Delhi District Court
State vs . (1) Rajesh Rishi Dev on 15 January, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 23/2013
Unique Case ID No.: 02404R0028962013
State Vs. (1) Rajesh Rishi Dev
S/o Mahender Rishi Dev
R/o VPO Budhma,
District Madhepura,
Bihar
(Convicted)
(2) Pankaj Bhagat
S/o Jai Kishore Bhagat
R/o VPO Uteshra,
PS Salkhua Bazar,
Distt. Saharsa, Bihar
(Convicted)
FIR No.: 291/12
Police Station: Mahendra Park
Under Sections: 363/365/368/364A/34 IPC
Date of committal to session court: 26.2.2013
Date on which orders were reserved: 20.12.2013
Date on which Judgment pronounced: 2.1.2014
JUDGMENT:
(1) As per allegations on or before 13.10.2012 the accused Rajesh Rishi Dev and Pankaj Bhagat along with their associate Ram Kumar (since St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 1 juvenile) hatched a criminal conspiracy to kidnap Krishan @ Golu S/o Ghanshyam Bhagat aged about three years and on 13.10.2012 pursuant to the said criminal conspiracy they kidnapped Krishan @ Golu from the lawful guardianship of his parents and thereafter threatened to cause death or hurt to the child Krishan @ Golu or by their conduct gave rise to a reasonable apprehension that Krishan @ Golu may be put to death or hurt and demanded Rs. One Crore for release of the child Krishan @ Golu. It is further alleged that on 22.10.2012 at village Budhma, PS Madhepura, District Madhepura, Bihar in pursuance to the above criminal conspiracy both the accused along with Ram Kumar (juvenile) knowing that Krishan @ Golu had been kidnapped or has been abducted, wrongly concealed and confined the child.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 31.10.2012 DD No. 31 PP regarding kidnapping of a child pursuant to which HC Ram Lakhan and Ct.
Arvind reached the spot i.e. House No. 88, Village Bharola, Delhi where one Ghanshyam Bhagat met them. HC Ram Lakhan recorded the statement of Ghanshyam Bhagat wherein he informed him that his son namely Krishan @ Golu aged three years was missing since 6:30 PM and when he started searching his child, one Rajender Bhagat informed him that he had seen Pankaj with a small child while crossing the GTK Road. According to the complainant, he tried to contact Pankaj Bhagat on his mobile No. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 2 9971292098 but his phone was switched off. Ghanshyam Bhagat expressed his suspicion on Pankaj Bhagat who was residing in their neighbourhood. On the basis of the statement of Ghanshyam the present case was got registered and investigations were handed over to SI Shailendra Kumar. Efforts were made to trace the victim child but no clues were found. The complainant Ghanshyam Bhagat made efforts to contact Pankaj Bhagat through his mobile phone but most of the time the mobile phone of Pankaj Bhagat was found switched off and when Pankaj Bhagat spoke to the complainant, he made a ransom demand for Rs. One Crore. (3) During investigations, a raiding party comprising of ASI Jaiveer Singh and Ct. Bhagwan Singh was constituted who were sent to Bihar in search of the kidnapped child. On 22.10.2012 pursuant to a secret information the accused Rajesh Rishi Dev was apprehended from Village Budhma, District Madhepura, Bihar and at his instance the kidnapped child Krishan @ Golu was recovered from the shed of Rajesh Rishi Dev while he was in the lap of coaccused Ram Kumar (juvenile) in the presence of Kameshwar Bhagat (grandfather of the child), Prayag Bhagat (maternal grandfather of the child) and Bihar Police Officials. On 22.10.2012 pursuant to a secret information the accused Pankaj Bhagat was also apprehended and from his possession a mobile phone of Micromax with SIM No. 9971292098 was recovered. After completion of investigations charge sheet was filed against the accused Rajesh Rishi Dev and Pankaj Bhagat. However, the accused Ram Kumar was declared a juvenile and hence he is St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 3 facing trail before the Juvenile Justice Board.
CHARGE:
(4) Charges under Sections 120B, 363 r/w 120B, 364A r/w 120 B, 365 r/w 120B and 368 r/w 120B IPC were settled against both the accused Rajesh Rishi Dev and Pankaj Bhagat to which they pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. PW No. Name of the witness Details of the witnesses No.
1. PW1 HC Chander Bhan Police witness MHCM
2. PW2 HC Ashok Kumar Police witness - Duty Officer
3. PW3 Ct. Arvind Police witness who had visited the house of the complainant
4. PW4 Ct. Manoj Police witness - DD Writer
5. PW5 Sh. R. K. Singh Nodal Officer from Bharti Airtel
6. PW6 Sh. Rakesh Saxena Official witness - Sub Registrar (Birth & Death)
7. PW7 Ghanshyam Bhagat Complainant - Father of the child
8. PW8 Reena Devi Public witness - Mother of the child
9. PW9 Chintu Paswan Public witness who had given his ID to Pankaj Bhagat for obtaining a SIM
10. PW10 Santosh Kumar Nephew/ Bhanja of the complainant who had seen the accused Pankaj near the house of the complainant St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 4
11. PW11 Rajender Bhagat Public witness who had seen the accused Pankaj taking away the child
12. PW12 Kameshwar Bhagat Father of the complainant/ grandfather of the child who has proved the recovery of child from the house of accused Rajesh Rishi Dev and the arrest of both the accused
13. PW 13 Prayag Bhagat Maternal grandfather of the child who has proved the recovery of child from the house of accused Rajesh Rishi Dev and the arrest of both the accused
14. PW 14 HC Ram Lakhan Police witness who had got the FIR registered
15. PW 15 ASI Jaivir Singh Police witness and a member of raiding party who has proved the recovery of child from the house of accused Rajesh Rishi Dev and the arrest of both the accused
16. PW 16 SI Anuj Kumar Singh Police Official from Bihar Police and a member of raiding party who has proved the recovery of child from the house of accused Rajesh Rishi Dev and the arrest of both the accused
17. PW17 Ct. Bagwan Singh Police witness and a member of raiding party who has proved the recovery of child from the house of accused Rajesh Rishi Dev and the arrest of both the accused
18. PW 18 SI Shailender Kumar Police witness Investigating Officer List of documents exhibited:
No. Exhibited Detail of documents Proved by 1. PW 1/1 Affidavit of evidence Chander Bhan HC Chander Bhan 2. PW 1/A Copy of Reg No. 19 Sr. No. 864/12 3. PW 2/1 Affidavit of evidence HC Ashok Kumar HC Ashok Kumar 4. PW 2/A FIR 5. PW 2/B Endorsement on Rukka St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 5 6. PW 3/1 Affidavit of evidence Ct. Arvind Ct. Arvind 7. PW 4/1 Affidavit of evidence Ct. Manoj Ct. Manoj 8. PW 4/A DD No.31PP 9. PW 5/A Customer Application Form 9717804923 Sh. R K Singh 10. PW5/B1 Copy of PAN Card. And Water Bill to 5/B2 11. PW 5/C Call detail record 12. PW 5/D Customer Application Form 9971292098 13. PW 5/E Copy of ID Proof 14. PW 5/G Cell ID Chart 15. PW 5/H Certificate U/s 65B 16. PW 6/A Copy of Birth Certificate Sh. Rakesh 17. PW 7/A Statement of Ghanshyam Bhagat Sh. Ghanshyam 18. PW 7/B Seizure memo of Birth Certificate Bhagat 19. PW 12/A Recovery memo Sh. Kameshwahar 20. PW 12/B Arrest memo of accused Rajesh Bhagat 21. PW 12/C Personal search memo 22. PW 12/D Arrest memo of Pankaj 23. PW 12/E Personal search memo 24. PW 12/F Recovery memo of kidnapped child 25. PW 14/A Rukka HC Ram Lakhan 26. PW 15/A Disclosure statement of accused Rajesh ASI Jaivir 27. PW 15/B Disclosure statement of Pankaj 28. PW 15/C Apprehension memo of 29. PW 16/PX1 Statement of SI Anuj Kumar SI Anuj Kumar 30. PW 18/A WT Message SI Shailender 31. PW 18/B Description of the kidnapper Kumar 32. PW 18/C Call detail Record of Mobile No. 9971292098 33. PW 18/D Call detail Record of Mobile No. 9717804923 34. PW 18/E Customer application form St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 6 EVIDENCE: (6) In order to prove its case the prosecution has examined as many as Eighteen Witnesses as under: Public witnesses/ complainant: (7) PW7 Ghanshyam Bhagat is the father of the victim child who
has deposed that he had been residing along with wife Smt Reena Devi and his two sons Sumit Kumar aged about 12 years and another son namely Krishna @ Golu aged 3½ years old since four - five years at House No. 88, Village Bharola, Azadpur, Delhi. He has further deposed that his brother Kapish Bhagat also residing with him. According to the witness, he is doing the business of vegetable supply from shop at Azadpur Mandi and his distant relative Pankaj was also residing in the House no. 95 near his house and used to visit his house regularly. He has testified that on 13.10.2012, he went for his work at about 12 noon and at about 5.00 came to his house when he came to know from his family members that Pankaj had come to his house at about 4:00 PM and left the house after remaining for some time in the house. According to him, when he reached his own house, Pankaj had already left the house and after 1015 minutes, he gave a currency note, of Rs.10/ to his son Krishan @ Golu aged about 3 years at that time, for some biscuits and he (Krishan) went to the nearby house but did not return back for about 30 minutes on which he (witness) thought that the child was playing with other children. The witness has testified that he went to the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 7 nearby shop and searched for his son Krishna @ Golu but he was not found there. Thereafter his other family members and relatives also searched for his son Krishan in the area but he was not found. According to the witness, one shopkeeper namely Rajender Bhagat told him that he had seen his son Krishan with Pankaj while crossing the GTK Road but he did not suspect Pankaj as Pankaj was his relative. The witness has stated that thereafter he immediately made call on the mobile phone of Pankaj through his mobile phone bearing no. 9717804923 but Pankaj disconnected the same and did not respond. He has testified that he made calls to Pankaj for four - five times but Pankaj did not respond and thereafter he switched off his mobile phone after which he suspected that Pankaj had took away his son Krishan.
He has further deposed that at about 9:00 PM, he made a call to the police at 100 number and police officials reached at his house. According to him, after about 30 minutes, SI Shailender, Chowki Incharge, came to his house and recorded his statement vide Ex.PW7/A and conducted his proceedings. The witness has also deposed that he gave the mobile number of Pankaj to the police. According to him, SI Shailender also searched for his son Krishan in the whole area and in the houses of his relatives but his son Krishan @ Golu was not found.
(8) The witness has further testified that he continuously tried to make contact with Pankaj about his son by making call on his mobile phone but Pankaj was not responding but after about three days when he again made a call to Pankaj, this time Pankaj picked up the phone and told him St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 8 that his son Krishan was with him and asked him to make arrangement for money. The witness has further deposed that he also heard the voice of his son and thereafter Pankaj disconnected the mobile phone. According to the witness, he again tried to make contact with Pankaj but Pankaj did not respond and after one or two days, accused Pankaj made call to him and allowed him to talk with his son Krishan. The witness has testified that on the next day, at about 56 PM he made a call to Pankaj who picked up the same and first demanded Rs. 2 lacs from him then Rs. 10 lacs and then Rs. One Crore for release of his son Krishan on which he (witness) told him (Pankaj) that he is unable to arrange Rs. One crore even by selling his whole property and his whole body. According to him, thereafter he informed about the above said demand of Pankaj to SI Shailender and thereafter at the instance of SI Shailender he started making contact with Pankaj but Pankaj did not respond on his mobile but he (Pankaj) made calls to him from different numbers and demanded one crore for release of his son. The witness has proved having handed over the copy of birth certificate of his son Kishan Kumar @ Golu to the police which is Ex.PW6/A and police received the same and seized the same vide memo Ex.PW7/B. He has also deposed that after 1415 days, his son was recovered from District Madhepura, Bihar by the police in the presence of his (witness's) father Kameshwar Bhagat and his father in law Shri Prayag Bhagat. According to the witness, they informed him that his son was recovered from the house of Rajesh Rishi after which his son was handed over to him by the police. He St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 9 has correctly identified the accused Pankaj in the Court. (9) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that the mobile number of Pankaj was 9971292098 which was provided to the police by him. He has also admitted that when he came out of his house to search his son Krishan when the neighbourhood persons informed him that Pankaj was standing there for a long time near the shop near his house.
