the same was written at District Park. IO herself recorded the disclosure statements of both the accused persons in her own FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 10/35 handwriting. She could not tell the time when they left the District Park. They went to PS Rajouri Garden from District park alongwith the accused persons. She further stated the firstly they visited to Jail Road, Hari Nagar and from there to Uttam Nagar, Pillar no.734 and from there to Brotherhood Apartment, Vikas Puri on the same day in the night. She stated that the dustbin is on open area on the road and does not have any container of garbage. The said katta was burdened in the garbage and accused Ritu Kapoor took out the same. The colour of the katta was brown and on it Rice was written but she could not tell the size of the same. She denied that no such katta was found at the instance of accused Ritu Kapoor.She further denied that the accused Ritu Kapoor falsely implicated by the police and all proceedings were done at PS Rajouri garden and she never visited the area of Vikas Puri. 15 PW8 WSI Usha Sharma was the IO of the case FIR no.384/09 PS Rajouri Garden who deposed that on 06.12.2009 on the secret information accused Ritu Kapoor alongwith his associate jiyaul were apprehended. They disclosed their involvement in several cases of child lifting including the present case. She proved the disclosure statement as Ex.PW4/A and B. She further stated that the accused took her to the place where they dropped the kidnapped child of the present case. She recovered FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 11/35 one katta (gunny bag) from the dustbin at Lok Vihar Apartment which was seized vide memo Ex.PW4/C. The accused further took her to the spot from where the child was kidnapped. She proved the pointing out memo as Ex.PW4/D. 16 In the crossexamination she stated that she went to Brotherhood apartment, Vikas Puri on 07.12.2009 at about 9 am. She informed PS Vikas Puri about the arrest of the accused persons in the early morning of 07.12.2009. When she was taken to Vikas Puri no police official of PS Vikas Puri accompanied her. She asked some public persons to join the investigation but none agreed. She stated that the katta (gunny bag) was deposited in the malkhana of PS Rajouri Garden. She denied that accused Ritu Kapoor was falsely implicated in this case.
17 PW9 Ms. Charu Aggarwal was the concerned Metropolitan Magistrate who recorded the refusal of the accused in participating the TIP Proceedings of accused Ritu Kapoor. She proved the order disposing the application of the IO as Ex.PW9/A and order of TIP Proceedings as Ex.PW9/B. She was not crossexamined by Ld. Counsel for the accused. FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 12/35 18 PW10 Aarti was the daughter of the complainant. Initially she was not cited as a witness in this case however, she was summoned on the application of the Ld. APP U/s 311 Cr.PC. She was a child aged five years as told by her mother. Her statement could not be recorded as she did not depose anything despite all the precautions taken in this regard. 19 After the prosecution evidence was closed, the incriminating circumstances appearing in the evidence were brought to the notice of the accused and she was asked the explanation for the same. She stated that she did not kidnap any child and further that she was falsely implicated by the police in this case. She did not chose to lead any defence evidence in her support despite the opportunities given to her.
20 I have heard the Ld. APP for the State, Sh. Kumar Avinash as well as Ld. Counsel for the accused Sh. Ritesh Oberai. I have also gone through the oral and documentary evidence available on the record carefully. 21 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 13/35 been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
22 On the other hand, Sh. Ritesh Oberai, Ld. Counsel for the accused has submitted that the prosecution has failed to meet the standard of proof in this case as per the settled principles of law and thus the case has not been proved beyond reasonable doubt. He strenuously argued that the testimony of the complainant is inherently improbable and on a careful appreciation of her testimony, this Court should reject her testimony. He further submitted that in this case the kidnapped child was not recovered and in the absence of the recovery of the child the case against the accused cannot be proved. He further contended that although the accused refused to participate in the TIP but the same was justified as the accused has been shown in the Police Station to the witness. He has further argued that in the case the prosecution could only prove the grave suspicion but could not succeed in proving the case beyond reasonable doubt which is the yardstick at the time of the final arguments. He would further submitted that the accused was innocent and falsely implicated in this case by the prosecution. FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 14/35 23 It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
Legal Issues Standard of Proof 24 In a recent case reported as Paramjeet Singh @ Pamma Vs. State of Uttarakhand , 2011CRI.L.J.663, Supreme Court, Hon'ble Mr. Justice Dr. B. S. Chauhan, speaking for the Bench, held in para no. 11 and 12 as under:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 15/35 real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions."
Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 16/35 an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide:
Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC
230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted.
Beyond Reasonable Doubt 25 In the judgment of Sucha Singh and Another Vs. State of Punjab, AIR 2003 Supreme Court, the Hon'ble Supreme Court observed as FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 17/35 under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)].
Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial;
if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 18/35 fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
Recovery of Kidnapped Child: Absence:Effect 26 In the judgment of Mani Kumar Thapa Vs. State of H.P. 2002(2)SCC157, while dealing with the question of nonrecovery of the dead body in a murder case, the Hon'ble Supreme Court observed as under:
"It is a wellsettled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 19/35 where a dead body could be disposed of without trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore, required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. [See Sevaka Perumal & Anr. v. State of Tamil Nadu, 1991(2) RCR(Criminal) 427 (SC) : [1991(3) SCC 471]. Therefore, the argument that in the absence of corpus delicti the prosecution case should be rejected, cannot be accepted." The above said ratio was also followed in the judgments of Rama Nand Vs. State of H.P., 1981(1) SCC 511, Ram Gulam Chaudhary Vs. State of Bihar,(2001)8 SCC311,Sevaka Perumal Vs. State of Tamil Nadu,(1991)3 SCC471, K.T.Palanisamy Vs. State of Tamil Nadu,(2008)3 SCC 100 and Ramjee Rai Vs. State Of Bihar (2006)13 SCC 229.
27 In the judgment of Prithi Vs. State of Haryana, (2010) 8 SCC 536, speaking for the bench, the Hon'ble Mr. Justice R.M.Lodha, threw FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 20/35 considerable light on the meaning of the expression ' Corpus Delicti'. It was observed as under:
The expression 'corpus delicti' has been subject of judicial comments from time to time. The term, 'corpus delicti' generally means; when applied to any particular offence, the actual commission by some one of the particular offence charged (Words and Phrases, Vol. 9A, 2nd reprint, 1976, West Publishing Co.) In a murder case, `corpus delicti' consists of proof of the death of a person alleged to have been murdered and that such death has been caused by commission of crime by some one. It is sound principle in criminal jurisprudence that one does not begin to inquire whether the prisoner is guilty of a crime until one has established that a crime has been committed.
28 In view of the aforesaid position of the law, as settled by the Hon,ble Supreme Court it is clear that even the recovery of the dead body is not necessary so as to convict some one charged for the offence of the murder. What is required to be proved that the death has taken place like any other fact and it was caused by the person, charged with the offence of the murder. I do not find any reason as to why the same analogy cannot be applied in a case where the kidnapped child has not been recovered. The factum of the kidnapping has to be proved like any other fact. There may be FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 21/35 cases where there is sufficient evidence of the kidnapping but the kidnapped child has not been recovered. For example in a case A sees his son to be taken away by the accused. Before he could do anything the accused manages to flee away in a car under the control of the coaccused who is waiting for A. Despite the investigation, no trace of the child could be found. Still the accused can be convicted even though the child was not recovered if on the appreciation of the evidence the court comes to the conclusion that it was the accused who kidnapped the child. Hence, in my opinion, the contention of the Ld. Counsel is therefore, not maintainable is liable to be rejected. Accordingly, the same is rejected as there is no merits in the same.
Appreciation of testimony of a Witness:
29 In State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48 the Hon'ble Supreme Court had elaborated the approach which should be adopted by the court when it comes to appreciate the testimony of a witness. It was observed as under:
"9. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 22/35 infirmities pointed out the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the Appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not to be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 23/35 30 Reverting to the facts of the case the question which next come up for the consideration is whether the testimony of PW2 Smt. Pushpa is reliable and trustworthy on appreciation. In her complaint Ex. PW2/A she stated that she left her son namely Shivam after the accused left the place where her son was lying and after sometime when she returned she found her son missing and her daughter Aarti told her that the accused took Shivam away. From the careful deposition of the complainant in the Court and her complaint Ex PW2/A it is apparent that there is no major improvements in her testimony. She has stuck to her statement given to the police. The Ld. Defence Counsel has failed to point out any major improvements in her testimony. It is well settled principle of law that the minor contradictions and the improvements do not affect the case of the prosecution. In my opinion, on a careful perusal of the general tenor of the evidence of PW2 the same would show that she has stuck to his basic stand and withstood the test of the crossexamination. Accordingly, I do not find the submission of the Ld. Counsel having any substance in the same and therefore, reject the same.
Test Identification Parade:
31 In the judgment of Vijay @ Chinee Vs. State of Madhya Pardesh, (2010) 8 SCC 191, the Hon'ble Supreme Court elaborated the law FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 24/35 on the test identification proceedings. It was observed as under:
"15. Holding of the Test Identification Parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the Court is the real person involved in the commission of the crime. However, the Test Identification Parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. (Vide State of H.P. Vs. Lekh Raj AIR 1999 SC 3916)
16. In Malkhan Singh Vs. State of M.P. AIR 2003 SC 2669, this Court has observed as under: "It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine."
