Delhi District Court
Relied Upon C.R. A 146 Of 2005 Titled As ... vs . State Of on 5 February, 2014
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 30/1
Unique Identification No. 02404R0016402011
State
Versus
1) Ram Kishan
S/o Sh. Roshan Lal
R/o R1383, M.Pur, Delhi.
Permanent Add:
VillageSapipur,
PS Charra, TehAtroly,
District Aligarh (U.P.)
2) Rajesh
S/o Sh. Shiv Singh
R/o F200,
Suleman Nagar,
Aman Vihar,Delhi.
Permanent Add:
VillageSapipur,
PS Charra, TehAtroly,
District Aligarh (U.P.)
FIR No. 53/2008
PS -Mangol Puri
U/s. 363/364/34 IPC
Date of institution of the case: 17/01/2011
Received by transfer on: 11/03/2013
Arguments heard on: 03/02/2014
Date of reservation of order: 03/02/2014
Date of Decision: 05/02/2014
JUDGMENT
This case was registered on the complaint of one Nanak Chandra, u/s. 363/507/34 of IPC, on 28/01/2008, wherein he levelled allegations of kidnapping of his son Raj Kumar against accused Ram Kishan and Rajesh and also regarding receiving of threatening calls . SC No. 30/1 1/15
During investigation, on 23/02/2008, accused Ram Kishan was arrested in this case. His personal searches was conducted. He also made disclosure statements. He was got medically examined. On 11/03/2008, statement of kidnapped child Raj Kumar was got recorded u/s. 164 of Cr.P.C from the concerned Ld. MM, wherein he levelled allegations that accused Rajesh had told his associate Manoj that they would demand ransom of Rs. 1012 lacs from complainant Nanak and would kill the child. Accordingly, after discussion with the senior officers, Section 364 of IPC was added. On 23/04/2008, accused Rajesh was arrested in this case. His personal search was conducted. He also made disclosure statement. Coaccused Budh Sain and Manoj could not be arrested as their residential addresses were not known.
On completion of investigation, chargesheet was filed against both accused Ram Kishan and Rajesh u/s. 363/364/34 of IPC on 17/01/2011. It was committed to the Court of Session on 25/05/2012 and was received on 01/06/2012.
On 01/06/2012, charge u/s. 363/34 of IPC and u/s. 364/34 of IPC was framed against both the accused, to which, they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW9 in all. On completion of evidence of the prosecution, statements of both the accused were recorded u/s. 313 Cr.P.C., wherein they have denied the case of the prosecution and have claimed false implication.
In defence, DW1 and DW2 have been examined.
I have heard learned APP for the State, learned defence counsel for both the accused and have gone through the material placed on record with evidence adduced.
This case was registered on the statement of one Nanak SC No. 30/1 2/15 Chand. He has been examined as PW3. He has stated that Raj Kumar is his son. In the year 2008, first month and 18th day, his son Raj Kumar was kidnapped, who was aged about 9 years, from a park near his house at about 9.30 a.m. He called the police at 100 number and missing report was lodged.
PW3 has further deposed that on 19/01/2008, at about 34 p.m., he was present at PS to know about his son. At that time, he received a telephonic call from an unknown number on his mobile phone no. 9213332197. The call was made by bus conductor of bus route no. 939 from Anand Vihar to Sultan Puri via Mangol Puri and on the said call, his son Raj Kumar talked with him. He asked the bus conductor to leave his son at PS Mangol Puri, who did so and left his son there at about 5.00 p.m. PW3 has further deposed that thereafter, he took his son to his house, where his son told that he was kidnapped by accused Ram Kishan and his friend Rajesh, who took him in a three wheeler to some unknown place at one dharamshala, where one Manoj and one old person met him. They were talking with each other. Accused Rajesh was telling them that Raj Kumar was son of Nanak Chand, who could easily give Rs. 1012 lacs as ransom and thereafter, Raj Kumar would be killed.