(10) In his cross examination by the Ld. Defence Counsel, the witness has deposed that accused Pankaj is his distant maternal uncle in relationship and used to visit his house regularly. According to the witness, he also used to purchase tomatoes for business purposes as he (Pankaj) was doing business of tomato. He has further deposed that accused Pankaj used to sell only tomatoes but he is not aware whether accused Pankaj used to sell tomatoes to the other whole sale dealers. The witness has testified that he purchased tomatoes from accused Pankaj for about fivesix months and has also deposed that he used to purchase tomatoes for Rs.2530 thousands from accused Pankaj per month and paid the money according to the purchase and sometimes he paid the money after fivesix days. He has stated that he is not aware of the name of the person who told him that the accused Pankaj was standing near his house and the nearby shop for a long time. He has denied the suggestion that he did not disclose the name of that person to the police because nobody told him that accused Pankaj was standing near his house and at nearby shop for a long time. According to him, the distance St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 10 between the shop of Rajender Bhagat and the GTK road is about 200 meters. He has testified that there were two turns for going towards the shop of Rajender Bhagat from GTK Road. He has further deposed that Rajender Bhagat used to sell onions and was the sole proprietor of the shop but he is not aware whether any other person was sitting on his shop with him (Rajender Bhagat) or not and has explained that Rajender Bhagat used to sell onions on his shop alone. The witness has also deposed that GTK Road is not visible from the shop of Rajender Bhagat and has voluntarily explained that after some distance GTK road is visible. He has testified that the shop of Rajender usually opened from 45 AM to 56 PM. He has denied the suggestion that Rajender Bhagat did not inform him anything about accused Pankaj and his son Krishan to him or that he made such stories at the instance of the police. The witness has deposed that he had spoken to Pankaj for about 1012 times after kidnapping of his son and has voluntarily explained that he made calls to his number on many times but he did not respond every time and only responded on about 1012 times and talked to him. He does not remember the exact date when he spoke to accused Pankaj first time after kidnapping and has voluntarily explained that he spoke with him first time after three days of kidnapping at about 56 PM. He has denied the suggestion that due to the business transactions of tomato purchase he entered in an account's dispute with accused due to which grievances he falsely implicated the accused person in this false case. The witness has also denied the suggestion that he had enmity with the accused St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 11 Pankaj or that he had falsely implicated him in this case. (11) PW8 Reena Devi is the mother of the victim child. She has deposed that he had been residing with his husband and his two sons namely Sumit aged 12 years and Krishan Kumar aged three years. According to the witness, she knew Pankaj Bhagat who is her distant maternal uncle and was also residing near her house on rent basis and used to visit her house regularly. According to the witness, on 13.10.2012, accused Pankaj came to her house to visit them in routine and played with her son Krishan in the house and thereafter 1015 minutes he went away from there. She has also deposed that at about 5:00, her husband Ghanshyam reached the house and while she was preparing tea for her husband, he gave Rs.10/ to Kishan @ Golu on which he went to the nearby shop but did not return back from there even after 30 minutes. The witness has also deposed that thereafter she searched Kishan but he was not found and then she returned back to her house after which her husband also made call to the police. According to the witness, after ten days, her son was recovered from Bahari, Madhepura, Bihar and after 12 days police handed over her son Kishan @ Golu to her. (12) In her cross examination the witness has deposed that she came to know later on that her son was kidnapped by Pankaj Bhagat. According to the witness, her husband when returned back to the house after searching her son, informed her that the public persons had informed him that accused Pankaj took away her son. She has testified that her husband also told her that he had heard the cries of her son through the mobile phone of Pankaj St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 12 and also the voice of Pankaj and has voluntarily explained that she had become virtually unconscious at that time. She has admitted that they did not have any enmity with accused Pankaj and that Pankaj was fond of her child and used to play with him. She has denied the suggestion that accused Pankaj has been falsely implicated in this case by her husband. (13) PW9 Shri Chinta Paswan has deposed that he used to sell tomatoes at Azadpur Mandi and knew accused Pankaj who also used to sell tomatoes at Azadpur Mandi near his shop. The witness has further deposed that the photocopy of election ID card Ex.PW5/W belongs to him and he gave the same to accused Pankaj Bhagat for taking a SIM card of mobile number on the basis of his Identity Card as he (Pankaj Bhagat) was not having any ID proof of Delhi. According to the witness, mobile number 9971292098 was issued on the basis of his Identity card and the same was kept by accused Pankaj Bhagat who used the same. He has correctly identified the accused Pankaj in the Court. (14) In his cross examination, the witness has denied the suggestion that the above said mobile number was with him and he used the same or that it was never used by accused Pankaj Bhagat.
(15) PW10 Shri Santosh Kumar has deposed that he knew Ghanshyam Bhagat who is his maternal uncle in relationship and also knew Pankaj Bhagat who is also residing in their locality and used to sell tomatoes and belonged to their village area Santpur Saharsha Bihar. According to the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 13 witness, on 13.10.2012, at about 6.30 PM, he was going to the house of Ghanshyam Bhagat when he saw that accused Pankaj was standing in the gali near the house no. 88 of Ghanshyam Bhagat. The witness has testified that he (witness) went inside the house of Ghanshayam where his wife met him and after 1015 minutes he returned back and came back to his house. He has further deposed that at about99:30 PM he again went to the house of Ghanshyam to meet him but he found a lot of loud noise near his house and he came to know that Golu the son of Ghanshyam was missing and he (Ghanshyam Bhagat) was trying to make contact at 100 number but he could not make the contact. He has proved that thereafter Ghanshyam Bhagat took his phone bearing No. 9990910353 and made a call at 100 number. According to the witness, thereafter he returned back to his house. He has correctly identified the accused Pankaj Bhagat in the court. (16) In his cross examination, the witness has deposed that accused Pankaj Bhagat is the distant maternal uncle of wife of Ghanshyam and there is no dispute or enmity between Pankaj and Ghanshyam. He has denied the suggestion that he did not visit the house of Ghanshyam on 13.10.2012 or that he did not see the accused Pankaj near the house of Ghanshyam. (17) PW11 Shri Rajender Bhagat has deposed that he is an original resident of village Agarpur, Distt. Bhagalpur, Bihar and used to sell onions in Azadpur Sabzi Mandi in ABlock near park. According to the witness, he also knew Pankaj Bhagat who used to sell tomatoes in front of his shop and accused Pankaj Bhagat and Ghanshyam are relatives having St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 14 visiting terms with each other. The witness has also deposed that he also knew Ram Kumar the brother in law of accused Pankaj who also used to visit the shop of Pankaj and used to come in their locality. He has testified that on 13.10.2012, at about 7.30 PM he was coming to his shop at Adarsh Nagar after recharging his mobile phone when he saw Pankaj and Ram Kumar while they were coming from the side of Azadpur Mandi and they were stepping down from the stairs towards the underground crossing and were going towards the Adarsh Nagar after crossing the road through the underpass. He has further deposed that three years child Golu was in the lap of accused Pankaj Bhagat at that time but he did not suspect the accused Pankaj since Pankaj was on visiting terms with Ghanshyam and was his relative. He has correctly identified the accused Pankaj Bhagat in the Court.