17. In Mulla & Anr. Vs. State of Uttar Pradesh (2010) 3 SCC 508, this court (one of us, Hon'ble P. FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 25/35 Sathasivam, J.) placed reliance on Matru @ Girish Chandra Vs. The State of Uttar Pradesh AIR 1971 SC 1050; and Santokh Singh Vs.Izhar Hussain & Anr. AIR 1973 SC 2190, wherein it had been held that the Tests Identification Parades do not constitute substantive evidence. They are primarily meant for the purpose of providing the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. The Test Identification Parade can only be used as corroboration of the statement in Court. The necessity for holding the Test Identification Parade can arise only when the accused persons are not previously known to the witnesses. The test is done to check the veracity of the witnesses. The court further observed as under : (SCC pp. 52122, para 41) "41. ...The evidence of test identification is admissible under Section 9 of the Indian Evidence Act. The Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in the Cr.P.C. entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 26/35 witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court."
18.Thus, it is evident from the above, that the Test Identification is a part of the investigation and is very useful in a case where the accused are not known before hand to the witnesses. It is used only to corroborate the evidence recorded in the court. Therefore, it is not substantive evidence. The actual evidence is what is given by the witnesses in the court."
32 The Ld. Defence Counsel vehemently argued that in this case the accused was absolutely justified having refused to participate in the TIP as she has been shown to the witnesses in the police station. He further argued that the contention of the Ld. APP for the State that the first time identification of the accused in the Court is not a bad identification, is without any merits and no reliance should be placed on the first time dock identification of the accused in the Court as the same has been rightly refused by the accused.
33 At the outset it can be said that there was no need for the TIP in this case as from the perusal of the complaint itself it is clear that the complainant FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 27/35 had had a conversation with the accused for the sufficient time. It is not the case of the prosecution that the complainant had the glimpse only of the accused. It is well settled principle of the law that if the witness has sufficient time to note down the features of the accused and he is identified by the witness for the first time in the court, then the failure of the IO to get the test identification done of the accused may not render the identification of the accused in the court for the first time as worthless. What would be the effect of the absence of the TIP would depend upon the facts of the each case and no straight jacket formula can be there. In Malkhan Singh and others Vs. State Of M.P.(2003)5 SCC 746 the Hon'ble Supreme Court had the occasion to deal with the subject and after considering the previous judicial pronouncements it was observed as under:
25 " The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore,is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 28/35 generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused persons who are strangers to them, in the form of the earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in the court." (Paras 7 and
10). Hence, it is clear from the aforesaid observations of the Hon'ble Supreme Court that when the witness has sufficient opportunities to see the accused then, there may not be any necessity for any TIP of the accused.
34 Now, it is to be seen as to what is evidential value of the refusal of the accused to participate in the TIP or in the other words whether FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 29/35 the accused has been justified in her refusal. PW9 Ms. Charu Aggarwal was the Ld. MM, who proved her proceedings of the TIP. She deposed that the accused refused to participate in the TIP and despite making her understand that the adverse inference can be drawn against her in the trial she still refused to participate in the TIP. A perusal of the TIP proceedings Ex. PW9/B would show that the accused refused to take part in the same as she stated that she was seen by everyone as well as complainant in the police station. The TIP proceedings were recorded on 09.12.2009. PW2 complainant Pushpa categorically deposed in her examination in chief that on information she reached Police Station Rajouri Garden where she saw the accused Ritu Kapoor. In her crossexamination, she also admitted that police officials from Police Station Rajouri Garden visited her jhuggi and she alongwith them reached PSRajouri Garden. As per the testimony of the PW8 W/SI Usha Sharma who was the IO of FIR No. 384/09, PSRajouri Garden, the accused alongwith her coaccused Mohd. Jiyaul were arrested on 06.12.2009 at the instance of one secret informer. She also deposed that on 07.12.2009 she informed the officials of PSVikas Puri about the arrest of the accused. PW6 SI Yogesh Tyagi deposed that on 07.12.2009, he received the information of the arrest of the accused from PSRajouri Garden. He further deposed that on production warrants the accused was FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 30/35 produced in the Court and he arrested her. He moved an application for the TIP of the accused wherein the accused refused to participate in the same. In the crossexamination, he stated that the complainant met him in the Court on 09.12.2009 when the accused persons came for the TIP in this case. However, a contradictory stand was taken by PW2 Complainant Pushpa who stated that she did not visit the Tis Hazari Court on 09.12.2009. In view of the aforesaid evidence, it is apparent on the record that the accused was shown to the complainant in