Delhi District Court
State vs . Tasleem on 8 March, 2011
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE (CENTRAL04): DELHI
FIR No. 435/1992
ID R0028971994
U/s. 365 IPC
PS Hauz Qazi
State vs. Tasleem
8.3.11
Present: Ld APP for State.
Convict is produced from JC.
Ld counsel for convict is also present.
The case is today fixed for orders on the point of
sentence.
Arguments on the point of sentence were heard on
1.3.2011.
It was submitted by Ld counsel for convict that convict is
not a previous convict and he is having absolutely clean antecedents.
It was further submitted by Ld defence counsel that convict is the sole
bread winner for his family comprising of his wife and four children.
435/1992 Hauz Qazi page1/
It was further submitted that the children of convict are very small and
one girl is aged about 3 years and one boy is aged about 2 years. It
was further submitted by Ld counsel for convict that convict belongs
to a very poor family and is providing subsistence to his family by
working as a labour in a brick kiln. It was further submitted that
convict had already spent a period of more than one year in JC in the
present case during its trial. Ld counsel for convict prayed for a
lenient view.
On the other hand Ld APP for the State, had argued that
the convict be sentenced to maximum punishment as prescribed for
the offence for which he has been convicted.
In the present case, the convict has been convicted for the
offence punishable u/s. 365 IPC. Convict had kidnapped a child
namely Ritesh aged about 6 years and kept him in wrongful
confinement for several days. Convict could not be arrested in the
present case for about 18 years. Convict is in JC in the present case
since 17.2.2010 i.e. for last more than one year. No previous
conviction has been alleged or proved against the convict. Convict is
having a family to support and convict belongs to poor strata of the
435/1992 Hauz Qazi page2/
society.
Keeping in view the totality of mitigating as well as
aggravating circumstances I am of the considered view that interest of
justice will b e served if convict is sentenced to SI for a period of 15
months. Convict is also sentenced to pay a fine of Rs. 5000/
and in default of payment of fine further SI for a period of one month.
Fine of Rs. 5000/ has been deposited.
Convict be given benefit of section 428 cr.p.c.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 8th of March, 2011 MMCentral04:DELHI.
435/1992 Hauz Qazi page3/
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE (CENTRAL04): DELHI
FIR No. 435/1992
ID R0028971994
U/s. 365 IPC
PS Hauz Qazi
State vs. Tasleem
JUDGMENT
1. Sr. No of case 432D/2
2. Date of commission of offence
23.9.1992
3. Name of complainant Sh. Bhoop Singh
4. Name of accused Tasleem
s/o. Sh. Asgar Ali
r/o. Village Jairam
Nagar, Distt Badayun, UP.
5. Offence complained of u/s. 365 IPC
6. Plea of accused Pleaded not guilty
7. Final order Convicted
8. Date of such order 24.2.11
BRIEF REASONS FOR SUCH DECISION:
1. The present case was registered on the basis of the statement made by the complainant Sh. Bhoop Singh on 23.9.1992 to the police. In his statement it is alleged by the complainant that 435/1992 Hauz Qazi page4/ his nephew i.e. the son of his elder brother Sh. Vijay Pal Singh is living with him since childhood. It is further alleged that his nephew i.e. Ritesh aged about 6 years use to come daily to his shop No. 5048, Sirkiwalan, Hauz Qazi after his school. It is further alleged that on that day his nephew had gone for his tuitions at House No. 4505, Lambi Gali to one Master Guru Prakash from 2.00 PM to 4.00 PM but he neither returned to the shop nor he returned back to home from his tuitions. It is further alleged that on inquiry from Master Guru Prakash, he told him(complainant) that one person aged about 2022 years had come to leave Ritesh to his house and had inquired from him when the tuitions will be over and that person had taken alongwith him the child Ritesh at about 3.45 PM. It is further alleged by the complainant that some unknown person had kidnapped his nephew.
2. On the basis of said missing report efforts were made to trace out the child and accused. Thereafter, on 24.9.1992 the complainant produced one letter which was found in his shop as per which Rs. 50,000/ was demanded from the father of the child by one Tasleem as ransom.
