Delhi District Court
State vs . Pardeep Dev & Ors. on 22 February, 2011
State vs. Pardeep Dev & Ors.
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 226/09
FIR No. 128/08
PS OIA
U/s 120B IPC, 364A r/w Section 120B IPC and 368 r/w
Section 120B IPC.
State Vs. 1. Pardeep Dev, S/o Late Sh. Rai
Mohan Dev, R/o Chhuria Mohalla, Gali
No. 16, Village Tughlakabad, New
Delhi.
2. Vishnu Vishwas, S/o Sh. Jogin
Vishwas, R/o Chhuria Mohalla, Gali
No. 16, Village Tughlakabad, New
Delhi.
3. Tapan Kumar Mandal, S/o Late Sh.
Kewal Krishan Mandal, R/o Ward No.
25, Professor Colony, PS Forbis Ganj,
District Ahraria, Bihar.
4. Balram Singh, S/o Sh. Nember
Singh, R/o G275/12, Ratia Marg,
Sangam Vihar.
SC No. 226/09 1/39
State vs. Pardeep Dev & Ors.
Date of institution : 11.07.2008
Date when case received by way of transfer : 29.05.2009
Date when arguments were heard : 10.02.2011
Date of Judgment : 21.02.2011
JUDGMENT
The case of the prosecution is as under:
1. The complainant Rajkumar lodged a missing report regarding his son namely Akash @ Akku aged about 9 years at PS Okhla Industrial Area on 21.03.2008 at around 10.15 pm stating that the child had gone out at about 6.30 pm but has not come back. This missing report was registered vide DD No. 35A (Ex. PW6/A). On 22.03.2008, the complainant Rajkumar again came to the police station and gave the statement (Ex. PW4/A) on the basis of which SI Ashok Giri prepared the rukka (Ex. PW10/A) and recommended the registration of the case U/s 363 IPC. The case was accordingly registered vide the FIR Ex. PW7/A. On 24.03.2008 at about 10.22 am, the complainant Rajkumar received a phone call from telephone No. 6455224924 on his phone No. 9210784016 and the caller informed him that the child Akash @ Akku is in their custody and he demanded Rs. 5 lacs as a ransom and told the complainant that he SC No. 226/09 2/39 State vs. Pardeep Dev & Ors.
will further inform as to where and when the money is to be delivered. This telephone call received by the complainant was traced to one STD Booth in Forbis Ganj, District Ahraria, Bihar. A police team was dispatched to Forbis Ganj and the STD Booth from which the call was traced which belong to one Sanjay Kumar (PW8). In the meantime on 25.03.2008, the complainant Rajkumar received two calls at 11 am and 11.08 am. On 26.03.2008, he again received a call at about 11.59 am. This call was received from telephone No. 97721525923. This call was from Virat Nagar, Nepal. On 27.03.2008, the complainant again received a call at 9 am from the same STD Booth in Forbis Ganj which was owned by Sanjay Kumar. Since the booth owner Sanjay Kumar was already shown the photograph of the child and he was also given the phone number of the complainant by official of Delhi Police on 26.03.2008, he immediately noticed that this call on 27.03.2008 at about 9 am was being made at the telephone number of Rajkumar at Delhi. He immediately informed the police and in the meantime captured the accused Vishnu Vishwas and the accused Pardeep Dev alongwith the kidnapped child namely Akash @ Akku. In the meantime, the police also reached the spot and both the accused Vishnu Vishwas and Pardeep Dev were arrested. The child was recovered from their possession. The accused Vishnu Vishwas was also having three slips of paper on which he had written the telephone number of the complainant Rajkumar and one Sunita, mother of the kidnapped child. These paper slips (Ex. P1 to Ex. P3) were seized by the IO vide SC No. 226/09 3/39 State vs. Pardeep Dev & Ors.
the memo Ex. PW8/F. The disclosure statement of the accused Pardeep Dev and Vishnu Vishwas was recorded. As per their disclosure statement, they had entered into a criminal conspiracy alongwith one Balram Singh who was working with the complainant and his partner Vijay Kumar Mishra. As per the plan, the accused Vishnu Vishwas kidnapped the child Akash @ Akku who was playing outside the house in a gali and he alongwith Pardeep Dev brought the child to Katihar, from there, they went to Forbis Ganj, District Ahraria, Bihar. It was further disclosed by them that they stayed in the house of one Tapan Kumar Mandal who was disclosed the entire conspiracy and he agreed to keep them at his place. Pursuant to this disclosure statement of accused Pardeep Dev Ex. PW10/B and accused Vishnu Vishwas Ex. PW10/C, the accused Tapan Kumar Mandal was apprehended from his house at Ward No. 25, Professor Colony, PS Forbis Ganj, District Ahraria, Bihar. Since the accused had disclosed about the involvement of Balram Singh also in this case, the said accused Balram Singh was arrested on 29.03.2008 after the police party came back to Delhi alongwith the child. After coming to Delhi, at the instance of accused Pardeep Dev, the pointing out memo was prepared from where the accused Akash @ Akku was kidnapped. Before the police party came back to Delhi, they had seized the call details from the STD Booth namely Satkar Telephone Booth of Sanjay Kumar. From these call details, it is revealed that on 24.03.2008, a call was made to phone No. 09210784016 (the telephone number as of complainant) at 10.16 am. SC No. 226/09 4/39
Again, a call was made on the same telephone number on 27.03.2008 at about 8.55 am. Since during the investigation it transpired that there was a call for ransom and a threat to kill the child if the ransom is not paid, Section 364A IPC was added in the FIR. As the accused Tapan Kumar Mandal had harboured the accused persons and wrongfully concealed the kidnapped child at his home, Section 368 IPC was also added in the FIR.
2. The investigation thus came to an end after the child was brought to Delhi and all the accused persons were arrested and, thereafter, the child was handed over to his father. The charge sheet was accordingly filed in the court for the offences U/s 120B IPC, 364A IPC read with Section 120B IPC and 368 IPC read with Section 120B IPC.
3. After due compliance of provision of Section 207 Cr.P.C, the case was committed for trial to the Sessions Court. The charges were framed against the accused by my Ld. Predecessor on 06.01.2009 for the offences U/s 120B IPC, 364A IPC read with Section 120B IPC and 368 IPC read with Section 120B IPC. The accused had pleaded not guilty and claimed the trial.