(18) In his cross examination the witness has deposed that village Bhadola is at a walking distance of five minutes from Azadpur Mandi. According to the witness, his mobile phone was recharged by the shopkeeper at Adarsh Nagar through mobile from service provider but did not give him any recharge coupon. He has testified that police had asked him about his mobile phone number and about the shopkeeper from where he recharged his mobile phone on which he had told the same to the police. The witness has further deposed that he did not make any complaint to the police nor he gave any information of the above said fact to the police immediately after knowing the occurrence. He has denied the suggestion St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 15 that he did not see the child Golu with accused Pankaj and Ram Kumar. (19) PW12 Kameshwhar Bhagat is the grandfather of the victim child. He has deposed that Ghanshyam is his son who has been residing at H.No. 88, Village Bhadola, Azadpur, Delhi alongwith his wife and two sons, Sumit aged about 810 years and Golu @ Kishan aged about three years. According to the witness, he also used to visit the house of his son occasionally and also knew Pankaj Bhagat who is in their relationship being the maternal uncle of his daughter in law Reena Devi and belonging to their area and used to sell tomatoes at Azadpur Mandi. He has further deposed that on 13.10.2012 at about 10.00PM he was informed by his son Ghanshyam about kidnapping of Golu @ Kishan by mobile phone at his residence at village Vankatti on which after two to three days he came to know that Pankaj took away Golu @ Kishan and he along with his relatives also searched Pankaj and Golu @ Kishan in their area. According to him, on 22.10.2012 two police officials of Delhi Police came at their village during the investigation of this case and contacted him and he had information that accused Pankaj was going to Village Budhma, Distt. Madhepura. The witness has further deposed that he along with the above said two police officials and his relative Prayag Bhagat went towards Budhma, Distt. Madhepura, Bihar. He has testified that one or one and a half kilometer before Budhma Railway Station, Rajesh Rishi Dev met them and they inquired from him about his residence as they had secret information as Pankaj Bhagat was residing at his residence. According to St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 16 him, thereafter they reached at the house of Rajesh Rishi Dev at Budhma where one boy namely Ram Kumar met them and Golu @ Kishan was in his lap at that time. He has proved that he identified Golu @ Kishan on which police took possession of Golu @ Kishan and accused Rajesh Rishi Dev and Ram Kumar were taken into custody by police and thereafter they reached at the Bhara Police Chowki and Bihar Police was informed about all the proceedings. The witness has proved that written work was also done by the police and Golu @ Kishan was recovered vide memo Ex.PW12/A. He has testified that Rajesh Rishi Dev was arrested vide Ex.PW12/B and his personal search was taken vide Ex.PW12/C. According to him, a secret information was received that Pankaj was present at the house of Rajesh Rishi Dev on which they again reached the house of Rajesh Rishi Dev alongwith Bihar Police at about 8.30PM where accused Pankaj was found and was identified by him (witness). The witness has proved that the police arrested the accused Pankaj Bhagat vide Ex.PW12/D and his personal search was taken vide Ex.PW12/E. According to the witness, all three persons Pankaj Bhagat, Rajesh Rishi Dev and Ram Kumar were produced before the court at Madhepura and thereafter he along with the police and accused persons and Golu @ Kishan reached at Delhi and after conducting the proceedings Golu @ Kishan was handed over to his parents. He has correctly identified both the accused Pankaj Bhagat and Rajesh Rishi Dev in the court.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 17 (20) With the permission of the Court, leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that when they reached at Village Golma and thereafter at Village Budhma they came to know about Ganesh Bhagat and they came to know from a secret information that the kidnapped child/boy was kept at the house of Rajesh Rishi Dev. The witness has also admitted that after getting the information they reached at Bharai Police Chowki where Chowki Incharge and SI Anuj Kumar Singh met them after which Rajesh Rishi Dev first taken into custody at near Railway Station Budhma. The witness has further admitted that document Ex.PW12/F was prepared by Delhi Police in his presence and the same bear his signatures at point A. He has admitted that one mobile phone of Micromax with two SIMs of Airtel was recovered from the personal search of the accused Pankaj Bhagat which mobile phone was seized by police vide seizure memo Ex.PW12/F. He has identified the said mobile phone bearing IMEI No. 911232960619164 and IMEI No. 911232960619162 which mobile phone with battery is Ex.P1 and the two SIM cards are Ex.P2 and Ex.P3.
(21) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he received information on 13.10.2012 at about 7.00 PM. According to the witness, the accused Rajesh Rishi Dev was not known to him previously and the information received was that Ram Kumar stayed at his house alongwith the Child. He has admitted that during the raid Rajesh Rishi Dev was not at home and has voluntarily explained that he St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 18 (Rajesh Rishi Dev) had been apprehended by the police before they could reach to his house. According to the witness, some public persons had identified Rajesh Rishi Dev but he is unable to tell the name or address of the persons who identified him and has voluntarily explained that some ladies of the area had pointed out Rajesh Rishi Dev to them but he is unable to tell their names. He has denied the suggestion that accused Rajesh Rishi Dev had been lifted by the police and illegally detained and got involved in the present case. The witness has further deposed that Delhi Police met him first time on 22.10.2012 at about 9.00AM at Village Vankatti, Police Station Salkhua and stayed there for about two hours. He has also deposed that two Delhi Police officials namely Bhagwan Singh and Jaivir Singh came to him. He has testified that he arranged one motorcycle and they all three proceeded towards Village Budhma and reached there by traveling of 1½ - 2 hours. The witness has also deposed that no local police official from Village Budhma was called nor statement of anybody was written down by the police in his presence. He has further deposed that the police officials of Delhi Police were in uniform and the accused Rajesh Rishi Dev did not try to flee away from there. He has testified that Rajesh Rishi Dev was apprehended at about 3.00PM and the Pradhan/ Mukhia of the village was not called by the police nor the police called any public person to join the proceedings. He has further deposed that all writing work was done while sitting in a nearby police Chowki namely Bharai Police Chowki. The witness has testified that he had signed about twothree documents after St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 19 reading the same. He has denied the suggestion that accused Rajesh Rishi Dev was not arrested in the manner as stated above. He has admitted that at the time of recovery of child, Pankaj was not present but has denied that he was subsequently implicated in this case by planting the SIM cards on him. (22) PW13 Sh. Prayag Bhagat is the maternal grandfather (Nana) of the victim child. He has deposed that Kameshwar Bhagat is his Samdhi in relationship and Ghanshyam is the son of Kameshwar. According to the witness Ghanshyam is residing at the village Bhadola, Delhi and he came to know that son of Ghanshyam was kidnapped from Delhi on which they also searched the kidnapped boy Golu in the area. The witness has further deposed that on 22.10.2012 