Delhi District Court
State vs (1) Vijay Kumar @ Billa S/O. on 21 April, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.06/08.
FIR No.616/07.
PSJAHANGIRPURI.
U/s.363/364A/120B/34 IPC
STATE VS (1) VIJAY KUMAR @ BILLA S/O.
PRIYAG DUTT, R/O. J568,
JAHANGIRPURI, DELHI.
(2) MANGAL VERMA S/O. RAM
BACHAN VERMA, R/O. J568,
JAHANGIRPURI, DELHI.
(3) VIRENDER SINGH @ HOOTAR S/O.
RAM NANDAN SINGH, R/O. J1872,
JAHANGIRPURI, DELHI.
(4) SHRIRAM S/O. SHRI GIRISH
PATHAK, R/O. J568, JAHANGIRPURI,
DELHI.
PERMANENT ADD:
V&POMIRJAPUR,DIST:SHAHJEHANPUR,
U.P.
(PROCLAIMED OFFENDER VIDE ORDER
DATED 07.05.2008)
2
Date of Institution in the Sessions Court :11.01.2008
Date of Arguments:12.03.2012
Date of Judgment :11.04.2012
JUDGMENT:
1. Vide this judgment I shall decide the case of Accused No.1 to 3, as Accused No.4 is a Proclaimed Offender and his case will be tried and decided as and when he will be apprehended.
2. Brief facts of the prosecution case are that on 18.09.2007, Uma Rani has made complaint to the police that at about 5.30 p.m. her son Master Rahul, 8 years old, had gone to his father's house i.e. J1286, Jahangirpuri for playing and at about 8.20 p.m., she received a phone call from phone number 9811583074 that if she wanted her son back then, she should arrange ransom money of Rs.5 lakhs, as her son is with them. Thereafter, she searched her son here and there, but he was not found. On the basis of said statement FIR No.616/07, u/s. 363/364A/120B/34 IPC, Ex.PW3/A was registered. Later on Master Rahul was found on 20.09.2007 at Railway Line, VillageMishripur, by the Inspector Moin Ahmad of PS 3 Shahbad, UP and he informed the same to the police officials of PS Jahangirpuri. Master Rahul told that he was kidnapped by accused Vijay @ Billa and other persons. During investigations, accused Vijay Kumar @ Billa, Mangal Verma and Virender Singh were arrested. Call details of mobile phone number 98115830074 were collected, as per the record provided by the Mobile Service provider Vodafone, the said connection was in the name of Anil Kumar. Said Anil Kumar disclosed that his sim card was inadvertently left in phone of accused Sriram. and statement of PWs were recorded by the IO. After completion of investigations chargesheet was filed u/s.363/364A/120B/34 IPC against accused persons Vijay Kumar @ Billa, Mangal Verma and Virender.
3. Separate chargesheet qua accused Shriram was filed in which it is stated that accused is absconded and declared as proclaimed offender.
4. Ld. MM after compliance of the provisions of Section 207 4 Cr.P.C. referred the case to the court of sessions, which was later on assigned to this court.
5. Vide order dated 05.03.2008, my ld. Predecessor had framed the charges against all the three accused persons for offence punishable u/s.363/364A read with 120B IPC.
6. In order to prove its case, prosecution has examined as many as 16 witnesses.
PW1 HC Bhagirath had deposed that on 18.09.2007, he was working as duty officer at about 10.35 pm a rukka was produced before him by SI Chandershekhar and on the basis of said rukka, FIR No.616/07 Ex.PW1/A and had had made endorsement on the rukka Ex.PW1/B. He was not cross examined on behalf of accused persons.
PW2 Ct. Jai Pal Singh has deposed that on 21.09.2007 he alongwith the SI Ramesh, Mool Chand and Ct. Himanshu were doing the investigations of this case and reached at Bus Terminal, Jahangirpuri and 5 at the instance of Mool Chand two persons who were sitting on the bus stand were apprehended, later on both the said persons have disclosed their names as Vijay Kumar and Mangal Verma. Accused Vijay Kumar @ Billa made disclosure statement Ex.PW2/A. Accused Vijay Kumar was arrested vide memo Ex.PW2/B, his personal search was also conducted vide memo Ex.PW2/C. And accused Mangal Verma made the disclosure statement Ex.PW2/D, he was arrested Ex.PW2/E, his personal search was also conducted vide Ex.PW2/F. Accused Mangal Verma and Vijay Kumar @ Billa pointed out House No. J1286, Jahangirpuri, the place from where he kidnapped the boy on 18.09.2007 at about 7 pm, pointing out memo Ex.PW2/G and it was prepared by the IO. Thereafter they went to Mukarba Chowk for the search of other accused and at the instance of accused Vijay and Mangal Verma, one boy was apprehended, whose name later on revealed as Virender Singh @ Hootar, accused was interrogated and he had made the disclosure statement of the present case, same was reduced 6 into writing vide Ex.PW2/J, thereafter he was arrested vide memo Ex.PW2/K, his personal search was also conducted vide memo Ex.PW2/L. In his cross examination, PW2 has stated that accused Vijay Kumar and Mangal Verma were arrested at 2 pm. PW3 Smt. Uma Rani is the complainant. She had deposed that on 17.09.2007, she was residing at J1211, Jahangirpuri, Delhi with her family members. On that day, at about 6.30 p.m., she had gone to attend Satsang and she asked her son Rahul to accompanied her to Satsang, but Rahul told that, 'he will play at the shop of his father Shri Rajdutt Shukla' and at about 8.20 p.m., she received a telephone call at her mobile phone number 9873048909, which is in the name of her brother Mool Chand, which she is using. The caller told her that, if she want her son back then she will have to pay Rs.5lakhs. She further deposed that, she asked the caller about his particulars, but the caller again told her that she should only arrange Rs.5 lakhs, if she want her son back. Thereafter, 7 she came outside the Satsang and again tried to contact the caller on the said telephone number but the phone was not connected. She came back to her home and he searched her son on different places i.e. in the park, in the shop of her husband and in the neighbourhood. Thereafter she went to the house of her father where her elder brother Mool Chand @ Rajesh came and she narrated the whole facts to him, her brother also tried to contact on the said mobile number but same was not connected.