4. To prove its case, the prosecution examined following witnesses.
4.1 PW1 is Vijay Kumar Mishra. He deposed that on 21.03.2008, the son of complainant Rajkumar was missing and he alongwith Rajkumar searched for his son at several places but the boy could not be traced. He further deposed that the police had apprehended SC No. 226/09 5/39 State vs. Pardeep Dev & Ors.
the accused Vishnu Vishwas and Pardeep Dev regarding the kidnapping of a boy and accused Pardeep Dev was his employee earlier and he had left the services. Accused Vishnu Vishwas was also his employee who had also stopped working with him for two and a half months prior to the incident. The accused Balram Singh was also in his employment when he was apprehended in this case. He deposed that the attendance register was seized by the police vide Ex. PW1/A. The attendance register is Ex. PW1/B and reflected the attendance of accused Balram Singh and Pardeep Dev in the register at point Ex. PW1/C and Ex. PW1/D respectively. This witness has deposed about the accused Balram Singh and spoken about him that he never suspected the integrity of accused Balram Singh and he used to look after his factory work.
4.2 PW2 is Pawan Kumar, who had accompanied his brother Rajkumar (complainant) and his friend to the police station, Okhla Industrial Area to lodge the missing report about Akash @ Akku. 4.3 PW3 is Master Akash @ Akku. This witness was examined by my Ld. Predecessor after recording the satisfaction that he was able to comprehend and deposed in the court. The child has deposed that on Chhoti Holi, the accused Pardeep Dev and Vishnu Vishwas had taken him out of Delhi. He deposed that both of them used to work in the factory of his father. He had identified both the accused in the court. When the court specifically asked the child witness about other accused, then the child SC No. 226/09 6/39 State vs. Pardeep Dev & Ors.
witness had pointed out towards accused Tapan Kumar Mandal and stated that the accused Vishnu Vishwas and Pardeep Dev had kept him in the house of accused Tapan Kumar Mandal. In the cross examination of this witness, it has come that he was never illtreated by the accused nor any money was demanded in his presence. He never heard any of their conversation and he never heard the name of accused Balram Singh being mentioned by the accused. In the cross examination, he had also pointed out towards the accused Tapan Kumar Mandal as the person in whose house, he was kept.
4.4 PW4 is Rajkumar. He is the complainant in this case. He deposed that he runs a business of fabrication of garments. On 21.03.2008 on the occasion of Chhoti Holi, he reached home at 8.30 pm but did not find his son Akash @ Akku at home. He lodged a missing report on the same day and on the next day, he lodged a complaint (Ex. PW4/A) on which the case was registered. He further deposed that on 24.03.2008 at about 10.15 am, he received a call on his mobile phone No. 9210784016 from the telephone No. 6455224924. He further deposed that the caller had told him that the boy can be recovered on payment of Rs. 7 lacs and the child has been kidnapped by someone named Jagga and sold to him for Rs. 3 lacs. The witness further deposed that on 26.03.2008, he again received a call. This call was received from phone No. 6455222212. He further deposed that on 27.03.2008, he again received a call and this call was from telephone No. 6455224924 and the caller had inquired whether he had SC No. 226/09 7/39 State vs. Pardeep Dev & Ors.
made arrangement for money. The witness further deposed that the child was restored to him on 29.03.2008 at the police station, Okhla Industrial Area.
4.5 PW5 is M.M. Vijayan, Nodal Officer, Tata Tele Services. He brought the summoned record pertaining to telephone No. 9210784016 (belonging to the complainant Rajkumar) and placed the computerized details of the said record (Ex. PW5/A) on the record. 4.6 PW6 is ASI Rajender, who had registered the DD No. 35A regarding missing of the child vide Ex. PW6/A. 4.7 PW7 is HC Rameshwar, who was the Duty Officer on 22.03.2008 and had registered the FIR Ex. PW7/A. 4.8 PW8 is Sanjay Kumar. He is the owner of the STD shop in the name and style of Satkar Telephone Booth. It was situated near the station chowk, Forbis Ganj, Ahraria, Bihar. This witness has deposed that the police officials from Delhi had made inquiry from him on 26.03.2008 regarding a call made from his STD Booth on the telephone No. 9210784016 (that of the complainant Rajkumar). He deposed that he expressed his inability to tell as to who had called on the aforesaid number from his STD Booth. He further deposed that the police officials also told him about the incident, gave telephone number of complainant and instructed him to give information if call is made on this number. He deposed that on 27.03.2008 at about 9/10 am, two persons with a child SC No. 226/09 8/39 State vs. Pardeep Dev & Ors.
came to his shop, one of them entered into the booth and dialed one number. He saw the said number on the display and found that it was the same number which was given to him by Delhi Police. He closed the door of the cabin. He stated that accused Vishnu Vishwas had called the aforesaid number and accused Pardeep Dev was standing with a child outside the booth. Both the accused were identified by him correctly. He deposed that the accused and the child were apprehended and the police was informed which reached on the spot within 5/6 minutes and the accused were arrested. He is a witness to the arrest memo of the accused Pardeep Dev and Vishnu Vishwas Ex. PW8/B and Ex. PW8/C respectively. He is also a witness to the recovery of three slips of paper from the accused Vishnu Vishwas which was seized in his presence vide memo Ex. PW8/F. The witness has identified the slips (Ex. P8/1 to Ex. P8/3) correctly. He further deposed that he had also given the print out of his STD phone bearing No. 06455224942 to the Investigating Officer of this case which was seized by the IO vide memo Ex. PW8/G. This witness had correctly identified the 12 sheets of paper which were seized by the IO from him. The witness was shown the photograph of the child which was on the record and he correctly identified him as the one who was recovered from the possession of the accused persons. 4.9 PW9 is Constable Pramod Kumar. He had joined the investigation alongwith the IO in this case.
SC No. 226/09 9/39
4.10 PW10 is SI Ashok Giri, who is the IO of the case. He has deposed about the investigation which was conducted by him in this case and deposed that on 27.03.2008, he had arrested the accused Vishnu Vishwas and Pardeep Dev and the boy Akash @ Akku was recovered from their possession. He deposed that the accused had disclosed about the house of Tapan Kumar Mandal where they have been staying. Then, he visited his house and arrested the accused Tapan Kumar Mandal. He deposed that on 27.03.2008, all the accused persons were produced before the Ld. CJM, Katihar and their transit remand was obtained. They reached Delhi on 29.03.2008 and the custody of the child was delivered to his father namely Rajkumar, the complainant. He further deposed that the accused Pardeep Dev had also disclosed about the involvement of accused Balram Singh in the conspiracy and he was also arrested vide arrest memo Ex. PW10/H and his disclosure statement was recorded vide Ex. PW10/J. He also deposed that he had seized the register of attendance from the factory premises of Vijay Kumar Mishra (PW1). He further deposed that he had collected the call details of the accused Balram Singh of his telephone No. 9990441682 and the call details (Ex. PW10/N) show that calls were made from this phone to Katihar.