PW3 has further deposed that on 19/01/2008, his son was taken to Anand Vihar bus terminal by the accused persons for taking him to some other place and while accused Rajesh was about to lit his bidi, his son managed to escape from his clutches and took a bus of route no. 939. Accused Ram Kishan remained absconded after the incident for about 810 days.
PW3 has further deposed that initially, he did not lodge any complaint after recovery of his son and after coming to know about the involvement of accused persons, out of fear, as he was getting threatening SC No. 30/1 3/15 calls on his mobile phone from mobile phone No. 9250992818 and from family members of accused Rajesh and Ram Kishan. Pressure was being created by the family members of accused persons from Village Sapipur, Tehsil Atroli, District Aligarh, U.P., due to which, he got registered the FIR late.
PW3 has further deposed that his complaint is Ex. PW1/B and during the investigation, statement of his son was recorded. He has identified both the accused before the Court, who were arrested on his pointing out vide memos Ex. PW3/A and Ex PW3/B. Their personal searches were conducted vide memos Ex. PW3/C and Ex. PW3/D. Accused Rajesh also made disclosure statement Ex. PW3/E. Accused Rajesh was also identified by his son at the time of his arrest.
PW2 Raj Kumar, when examined, was aged about 14 years, so, after putting certain questions, he has been examined without oath. He has stated that he was 9 years old at the time of incident and was playing in NDPL park about four years back. Both the accused kidnapped him and took him in a three wheeler to a dharamshala, where one Manoj and one old man were present. He heard their conversation that they would demand ransom of Rs. 1015 lacs from his father Nanak Chand and thereafter, he would be killed.
PW2 has further deposed that accused Rajesh and Ram Kishan took him to Anand Vihar bus terminal for taking to some other place and while accused Rajesh was smoking, he managed to escape from there and took a bus of route no. 939 for Mangol Puri. He was having Rs. 10/ with him, with which, he purchased the ticket from a conductor, to whom, he had told the entire facts and also told mobile no. 9213332197 of his father and the said conductor talked with his father, due to which, he came back to his father, who was standing outside the PS. He cannot tell the place, SC No. 30/1 4/15 where the said dharamshala was situated.
PW2 has further deposed that accused Ram Kishan is his uncle. The incident had taken place with him on 18/01/2008. Police had recorded his statement. His statement was also recorded by the learned MM, which is Ex. PW2/A. In defence, DW1 Ram Bharose has been examined. He has stated that PW23 Nanak Chand is his brother in law, who brought him to Delhi from his native village. When he came to Delhi, he brought along him silver khara, anklets, chain and Rs. 45,000/ in cash to start the work of kabari. He kept all the jewellery items and cash with PW3 Nanak Chand.
DW1 has further deposed that for few days, he resided with his brother in law after coming from the native village. He called accused Rajesh and Ram Kishan from village to work along with him in Delhi. Accused Ram Kishan is his real brother and accused Rajesh is covillager. All three of them worked together as kabari under the supervision of PW3 Nanak Chand. Nanak never paid them anything except giving Rs. 500/ sometimes.
DW1 has further deposed that after sometime, he left the house of Nanak and shifted to a rented accommodation in Prem Nagar. At that time, his wife had told him that Nanak used to outrage her modesty and was having evil eye on her.
DW1 has further deposed that on 15/01/2008, while he had gone to his work, both the accused reached his house and saw PW3 complainant Nanak Chand outraging the modesty of his wife. His wife resisted, on which, quarrel had taken place between Nanak and the accused persons. Nanak was beaten by the accused persons. He received information from his brother accused Ram Kishan about the incident, so, SC No. 30/1 5/15 he came back after about two hours. Till that time, Nanak was present there and requested not to tell about the said incident to anybody and apologized from them and also assured him to return all his jewellery articles and the case, but did not return the same even after the said incident.