She further deposed that she alongwith her brother and father went to the PS where her statement Ex.PW3/A was recorded by the police. She handed over the photograph of Rahul to SHO. Thereafter on asking of the SHO, she handed over the phone number from which she had received the ransom call, however, she did not remember the said phone number.
On 20.09.2007, she received a telephone call from PS Mishripur about the recovery of her child Rahul. On 21.09.2007, she 8 alongwith her mother and husband visited PS Jahangipruri from where police officials accompanied them to PS Ashok Vihar, where her child Rahul was present.
On asking leading questions by ld. Addl. PP for the State, she admitted that incident is of 18.09.2007 and not of 17.09.2007 and mobile phone from which she received call for ransom call was 98115830074.
In her cross examination by ld. Defence counsel, she stated that her son identified the accused persons in the Rohini Court. She did not receive any ransom call after 18.09.2007. Her son used to visit to the house of accused Vijay quite often. She denied the suggestion that she deliberately sent her son Rahul with coaccused Sriram.
PW4 Anil Kumar deposed that in the year 2007, he was running a shop of STD/PCO at shop No.I56, Main Market, Jahangirpuri, Delhi and doing the same business on that day even. In the month of September, 2007, accused Mangal alongwith another person came to his 9 shop for repair of a mobile phone, make Nokia 1100. They told him to check the said mobile phone and on checking he found that speaker of phone was not working. He told them to wait for sometime, as he has to charge money from another customer who made STD Call from his booth. In the meantime, accused Mangal alongwith another person left from the shop. Police inquired from him after 34 days of the kidnapping of child Rahul.
Thereafter, ld. Public Prosecutor had declared him hostile and he was cross examined. He admitted that police had recorded his statement on 19.9.2007. He stated that it is correct that accused Mangal, Vijay @ Billa and Shri Ram were residing at J568, Jahangirpuri. He identified the person who came to repair the mobile phone as accused present in the court. He further admitted the suggestion that Shri Ram, accused Mangal and Vijay @ Billa used to visit his shop for making calls and accused persons Mangal, Vijay and Shri Ram got repaired one mobile 10 phone in the month of August 2007 and he had repaired the said phone and checked the same after putting his own SIM Card in the said mobile phone and thereafter, he handed over the said phone to Shri Ram. He further stated, it is correct that by mistake his SIM Card remained in the said mobile phone and he requested many times to Sriram to return the same, but he pretended that he will return the same one or two days after. He further deposed that the connection number of the said SIM Card was 98115830074 and he came to know later on that ransom was demanded from the said connection.
In his cross examination by ld. Counsel for accused, he stated that accused persons do not came to his shop earlier to make telephone call or for repairing any mobile phone. He has also stated that he did not know the name of the accused persons, but he identified them by pointing out towards them. He also admitted that, it is correct that he did not lodge any complaint regarding taking of his sim card by the accused persons. He 11 knew the accused persons very well because he had seen them several times in the gali. He further stated that he never asked accused Sriram to return his sim/chip because whenever he called on his sim number 98115830074, the call was never attended by other side.
PW5 Rahul Shukla is the kidnapped child. Since he was a child witness, therefore, in order to satisfy that his competency certain questions were put to him, like his name, family members and date of birth etc. and the court was satisfied that he understand the questions and capable to give answer and thereafter, he was examined. He has deposed that he is studying in fifth class in St. Augnestiya Convent Public School.
nd In the year 2007, he was studying in 2 class in the same school. On 18.09.2007, in the evening hours, he was playing outside the temple situated near his house and his mother was attending the Satsang. At that time, Billa Mama and his friend Mangal, who was residing with Billa Mama came there. Accused Billa and Mangal told that, "tujhe Gaon le chalte 12 hain", and thereafter, they took him to their room they purchased new clothes and made him to wear the same. Accused persons Virender and Shri Ram also came in the said room (He correctly identified the accused Virender). All the three accused persons alongwith accused Shri Ram (absconding) took him from the said room in a rickshaw then in Auto Rickshaw and thereafter they took him in bus and after sometime changed the another bus and taken him to a village where they made him to stay in the night. He again said that accused Mangal and Billa had went away after made him sit in the bus and then accused Virender and Shriram took him to the village in a bus.
In the morning, accused Virender and Shriram left him near Railway Line and went away by stating him that they are going to bring biscuits for him and did not return back and he kept standing there. After sometime, one uncle came to him, at that time he was crying and the said uncle brought him to the police. Police made inquiry from him and 13 recorded his statement on 20.09.2007. He further deposed that one (Magistrate) Judge Sahab recorded his statement in Rohini Courts. He identified his signatures on statement u/s. 164 Cr.P.C. Ex.PW5/A. He had identified accused persons Vijay @ Billa, Mangal and Virender in Tihar Jail and told the police that they alongwith accused Shriram kidnapped him. Accused Shriram not present.
In his cross examination by ld. Defence counsel, PW5 has stated that accused Vijay @ Billa used to reside with his maternal uncle Sanjay. But he do not know the place where he was residing. He never visited the house of accused Vijay @ Billa. His mother had gone to Satsang at about 8 pm at Neelkanth Temple situated at JBlock, Jahangirpuri and at that time he was playing outside temple. He did not go to the house No. J1286. Accused Vijay and Mangal met him outside the temple and gone to the village. He did not tell anybody that day, he was taken by the accused persons outside the temple and thereafter accused 14 persons were taking him to his village. He also stated that it is correct that both the buses were having many passengers. He stated that it is correct that accused Vijay @ Billa was not present in both the buses and he did not ask the accused persons where he was being taken. He admitted the suggestion that he went with the accused persons with his consent and due to said reason he did not tell anything to anybody in the way of Hardoi. He as left near the railway line by the accused persons and one person took him to his house and from where four/five persons took him to the Police Station. He did not remember the name of those persons.