5. The statements of the accused were recorded U/s 313 Cr.P.C and the incriminating evidence in the statement of the witnesses was explained to them. The accused Pardeep Dev denied all the evidence as SC No. 226/09 10/39 State vs. Pardeep Dev & Ors.
false. He stated that on the date of his arrest on 27.03.2008, he was going to subji market at around 8.30 am alongwith Vishnu Vishwas (coaccused) when somebody hit him with a rod on his forehead and he became unconscious. He also stated that no child was recovered from his possession nor he made any disclosure statement and his signatures were taken on blank papers. He claimed innocence. The accused Vishnu Vishwas also denied the evidence against him as false and took the same plea as that of accused Pardeep Dev (coaccused) and stated that he was going to subji market at around 8.30 am alongwith Pardeep Dev when somebody hit him (Vishnu Vishwas) with a rod on his forehead. He was arrested by the police at Forbis Ganj, District Ahariar, Bihar and his signatures obtained on the blank papers. He also took the plea that no child was recovered from their possession. The accused Tapan Kumar Mandal simply denied all the evidence against him as false. Accused Balram Singh also denied the evidence against him as incorrect. None of the accused preferred to lead evidence in defence.
6. I have heard the arguments from the Ld. Addl. Public Prosecutor for the state, Sh. Sunil Bhatt, Ld. Counsel for the accused Balram Singh and Tapan Kumar Mandal, Ld. Counsel Sh. Rajesh Kumar Naidu for the accused Pardeep Dev and Ms. Madhu Dutt, Amicus Curiae for the accused Vishnu Vishwas. The evidence on the record has been perused carefully.
7. The Ld. Addl. Public Prosecutor had argued that the prosecution SC No. 226/09 11/39 State vs. Pardeep Dev & Ors.
case stands proved beyond reasonable doubt qua the accused persons. He argued that the accused Balram Singh, Pardeep Dev and Vishnu Vishwas were employed with the complainant Rajkumar. Thus, they had the knowledge about the family of the complainant and had an easy access to the family members. This gave them an opportunity to commit the offence. This fact is, therefore, relevant in the present case. He further argued that the accused Pardeep Dev and Vishnu Vishwas have been apprehended alongwith the kidnapped child on 27.03.2008 from the telephone booth of Sanjay Kumar (PW8) from Forbis Ganj, District Ahariar, Bihar. He further argued that on 27.03.2008, the complainant Rajkumar (PW4) had received a call from Forbis Ganj asking him whether he had made arrangement for money. He argued that the statement of PW8 and the receipts of call details (Ex. PW10/F) corroborate his statement that a call was made on his phone number 09210784016 from Satkar Telephone Booth, Forbis Ganj. PW8 also deposed that he had seen the dialed number in the display when the accused Vishnu Vishwas had made a call from the booth. Thus, the Ld. Addl. Public Prosecutor argued that the offence against the accused Pardeep Dev and Vishnu Vishwas stands proved. As regard the accused Balram Singh, he argued that the call details of accused Balram Singh of his phone No. 9990441682 of Idea Cellular Limited shows that he had received a call on 23.03.2008 from Katihar as well as from Forbis Ganj. This establish the nexus of the accused Balram Singh with the accused Pardeep Dev and Vishnu Vishwas showing that they were in touch SC No. 226/09 12/39 State vs. Pardeep Dev & Ors.
with each other and thus, proving that he was a part of the criminal conspiracy to kidnap the child to demand ransom. As regard the accused Tapan Kumar Mandal, he argued that the child Akash @ Akku in his statement Ex. PW3/A has categorically given the suggestion by his silence and nod that he was kept in the house of Tapan Kumar Mandal by the accused Pardeep Dev and Vishnu Vishwas. So, the offence U/s 368 IPC stands proved against him.
8. On the contrary, the Ld. Defence Counsels for accused have submitted that the case of the prosecution is false and the accused have been falsely implicated in the case. The Ld. Counsel for accused Balram Singh and Tapan Kumar Mandal had argued that there is no evidence to connect the accused Balram Singh with any of the activity of the co accused Pardeep Dev and Vishnu Vishwas. He argued that as per the prosecution case, the accused Balram Singh received call from the STD Booth from Katihar Railway Station, but no proof has been placed on record in this regard. He argued that the STD Booth owner from which the call has been received by accused Balram Singh, has not been examined nor the record has been produced as to the call details and proved as per the law. As regard the accused Tapan Kumar Mandal, he argued that the prosecution has failed to prove the case against him. He submitted that the recovery of the child has not been effected from his house and simply the disclosure statement of the coaccused against him is not admissible in law.
9. Ld. Amicus Curiae for the accused Vishnu Vishwas argued that SC No. 226/09 13/39 State vs. Pardeep Dev & Ors.
the case of the prosecution is false which is reflected from the contradictions which have occurred in the statement of the witnesses. It was argued by the Ld. Amicus Curiae that while PW1 Vijay Kumar Mishra deposed that the child was received by complainant Rajkumar on 28.03.2008 but on the other hand, PW4 Rajkumar and PW10 SI Ashok Giri deposed about the handing over of the child on 29.03.2008 and PW9 Constable Pramod deposed about handing over the child on 30.03.2008. It was further argued by the Ld. Amicus Curiae for the accused Vishnu Vishwas that PW8 Sanjay Kumar, the owner of the STD Booth stated that the police officials from Delhi had come at his booth on 26.03.2008 at about 12/1.00 pm while PW9 Constable Pramod stated that they have reached the STD Booth of Sanjay Kumar at about 7/7.30 pm. It was also argued by the Ld. Amicus Curiae that the prosecution witnesses are not in unison as to which of the accused, Pardeev Dev or Vishnu Vishwas, was confined inside the booth by the witness, PW8 Sanjay Kumar. It was argued by the Ld. Amicus Curiae that the accused Vishnu Vishwas had been arrested without any basis and no child has been recovered from his possession.
10. The Ld. Counsel for accused Pardeep Dev argued that the accused has been falsely implicated and no case is made out against him. He also points out the same contradictions which have been pointed out by the Ld. Amicus Curiae for the accused Vishnu Vishwas. He argued that the statement of PW9 Constable Pramod cannot be believed as his statement is SC No. 226/09 14/39 State vs. Pardeep Dev & Ors.
contrary to the record. He argued that PW9 Constable Pramod has deposed that the accused Pardeep Dev and Vishnu Vishwas have been arrested in his presence and he had signed their arrest memos but the record speaks contrary to this, as the arrest memo of the accused Pardeep Dev and Vishnu Vishwas does not bear the signatures of PW9 Constable Pramod as a witness. He also argued that PW9 Constable Pramod is also not to be believed as his statement is improbable. He has deposed that he is not aware in which hotel they had stayed at Forbis Ganj when they reached there on 26.03.2008. Ld. Defence Counsel argued that it is highly improbable that a person visiting a place and staying in a hotel, will not be able to remember the name of the said hotel. This shows that the Constable Pramod did not even visit the place from where the recovery of the child has been shown.