he joined the investigations with Delhi Police and Kameshwar Parshad was with them and they received an information that the kidnapped boy was kept in village Budhma. He has testified that they reached at the police chowki Bharari, Police Station Madhipura after which Chowki Incharge also came with them. The witness has proved that the accused Rajesh Rishi Dev was apprehended by the police 1 ½ Km before the Budhma railway station and thereafter they reached at the house of Rajesh Rishi Dev where Golu was found in the lap of Ram Kumar. He has testified that the police took the possession of Golu vide Ex.PW12/A and Police arrested accused Rajesh Rishi Dev vide memo Ex.PW12/B and took his personal search vide Ex.PW12/C. According to the witness, Ram Kumar was also taken into custody by the police and thereafter they all returned back to the Police Chowki Bharari where police prepared the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 20 documents and conducted their written work. He has also deposed that at about 8:00 PM, the secret information was received at the Police Chowki that accused Pankaj was present at the house of Rajesh Rishi Dev on which they all went to the house of Rajesh Rishi Dev where Pankaj was present and identified by him (witness) and Kameshwar and was arrested by the police vide Ex.PW12/D and his personal search was also taken vide Ex.PW12/E. He has correctly identified both the accused Pankaj Bhagat and Rajesh Rishi Dev in the Court (23) With the permission of this Court, leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that recovery memo Ex.PW12/F bear his signatures at point B. He has admitted that one mobile phone of MICROMAX with double SIM recovered from the possession of the accused Pankaj and same was seized by the police. The witness has also identified one mobile phone of MICROMAX bearing the IMEI No. 911232960619164 and IMEI No. 911232960619162 which mobile phone with battery is Ex.P1 and two SIM cards are Ex.P2 and Ex.P3.
(24) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he met the police first time at police Chowki Bahari. According to the witness, on 22.10.2012 an unknown person told him that a child was kidnapped and he had forwarded this information to Delhi Police officials but he does not remember the name of the said St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 21 official. He is not aware the number of that police official. He has also deposed that the first time at about 3:30 PM when he reached at Police Chowki Bharai he met the Delhi Police officials who were two in numbers and four Bihar police officials along with his Samdhi namely Kameshwar were present there and no other person was present there at that time. He has testified that while sitting in the police Chowki twothree documents were signed by him. He has denied the suggestion that no recovery and arrest of any one of the accused was executed in his presence. Nodal Officer:
(25) PW5 R.K Singh, Nodal Officer from Bharti Airtel Ltd. has proved the record pertaining to mobile no. 9717804923 and according to customer application form Ex.PW5/A, the SIM of the mobile phone was issued in the name of Ghanshyam on the basis of the ID i.e copy of PAN card and copy of water bill which are Ex.PW5/B1 and Ex.PW5/B2. He has also proved the call detail record of phone no. 9717804923 for the period of 13.10.2012 to 22.10.2012 which is collectively Ex.PW5/C. The witness has also brought the record of the mobile no. 9971292098 which was issued in the name of Chinta Paswan S/o Rattan Paswan vide customer application form which is Ex.PW5/D, copy of ID proof is Ex.PW5/E, call details record from 13.10.2012 to 22.10.2012 which are collectively Ex.PW5/F and the Cell ID chart which is Ex.PW5/G. He has St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 22 proved having issued the certificate u/s 65 B of the Indian Evidence Act for the above said call details which is Ex.PW5/H. (26) In his cross examination by the Ld. Defence Counsels the witness has deposed that the procedure for recording of call details is automatic with server. According to the witness, the Customer Application Forms were not filled in his presence and the same were not produced to him by the customers. He has further deposed that he himself had not verified the ID proof address and the same were verified by the concerned department. The witness has testified that he took out the print outs of the call details from computer which are downloaded from the server office situated at Noida which computers are in proper condition.
Police/ official witnesses:
(27) PW1 HC Chander Bhan is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 25.10.201 ASI Jaiveer Singh handed over to him one sealed cloth parcel sealed with the seal of JVS containing a mobile phone and he deposited the above said parcel in the Malkhana and made entry in Register no. 19 at Serial No. 864/12 copy of which is Ex.PW1/A. He has not been cross examined by the Ld. Defence Counsels and hence his testimony has gone uncontroverted.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 23
(28) PW2 HC Ashok Kumar is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 13.10.2012 while he was working as Duty Officer at Police Station Mahendra Park, at about 10:40 PM HC Ram Lakhan sent a rukka through Ct. Arvind and on the basis of said rukka he got the FIR registered through Computer Operator copy of which is Ex.PW2/A and made his endorsement on the rukka which is Ex.PW2/B. According to him, after the registration of the case a computerized copy of the FIR and original rukka was handed over to Ct. Arvind.
(29) In his cross examination by the Ld. Defence Counsels the witness has deposed that he recorded DD no.28A at about 10.45 PM as the kayami of the FIR. According to him, Ct. Arvind remained in the Police Station for about 30 minutes and went away from there at about 11.15 PM with copy of FIR. He does not remember the name of the Computer Operator who recorded the FIR on computer. The witness has further deposed that he informed the SHO and thereafter registered the FIR. (30) PW3 Ct. Arvind is again a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has deposed that on 13.10.2012 on receiving DD No. 31 PP New Subzi Mandi at 9:40 PM he along with HC Ram Lakhan reached at House No. 88, Village Bhadola, Azadpur where they met the complainant namely Ghanshyam Bhagat. According to the witness, HC St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 24 Ram Lakhan recorded the statement of complainant and at 10:30 PM HC Ram Lakhan prepared the rukka which he handed over to him for getting the FIR registered. He has proved that at 1:40 PM he reached Police Station Mahendra Park and handed over the rukka to Duty Officer HC Ashok Kumar and on the basis of the said rukka the present FIR was registered. He has also deposed that after the registration of the case the copy of FIR and original rukka was handed over to SI Shailendra Kumar for investigations. He has not been crossexamined by the Ld. Defence Counsels and hence his testimony has gone uncontroverted. (31) PW4 Ct. Manoj is a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 13.10.2012 at 9:40 PM he lodged DD No. 31 PP New Subzi Mandi Azadpur, Police Station Mahendra Park copy of which is Ex.PW4/A which was handed over to HC Ram Lakhan for necessary action. In his cross examination by the Ld. Defence Counsels the witness has denied the suggestion that he made entries at the instance of the Investigating Officer. (32) PW6 Shri Rakesh Saxena, Sub Registrar (Birth & Death Department) has brought the birth record of Kishan Kumar S/o Ghanshyam Kumar and Reena Devi who was born on 19.08.2010 and the same was registered at their office on 24.06.2011 with MCD registration no. MCDOLIR0111004793678, copy of which birth certificate is Ex.PW6/A St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 25 and the copy of record regarding registration is Ex.PW6/B. This witness has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard.