PW6 SI Charan Singh has deposed that on 18.9.2007. He had recorded statement Ex.PW3/A of Smt. Uma Rani regarding kidnapping of her son Rahul and prepared the rukka Ex.PW6/A on the basis of said statement got registered the FIR. Thereafter, he got flashed message about the subject matter of said complaint through DCP N/W, copy of same is Ex.PW6/B and he had also prepared the site plan at the instance of 15 complainant Uma Rani Ex.PW3/B. Thereafter, He tried to search the child Rahul, but he could not be traced and further investigations was marked to SI Ramesh. In his cross examination he had deposed that the site plan was prepared at about 12.00 night in the presence of the complainant Uma Rani and Rajdutt.
PW7 Shiv Chand had deposed that on 01.09.2007, he had rented out one room on the first floor of his house to three boys, whose names, he did not remember on that day and when he came to know that they have taken a girl, at that time, he was in Jaipur, police came to his house and broke open the door of the said room. On asking leading questions by ld. Addl. PP for the State he stated that he does not know the name of accused persons who took him to room. Shri Ram, Mangal Verma and Vijay i.e. accused persons. He was declared hostile and cross examined in which he denied the suggestion that he is not identifying the accused deliberately. He was not cross examined by the accused. 16
PW8 Shri Prashant Kumar, ld. CCJ cum ARC has deposed that on 25.09.2007 application for conducting TIP was placed before him alongwith accused Virender in muffled face. On 27.09.2007 accused was produced before him by Jai Pal Singh, Assistant Superintendent, Rohini Jail. Accused refused to join in TIP proceedings despite warning alleging that proceedings could be used against him during trial and adverse inference could be drawn. Statement of accused was, therefore, recorded. He proved the TIP proceedings as Ex.PW8/3.
He further stated that on 25.09.2007 another application for recording statement under Section 164 Cr.P.C. of Master Rahul Shukla marked to him by Link MM. IO appeared before him alongwith the witness Master Rahul Shukla. Since witness Master Rahul Shukla was 8 years of age. After questioning he was satisfied that witness Rahul is having an ability to understand the court proceedings and is able to answering the questions subsequently. Therefore, his statement Ex.PW5/A was recorded. 17 He was not cross examined.
PW9 Mool Chand Shukla had deposed that on 18.09.2007 in the evening he was going to J Block Market, he saw that son of his uncle Prayag Dutt namely Billa @ Vijay Shukla and his friend Mangal (correctly identified them as accused), who were resident of JBlock, Jahangirpuri and they were talking with his nephew Rahul son of his cousin Uma Rani. Both the said accused persons used to play with the Rahul and also used to visit his house, therefore, he went to the market and when he returned to his home, he came to know that Rahul had been kidnapped by someone. His cousin came to his house and informed him. They tried to search Rahul overnight but Rahul could not be traced. Uma received the call of kidnappers on the mobile phone no.9873048909 which belongs to him and which he gave to Uma for use.
He further deposed that on 21.09.2007, he was called at the PS and thereafter, he alongwith police officials went in search of Rahul and 18 when they reached at bus stand, Jahangirpuri, accused persons Vijay @ Billa and Mangal were found sitting, thereafter, he pointed out towards them and police apprehended both the accused persons and they were interrogated and arrested vide memos Ex.PW2/B and Ex.PW2/E and their personal search were also conducted vide memo Ex.PW2/C and Ex.PW2/F and their disclosure statements were recorded Ex.PW2/J and Ex.PW2/D and thereafter both the accused persons led the police party one by one to the place of occurrence and IO recorded his statement.
In the cross examination by ld. Defence counsel he stated that he reached at Jahangirpuri bus stand in the afternoon time, but he did not remember the exact time. He did not remember the name of the police officials, who were with him at that time. He do not know whether the IO had asked any public person to join the investigations. His statement was recorded twice, but he do not remember the exact date.
PW10 Anuj Bhatia is the Nodal Officer of Vodafone. He has 19 deposed that he brought the call detail record of phone number 98115830074 for the period from 1.7.2007 to 19.9.2007 alongwith certificate u/s. 65B(4)(c) of Evidence Act, 1872 and proof of holder of said mobile connection, he proved the call details as Ex.PW10/A and certificate is Ex.PW10/B and record of ownership of said mobile alongwith supporting documents as Ex.PW10/C. He has also proved the location chart issued by their company as Ex.PW10/D (58 pages). He was not cross examined by defence counsel.
PW11 Budhi Pal deposed that about 3½ back his brother in law (sala) Shriram alongwith his friend having beard and one boy came to his house, the name of said boy was Rahul and Sriram told him that the boy is nephew of other person. They stayed at his house in the night and left in the morning. The said boy was abandoned at the railway line. Someone told him about the presence of boy at railway line. He took the boy to the PS and narrated the entire fact. He further deposed that he was 20 not having any suspicion that the said boy was kidnapped by Shriram and the man who was having beard. He was shown photograph Ex.PW11/A of Master Rahul on the file and he identified that Master Rahul is the said boy. He also identified the other person who came with his brother in law as accused Virender present in court by pointing him.
In the cross examination PW11 he has stated that accused Sriram alongwith his friends came to his house at about 3 pm, but he cannot tell the date, month or year and left the house at 9 a.m. in the morning. He admitted the suggestion that the boy Rahul was not perplexed or feared during his stay at house and Rahul had taken food and sleep properly at his house. One boy Shobhit of the locality had informed that Rahul was weeping and was present near railway line.