11. The accused in this case have been charged for the offence U/s 364A IPC read with Section 120B IPC and 368 IPC read with Section 120B IPC and also for the offence U/s 120B IPC. As per the case of the prosecution, all the accused had hatched a conspiracy to kidnap the child Akash @ Akku, son of Rajkumar, the complainant for ransom. Pursuant to this conspiracy, the child was kidnapped by accused Pardeep Dev and Vishnu Vishwas on 21.03.2008 when he was playing outside his house and it was the occasion of Chhoti Holi when the act was done. The accused took the child to Katihar and then to Forbis Ganj and kept him in the house of the accused Tapan Kumar Mandal. A ransom call was made on SC No. 226/09 15/39 State vs. Pardeep Dev & Ors.
24.03.2008 in the morning at around 10 am to the complainant Rajkumar and Rs. 5 lacs were demanded as a ransom. The demand of ransom was also clothed with a threat that he should make an arrangement for Rs. 5 lacs if he wanted the safety of the child. On this ransom call being received, the Investigating Officer got the lead and he traced the call to STD Booth in Forbis Ganj and, thereafter, the police party reached there, traced this STD Booth which belong to PW8 Sanjay Kumar. He was shown the photograph of the child and also the phone number of Rajkumar, the complainant and was directed to inform the police whenever any call is made on this phone number of the complainant i.e 9210784016. On 27.03.2008 when the accused Vishnu Vishwas and Pardeep Dev came to the STD Booth alongwith the child and Vishnu Vishwas made a call to Rajkumar at his phone No. 9210784016, the PW8 Sanjay Kumar noted the same and immediately informed the police. The accused Pardeep Dev and Vishnu Vishwas were apprehended at the spot. Police came and they were arrested and the child was thus recovered.
KIDNAPPING:
12. First of all, the material witnesses who prove the story of the kidnapping of Master Akash @ Akku need to be discussed here. PW3 is Master Akash @ Akku, who is the child who had been kidnapped. At the time when he deposed in the court, he was about 9 years of age, thus a child witness. The statement of a child witness needs to be scrutinized with SC No. 226/09 16/39 State vs. Pardeep Dev & Ors.
greater care and caution due to the chances of his tutoring. However, the statement of the child witness can be accepted by the court if it receives due corroboration and inspire confidence. PW3 was examined by the court only after recording the satisfaction that he was able to comprehend and depose in the court. His testimony is to the effect that on the day of Chhoti Holi, accused Vishnu Vishwas and Pardeep Dev had taken him out of Delhi. He knew them because they used to work in the factory of his father. He was kept by the accused Vishnu and Pardeep in the house of accused Tapan. However, he was very clear in his statement that he was not illtreated nor threatened by the accused persons. The statement of this child is duly corroborated by the statement of PW4 Rajkumar, who is the complainant in this case. He has deposed that on the occasion of Chhoti Holi on 21.03.2008, he had reached home at about 8.30 pm but he did not find his son Akash @ Akku. He searched for him but could not find him anywhere. He lodged a missing report on the same day and on the next day, he lodged the complaint (Ex. PW4/A) which led to the registration of the case. PW1 Vijay Kumar Mishra also deposed that on 21.03.2008, the son of Rajkumar (the complainant) was missing and they searched for him at many places and lodged a report in the PS Okhla Industrial Area. PW2 Pawan Kumar is the brother of the complainant Rajkumar and deposed that on 21.03.2008, he came to know in the evening that his nephew Akash @ Akku was missing. He deposed that he searched for the boy but the boy could not be traced. He deposed that thereafter he alongwith Rajkumar and SC No. 226/09 17/39 State vs. Pardeep Dev & Ors.
one of his friend, went to the PS Okhla Industrial Area and lodged a missing report. PW6 ASI Rajender supports the statement of Pawan Kumar (PW2) and deposed that on 21.03.2008, a missing report regarding Akash @ Akku was recorded by him vide DD No. 35A (Ex. PW6/A). This report was lodged by Pawan Kumar. PW10 SI Ashok Giri was assigned the inquiry of DD No. 35A (Ex. PW6/A) on 22.03.2008. He had recorded the statement of the complainant Rajkumar vide Ex. PW4/A regarding the kidnapping of the child.
13. Thus, the statement of all these witnesses proves one fact that the child Akash @ Akku was missing from the evening of 21.03.2008 and a missing report was lodged in this regard on 21.03.2008 itself at about 10.15 pm and a complaint was made on 22.03.2008 on the basis of which the case was registered.
RECOVERY:
14. The prosecution case is that the kidnapped child namely Akash @ Akku was recovered on 27.03.2008 from Satkar Telephone Booth near Station Chowk, Forbis Ganj, District Ahraria, Bihar. At the time of recovery, he was in the possession of the accused Vishnu Vishwas and Pardeep Dev. Let us see, what is the evidence led by the prosecution with regard to the recovery? The prosecution has relied on the statement of PW8 Sanjay Kumar, PW9 Constable Pramod Kumar and PW10 SI Ashok Giri to prove the recovery of the kidnapped child from the place SC No. 226/09 18/39 State vs. Pardeep Dev & Ors.
mentioned above. PW8 Sanjay Kumar runs the STD Booth in the name and style of Satkar Telephone Booth at Station Chowk, Forbis Ganj, District Ahraria, Bihar. On 26.03.2008, the photograph of the kidnapped child was shown to him and he was instructed to inform the police if any call is made from his STD Booth on telephone No. 9210784016. The PW8 Sanjay Kumar on 27.03.2008 gave a call to the police when the accused Pardeep Dev and Vishnu Vishwas had come to his STD Booth at about 9/10 am and the accused Vishnu Vishwas had made a call at the telephone No. 9210784016 which was seen by him on the display. He, with the assistance of his neighbours apprehended the accused Pardeep Dev who was holding the child and he confined the accused Vishnu Vishwas in the STD Booth. The police arrived at the spot and the accused were arrested by the police. The arrest memo of the accused Pardeep Dev was prepared vide Ex. PW8/B which was witnessed by PW8 Sanjay Kumar and signed by him at point A. Similarly, the arrest memo of the accused Vishnu Vishwas was prepared vide Ex. PW8/C which was signed by PW8 Sanjay Kumar as a witness at point A. The recovery memo of the child was also prepared vide Ex. PW8/A which was also signed by him as a witness at point A. In his deposition in the court, he has identified his signatures on all the memos mentioned above. He had further deposed that from the possession of the accused Vishnu Vishwas, three slips of paper were recovered which were also seized by the IO vide the memo Ex. SC No. 226/09 19/39
PW8/F. He identified those slips of paper in the court as Ex. P8/1 to 8/3. On these plain papers, the telephone No. 9210784016 in the name of Rajkumar (complainant) was written. One more phone number has been written on these slips i.e 9250246003. As per the prosecution case, this phone number pertains to Sunita, mother of the kidnapped child. However, there is no proof in this regard to substantiate this. PW8 Sanjay Kumar had deposed that he had given the print out of the STD phone No. 06455224924 to the Investigating Officer which were 12 sheets in number. They were seized vide memo Ex. PW8/G. These telephone slips have been duly stamped with stamp of "Satkar Telephone Booth" near Station Chowk, J.N. Path, Forbis Ganj, Bihar and also bears the telephone number as stated by PW8 Sanjay in his statement. These print out are relevant to show that a call was made at the mobile phone of Rajkumar on 24.03.2008 at around 10.16 am and on 27.03.2008 at around 8.55 am. One more important aspect of the statement of PW8 Sanjay Kumar is that when he was deposing in the court, the photograph of the kidnapped child was shown to him which was on the judicial file and he had identified the child as the same who was recovered from the possession of the accused persons.