435/1992 Hauz Qazi page5/
3. During the investigation, IO alongwith other policemen had gone to the village of accused Tasleem. However, accused got scared and on 27.9.1992 he brought the child namely Ritesh to Delhi Railway Station and made him sit in a rickshaw and the rickshaw puller namely Pritam Lal brought the child to their milk shop and dropped him there.
4. After completion of investigation, chargesheet was filed.
However, accused Tasleem could not be arrested and was declared proclaimed offender vide order dated 25.9.1993.
5. Thereafter, two witnesses were examined by the prosecution in support of its case u/s. 299 cr.p.c. in absence of accused. PW1 is Sh. Bhoop Singh i.e. the complainant and PW2 is ASI Ram Avtar Yadav i.e. the investigating officer.
6. Thereafter, accused was arrested on 18.2.2010 and provisions of section 207 cr.p.c. were complied with.
7. The particulars of offence were explained to accused in Hindi language and a charge for offence punishable u/s. 365 IPC was framed against accused to which he pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution 435/1992 Hauz Qazi page6/ evidence.
8. During the course of trial prosecution examined four witnesses in support of its case after the arrest of accused. It is pertinent to mention that two witnesses were examined u/s. 299 cr.p.c. before arrest of accused. The said two witnesses were the complainant and the IO of the present case. Complainant was recalled and examined in court as PW1 after the arrest of accused. However, IO of the case expired before his testimony could be recorded after the arrest of the accused and therefore the testimony of IO is to be read against the accused as per provisions of section 299 cr.p.c.
9. PW1 is Sh. Bhoop Singh i.e. the complainant; PW2 is Sh. Ritesh Raghav i.e. the victim; PW3 is ASI Zile Singh and PW4 is Sh. PC Ranga the then Ld MM, Tis Hazari Court.
10. Thereafter, prosecution evidence was closed on 15.12.2010 and statement of accused was recorded on 4.1.2011 wherein accused denied the evidence that has come on record against him. Accused choose not to lead evidence in his defence.
11. I have heard Ld APP for state as well as Ld counsel for 435/1992 Hauz Qazi page7/ the accused and have also carefully gone through the file.
12. PW1 Sh. Bhoop Singh deposed that his nephew namely Ritesh used to stay with him since childhood and used to go for tuition at about 2.45 PM at Lambi Gali to Master Guru Ram Prakash and used to come back at about 3.45 PM. He further stated that on 23.9.92 his nephew did not returned back from tuitions and he went to the house of Master at about 5.305.45 PM who informed him that a person aged about 20 years wearing white kurtapyjama had dropped Ritesh at his house at about 2.45 PM and had taken alongwith him the child at about 3.45 PM. He further stated that thereafter, he lodged the complaint with the police. He further stated that on the next day when he opened his shop, he found a ransom letter addressed to his brother Vijay Pal Singh demanding a sum of Rs. 50,000/ for release of child. He further stated that he handed over the said letter which is Ex. P1 to the IO ASI Ram Avtar Yadav which was seized vide seizure memo Ex. PW1/A and thereafter they went to Badayun, UP to search his nephew but could not find him. He further stated that after about one week his nephew was brought by some unknown person in a 435/1992 Hauz Qazi page8/ rickshaw.
13. In his cross examination, PW1 stated that his brother Vijay Pal Singh was residing with him in the year 1992. He further stated that on the date of incident his brother had gone to their village. He further stated that he knew accused Tasleem prior to the incident. He further stated that his brother is having the business of plying the rickshaw. He further stated that accused Tasleem was not plying the rickshaw of his brother. He denied the suggestion that accused Tasleem was not aware about the family of his brother. He further stated that he had given photographs of his nephew to the police and he had signed the documents regarding missing report. He further stated that the FIR was registered on 23.9.1992 and he had handed over the photographs of the child to the police on the next day. He further stated that he came back to Delhi from Badayun after one week. He further stated that the child came back before they came back to Delhi. He further stated that he do not know who had written Ex. P1. He further stated that he had searched the village of Tasleem and also the place/ address mentioned in the ransom letter. He denied the suggestion that he 435/1992 Hauz Qazi page9/ had himself kidnapped his nephew in order to extort money from his brother. He also denied the suggestion that he had fabricated the letter Ex. P1 against accused Tasleem as he used to park his rickshaw in front of his shop and due to which he had quarrelled with accused. He further stated that the rickshaw puller who had brought his nephew at his shop was not caught by his brother who was present at the shop at that time. He denied the suggestion that the said rickshaw puller had gone there on his instructions therefore, his identification was not given to the police. He denied the suggestion that he is deposing falsely and had falsely implicated the accused.