the PSRajouri Garden and on 09.12.2009 the complainant was present in the Court with the IO when they were produced before the Court alongwith the application for TIP. In my considered opinion, the refusal of the accused to participate in the TIP has been justified from the evidence led by the prosecution itself on the record. In a judgment titled as "Nathi V/s State of Haryana", reported as (1995) 2 SCC 64, the appellants declined to stand the test of identification on the grounds that they were shown to the witnesses by the police. Dealing with this question, the Hon'ble Supreme Court found that the allegations were baseless on the perusal of the evidence in that behalf, in as much as, there was no basis absolutely to say that the appellants for any of them were shown to the witnesses. From the aforesaid observation in Para 15 of the said judgment, it is clear that the refusal by the accused to stand the test of identification can be justified FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 31/35 provided there are reasonable grounds for the same. However, I am of the considered opinion that the identification of the accused by the complainant for the first time in the court is a good enough identification as she talked with the accused for the sufficient period of time. As observed above in this case there was enough time for the complainant to see the accused. In this case although the refusal of the accused is justified, however the same has not rendered the identification of the accused as intrinsically valueless. Therefore, I opine that the contention of the Ld Defence Counsel that since the accused has been identified in the court for the very first time hence, no evidential value can be attached is without any merits and the same is accordingly, rejected, although the accused was justified in her refusal to participate in the TIP of the accused.
35 However, the above said discussions do not mean that the prosecution still has managed to prove the case against the accused beyond reasonable doubt. The story of the prosecution goes like that the complainant left her son with her daughter and she came back at the spot she was told by her daughter namely Aarti that the accused took Shivam away from the spot. Initially, Aarti was not made or cited as a witness in this case, however, on the application of the Ld. APP for the State she was called as a witness in FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 32/35 this case. She was a child aged about five years as told by her mother. When she came in the witness box the Court took its level best efforts for the examination of witness, however, the child did not speak at all even after the serious efforts of the Court. Despite all the level best efforts, the child did not speak at all and her statement could not be recorded for the aforesaid reason. She was the only witness apparently who had seen the accused taking away the child Shivam but she did not speak at all in the Court as well as in the chamber. In absence of her statement, there was no direct evidence available on the record. Even otherwise there is no circumstantial evidence on the record either so that it can be concluded that it was only the accused who would have kidnapped the child Shivam. It is well settled principle of the criminal jurisprudence that in a case based upon the circumstantial evidence the only hypothesis which could be inferred is that the it was the accused only who would have committed the offence and no person other than the accused could have committed the offence. There is nothing on the record to show that after leaving the child the complainant came back so early at the spot so that there was no opportunity for any other person to commit the offence and it was the accused only who could have committed the offence in question. Accordingly, in my considered opinion that there is nothing on the record in the nature of the circumstantial evidence also on the record. FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 33/35 36 PW2 Complainant Pushpa admitted in her crossexamination that she had doubted that the accused lifted her son. The mother of the child raised only suspicion upon the accused. It is a cardinal principle of criminal jurisprudence that suspicion howsoever grave, cannot take the place of the proof. The prosecution cannot shy away from the onus put upon it to prove the case against the accused beyond reasonable doubt. The only eye witness of the case of the prosecution was the daughter of the complainant namely Aarti but she did not speak anything and her statement could not be recorded in this case despite the level best efforts of the Court. The prosecution has failed to discharge its onus on proving the case beyond reasonable doubt. The prosecution has not traveled from "may to must"
which is necessary to warrant the finding of the conviction against the accused. The evidence led by the prosecution has remained in the realm of speculation, surmises and conjectures. No positive evidence has come on the record to prove the case against the accused beyond reasonable doubt.
No direct evidence has been led by the prosecution and there is no circumstantial evidence on the record either against the accused so as to return the finding of the conviction against her.
FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 34/35
37 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case and the evidence led by it on the record, in my considered opinion, the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused Ritu Kapoor is hereby acquitted of the offence under Section 363 IPC, she has been charged with. Her P/B is extended for a period of six months from today for the purpose of Section 437A Cr.P.C. File be consigned to Record Room after necessary formalities.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 14 SEPTEMBER, 2011 MM09:WEST:THC
TH
14.09.2011.
FIR No. 311/2009 STATE V/s RITU KAPOOR & ANR PAGE No. 35/35