PW12 Shail Kumari has deposed that she alongwith her husband are living at J1872, Jahangirpuri, Delhi and in August 2007, they had let out one room at second floor of our house on monthly rent of 21 Rs.1000/ to the daughter and son in law of the brother of accused Virender Singh. He further deposed that accused Virender was residing in the same locality for last 45 years. She further deposed that she had not issued any rent receipt nor any rent agreement was executed between them. In reply to leading question she stated that they let out the said room to the niece of accused Virender, however, Virender used to visit his niece at the said room frequently. However, she was not cross examined by the accused persons.
PW13 Ct. Himanshu has deposed that on 20.09.07 he was posted as constable at PS Jahangirpuri and on that day he alongwith Inspector Rohtash, SI Ramesh, HC Virender, Ct. Sudhir , Ct. Vikas and Mool Chand went to the PS Shahbad, DistrictHardoi, U.P., where Ct. Yamuna Pandey of PS Shahbad, Hardoi produced the rescued kidnapped child Rahul. SI Ramesh Kumar prepared the recovery memo of the child Rahul, vide memo Ex.PW13/A and they came back at Delhi. 22
On 21.09.2007, child Rahul was handed over to his parents vide memo Ex.PW13/B. SI Ramesh also prepared the superdarinama Ex.PW13/C. On that day, he alongwith SI Ramesh, Ct. Jaipal proceeded in search of accused persons. Mool Chand met them at the gate of PS and accompanied them. Mool Chand informed them about the clue of kidnapping of child Rahul and led them to the bus terminal Jahangirpuri, where he pointed towards accused Vijauy @ Billa and Mangal Verma. IO arrested accused Vijay vide memo Ex.PW2/B and accused Mangal Verma vide memo Ex.PW2/E, thereafter, their personal search were conducted vide memo Ex.PW2/C and Ex.PW2/F respectively. He further deposed that both the accused persons Vijay and Mangal made their disclosure statement Ex.PW2/A and Ex.PW2/D respectively and thereafter both the accused persons led them in front of House No. J1286, Jahangirpuri, Delhi, where both the accused persons pointed the place from where they kidnapped the child. Accused Vijay @ Billa was in his custody and pointing 23 out memo was prepared at his instance Ex.PW2/H. Accused Mangal Verma was in the custody of Ct. Jaipal at that time. Mool Chand left from there. He further deposed that both the accused persons led them to Mukarba Chowk, Jahangirpuri, where both the accused persons pointed towards accused Virender and he was apprehended and his personal search one bus ticket was recovered from his pocket, on which Shahjahanpur to Delhi was written and Rs.80/ cash were also recovered and he was arrested vide memo Ex.PW2/K and his personal search memo E.xPW2/L. He further deposed that accused Virender has also made his disclosure statement Ex.PW2/J and thereafter all the accused persons were medically examined at BJRM Hospital and lodged in the lock up and IO recorded his statement.
In his cross examination PW13 has stated that the child Rahul was handed over at 9 a.m. to the police and all the child were not present. At that time only Mool Chand was present. IO had apprehended the 24 accused Vijay @ Billa at 1.30 p.m. PW14 Inspector Moin Ahmed has deposed that on 20.09.2007, he was posted as Inspector Incharge of PS Shahbad, District Hardoi, U.P. and on that day he was on petrolling duty in the area alongwith the other staff after making departure DD at PS on the information of secret informer that, a boy aged about 78 years was weeping at railway line near village Mishripur and he immediately reached there at about 4pm and he found one boy who disclosed his name as Rahul Shukla was weeping near the railway line. He further deposed that he interrogated Rahul Shukla and thereafter he took the boy to PS Shahbad and Rahul disclosed that he was kidnapped by a Billa Mama from Delhi, he made their arrival DD in their general diary at PS Shahbad at about 4.20 p.m. He further deposed that he informed the PS Jahangirpuri, Delhi after making inquiries from his SP Office. Inspector Incharge of PS Jahangirpuri that case FIR No.616/07 was already 25 registered in respect of kidnapping of Rahul Shukla. He further deposed that Inspector informed him that Delhi Police is already in District Shahjahanpur for the purpose of investigation, thereafter, on the same day at evening time Delhi Police reached at PS Shahbad and they handed over Rahul Shukla to Delhi Police. One person namely Budhipal also informed them that the boy was left by his relatives Shri Ram and Virender Singh near railway line. He has brought the original record of general diary of PS Shahbad, District Hardoi, dated 20.09.2007, Rapat Nos. 34,35, 36, 37,38 and 39 and the photocopies of the same are collectively Ex.PW14/A (running into five pages).
In the cross examination PW14 has stated that no public person was gathered at the spot when the child was found. He do not remember whether any family member of the child accompanied Delhi Police. He receive secret information when he was in the are at about 3.45 p.m. He reached at the PS at about 4.20 p.m. with the child. 26
PW15 Ct. Jamna Pandey has deposed that on 20.09.2007 he was posted at PS Kotwali Shahbad District Hardoi as constable clerk and he was on duty as a general diary writer and on that day at about 4.20 pm Inspector Incharge Moin Ahmed alongwith police staff and a boy namely Rahul Shukla aged about 78 years came at the PS and arrival entry was made in the general diary vide DD No.37. He further deposed that accused Rahul Shukla was kept in the PS and after some time Delhi Police reached at PS Shahbad and thereafter Rahul Shukla was handed over to Delhi Police vide DD No.39 of general diary and Inspector Moin Ahmed interrogated the Rahul Shukla and Rahul did not talk with him. DD No.37 and 39 were made by me in general diary and the photocopies of the same are already Ex.PW14/A (running into five pages).
In his cross examination PW15 has stated that he recorded DD No.39 at 17:20. He had made entry of arrival of the Delhi Police officials in the document in which he has mentioned about the handing 27 over of the child Rahul. He only got signatures of Delhi Police on handing over memo of the child. He did not notice any physical injury on the child.