(33) PW14 HC Ram Lakhan has deposed that on 13.10.2012 he was posted at Police Post Subzi Mandi and on that day he was on emergency duty from 8 PM to 8AM. According to the witness, at about 9:40 PM he received DD No. 31 PP regarding kidnapping of the son of the caller by Pankaj which DD is Ex.PW4/A. He has further deposed that he along with Ct. Arvind reached the place of incident i.e. house No. 88, Village Bharola where complainant Ghanshyam met him and he made allegations against Pankaj of kidnapping of his son Krishna @ Golu aged around 3 years. The witness has proved having recorded his statement in detail vide Ex.PW7/A and Ghanshyam put his signatures at point A after which he attested the same with his signatures at point B. According to the witness, he made his endorsement on the same vide Ex.PW14/A and Ct. Arvind was sent to the Police Station along with rukka for registration of the FIR. He has also deposed that he searched for the kidnapped boy in the locality but he could not be traced out. He has testified that after some time Ct. Arvind reached the spot along with SI Shailender being the Investigating Officer of the case and thereafter he (witness) left the spot.
(34) In his crossexamination by the Ld. Defence Counsels the witness has denied the suggestion that he is deposing falsely at the instance of complainant.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 26 (35) PW15 ASI Jaivir Singh has deposed that on 19.10.2012 he was posted at Police Station Mahendra Park and on that day on the directions of the SHO, case file was handed over to him for investigation and he was directed to go Bihar for the recovery of kidnapped child namely Golu. According to the witness, on that day he alongwith Ct. Bhagwan Singh went to Bihar and reached at Khagaria on 21.10.2012 where they searched the kidnapped child but the child could not be traced there. He has also deposed that on 22.10.2012 they reached at Village Utesara, Distt. Seharsa residence of accused Pankaj but he was not found present there after which they reached at Village Simri, Bhakhtiyarpur where Kameshwar father of complainant met them and was already having secret information that the kidnapped child was kept near Madhepura. The witness has testified that thereafter he included Kameshwar Bhagat and Prayag Bhagat in the investigations and reached at Police Chowki Bharai where Chowki Incharge SI Anuj met them and they requested them to join their investigation after which they all alongwith SI Anuj reached at Village Budhma where at the instance of secret informer Rajesh Rishi Dev was apprehended near Budhma Railway Station and was interrogated by them during which Rajesh Rishi Dev disclosed that the kidnapped child was kept at his house. He has testified that thereafter they reached at the house of Rajesh Rishi Dev where kidnapped child was found in the lap of Ram Kumar and Kameshwar identified the kidnapped child on which he (witness) prepared the recovery memo of the child which is Ex.PW12/A. The witness has proved having St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 27 arrested the accused Rajesh Rishi Dev vide Ex.PW12/B, his personal search was taken vide memo Ex.PW12/C and then they returned back to the police chowki where he interrogated accused Rajesh Rishi Dev and recorded his disclosure statement vide Ex.PW15/A. He has also deposed that meanwhile Chowki Incharge received secret information that accused Pankaj came at the house of the accused Rajesh and they all immediately reached there and the accused Pankaj was apprehended by them. The witness has proved having arrested the accused Pankaj vide Ex.PW12/D and having taken his personal search vide Ex.PW12/E. He has further testified that thereafter they again returned back to the Police Chowki where he interrogated accused Pankaj Bhagat and recorded his disclosure statement vide Ex.PW15/B. According to the witness, one mobile phone of black colour with double SIM was also recovered from the possession of accused Pankaj Bhagat and he checked the IMEI number and SIM and mentioned the same in the seizure memo and sealed the same in a cloth pullanda with the seal of JVS and seized the same vide memo Ex.PW12/F. The witness has testified that Ram Kumar was also taken into custody vide apprehension memo Ex.PW15/C and his version was recorded vide Ex.PW15/D. He has further deposed that on the next day i.e. on 23.10.2012 all three arrested persons were produced before the Court of CJM, Madhepura, Bihar and three days Transit Remand was obtained after which they returned back to Delhi with kidnapped child and he handed over the case file and the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 28 kidnapped child to the Investigating Officer. The witness has correctly identified both the accused Pankaj Bhagat and Rajesh Rishi Dev in the Court and also identified the case property i.e. one mobile phone of Micromax with dual SIM of Airtel with battery recovered from the possession of accused Pankaj Bhagat, having IMEI No. 911232960619164 and IMEI No. 911232960619162 which mobile phone with battery is Ex.P1 and the two SIM cards are Ex.P2 and Ex.P3.
(36) In his crossexamination by the Ld. Defence Counsels the witness has deposed that the written permission was obtained by their staff when they were going to Bihar but he is not aware whether the same was put on record or not. He has further deposed that they reached at Khagria Railway Station in Bihar at about 9AM on 21.10.2012 and on 22.10.2012 they reached at Uteshra at about 910AM and he clarified that the distance between Uteshra and Khagaria was about 4050 Kms. According to him, they reached at Bharai Police Post at about 1:302 PM on 22.10.2012 but did not make any arrival entry there and has voluntarily explained that he moved a written application there. He has admitted that on Railway Station Railway employees remains present there and has deposed that he did not ask the railway employees to join the investigations as the railway station was 4050 steps away from the place of arrest of accused Rajesh Rishi Dev. He has denied the suggestion that accused Rajesh Rishi Dev was not arrested in the manner as deposed by him. He is unable to tell the name of the owner of the neighboring houses situated on the left and right side of the house of St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 29 accused Rajesh Rishi Dev. He has further deposed that they did not call the pardhan/ mukhiya or chowkidar of the village of accused Rajesh Rishi Dev. He has further deposed that he did not collect any authentic document showing the real native place of accused Rajesh Rishi Dev. He has denied the suggestion that the house from where the child was recovered by the police did not belong to accused Rajesh Rishi Dev or that accused Rajesh Rishi Dev did not make any disclosure statement or that the same had been written by him of his own. The witness has further denied the suggestion that accused Rajesh Rishi Dev was compelled to sign blank papers which were later on converted into various memos or that the place from where accused Pankaj was arrested did not belong to accused Rajesh Rishi Dev. The witness has further deposed that he had not obtained any ownership documents from the service provider of the mobile phone recovered from accused Pankaj Bhagat. He is unable to tell whether accused Rajesh Rishi Dev was a permanent resident of Village Tiri, Police Station Sor Bazar, District Shaharsha, Bihar.