15. Now PW9 is Constable Pramod Kumar. He alongwith SI Ashok Giri had gone to Forbis Ganj on 26.03.2008. He has deposed that they had visited Satkar Telephone Booth and had given the telephone number of Rajkumar, the father of the kidnapped child to the owner of the Satkar Telephone Booth. He deposed that on 27.03.2008, the information SC No. 226/09 20/39 State vs. Pardeep Dev & Ors.
was received that the kidnapper had called on the mobile phone of the father of kidnapped child Rajkumar, the complainant. They immediately reached at Satkar Telephone Booth and saw that accused Pardeep Dev was already caught hold by Sanjay Kumar (PW8), the STD Booth owner and the accused Vishnu Vishwas was inside the STD Booth. The child was also recovered from the accused persons. They were arrested on the spot. Similar statement has been given by PW10 SI Ashok Giri. The statement of these three witnesses is free from any inconsistency and contradiction on the issue that both the accused were apprehended from Satkar Telephone Booth and the kidnapped child Akash @ Akku was in their possession at that time. PW8 Sanjay Kumar is an independent witness. He is a resident of Forbis Ganj, Bihar. He is not an interested witness in this case. He could not be assigned any motive to falsely implicate the accused persons. He is neither known to the accused persons nor to the complainant Rajkumar. Therefore, he has no motive or interest in giving a statement against the accused persons implicating them in the commission of the offence. Similarly, the statement of PW9 Constable Pramod Kumar and PW10 SI Ashok Giri also needs to be given due credit. The officials witnesses or the police officials cannot be disbelieved simply because of their status. They deserve the same respect as any other witness. The court cannot start with a presumption that being official witness, they will state in favour of the prosecution. An official witness in the eye of law commends same respect as any other witness and mere fact that a person happens to be SC No. 226/09 21/39 State vs. Pardeep Dev & Ors.
an official, is not a ground for discarding his sworn testimony [Bachhan Singh vs. State of Punjab 1987 (2) Crimes 519].
16. The statement of PW8, PW9 and PW10, thus, establish and prove the fact that the child was recovered from the possession of the accused persons from Forbis Ganj, District Ahraria, Bihar. Even the accused Pardeep Dev and the accused Vishnu Vishwas in their statement U/s 313 Cr.P.C, do not deny that they were arrested together from Forbis Ganj, District Ahraria, Bihar. Although one of the accused Pardeep Dev claimed that he was hit with a rod on his forehead and he became unconscious and later on he was apprehended by the police. This defence, however, is not substantiated rather it shows that the prosecution story with regard to the arrest of the accused persons and recovery of kidnapped child from Forbis Ganj, District Ahraria, Bihar near Satkar STD Booth is correct. The argument of the Ld. Defence Counsel that the child was already in possession of the police when the accused were apprehended is not acceptable in the circumstances. Therefore, the evidence led by the prosecution with regard to the arrest of the accused persons and the recovery of the child is found to be trustworthy, cogent and reliable. DEMAND OF RANSOM - SECTION 364A OF IPC:
17. Now, the question arise about the applicability of Section 364A IPC. Section 364A IPC reads as under: SC No. 226/09 22/39 State vs. Pardeep Dev & Ors.
"364A. 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 any foreign State or international intergovernmental 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."
18. In the case of Philips Fadrick D'souza vs. State of Maharashtra 2009 Cr.LJ 89, the Hon'ble Bombay High Court has dealt with the provision of Section 364A IPC and deduced the following ingredients of the offence. It would be appropriate to go through the relevant portion of the judgment which reads as under: " The essential ingredients of the offence under Section 364A must be deduced. The provision is attracted where a person:
(a) (i) kidnaps or abducts any person; or
(ii) keeps a person in detention after such kidnapping or abduction; and SC No. 226/09 23/39 State vs. Pardeep Dev & Ors.
(b) (i) threatens to cause death or hurt to such person; or
(ii) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt; or
(iii) causes hurt or death to such person; and
(c) In order to compel the Government or any foreign State of International intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom. The ingredients of Section 364A, therefore, are broadly distributed into three heads. The first head consists of kidnapping, abduction or holding the person kidnapped or abducted in detention: The second head consists of the issuance of a threat or then giving rise to a reasonable apprehension of causing death or hurt or actually causing death or hurt. The third head is that the purpose of the unlawful act is to compel the Government or a foreign State or international organization or any person to pay a ransom or to do or abstain from doing something. The marginal note to Section 364A is titled, "kidnapping for ransom etc. The offence under Section 364A consists of an aggravated form of kidnapping or abduction. The offence is punishable with death or with imprisonment for life and with fine. "
19. The Hon'ble Supreme Court had also dealt with the offence U/s 364A IPC in the case of Malleshi vs. State of Karnataka AIR 2004 SC 4865 and the Hon'ble Supreme Court also elaborated the essential ingredient of Section 364A IPC, thus; " To attract the provisions of SC No. 226/09 24/39 State vs. Pardeep Dev & Ors.