PW16 SI Ramesh/IO of the case has deposed that on 19.9.2007 he was posted as SI in the PSJahangirpuri and on that day he was entrusted the investigations of the present case at the instance of the SHO. He inspected the case file and got collected the call details record of mobile number 98115830074 through Email from Mobile company and same is already Ex.PW10/A and same was issued in the name of Anil Kumar and he contacted him and he was called in the PS and PW16 had recorded his statement u/s. 162 Cr.P.C. He further deposed that thereafter, one other witness Mool Chand was also called in the PS and he interrogated him and recorded his statement.
He further deposed that on 20.09.2007 he alongwith Inspector Rohtash, Ct. Himanshu, Ct. Vikas, HC Gyanender and Ct. Pradeep after taking permission for outstation and after making departure entry they went 28 to DistrictShahjahanpur in search of suspects. They reached at Shahjahanpur and thereafter he received a call from duty officer, PS - Jahangirpuri that the child has been recovered by the police officials of PS Shahbad, DistrictHardoi, U.P. and thereafter, the said police team reached at PS Shahbad, DistrictHardoi, U.P. where clerk/Ct. Yamuna Pandey produced the child namely Rahul, before him, he prepared the recovery memo of the child, same is already Ex.PW13/A thereafter Rahul was interrogated and he recorded the statement of witnesses and thereafter, he alongwith police team and he recovered child Rahul came back at PS Jahangirpuri, Delhi. Thereafter the custody of said child Rahul was handed over to his parents through Memo already Ex.PW13/C and he recorded the statement of the police officials.
He further deposed that on the next day i.e. 21.09.2007, he alongwith Ct. Himanshu, Ct. Jai Pal and Shri Mool Chand went in search of other accused persons in the area of PS Jahangirpuri and when they 29 reached near main bus stand, near BJRM Hospital, he noticed that two boys who were sitting at bus stand and witness Mool Chand identified both the boys as Mangal Verma and Vijay @ Billa. Both the boys were nabbed. At first he interrogated accused Vijay @ Billa and prepared the Arrest Memo Ex.PW2/B and his personal search memo Ex.PW2/C and thereafter, he interrogated him and recorded his disclosure statement Ex.PW2/A. He further deposed that thereafter, accused Vijay @ Billa led the police team to the place of occurrence i.e. in front of J1286, Jahangirpuri and pointing out memo of the place of occurrence was prepared at his instance and same is already Ex.PW2/H. Thereafter, they returned back to the place of arrest and he interrogated accused Mangal Verma and arrested him in the present case vide memo Ex.PW2/E and prepared his personal search memo Ex.PW2/F and recorded his disclosure statement Ex.PW2/D and thereafter, accused Mangal Verma alongwith witnesses Mool Chand and Ct.jaiPal took the police team in front of J1286, Jahangirpuri and prepared 30 pointing out memo of the place of occurrence Ex.PW2/G and then accused was brought to the place of arrest, he recorded the statement of public witness Mool Chand and discharged him from the investigations. He again interrogated both the accused persons and during the said interrogation, they led to police team to GTK By pass bus stand there both the accused persons pointed out towards a boy, who was taking water from a rehri and disclosed his name as Virender Singh @ Hootar, as their third associates involved in the present incident. He thereafter nabbed the said boy and interrogated him and prepared his arrest memo Ex.PW2/K and his personal search Ex.PW2/L and also recorded his disclosure statement Ex.PW2/J. He further deposed that on 22.09.2007, all the three accused persons were produced in the court and they were sent to JC and he moved an application for conducting TIP of accused Virender. He further deposed that he had moved another application for recording of statement 31 u/s. 164 Cr.P.C. of victim Rahul and he obtained the copy of TIP and statement u/s. 164 Cr.PC.
He further deposed that he made search for the fourth accused Shri Ram but he was not traceable and process u/s. 82/83 Cr.P.C. was got issued. He recorded the statement of witnesses and prepared challan.
In his cross examination PW16 has stated that on 19.03.2007 investigations of this case was entrusted to him. As per the interrogation of the Mool Chand police went to Shahjahanpur, U.P. with the permission of DCP. The child at the time of recovery was physically fit, but he cannot tell his mental condition. He interrogated the child Rahul in presence of police officials and he hired the private Taxi to reach at PS Jahangirpuri alongwith child from PSShahbad. No family of child had accompanied them to Delhi. Accused Vijay @ Billa was arrested at 12 noon and Mangal was arrested at 1.45 p.m. He denied the suggestion that signatures of accused Mangal 32 Verma was obtained on blank papers and same was converted into various documents.
7. In their statement u/s. 313 Cr.P.C. accused persons denied all the incriminating facts put to them and claimed that they are innocent. But they did not prefer to lead any evidence in their defence.
8. Shri Sukhbeer Singh, ld. Addl. PP for the State has argued that from the testimony of PWs it is proved that accused persons have conspired to kidnap Master Rahul for ransom. From the testimony of PW3 proved that ransom was demanded by accused persons in lieu of recovery of Master Rahul(PW5). Her testimony was duly corroborated by other public witnesses and all call details. Hence, offence against the accused persons are proved. Therefore, they are liable to be convicted.
9. On the other hand ld. Counsels for the accused persons have argued that there are lot of contradictions and improvement in the statement of witnesses. Hence, same cannot be relied upon. Further, it is 33 submitted that, prosecution has failed to prove that the phone number 9811530074 from which the ransom calls were made had any connection with the accused persons. Ld. Counsel for the accused persons further argued that for the sake of arguments, even if it is admitted that ransom was demanded, but since, there was no threat to cause death or hurt was advanced by the caller, who allegedly demanded ransom, therefore, offence u/s. 364A IPC is not made out. Hence, accused persons are entitled to be acquitted. In support of his contentions, ld. Counsels for the accused persons have relied upon judgment Chhotey Khan Vs. State 2009(3) JCC 2192.