14. PW2 Sh. Ritesh Raghav is the victim. He deposed that in the year 1992 on the 23rd day of the month which he do not remember he had gone to the shop at Hauz Qazi after returning from school. He further stated that after taking books from the shop he was going to his tuition classes and on the way accused present in the court met him and accompanied him to the tuition class. He further stated that accused had inquired from teacher about the time when the tuitions will be over and after the tuitions 435/1992 Hauz Qazi page10/ when he came out, accused took him alongwith him on pretext of seeing a Mela. He further stated that when they reached Main Road one person met them with TSR and thereafter, he and accused sat in said TSR. He further stated that after some time when he asked accused where they were going, accused left the TSR and made him board a bus. He further stated that in the bus accused gave him banana. He further stated that on the next morning he found himself in a village and accused took him to his house where his family members were also present. He further stated that when he demanded food from accused he was offered meat and on his refusal to have it accused threatened to kill him. He further stated that thereafter one lady of the house gave him rice to eat. He further stated that when he told that he want to go home, accused threatened him and asked him to stay there itself. He further stated that there was one more person namely Israr with accused and they after talking with each other used to tie up his hand and leg and put him in the fields at night and used to bring him back in day time. He further stated that thereafter accused took him to Railway Station where his friend Israr met them and accused handed over 435/1992 Hauz Qazi page11/ him(victim) to Israr. He further stated that when he asked accused to accompany him, then Israr told him that the police is after the accused. He further stated that on the next day Israr took him to Old Delhi Railway Station and from Fatehpuri Chowk he got him boarded in a rickshaw and asked a rickshaw puller to drop him(victim) near the cinema hall and thereafter Israr left the place. He further stated that the rickshaw puller took him to a shop where his brother and uncle met him and they had beaten the rickshaw puller.
15. In his cross examination, PW2 stated that his statement was recorded once in the court and he do not remember the name of the Judge who had recorded his statement in the court. He further stated that he had told all the facts which were asked from him by the Hon'ble Judge. He further stated that he do not remember whether he had told all the facts which he had stated in his evidence recorded in the court to the Hon'ble Judge who had recorded his statement earlier. He further stated that the rickshaw puller who had dropped him at his shop was caught but he do not remember whether he was handed over to the police or not. He further stated 435/1992 Hauz Qazi page12/ that he had not gone to the police station at that time. He further stated that he do not remember whether he had gone to the police station at any point of time. He further stated that he had not told about the incident to anyone else except to his family members, police and the court. He further stated that he do not remember whether there was any enmity between his father and his uncle Bhoop Singh. He further stated that he do not remember the name of the village where he was kept. He denied the suggestion that he is deposing falsely. He also denied the suggestion that accused had not taken him away. He also denied the suggestion that accused had not kept him in his house and in the fields. He also denied the suggestion that he had named the accused at the instance of his family members.
16. PW3 ASI Zile Singh testified that on 27.9.1992 he was posted at police station Hauz Qazi. He further stated that on that day at about 7.30 AM while he was standing outside the Gate of police station one person namely Jagbir Singh came there and produced a rickshaw puller stating that his nephew who was abducted on 23.9.92 was brought by said rickshaw puller. He 435/1992 Hauz Qazi page13/ further stated that he inquired from the rickshaw puller who told him that while he was standing at Naya Bans, one person came there and made the child(Ritesh Kumar) sit on his rickshaw and asked him to leave the child at Lambi Gali, Hauz Qazi near milk shop. He further stated that thereafter he produced them to the IO of the case i.e. ASI Ramphal.