DW1 has further deposed that Raj Kumar, son of Nanak was never kidnapped. In fact, Nanak himself hided his son for one day and then got him back the other day and got accused Rajesh and Ram Kishan implicated for the same. He even lodged the complaint. It was received in PS Mangol Puri vide DD No. 40B dated 30/03/2008, copy of which is Ex. DW1/A. Till today, Nanak has not returned his jewellery articles and cash, which were kept with him and the same are lying with Nanak Chand.
DW2 is Sunita. She is wife of DW1 Ram Bharose. She has stated that Nanak and her sister called her from her native place to Delhi. They stayed in the house of Nanak for 1012 days. They gave their jewellery and cash to her sister for doing business of kabari in partnership. Thereafter, they shifted to a rented accommodation at Prem Nagar. Accused Rajesh is son of her jethani and accused Ram Kishan is her brother in law (devar).
DW2 has further deposed that one day, accused Ram Kishan and Rajesh came to her room and both of them had beaten Nanak because Nanak used to outrage her modesty. Thereafter, Nanak apologized for the same and requested her not to tell anybody and assured that he will return all her articles and cash.
DW2 has further deposed that Nanak did not return the cash and jewellery. Rather after about 3 days, he himself hided his son Raj Kumar and implicated the accused persons for the same. Till date, he has not returned the jewellery articles and cash. Her husband had also given a SC No. 30/1 6/15 complaint against Nanak.
Learned defence counsel has contended that incident had taken place on 18/01/2008, whereas complaint in writing has been given by the father of the victim on 25/01/2008. The delay has not been explained in lodging the FIR, although according to PW3 complainant Nanak Chand, the child was found on the next day. It is further contended that one of the accused Ram Kishan is related to the complainant. To cover the delay, PW3 complainant Nanak Chand has mentioned in the complaint that he was receiving threatening call, but neither any date has been given nor any mobile phone number has been given. One mobile no. 9250992818 has been given. It has not been investigated by obtaining CDR as to whom this mobile phone was belonging and whether any calls were made from this mobile phone to PW3 complainant Nanak Chand.
In support of his contentions, learned defence counsel has relied upon 1981 CRI. L.J. 387 titled as Laxman Jayaram Shant V. State of Maharashtra, wherein it has been held that in case of delay, FIR could not be relied upon merely on the basis of supplementary statement explaining the delay.
Learned defence counsel has further contended that according to the deposition of PW3 complainant Nanak Chand, initially, he did not lodge any complaint after recovery of his son and after coming to know about the involvement of the accused persons, he did not lodge the report in time due to fear as he was getting threatening calls on his mobile phone from mobile phone no. 9250992818 and from family members of accused Rajesh and Ram Kishan. It is further contended that this ground has been taken by the complainant falsely as according to his deposition, he had already contacted the police and made a call on 100 number and he visited PS Mangol Puri in this respect. It is further contended that according to SC No. 30/1 7/15 cross of PW3 complainant Nanak Chand, on 19/01/2008, police had made inquiries from him about his son, but nothing was reduced into writing, although his son had told about the facts of incident to him on 19/01/2008 itself. It is further contended by learned defence counsel that all these facts have been found to be false because during the cross examination, record from PS Nangloi was called, wherein no PCR call was found, made by this complainant on 19/01/2008. It is further contended that neither on 18/01/2008 nor on 19/01/2008, complainant had contacted the police, rather created a false story of kidnapping and ransom and got registered a false case against the accused persons on 25/01/2008.
Learned defence counsel has further contended that after giving complaint dated 25/01/2008, case was registered and statement of victim Raj Kumar was recorded u/s. 161 of Cr.P.C., who told to the police in Ex. PW2/DA that on 18/01/2008, he was present in a park near his house and accused Ram Kishan and Rajesh, known to him previously, forcibly took him in a three wheeler scooter towards Anand Vihar bus stand as they wanted to take him somewhere else, where, while accused Rajesh was lighting the bidi, he slipped away from there and took bus No. 939 and told the facts to the conductor. The conductor made a phone call to his father and handed over him to his father.