FINDINGS:
10. The case of the prosecution is that accused persons have committed conspiracy to kidnap the child i.e. PW5 Master Rahul for ransom and in pursuance of that conspiracy kidnapped him. Before appreciating the evidence, it would be appropriate to discuss the relevant 34 provisions of Indian Penal Code.
"359 IPC. Kidnapping. Kidnapping is of two kinds, kidnapping from India and kidnapping from lawful Guardianship".
"360 IPC. Kidnapping from India. Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India".
"361 IPC. Kidnapping from lawful guardianship. Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship".
11. Section 120A of the Indian Penal Code defines criminal conspiracy. According to the Section 120A IPC, when two or more persons agreed to do or cause to be done an illegal act or an act which is not illegal, but, done by illegal means. Such an agreement is designated as 35 criminal conspiracy. In State Vs. Nalini 1999 SCC (Cri) 691 it was observed as under: "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
36
12. The star witness of the prosecution case is PW5 Rahul Shukla i.e. kidnapped child. As per his testimony he was 8 years old at the time of nd incident and was studying in class 2 . There no law that testimony of child witness should not be relied upon. But at the same time testimony of child witness is to be scrutinized carefully, as there are chances that he may be tutored. He has stated that on 18.9.2007 in evening hours he was playing outside temple situated near his house, when Billa Mama and his friend Mangal, who was residing with Billa Mama came there and stated that they will take him to village and thereafter they took him to their room and then accused Virender and Shri Ram (absconded accused) also reached there and from there he was taken in a rickshaw to bus stand and from bus to a village, where he was kept for a night and left alone on the next morning near railway line. Ld. Counsel for accused has argued that there are lot of contradictions and improvements in his testimony from his previous statement u/s. 164 Cr.P.C. In his statement u/s. 164 Cr.P.C. Ex.PW5/A he 37 has stated that he was sitting in the Satsang, when Billa Mama with his friend came to take him whereas in his testimony he has deposed that he was playing outside temple and further in u/s. 164 Cr.P.C. statement he has told name of accused Vijay @ Billa's, friend as Shriram, who alongwith accused Vijay @ Billa had taken him from temple, whereas in the court he has told the name of other kidnapper as Mangal. Thus, PW5 is a tutored witness and cannot be relied upon. On perusal of testimony of PW5, it is evident that there are certain contradictions in his testimony from his previous statements recorded by a Magistrate u/s. 164 Cr.PC and as well as u/s. 161 Cr.PC recorded by the police. Though, in both the statements, PW5 has stated that he was taken by Billa Mama and he was taken far away. While in his statement recorded by the police, he has stated that accused Billa Mama came with accused Mangal to take him, but in his statement u/s. 164 Cr.PC he has stated that accused Billa came with his friend Sriram. But I found that no benefit of these contradictions can be 38 given to the accused persons as the statement u/s. 164 Cr.P.C. has not been confronted to him. His statement recorded before the Magistrate is a brief statement. There is a possibility that he has taken the name of Sriram, as the person who had taken him to far away in district Hardoi. If his earlier statement would have been confronted to him, he could explain why he has taken the name of accused Sriram. From the evidence of the other witnesses it is evident that Sriram was also one of the kidnapper. No suggestion has been given to him that Mangal was not with accused Vijay when he was taken away. Further the contradictions pointed out by the ld. Defence counsel that PW5 has deposed in his statement u/s. 164 Cr.P.C. that he was sitting inside the Satsang or in his testimony in the court he has stated that he was playing outside the temple. Again he said contradictions has not been confronted to the witness, hence, no benefit can be given to the accused persons and even otherwise, this is a minor contradictions, as it does not disprove the fact that PW5 has been taken 39 away from the custody of his legal guardian. Moreover, accused persons have themselves given suggestion to PW5 that he has accompanied them out of his own consent, which is admission on the part of the accused persons that they have enticed or taken the PW5 Master Rahul. Further, testimony of PW9 corroborate the testimony of PW5 that he was taken by the accused persons Vijay and Mangal. PW9 in his testimony has deposed that on 18.9.2007, he saw accused Vijay @ Billa and Mangal talking with his nephew Rahul. No suggestion has been given to the witness that he has not seen them talking, hence, testimony of PW5 is duly corroborated by the testimonies of PW9.
Testimony of PW11 Budhipal also corroborate the testimony of PW5. PW11 has testified that PW5 Rahul was taken by absconded accused Sriram at his house in village Mishripur. He has stated that accused Sriram was his brother in law (Sala) and about 3 ½ years back Sriram and one another person brought one boy Rahul to his house stayed 40 there in the night and abandoned the child at the railway line from their he took the child to PS - Shahbad. He has identified the said person accused Virender. He is the brother in law of accused Sriram, he has no motive to implicate the accused falsely, therefore, there is no ground to disbelieve the testimony of PW11. Further, the testimony of the PW14 Inspector Moin Ahmed and that of PW15 Ct. Jamna Pandey and documents Ex.PW14/A also proved that PW5 was found at village Mishripur within the jurisdiction of Shahbad, DistrictHardoi. Hence, the testimony of PW5 is fully corroborated. Therefore, I found the testimony of PW5 reliable and trustworthy and, it is proved beyond reasonable doubts that, PW5 was enticed or taken away by the accused persons Vijay Kumar @ Billa and co accused Mangal to go away from the custody of their lawful guardianship and further it proved that accused Virender and Sriram (absconded accused) have taken him to the village Mishripur in district Hardoi, U.P.
13. As far as, the contention of the ld. Counsel for the accused 41 persons that, PW5 has consented to go with the accused persons, in my view same is immaterial as the PW5 Rahul was minor child below the age of 18 years at the time of incident, as he was just 8 years old at that time. The accused persons have not disputed the age of PW5. As stated above, as per Section 361 of the Indian Penal Code, if any male person under the 18 years of age is taken or entice to go away out of the custody of their lawful guardianship without the consent of their guardian, then it is amount to kidnapping. It is not the case of the accused persons that they had taken the permission of legal guardian of PW5 i.e. his parents, to take him to the village in District Hardoi, U.P. as no suggestion to this respect has been given to PW3 Uma Rani, mother of the kidnapped child Rahul. Hence, it is proved beyond reasonable doubts that, all the accused persons have committed conspiracy to kidnap the minor boy PW5 Rahul and also in pursuance of the said conspiracy, committed his kidnapping.