17. In his cross examination, PW3 stated that he was posted at police station Hauz Qazi as MHCr and was on duty for 24 hours in the police station. He further stated that he was on duty on 23.9.92. He further stated that he had recorded the statement of rickshaw puller. He further stated that he did not go to the place from where the rickshaw puller disclosed to have taken the child. He further stated that he did not join further investigation of the present case. He further stated that he had inquired from the child also about his kidnapping but did not record his statement.
18. PW4 is Sh. PC Ranga the then Ld MM Tis Hazari Courts, Delhi. PW4 had recorded the statement of child namely Ritesh u/s. 164 cr.p.c. on an application moved by the IO of the case and proved the statement of the witness which is Ex. PW4/A. 435/1992 Hauz Qazi page14/
19. PW5(PW2 examined u/s. 299 cr.p.c.) is the IO of the present case i.e. ASI Ram Avtar Yadav. It is pertinent to mention that accused could not be arrested in the present case and the chargesheet was filed without the arrest of accused. Lateron, accused was arrested in the present case in the year 2010. In his statement recorded in court IO of the case deposed that investigation of the present case was handed over to him and during the investigation he seized the ransom letter vide seizure memo Ex. PW1/A. He had also deposed that the boy was recovered and the fard regarding recovery of boy is Ex. PW2/A. He further deposed that the ransom letter was written by Salim. He further deposed that the boy was handed over to his father and the fard hawalgi is Ex. PW2/B. He further deposed that the ransom letter was written by accused and during the investigation he went to UP to find out the accused Salim but he could not find the accused. He further deposed that statement of accused was recorded by the Ld. MM u/s. 164 cr.p.c. and his application in this regard is Ex. PW2/C. He further deposed that after the compliance of provisions of section 82/83 cr.p.c. qua the accused he was declared a Proclaimed 435/1992 Hauz Qazi page15/ Offender. He further deposed that after the completion of the investigation the challan was filed in the court and the ransom letter is Ex. P1.
20. Accused in his statement recorded u/s. 313 cr.p.c. denied the evidence that has come in evidence against him. Accused choose not to lead evidence in his defence.
21. In the present case charge for offence punishable u/s. 365 IPC was framed against the accused. Section 365 IPC provides punishment for the offence of kidnapping or abducting with intent to secretly and wrongfully confine a person. Section 359 IPC deals with kidnapping and section 361 IPC deals with kidnapping from lawful guardianship. Section 361 IPC postulates that whoever takes or entices any minor under 16 years of age if a male or under 18 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.
22. In the present case, there is no dispute with respect to the fact that PW2 i.e. Sh. Ritesh (victim) was aged about 6 years in the 435/1992 Hauz Qazi page16/ year 1992.
23. As far as other essential ingredients of the offence punishable u/s. 365 IPC are concerned, it is submitted by Ld APP for State that from the testimony of all the PWs examined in court the same stand proved beyond reasonable doubt against the accused. On the other hand, Ld defence counsel has vehemently argued that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt and accused is entitled of being acquitted in the present case. Ld defence counsel specifically argued that the testimony of PWs is full of contradictions and no reliance can be placed upon them.
24. A careful analysis of testimony of PW1 shows that he had not seen the accused kidnapping his nephew. PW1 merely lodged a missing report in the PS when his nephew did not return back from the tuition on 23.9.92. On 24.9.1992, PW1 found a letter in his shop by virtue of which ransom was demanded and PW1 handed over the same to the IO. PW1 also went to the native village of the accused alongwith police in search of accused as well as his nephew but could not find either of them.
435/1992 Hauz Qazi page17/
25. The testimony of PW2 i.e. Sh. Ritesh(victim) is most important in the present case. PW2 in his statement recorded u/s. 164 cr.p.c. categorically stated that on the day of incident he had gone for tuition and on his way to tuition one rickshaw puller namely Taslim met him. In his said statement PW2 also stated that Taslim made him sit in a four seater scooter and told him that he will show him a mela. PW2 in his aforesaid statement also stated that Taslim took him to his Village and kept him there. Thereafter, Taslim brought him back to Delhi in a train.