Learned defence counsel has further contended that thereafter, during investigation, statement of victim was recorded u/s. 164 of Cr.P.C., wherein he has improved the facts and told that on 18/01/2008, his uncle Ram Kishan had taken him to his friend Rajesh's house forcibly and asked accused Rajesh to kidnap him. Accused Rajesh kidnapped him and he was kept in a dharamshala, where one Manoj and one old person were found present. Accused Rajesh told to Manoj that they will kill him after demanding Rs. 1012 las from Nanak. While Rajesh was lighting bidi, he SC No. 30/1 8/15 fled away from there. He boarded bus no. 939 and came to his house. He was having Rs. 10, with which, he had purchased the bus ticket.
Learned defence counsel has further contended that both statements recorded u/s. 161 Cr.P.C. And 164 of Cr.P.C. are contrary to each other and in the first statement, the victim told to the police that both accused Rajesh and Ram Kishan had taken away him in a three wheeler forcibly from a park near his house to Anand Vihar bus terminal, from where, he fled away, whereas in the statement recorded u/s. 164 of Cr.P.C., he told to the learned MM that accused Ram Kishan kidnapped him and had taken him to the house of accused Rajesh, from where, further accused Rajesh kidnapped him and he was kept in a dharamshala. Rajesh and one Manoj were talking with each other about the ransom, so, he slipped away from there and took a bus and came to his house. So, the facts of narrating the incident of kidnapping to the conductor of the bus is entirely missing in the statement recorded u/s. 164 of Cr.P.C.
Learned defence counsel has further contended that during investigation, no such dharamshala was visited or pointed out by the victim nor any Manoj or said old man could be arrested. It is further contended that said bus ticket was also not taken into possession, which shows that neither PW2 Raj Kumar nor PW3 complainant Nanak Chand at any time contacted the police either on 18/01/2008 or on 19/01/2008.
It is further contended that before the Court, PW2 Raj Kumar has again given new facts of the incident. He has stated that both the accused kidnapped him and took him in a three wheeler to dharamshala, where one Manoj and one old man were present. He heard the conversation that they would demand Rs. 1015 lacs from his father Nanak Chand and thereafter, they will kill him. Thereafter, accused Rajesh and Ram Kishan took him to Anand Vihar bus terminal for taking him to SC No. 30/1 9/15 some other place. While accused Rajesh was smoking, he managed to escape from there and took a bus of route No. 939 for Mangol Puri. He was having Rs. 10/ with him. He purchased the ticket and told the facts to the conductor, who called his father, so, he came back to his father, who was standing outside the PS. Learned defence counsel has further contended that in the cross examination, PW2 Raj Kumar has stated that despite raising alarm, none came forward for his help and has further told that at Anand Vihar bus terminal, he did not raise any alarm. It is further contended that no such conductor has been examined as witness of this case. It is further contended that PW2 Raj Kumar has further told that he narrated the entire story to his father and police at that time. Had it been so, then certainly a case would have been registered of kidnapping and ransom at that time. It is further contended that PW2 has admitted in the cross examination that accused Ram Kishan is his uncle.
Learned defence counsel has further contended that according to the cross of PW2 Raj Kumar and PW3 Nanak Chand, accused Ram Kishan remained with complainant Nanak Chand throughout and has admitted that when he reached back at his house, accused Ram Kishan was present there. It is further contended that no ransom was demanded from complainant Nanak Chand. It is further contended that PW2 Raj Kumar has made material improvements in his statement and has further told that accused Rajesh had gagged his mouth, whereas this fact is not appearing either in the statement recorded u/s. 161 Cr.P.C., u/s. 164 of Cr.P.C. or in the examinationinchief recorded before the Court, which shows that witness is tutored one and has been used by PW3 complainant Nanak Chand to settle previous scores with accused persons.
In support of his contentions, learned defence counsel has SC No. 30/1 10/15 relied upon C.R. A 146 of 2005 titled as Dipak Kumar Das Vs. State of West Bengal, wherein it has been held that "learned Trial Court failed to appreciate that the statement made by the victim under Section 164 of the Code of Criminal Procedure and statement made by her in Court as PW3 were not consistent and corroborating to each other.