14. Whether the PW5 Rahul was kidnapped for ransom. Section 42 364A IPC is reproduced as below: "364A IPC. 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 causes hurt or death to such person in order to compel the Government or 2[any foreign state or international inter governmental 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."
15. The prosecution has relied upon only testimony of PW3 Uma Rani to prove that ransom has been demanded for releasing of PW5 Master Rahul. PW3 Smt. Uma Rani, is the mother of kidnapped child Master Rahul. She has stated in her testimony that at about 8.20pm on 18.09.2007, she received a call on her mobile phone number 9873048909 from phone No. 9811530074 and the caller told that, if she want her son back, then she should pay Rs.5 lakhs, on which she asked the caller about 43 the particulars, but he again told that, she should arrange Rs.5 lakhs, if she want her son back. She promptly reported that matter to the police after receiving the said call and her statement Ex.PW3/A was recorded by SI Charan Singh. On the same day FIR was registered. Nothing has come out in her cross examination which could lead to discarding her testimony. Further, her testimony is corroborated by the call details Ex.PW10/A of the mobile phone number 98115830074. On perusal of call details Ex.PW10/A, it is proved that call was made to her on mobile phone number 9873048909 at 20:23:04 from the mobile phone number 9811530074. The contentions of ld. Counsel for the accused persons that the phone number. The contention of the ld. Defence counsels that since, mobile phone number 9873048909 is not in the name of the PW3, therefore, it is not proved that, she has received the ransom call on the said number. But I do not find any force in the said contention. The said number is in the name of PW9 Mool Chand, who is her brother. She has fully explained in her 44 testimony that the said phone has been given to her by her brother i.e. PW9 Mool Chand for use, which is also corroborated by PW9 in his testimony. Therefore, there is no ground to disbelieve that she was not using the said mobile phone. She has no enmity with the accused persons to implicate them falsely. Even, at that time, when she made the complaint, she was not knowing that PW5 Rahul has been kidnapped by her cousin i.e. Accused Vijay @ Billa. Therefore, there is no reason that she will depose falsely that she had not received the ransom call or that she was not using the said phone.
As far as another contention of the ld. Counsel for the accused persons, prosecution has failed to prove that accused persons have any connection with the Phone Number 98115830074, as the same is not in the name of any of the accused persons. In this regard proper explanation has been furnished by PW4 Anil Kumar, who has stated that accused Mangal Verma alongwith one person came to his shop for repair of mobile 45 phone Nokia and he checked the said phone by putting his sim in the said Nokia Mobile phone and his sim was left inadvertently in the said phone. There is no ground to disbelieve that the testimony of PW4. Even otherwise, if the contentions of ld. Defence counsel is accepted that accused persons have no link with the said Phone Number 98115830074, even then the timing of the call prove that accused persons have some nexus with the caller of the aforesaid phone. As the time of kidnapping of the PW5 and time of ransom call proved that the call was made just after kidnapping of the PW5. Therefore, circumstances suggest that caller and the accused persons acted in connivance with each other and the caller was very well aware that the PW5 has been kidnapped. As state above, it is proved that accused persons have kidnapped the PW5, therefore, presumption can be drawn that the ransom was made at the instance of accused persons by the caller, if not by the accused persons themselves.
16. However, I am agree with the contention of the ld. Counsel for the accused persons that the main ingredient of the Section 364 A IPC is 46 missing in this case i.e. caller while making call for ransom had not threatened the PW3 Uma that her son will be killed or hurt, if his demand is not met. PW5 has also not stated in his statement that she had any time, any apprehension that PW5 might be called or hurt, if she did not pay the ransom. PW5 Rahul Shukla also did not say a single word that he was threatened for death or hurt any time, if his parents did not meet the demand of the persons who had taken him away. Rather he has stated that he was kept very well, it is also corroborated by the testimony of PW11 Budhi Pal and PW14 Inspector Moin Ahmed, who have stated that they did not find any injury on the person of PW5. PW11 has even stated that PW5 Rahul had taken the food and slept very well and he was not perplex during his stay. Therefore, in such circumstances, one of the main ingredient of Section 364A IPC i.e. threat of causing death or hurt or kidnap the person is missing. Hence, in my view, Offence Under Section 364A IPC is not made out. In this regard I relied upon Judgment Chhotey Khan Vs State 2009 [3] JCC 2192 in that case also the facts were almost similar to the present case. In that case also there was simplicitor call for ransom and Hon'ble Divison Bench of our Hon'ble High Court while relying upon the case Rafiq & Anr Vs. State 2008 (4) JCC 2961 has held that offence u/s. 364 IPC is not made out on the ground that, there is no evidence of 47 any threat to cause death or hurt to the kidnapped child has been given or that appellant conducting themselves in such a manner, which give rise to that the child would be put to them or hurt if demand for ransom is not made. The relevant portion of the said judgment is reproduced as below: "In the decision report as Rafiq & Anr Vs State 2008 (4) JCC 2961: 2008 (2) AD (Delhi) 441, a Division Bench of this Court, in similar circumstances, where ransom calls were made on telephone with no threat of any kind, calls were simplicitor calls for ransom which led to the recovery of the child, observed that in the total absence of evidence in regard to any threat to cause death or hurt to the kidnapped child and also for lack of evidence in regard to the appellants conducting themselves in a way that could give raise to a reasonable apprehension that the child would be put to death or hurt, the ransom demand simplicitor could not have brought the offence within the ambit of Section 364A IPC and the court accordingly set aside the conviction and sentence of the appellants in the said case for offence punishable under Section 364A and 365 IPC and maintained the conviction only under Section 363 IPC."