Section 364A IPC, what is required to be proved is; (i) that the accused kidnapped or abducted a person; (ii) kept him under detention after such kidnapping and abduction; and (iii) that the kidnapping or abduction was for ransom." Keeping in view the above judgments, the evidence on the record is to be appreciated. The Ld. Counsel for accused Pardeep Dev, however, had argued that for the applicability of the Section 364A IPC, the prosecution has to prove firstly; the kidnapping or abduction secondly; a threat of death coupled with the demand of money and lastly; when the demand is not made then causing death. And if these three ingredients are there, only then Section 364A IPC would be invoked. To support his arguments, he had relied upon a judgment in Vishwanath Gupta vs. State of Uttranchal (2007) 11 SCC 633. I have gone through the judgment. However, I would respectfully submit that the judgments of the Hon'ble Supreme Court is distinguishable for the reason that in this case, the Hon'ble Supreme Court was dealing with some other aspect and the observations of the Hon'ble Supreme Court were made in the specific and peculiar facts of the case. The Hon'ble Supreme Court was considering the issue of territorial jurisdiction in the case. As per the prosecution case, the kidnapping had taken place from Lucknow and the demand of money with the threat perception was made at Haldwani, Nainital and the kidnapped person was put to death at Unnao. So, the Hon'ble Supreme Court was dealing with the question of territorial SC No. 226/09 25/39 State vs. Pardeep Dev & Ors.
jurisdiction as to where the trial should take place. In that context, the Hon'ble Supreme Court observed that there are three stages in Section 364 A IPC; (i) kidnapping, (ii) threat of death coupled with demand of money and (iii) causing death. Keeping in view the facts of the case, these observations were made. This is also apparent from the fact that the Hon'ble Supreme Court did not make any observation about causing of hurt or a threat to cause hurt or an apprehension to cause hurt while dealing with this issue. In a later judgment in Liyaqat Ali Khan vs. State of Andhra Pradesh 2009 (6) SCALE 113, the Hon'ble Supreme Court again dealt with the issue of Section 364A IPC and upheld the conviction for the offence U/s 364A IPC although the kidnapped child was found alive. Therefore, the submissions of the Ld. Defence Counsel for the accused Pardeep Dev that Section 364A IPC can only be invoked when death has been caused on nonfulfillment of ransom demand, is not acceptable as even the Hon'ble Supreme Court has not taken this view with regard to the Section 364A IPC.
20. Now, I come to the evidence which has come on the record with regard to the issue of ransom. The statement of PW4 Rajkumar is very crucial. He is the only witness who has deposed about the demand of ransom. He has deposed that on 24.03.2008 at about 10.15 am, he had received a telephone call on his mobile phone No. 9210784016 from telephone number 6455224924 (this number is of the Satkar Telephone Booth, Forbis Ganj, District Ahraria, Bihar). In the examinationinchief, SC No. 226/09 26/39 State vs. Pardeep Dev & Ors.
he deposed that the caller had inquired whether he had found his son and told that his son will be recovered soon who was at Nepal. The caller further informed that someone named Jagga had kidnapped his son and sold for Rs. 3 lacs and the boy can be recovered on payment of Rs. 7 lacs. Since the statement of the witness was in deviation from the original statement, the Ld. Addl. Public Prosecutor sought the permission of the court to cross examine the witness. In the cross examination, PW4 Rajkumar had categorically stated that "on 24.03.2008 at about 10.20 am, he had received the call and the caller had told him that he should arrange for a sum of Rs. 5 lacs, if he wanted the safety of his son and the child was in their custody." He further deposed that when he asked the caller to make him talk to his son, he was told "tu abhi jitna bola hai utna kaam kar". He further deposed that on 27.03.2008, he again received a call from the same telephone number and the caller inquired if he had made arrangement for the money.
21. The statement of PW4, thus, would show that not only there was a demand for ransom, there was also a reasonable apprehension about the safety of the child. The demand of Rs. 5 lacs was made in lieu of the guarantee for the safety of the child which in other words would imply nothing else than a reasonable apprehension to the life of the child or hurt to him. The question now is whether the statement of PW4 Rajkumar should be believed or not? The Ld. Counsels for accused have argued in unison that the statement of PW4 cannot be believed. The Ld. Addl. SC No. 226/09 27/39
Public Prosecutor, however, argued that there is no reason why PW4 cannot be believed.
22. It was argued by Ld. Counsel for Balram Singh and Tapan Kumar Mandal that PW4 talks about one Jagga in examinationinchief, as to the person who was referred to as kidnapper, by the caller when he received call on 24.03.2008 at 10.20 am. So, the alleged role of accused as kidnapper become doubtful. Further, PW4 speaks about a telephone call which even PW10 admit, received from Nepal, but no investigation is done in that regard. It was argued that because of this, the statement of PW4 cannot be implicitely relied upon. It is true that the Ld. Addl. PP for state had to put certain question to the witness in the cross examination, but that cannot be a ground to disbelieve the statement of PW4 Rajkumar. The statement of PW4 in this case deserve to be given credit as he has no interest to falsely implicate the accused persons. He is the father of the kidnapped child and he cannot be expected to falsely implicate a person and spare the real culprit. It cannot be believed in the circumstances of the case that PW4 would give a false statement with regard to the ransom call. It is not the case where the complainant Rajkumar (PW4) would have stage managed the entire episode of the kidnapping of his child. This fact cannot be ignored that the child has been recovered from Bihar. The recovery of a child from such a far of place ruled out any possibility of a stage manage show. Except the money consideration, there cannot be any other angle in the kidnapping of the child Akash @ Akku. The accused and the SC No. 226/09 28/39 State vs. Pardeep Dev & Ors.
complainant although shared a relationship of an employer and an employee, but there was no bad blood among them. There is no suggestion to the witness that he had deposed falsely about the ransom call. There is no suggestion to the witness (PW4) that he did not receive the call demanding the ransom. Though, a reference to one Jagga and call from Nepal has come into his statement, but that is not sufficient to discredit his statement regarding ransom call received on 24.03.2008 at 10.22 am and again on 27.03.2008 asking him whether he has arranged money. This call received on 27.03.2008 came from STD booth, Forbis Ganj, Bihar and on the same day, the child was recovered from accused Pardeep Dev and Vishnu Vishwas. PW8 Sanjay Kumar has confirmed that this call was made by accused Vishnu Vishwas. Thus, the statement of PW4 Rajkumar is credit worthy and, therefore, found sufficient to prove the allegations of a demand for ransom. The prosecution has successfully proved that the child Akash @ Akku, son of PW4 Rajkumar was kidnapped on 21.03.2008 by the accused Pardeep Dev and Vishnu Vishwas pursuant to a criminal conspiracy hatched by them.
23. The prosecution has proved that the child was recovered from the possession of the accused Pardeep Dev and Vishnu Vishwas on 27.03.2008 from Satkar Telephone Booth, Forbis Ganj, District Ahraria, Bihar. The prosecution also proved that the complainant (PW4) had received ransom call. This call was made by the accused, is proved from the fact that on 27.03.2008, PW4 Rajkumar had received a call from STD Booth i.e Satkar SC No. 226/09 29/39 State vs. Pardeep Dev & Ors.