It has been further held that "learned Trial Court failed to appreciate the delay in lodging the First Information Report and sending the First Information Report by police promptly to the nearest Magistrate amounting to gross violation of law".
Learned defence counsel has further relied upon AIR 1994 Supreme Court 454 titled as Chhagan Dame Vs. The State of Gujarat, wherein it has been held that "if a child witness deposes under influence of tutoring, it is not safe to rely upon his evidence. Evidence of other eye witness also becomes highly doubtful in view of statement of child witnesses".
Learned defence counsel has further contended that according to the examination of PW3 complainant Nanak Chand, he received the phone call from conductor of bus route no. 939, but no CDR has been obtained of the complainant to verify this fact. In his examination, he has also stated that he called the police at 100 number and missing report was lodged, but no such missing report has been brought on record. He has further stated that accused Ram Kishan remained absconded after the incident for 8 to 10 days and he did not come, whereas according to PW2 Raj Kumar, accused Ram Kishan was present in his house on 19/01/2008, when he came back. In the cross examination also, PW3 complainant Nanak Chand has admitted that accused Ram Kishan remained with him till 19/01/2008 and left after the recovery of his son, which itself falsify SC No. 30/1 11/15 the fact that accused Ram Kishan had kidnapped PW2 Raj Kumar either alone or with the help of accused Rajesh and had taken him to a dharamshala or to Anand Vihar bus terminal in a three wheeler. It is further contended that fact of ransom is not mentioned in the complaint, for which, PW3 complainant Nanak Chand had given a lame excuse that it was orally told to the police.
Learned defence counsel has further contended that in fact, due to enmity, complainant Nanak Chand has falsely implicated the accused persons. It is further contended that before 18/01/2008, on 15/01/2008, PW3 complainant Nanak Chand had outraged the modesty of Bhabhi of accused Ram Kishan, so, a quarrel had taken place and he was beaten by the accused persons along with Bhabhi. It is further contended that in fact, when accused Ram Kishan came from the village to join the business of complainant Nanak Chand, at that time, some jewellery and cash were given to the wife of PW3 complainant Nanak Chand, but later on refused to give back and for this reason, a complaint was given, which has been recorded as DD No. 40B on 30/03/2008. It is further contended that although, complainant Nanak Chand has denied about these facts in the cross examination, but DW1 Ram Bharose, who is brother in law of complainant Nanak Chand, has been examined regarding the entrustment of the jewellery and cash to wife of Nanak Chand. DW2 Sunita has also been examined, whose modesty was outraged by complainant PW3 Nanak Chand.
According to PW6 Inspector Raj Veer Singh, on 28/01/2008, he was posted as incharge, PP SGM hospital, PS Mangol Puri. The present case was registered on the complaint of PW3 Nanak Chand dated 25/01/2008. He made endorsement Ex. PW6/A and recorded statement of PW2 Raj Kumar. Accused persons were arrested by some other IOs as he SC No. 30/1 12/15 was engaged in some other cases. On 11/03/2008, statement of PW2 Raj Kumar was got recorded u/s. 164 of Cr.P.C. vide application Ex. PW6/B from the learned MM. He also obtained copy of the statement already exhibited as EX. PW2/A vide his application Ex. PW6/C. PW1 SI Madan Lal has recorded FIR of this case. In the intervening night of 28/29.01.2008, he was working as duty officer from 5.00 p.m. to 1.00 a.m. night. At about 9.25 p.m. PW6 SI Rajbir Singh handed over to him rukka, on which basis, he got recorded FIR of this case through computer operator, copy of which is Ex. PW1/A. He also made endorsement on the rukka vide Ex. PW1/B. According to PW7 ASI Ranbir Singh, on 23/02/2008, he was posted at PP SGM hospital, PS Mangol Puri. On receiving further investigation of this case, he arrested accused Ram Kishan vide memo Ex. PW3/A at the instance of PW3 complainant Nanak Chand. His personal search was conducted vide memo Ex. PW3/C and his disclosure statement was recorded Ex. PW4/A. PW4 Chand Prakash accompanied PW7 ASI Ranbir Singh. According to his deposition, PW3 complainant Nanak Chand had also accompanied them to the house of accused Ram Kishan.