(37) PW16 SI Anuj Kumar Singh has deposed that on 22.10.2012 he was posted at Police Post Bahari, Police Station Madheypura, District Madheypura, Bihar as SHO and on that day some police officials of Delhi Police including one ASI, one constable and relatives of the kidnapped child came to his police post i.e. police post Bahari and made a request for assisting in the search of the kidnapped child. He has further deposed that on this a raiding party was constituted, consisting of officials of Delhi St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 30 Police, himself and one SubInspector from Madheypura Town Police Station which team was constituted under the supervision of SP concerned. According to the witness, the said raiding party was duly assisted by two relatives of the kidnapped child. He has further deposed that the house of Rishi Dev was situated at Budhma near the Railway Station as was told by the relatives of the kidnapped child and hence from the Police Station they went to the house of Rishi Dev. He has further testified that they were all in civil uniform at that time and took their positions around the house of Rishi Dev. He has further deposed that the local Chowkidar of the area was also joined in the police party who identified Rishi Dev and informed that he had a distinctive mark on his eye. The witness has also deposed that it was between 122 PM that they were positioned near the house of Rishi Dev as they had secret information that he had hidden the child somewhere in the fields and there was a talk in the village that he (accused Rajesh) had brought some child from Delhi. He has further deposed that it was in the afternoon, time he does not recollect when the Chowkidar of the area pointed out towards the accused Rajesh who was coming on foot from the railway line side and because of distinctive mark on his eye that they could identify him and they apprehended him. According to the witness, thereafter they interrogated the accused who confirmed his name as Rishi Dev and thereafter accused Rishi Dev led them to his house which was in the form of a shed from where the child Golu was recovered. He has further deposed that the house/ shed of Rishi Dev was situated near the railway line and St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 31 when they apprehended him, he (accused) tried to run away. He has also deposed that during the interrogation they also came to know that there was another person who had assisted Rishi Dev in the kidnapping of the child whose name was Pankaj Bhagat. According to the witness, local people had also gathered there at that time and informed them that as soon as they had come from the railway line side, one person who was of fair color and problem in his one eye/ Glaucoma on one eye had ran away towards fields. The witness has testified that at the time when the child was recovered only the wife of Rishi Dev was present in the house and after the interrogation of the accused, various memos including arrest, personal search, disclosure, recovery of child were prepared. He has proved the recovery memo of child which is Ex.PW12/A after which the child was handed over to his relatives. The witness has further deposed that on the same day in the evening they received information from the Sarpanch that some person had been surrounded in the Makka fields, on which they reached the village where they went to Makka fields where they found large number of public persons/ residents of the village, who were ready to pounce upon one boy who was in the Makka fields surrounded by public persons. According to him, they were informed that he was Pankaj Bhagat and was the person who had been seen running away and that is why public persons had caught him. He has further deposed that his statement was recorded in the police station later on the same day.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 32 (38) Ld. Additional Public Prosecutor sought permission to put leading questions to the witness as he was not giving the complete details which permission was granted. The witness has admitted that he made a statement to the Delhi Police which is Ex.PW16/PX1. He has further admitted that he had told the police in his statement from point A to A1 that when they went to the house of Rishi Dev, along with the kidnapped child another boy whose name they came to know Ram Kumar was also present with him and it was on the identification of Kameshwar that the child Golu was recovered.
(39) On the specific court question that why did he not disclose that fact regarding presence of another boy Ram Kumar with Golu, he answered that it was on account of confusion of facts because there was so much of afratafri in the area at the time of recovery that he missed out on that fact. While deposing on a suggestion by the Addl. PP, the witness has admitted that he had told the Delhi Police in his statement Ex.PW16/PX from point B to B1 that when they went to makka fields, it was Kameshwar Bhagat who identified Pankaj Bhagat as the person who had kidnapped his grandson. He has further admitted that he had forgotten to mention that fact to the court earlier. During the recording of his testimony in the Court, he has correctly identified the accused Rajesh Rishi Dev and accused Pankaj Bhagat by pointing out and also by their names.
(40) In his crossexamination by Ld. Defence Counsel (Amicus Curiae), the witness has deposed that Village Budhma was at a distance of St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 33 45 Kms from Bahari, UP and when they are going from Bahari to Budhma village, there is a Manikpur, Chandni Chowk after which a pakka rasta leading to Railway Station Budhma. He has further deposed that railway line passes through village Budhma. According to the witness, house of the accused Rajesh Rishi was situated on the northern side of the railway line at a distance of 50 meters and the distance between the house of accused Rajesh Rishi Dev and the Railway Station was about 100150 meters. He has admitted that there was a railway crossing in between the house of the accused Rajesh Rishi Dev and railway station and also that they had arrested accused Rajesh Rishi Dev from the railway line when he was coming towards his house. However, he has voluntarily explained that the distance between the house of Rajesh Rishi Dev and railway line was hardly 50 meters and Rajesh was apprehended at a distance of about 3040 meters away from his house. He has further admitted that he did not mention these facts in his statement U/s 161 Cr.P.C. The witness has stated that the arrest of the accused, his personal search and his disclosure statement was recorded in his presence but admits that those documents did not bear his signatures. He has denied the suggestion that his signatures were not present on those documents as he did not participate in the proceedings relating to accused. The witness has admitted that he did not collect the residential proof of the accused Rajesh Rishi Dev from any local authority including the Tehsildar office. He has denied the suggestion that accused Rajesh Rishi Dev did not reside in the alleged shed from where the child was recovered St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 34 nor he had anything to do with the same. He has further denied the suggestion that when the child was recovered, he was playing alone in the house and has voluntarily explained that his wife and another child was also present. He has further deposed that in his presence Delhi Police had interrogated few villagers but he was not aware if their statements were also recorded. He has further deposed that he did not know the name of mukhiya and sarpanch of village Budhma. He has further deposed that he not aware if the disclosure of accused Rajesh Rishi Dev was also recorded by the Delhi police and has voluntarily explained that he only seen the Delhi Police while interrogating and making inquiries. He has further deposed that they reached at Budhma from Bahrari OP in their