Telephone Booth, Forbis Ganj, District Ahraria, Bihar. PW8 Sanjay Kumar had noticed the dialed number which belong to the complainant Rajkumar (PW4). This phone call was made by accused Vishnu Vishwas. At that time, the accused Pardeep Dev was also present outside the STD Booth alongwith the child. Therefore, the nexus of the accused Pardeep Dev and Vishnu Vishwas with the kidnapping of the child and the demand for ransom is fully established.
24. The Ld. Amicus Curiae for accused Vishnu Vishwas had argued that there are contradictions in the statement of the witnesses which make the story of the prosecution doubtful. No doubt that there are certain contradictions in the statement of witnesses. PW1 Vijay Kumar Mishra stated that the child was restored to his father on 28.03.2008. PW4 Rajkumar deposed that the child was restored to him on 29.03.2008 while PW9 Constable Pramod Kumar deposed that the child was restored to the father on 30.03.2008. Further, PW8 Sanjay Kumar deposed that the police had come at his STD Booth on 26.03.2008 at about 12/1.00 pm while PW9 Constable Pramod Kumar deposed that they had reached at the STD Booth at 7/7.30 pm. Further, PW8 Sanjay Kumar deposed that the accused Vishnu Vishwas was present inside the cabin of the booth while the accused Pardeep Dev was standing outside the booth alongwith the child. On the other hand, PW9 Constable Pramod Kumar deposed that when they reached at the STD Booth, they saw that the accused Pardeep Dev was caught by the owner of the STD Booth Sanjay Kumar and accused Vishnu SC No. 226/09 30/39 State vs. Pardeep Dev & Ors.
Vishwas was locked inside the telephone booth. The child was also locked inside the telephone booth alongwith the accused Vishnu Vishwas. No doubt that these contradictions do appear in the statement of the witnesses, but they cannot be given undue importance because they pertain to the minor details and not to the substantive aspect of their deposition. The variations and omissions in the statement of witnesses are normal which can be attributed to errors of memory due to lapse of time and normal error of observation due to mental deposition. The witnesses may differ in reproducing the sequence of the events. They may vary in their deposition about the timings of the incident. However, these inconsistencies in the statement of witnesses cannot affect the prosecution case if their statements are consistent and cogent with regard to the main event. Despite the contradictions noticed in the statement of the witnesses, the fact remains that they have all supported the case of the prosecution and their statements are found to be reliable and trustworthy.
SEC. 120B OF IPC AND ROLE OF ACCUSED BALRAM SINGH:
25. The prosecution case is that the criminal conspiracy was hatched by accused Balram Singh, Pardeep Dev and Vishnu Vishwas. However, the Ld. Defence for the accused Balram Singh argued that there is no evidence against the accused Balram Singh to show his nexus with the offence. The accused Balram Singh had come into picture after the apprehension of the accused Pardeep Dev and Vishnu Vishwas. In their SC No. 226/09 31/39 State vs. Pardeep Dev & Ors.
disclosure statement Ex. PW10/B and Ex. PW10/C respectively, they had spoken by hatching the conspiracy alongwith accused Balram Singh to kidnap the son of Rajkumar for ransom. This statement of accused Pardeep Dev and Vishnu Vishwas having been made before the police, is not admissible in evidence against the accused Balram Singh. After the Investigating Officer came to Delhi on 29.03.2008, the accused Balram Singh was arrested on the basis of the disclosure statement. During the investigation, he collected the call details of the accused Balram Singh of his Idea connection vide Ex. PW10/N. The IO (PW10) highlighted two calls marked at point A and B on Ex. PW10/N pertaining to sim card No. 9990441682, which belongs to the accused Balram Singh. The prosecution case is that the accused Balram Singh had been in touch with the accused Pardeep Dev and Vishnu Vishwas on 23.03.2008 and his telephone call details prove this fact. So, the only evidence against accused Balram Singh is the call details which have been submitted by the prosecution and placed on record as Ex. PW10/N. When the Investigating Officer gave statement in the court, the exhibit mark was put on these call details. However, mere putting an exhibit mark does not "prove" a document. A document has to be proved as per the Evidence Act. The call details in Ex. PW10/N had to be proved in terms of Section 65B of the Evidence Act. Neither a certification from the responsible Officer of the company having the control over the computer or authorized to generate a print out from the SC No. 226/09 32/39 State vs. Pardeep Dev & Ors.
computer was proved nor was anybody from the company examined to state that the computer generated sheets were generated through the computers storing the information and the information generated were stored in the ordinary course of business of the service provider. In the case of State vs. Mohd. Afzal 2003 IV AD (Criminal) 205 and in case of Devesh Kumar vs. State 2010 V AD (Delhi) 626, the issue regarding proof of electronic record was discussed. Thus, the requirement of Section 65B of the Evidence Act are not met in proving the call details of telephone No. 9990441682 pertaining to the accused Balram Singh. So, the evidence with regard to the involvement of the accused Balram Singh and his participation in the criminal conspiracy is not proved by the prosecution. The disclosure statement of the coaccused is not admissible in evidence against him. The electronic record of these call details firstly, has not been "proved" on record secondly, this record by itself does not show his nexus with the offence. Section 120B of IPC reads as under: " 120B. Punishment of criminal conspiracy. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such SC No. 226/09 33/39 State vs. Pardeep Dev & Ors.
offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
In the case of Chaman Lal vs State of Punjab AIR 2009 SCC 2972, it was observed as under: "No doubt in the case of conspiracy, there cannot be any direct evidence. The ingredients of the offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused." SC No. 226/09 34/39
So, some evidence, direct or circumstantial, must come on record to suggest that a person is part of criminal conspiracy. It is essential to prove "a meeting of minds" and a consensus to effect an unlawful purpose. In this case, there is no direct or indirect evidence to show any such meeting of mind of accused Balram Singh with other accused persons. SECTION 368 IPC AND ROLE OF TAPAN KUMAR MANDAL:
26. Coming to the role of the accused Tapan Kumar Mandal, it may be stated that after the disclosure statement of the accused Pardeep Dev and Vishnu Vishwas was recorded, the accused Tapan Kumar Mandal was apprehended and arrested from his residence and, thereafter, Section 368 IPC was added in the FIR. Section 368 reads as under: "368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person. Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
27. The requirement of Section 368 IPC are; firstly that the person concerned has been kidnapped or abducted; secondly the accused had the SC No. 226/09 35/39 State vs. Pardeep Dev & Ors.
"knowledge" that the said person had been kidnapped or abducted; thirdly the accused having such knowledge wrongfully conceals or confines such person.
28. To hold a person responsible for the offence U/s 368 IPC, it must be proved that the accused had the knowledge of the kidnapping or the abduction and with this knowledge, he wrongfully concealed or confined the person.