According to PW5 HC Ramesh Chand, on 23/04/2008, on receiving further investigation, he formally arrested accused Rajesh vide memo Ex. PW3/B. His personal search was conducted vide memo Ex. PW3/D. Accused Rajesh also made disclosure statement Ex. PW3/E. PW8 Sh. Amit Bansal, the then Ld. MM has proved the statement recorded by him on 11/03/2008 vide application Ex. PW6/B. The child witness Raj Kumar i.e. PW2 was identified by the IO. He recorded statement Ex. PW2/A and the proceedings conducted by him are Ex. PW8/A. On the application of the IO Ex. PW6/C, one copy of the SC No. 30/1 13/15 proceedings was allowed to the IO.
PW9 ASI Prem Raj received investigation of this case on 24/04/2009. As the investigation was already completed, so, he prepared chargesheet . During the investigation, he made efforts to search accused Bhim Sain and Manoj, but both could not be found.
Learned defence counsel has contended that according to cross of PW6 Inspector Rajveer Singh, who had conducted investigation of this case, he had asked about the ticket purchased by victim PW2 Raj Kumar, but it was not available with him. He did not obtain the call details of mobile phone of complainant to show that he had received any call from the conductor of the bus. He did not take the child for any inquiry except the said park. It is further contended that even this IO did not call persons Budh Sain and Manoj to join the investigation as their names were disclosed by victim in his statement recorded u/s. 164 of Cr.P.C. It is further contended that this IO did not visit dharamshala because the victim failed to point out the dharamshala.
It is further contended that similarly, another IO PW7 ASI Ranbir Singh did not make any inquiry about the facts of the case. It is further contended that PW9 ASI Prem Raj has stated in the cross examination that he made inquiries from the complainant, but he failed to point out Bhim Sain and Manoj. He made efforts to contact conductor of the bus and one person of dharamshala, but they could not be contacted. It is further contended that those persons could not be traced out because no such persons were involved in the alleged incident and a false and fabricated story has been given in the complaint to implicate the accused persons in this case.
In view of above, the contentions of learned defence counsel are forceful. PW2 Raj Kumar, victim himself, has made material SC No. 30/1 14/15 improvements in both of his statements and also before the Court and none of his statement is in consistency with other statement. The contradictions appearing in his statements raising doubt about the presence of accused Ram Kishan either in his kidnapping or whether he remained with complainant PW3 Nanak Chand during that period. PW3 Nanak Chand is also not inspiring any confidence. He has failed to explain the delay in lodging of FIR to the satisfaction of the Court. The accused persons have also been able to brought on record motive on the part of PW3 Nanak Chand for their false implication.
Both PW2 Raj Kumar and PW3 Nanak Chand under such circumstances are not inspiring confidence, hence, cannot be relied upon. The facts as deposed by PW2 Raj Kumar during investigation or before the Court are not corroborated with other supportive evidence i.e. pointing out the place, where he was kept at a dharamshala, statement of the bus conductor and CDR of mobile phone of PW3 Nanak Chand. All these supporting evidence are missing, which could have corroborated the depositions of PW2 Raj Kumar and PW3 Nanak Chand. So, they cannot be relied upon.
Accordingly, prosecution has not been able to prove offences u/s. 363/34 of IPC and u/s. 364/34 of IPC against both the accused persons beyond reasonable doubts, for which, they both are acquitted.
Announced in the open court (Virender Kumar Goyal) today on 5th of February, 2014 Additional Sessions Judge Fast Track Court, Rohini Courts,Delhi.
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