17. In view of the aforesaid discussion I held that offence punishable u/s. 364A IPC is not made out in the facts and circumstances of the case. Therefore, I acquit the accused persons for offence punishable 48 under Section 364A IPC. However, as stated above it is proved beyond reasonable doubt that accused persons have conspired to kidnap the PW5 Rahul Shukla and also kidnapped him by enticing or taking him away from the lawful custody of his legal guardian, without their consent, hence, offence of kidnapping u/s. 363 IPC and conspiracy to commit kidnapping u/s. 120B IPC is proved against all the accused persons. Therefore, I convict the accused persons for offence punishable u/s. 363 IPC and u/s. 120B IPC. Put up for order on the point of sentence.
Announced in the open court (SANJEEV KUMAR)
On 11.04.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
49
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI SC No.06/08.
FIR No.616/07.
PSJAHANGIRPURI.
U/s.363/364A/120B/34 IPC STATE VS (1) VIJAY KUMAR @ BILLA S/O. PRIYAG DUTT, R/O. J568, JAHANGIRPURI, DELHI. (2) MANGAL VERMA S/O. RAM BACHAN VERMA, R/O. J568, JAHANGIRPURI, DELHI. (3) VIRENDER SINGH @ HOOTAR S/O. RAM NANDAN SINGH, R/O. J1872, JAHANGIRPURI, DELHI. (4) SHRIRAM S/O. SHRI GIRISH PATHAK, R/O. J568, JAHANGIRPURI, DELHI. PERMANENT ADD: V&POMIRJAPUR,DIST:SHAHJEHANPUR, U.P. (PROCLAIMED OFFENDER VIDE ORDER DATED 07.05.2008) 50 21.04.2012. Present: Shri S.C. Sroai, ld. Addl. PP for the State.
Ms. Poonam Mahajan, ld. Counsel for convict Mangal Verma.
Shri S.S. Gupta, ld. Counsel for convict Vijay Kumar @ Billa and Amicus Curiae for convict Virender.
ORDER ON SENTENCE
1. Vide separate judgment 11.04.2012, convict persons Vijay Kumar @ Billa, Mangal Verma and Virender were convicted for offence punishable u/s. 363 IPC and 120B IPC.
2. It is stated by the ld. Counsel for the convict Mangal Verma that, convict Mangal is in JC since 20.09.2007. He is a young man of aged about 23 years. He is not a previous convict in any other case. He is the only bread winner of his family. He has a large family, which consist of his motherfather, four younger brother, one sister and an old ailing grand father, who are totally dependent upon him. Therefore, lenient view may be 51 taken against him.
3. It is stated by ld. Counsel for convict Vijay Kumar @ Billa that, convict Vijay Kumar @ Billa is aged about 28 years. He is not a previous convict in any other case. He is in JC since 20.09.2007. He has old mother to look after and his father had already been expired. Therefore, lenient view may be taken against him.
4. It is stated by the ld. Amicus Curiae for convict Virender that convict Virender is aged about 26 years. He is not a previous convict in any other case. He has family consisting of old mother, wife and two children, who are totally dependent upon him and he is the only bread winner of his family. He is in JC since 20.09.2007. Therefore, lenient view may be taken against him.
5. Ld. Counsels for the convict persons submit that convict persons be sentenced for the period already undergone, as no fruitful purpose will be served by keeping them further behind the bar, as it would 52 spoil their future.
6. On the other hand, Shri S.C. Sroai, ld. Addl. PP for the State submits that convict Vijay Kumar @ Billa alongwith coconvict persons had kidnapped the child Master Rahul by breaking the trust of his cousin sister, as kidnapped child Master Rahul is nephew (Bhanja) of the convict Vijay Kumar @ Billa. Therefore, convict persons do not deserve any leniency and maximum sentence provided under the law should be awarded to them.
7. I have heard the rival submissions.
8. The object of sentencing is to see that crime does not go unpunished and the victim of the crime and society feel satisfied that justice has been done, but at that same time it is also duty of the Court to see that punishment is not harsh that it defeats its purpose. The object of the punishment is also to rehabilitate the convict in society if possible. In this case all the convicts are young persons of less than 30 years of age. In 53 the case of State of Punjab vs Prem Sagar & Others (2008) 7 SCC 550, it was observed that, "the judicial system has not been able to develop legal principle as regards as the sentencing. It was further observed the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke doctrine for proportionality would depend upon the circumstances of each case and while doing so, nature of offence stood to have been committed by the accused play an important role. A wide discussion conferred on the court but said discussion was exercised while sentencing the accused. It would depend upon the circumstances in which the crime has been committed and mental status and age of the accused is also relevant".
9. The maximum sentence provided for offence punishable u/s. 363 IPC is seven years and in offence punishable u/s. 120B IPC is same as that of main offence. In this case, the convict persons are in JC since 20.09.2007 i.e. almost about 4 years and 7 months. All the convicts are young man of less than 30 years of age and they have families to look 54 after. They are not previous convict. Therefore, considering the aforesaid facts and circumstances, I am of the view that it would be appropriate to sentence the convict persons for the period they have already undergone. Hence, I award the sentence to all the convict persons to undergo sentence for offence punishable under Section 363 IPC and 120B IPC for the period already undergone by them in JC.
10. However, a fine of Rs.1500/ on each convict is imposed for offence punishable u/s. 363 IPC and in default of payment of fine Simple Imprisonment for one month. And Rs.500/ on each convict is imposed for offence punishable u/s. 120B IPC and in default of payment of fine Simple Imprisonment for 15 days.
11. All the convict persons are directed to furnish their personal bond in the sum of Rs.10,000/ with one surety of like amount in compliance of provisions of u/s. 437A Cr.P.C. within a week.
10. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
On 21.04.2012 Addl. Sessions Judge
Rohini Courts: Delhi.