26. PW2 i.e. Sh. Ritesh the victim in his statement recorded in court again reiterated and categorically stated that in the year 1992 on 23rd date(month he do not remember) while he was going to tuition class accused present in the court met him and accompanied him to the tuition class and asked his teacher about the time at which the tuition will be over. PW2 again reiterated that after the tuition class accused met him and took him on the pretext of seeing a mela. PW2 also deposed that on the main road one other person met them alongwith TSR and he was taken in the TSR by the said two persons for some distance and lateron he was made 435/1992 Hauz Qazi page18/ to board a bus. PW2 also deposed that the accused took him to his Village and kept him there and after some days the accused brought him to the Railway Station and handed over him to his friend Israr. He further deposed that Israr brought him to Old Delhi Railway Station and made him sit in a rickshaw and the rickshaw puller brought him to the shop of his uncle.
27. PW2 was cross examined at length by Ld defence counsel and in his cross examination by Ld defence counsel PW2 stated that he do not remember whether there was any enmity between his parents and his uncle Bhoop Singh. In his cross examination PW2 denied all the suggestions given to him by Ld defence counsel. PW2 specifically denied that he is deposing falsely and accused had not taken him anywhere. PW2 also denied that accused had not kept him in his house or in the field. PW2 also denied the suggestion that the accused has been named in the present case by him at the instance of his family members to teach a lesson to the accused.
28. The testimony of PW3 is not of much significance and its detailed discussion is not required. PW4 is Sh. PC Ranga, the then Ld. MM who had recorded the statement u/s. 164 cr.p.c. of PW2.
435/1992 Hauz Qazi page19/ PW4 has proved the statement u/s. 164 cr.p.c. as Ex. PW4/A.
29. PW5(PW2 i.e. IO of the case examined u/s. 299 cr.p.c.) proved the investigation of the present case. As PW5 was examined u/s. 299 cr.p.c. and he could not be recalled after arrest of the accused in the present case as he had already expired, therefore, the testimony of PW5 can be read in evidence against the accused as per provisions of section 299 cr.p.c.
30. Another important aspect of this case is the ransom letter allegedly written by the accused demanding a ransom of Rs. 50,000/. However, the prosecution has failed to prove that the same was written by the accused. It is pertinent to mention that specimen handwriting of accused was not taken in the present case for being compared with the writing of the ransom letter. The prosecution has failed to prove that the letter was written by accused himself or by any other person on his behalf. No evidence has been led by the prosecution in this regard.
31. The basic contention of Ld defence counsel is that the testimony of PWs is full of contradictions and therefore no reliance can be placed upon the same. However, I do not find much force in 435/1992 Hauz Qazi page20/ the said contention of Ld defence counsel as there are some minor contradictions in the testimony of PWs and the same is also with respect to non material aspects of the present case. On material aspect there is no contradiction.
32. At this stage, reference can be made to a case titled as Shivappa & Ors vs. State of Karnataka reported as AIR 2008 SC 1860.
33. In Shivappa's case (supra) the Hon'ble Supreme Court held that minor discrepancies or some improvements would not justify rejection of the testimony of the eye witnesses, if they are otherwise reliable. It was further held that discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their deposition in court.
34. At this stage, it is pertinent to mention that the present case is pertaining to year 1992 and the testimony of PWs was recorded in court in the year 2010 i.e. after a gap of about 18 years. PW2 was a child aged about 6 years in the year 1992 and after 18 years he is aged about 24 years. The aforesaid judgment is 435/1992 Hauz Qazi page21/ applicable with full force on the facts and circumstances of the present case and keeping in view the law laid down by the Hon'ble Supreme Court in the aforesaid judgment I am of the considered view that minor contradictions are of no consequence in the present case.
35. The testimony of PW2 i.e. Sh. Ritesh is reliable and inspire confidence. There is no reason to disbelieve the same. From the testimony of PW2 all the essential ingredients of the offence punishable u/s. 365 IPC stand proved beyond reasonable doubt. The testimony of PW2 is fully corroborated by the testimony of PW1, PW4 and PW5(PW2 u/s. 299 cr.p.c.).
36. Keeping in view the facts and circumstances and the discussion made hereinabove, accused Tasleem is hereby convicted for offence punishable u/s. 365 IPC.
ANNOUNCED IN OPEN COURT DEEPAK DABAS on 24th of February, 2011 MMCentral04:DELHI. 435/1992 Hauz Qazi page22/