29. The accused Tapan Kumar Mandal was arrested from his house on the basis of the disclosure statement of the coaccused. Thereafter, no evidence has been collected that the child was ever kept in the said house from where the accused Tapan Kumar Mandal had been arrested. The accused Pardeep Dev and Vishnu Vishwas in their disclosure statement Ex. PW10/B and Ex. PW10/C respectively stated that they had kept the kidnapped child in the house of accused Tapan Kumar Mandal and he was told about the conspiracy and he was given the bait of a share in the ransom money and, thereafter, the child was kept at his residence. There is no evidence on the record that the child was kept in the house of accused Tapan Kumar Mandal except the statement of PW3 Master Akash @ Akku. He was cross examined by the Ld. Counsel for accused Tapan Kumar Mandal and was asked the question whether he knows who is Tapan. The child witness had kept silent and the court had to interfere and the child witness was asked if he could identify in whose house he was kept and the child witness pointed towards the accused Tapan Kumar Mandal. SC No. 226/09 36/39
In the examinationinchief also, the court had put a question to the child to which he replied by pointing towards accused Tapan Kumar Mandal that he was kept by the accused Pardeep Dev and Vishnu Vishwas in the house of accused Tapan Kumar Mandal. So, the question now is whether the statement of the child witness is sufficient to implicate the accused Tapan Kumar Mandal and if it is accepted, whether it will be sufficient to prove that accused Tapan Kumar Mandal had full "knowledge" about the kidnapping of the child and, thereafter, he wrongfully concealed or confined the child in his house?
30. There is no iota of evidence to the effect that the accused Tapan Kumar Mandal was associated with the accused persons at any stage prior to the kidnapping took place. No act has been imputed to him to connect him with the offence except that the child was kept in his house. It may be that kidnapped child was kept at his house but the inference that the accused Tapan Kumar Mandal had the specific knowledge about the kidnapping of the child is difficult to draw in these circumstances. The disclosure statement of accused Pardeep Dev and Vishnu Vishwas that the accused Tapan Kumar Mandal was included in the conspiracy when he was offered a share in the ransom money, is not an admissible piece of evidence against him. It is not the case that the accused Tapan Kumar Mandal was alone in his house and he allowed the accused persons to keep a child. He had his family with him. This is reflected from his arrest memo Ex. PW9/A which would show that he was arrested in the presence of his SC No. 226/09 37/39 State vs. Pardeep Dev & Ors.
mother whose thumb impression was taken by the IO on the arrest memo. If merely keeping of the child was sufficient to invoke Section 368 IPC against the accused Tapan Kumar Mandal, then it was also sufficient for her mother to be involved in this case as she was also in the same house. What infact connected the accused Tapan Kumar Mandal with the offence of Section 368 IPC was the disclosure statement of the accused that they had told him about the kidnapping and offered him a share in the ransom money. Unfortunately, this piece of evidence cannot be read against the accused Tapan Kumar Mandal. The child has not been recovered from the possession of the accused Tapan Kumar Mandal or from his house. The disclosure statement of the accused persons that they had kept the child in his house, is not admissible in evidence. There is a statement of child witness PW3 Akash @ Akku as per which, he was kept in the house of the accused Tapan Kumar Mandal. But simply allowing the accused Pardeep Dev and Vishnu Vishwas to keep the child in his house, would not be sufficient to invoke Section 368 IPC against the accused Tapan Kumar Mandal. The prosecution must prove that he was aware that child Akash @ Akku was kidnapped and then he wrongfully concealed or confined him. However, the evidence to prove this specific knowledge has not come on record and simply on statement of PW3 Akash @ Akku, the inference of such knowledge cannot be drawn.
31. In view of above discussion, the accused Balram Singh and Tapan Kumar Mandal are acquitted of the charges U/s 120B IPC, 364A IPC r/w SC No. 226/09 38/39 State vs. Pardeep Dev & Ors.
Section 120B IPC and 368 IPC r/w Section 120B IPC. The accused Pardeep Dev and Vishnu Vishwas are held guilty for the offences U/s 120 B IPC and Section 364A IPC r/w Section 120B IPC and convicted accordingly.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 21.02.2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 226/09 39/39
State vs. Pardeep Dev & Ors.
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 226/09
FIR No. 128/08
PS OIA
U/s 120B IPC, 364A r/w Section 120B IPC and 368 r/w Section 120B IPC.
State Vs. 1. Pardeep Dev, S/o Late Sh. Rai Mohan Dev, R/o Chhuria Mohalla, Gali No. 16, Village Tughlakabad, New Delhi.
2. Vishnu Vishwas, S/o Sh. Jogin Vishwas, R/o Chhuria Mohalla, Gali No. 16, Village Tughlakabad, New Delhi.
Order on Sentence I have heard the arguments on the point of sentence.
1. The convict Pardeep Dev and Vishnu Vishwas were held guilty and convicted for the offences U/s 120B IPC and Section 364A IPC r/w Section 120B IPC. The Ld. Addl. Public Prosecutor had stated that the convicts be awarded the sentence keeping in view the nature and SC No. 226/09 40/39 State vs. Pardeep Dev & Ors.
gravity of the offence. It is submitted that the convicts have kidnapped a child aged about 8 years, therefore, the sentence must be deterrent in such cases.
2. On the contrary, it is submitted on behalf of the convict Pardeev Dev that he has a family consisting of his wife, a son and a daughter (they are present in the court also). It is submitted that the convict has no previous criminal record and in his absence, his family member will be devoid of means of livelihood. A lenient view is, therefore, prayed on his behalf.
3. The convict Vishnu Vishwas has not made any submission on the point of sentence. When the court asked him about his family background, he told that he has only his father and younger brother in the family. He has been working with one Vijay Kumar Mishra (he was PW1 in the present case) to earn his livelihood. He also has no previous criminal background.
4. The offence U/s 364A of IPC provides punishment of death, or imprisonment of life and also fine. The law is well settled that death can be awarded only in rarest of rare cases. The facts and the circumstances of the present case do not bring the case in the category of "rarest of rare cases." Therefore, the convict Pardeep Dev and Vishnu Vishwas are sentenced to imprisonment for life and further sentenced to pay a fine of Rs. 2,000/ each in default to undergo SI for four months, for the SC No. 226/09 41/39 State vs. Pardeep Dev & Ors.
offence U/s 364A read with Section 120B IPC. Same sentence is awarded for the offence U/s 120B IPC in terms of Section 109 of the IPC. Both the sentences shall run concurrently and benefit of Section 428 Cr.P.C be given to both the convicts.
File be consigned to Record Room.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 22.02.2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 226/09 42/39