official jeep but he could not tell the number at present. He has further deposed that he had made his departure entry while leaving the police station. He has further deposed that it was not in his knowledge if Delhi Police obtained the above entries from the Police Station and has voluntarily explained that he has been since transferred from Police Post after three months of the incident. He has denied the suggestion that accused Rajesh Rishi Dev was not arrested in the manner as deposed by him. He has further denied the suggestion that no recovery of child was made in the manner as deposed by him. (41) According to the witness, he did not see the face of the boy who had run away towards the fields when they reached the alleged shed of accused Rajesh Rishi Dev. He has admitted that it is the villagers who told them that the boy who had run away was the one who was apprehended later St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 35 i.e. Pankaj Bhagat. He has further deposed that they remained at the spot for two hours after the recovery of the child. The witness has admitted that during that period of two hours Pankaj Bhagat was not apprehended. He has also deposed that during that period they did not receive any information regarding Pankaj Bhagat hiding in the field and has voluntarily explained that it is a very large water logged area running into many kilometers and immediately no such information was received and it was only when they went back that they received that information in the evening. He has further deposed that he received that information on telephone from Sarpanch in the evening and has voluntarily explained that it was some woman who had seen him coming out from the fields who raised an alarm that he was the same boy who had run away on seeing the police when the villagers apprehended him. He has further deposed that he could not tell the names of the villagers who had surrounded Pankaj Bhagat and apprehended him before they reached there. He has further deposed that in his presence no documents of apprehension, arrest of Pankaj Bhagat were prepared. (42) PW17 Constable Bhagwan Singh has deposed that on 19.10.2012 he was posted at Police Station Adarsh Nagar and on that day he joined the investigations in the present case along with ASI Jaivir and had accompanied him to Bihar, District Khagaria and then to District Madheypura. He has further deposed that on 22.10.2012 he accompanied ASI Jaivir and Incharge of PS Salkhua went to village Kuteshra in the house of Pankaj Bhagat but could not find anybody. According to him, then St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 36 they went to village Samri Bakhtarpur where they met Kameshwar, the grand father of the kidnapped child Golu and from there they went to Police Station Madheypura Bahari where an application was moved by ASI Jaivir to SHO seeking assistance of local police informing about the kidnapping of child. He has further deposed that thereafter police party was constituted which included the officials of the Delhi Police and Incharge of Police Chowki along with relatives of the child i.e. Kameshwar Bahgat and Paryag Bhagat. He has testified that at around 2:30 PM they reached village Budhma where the secret informer informed Kameshwar Bhagat and pointed out to a person standing about 3040 feet from railway line who was Rajesh Rishi Dev and had kidnapped the child, on which they apprehended the accused Rajesh Rishi Dev and took him to his house near the railway line where he was standing just 4050 steps from the place from where he was apprehended. He has also deposed that in the house of Rajesh Rishi Dev they found Golu who was sitting on the lap of another boy whose name they later on came to know as Ram Kumar. According to the witness, the recovery memo of the child was prepared after which they returned to the Police Station where all the documents relating to arrest, personal search were prepared and he affixed his signatures on the said documents. He has proved the arrest memo of accused Rajesh Rishi Dev which is Ex.PW12/B, his personal search memo which is Ex.PW12/C and recovery memo of the child which is Ex.PW12/A. He has further deposed that the juvenile Raj Kumar was also apprehended and thereafter was given in the custody of his St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 37 parents.
(43) The witness has further deposed that on the same day in the evening a secret information was received by SI Anuj that Pankaj Bhagat was present at Budhma on which they again went to the house of Rishi Dev where Pankaj Bhagat was found present in his house and Kameshwar Bhagat identified him as his relative and had kidnapped the child from Delhi. According to the witness, Pankaj Bhagat was then brought to Police Station where he was arrested, his personal search was conducted and from his personal search a mobile make Micromax of black color of double SIM was recovered which mobile phone was converted into a pullanda with the help of a cloth and sealed the same with the seal of JVS and thereafter seized the same vide memo Ex.PW12/F. He has proved the arrest memo of accused Pankaj Bhagat which is Ex.PW12/D and personal search memo of accused Pankaj Bhagat which is Ex.PW12/E. (44) Ld. Additional Public Prosecutor put leading questions to the witness on the aspect of disclosure statements of accused, during which the witness has admitted that both the accused were interrogated and the Investigating Officer recorded their disclosure statements. He has proved the disclosure statement of accused Rajesh Rishi Dev which is Ex.PW15/A and the disclosure statement of accused Pankaj Bhagat which is Ex.PW15/B. He has admitted that he had forgotten these facts due to lapse of time. (45) He has correctly identified both the accused persons in the court and also identified the case property i.e. one mobile phone of St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 38 Micromax with dual SIM of Airtel with battery recovered from the possession of accused Pankaj Bhagat, having IMEI No. 911232960619164 and IMEI No. 911232960619162 which mobile phone with battery is Ex.P1 and the two SIM cards are Ex.P2 and Ex.P3.
(46) In his cross examination by Ld. Defence Counsel (Amicus Curie) he has deposed that he had visited Bihar many times during his tenure of duty but he dies not recollect by which train they reached at Khagaria. He has further deposed that they stayed at hotel in Khagaria but he did not recollect the name of said hotel. He has also deposed that he boarded the train at about 6AM from Khagaria to Singhri Bakhtayarpur. According to the witness, they reached Salkhua Police Station from Singhri Bakhtayarpur railway station by private jeep and the distance from Singhri Bakhtayarpur railway station to police station Salkhua is about 1516 kms. He has testified that the Investigating Officer of this case had recorded his statement U/s 161 Cr. P.C. twice in this case on 22.10.2012 and both the statements were of one page which statements he had signed. He has also deposed that he had signed on six papers during the entire investigations of this case. According to the witness, they reached Bahari OP from Simhri Bakhatyarpur in a private jeep which was hired by them but he does not remember the name of owner and number of the vehicle and has explained that it took about two hours to reach Bahari OP from Simhri Bakhatyarpur and they were five in numbers including driver of the vehicle. He has testified that they departed from Mukeshwara at about 10 AM and reached St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 39 at Simhri Bakhatyarpur at 11:30 AM then reached at Bahari OP at about 1:30 PM. He has further deposed that he did not know the name of any chowk/ town from where they cross to reach at Bahari OP from Simhri Bakhtayarpur. He is not aware know as to how many river bridges they had crossed to reach at Bahari OP from Simhri Bakhtayarpur. He has denied the suggestion that he did not visit the spot nor join the investigations that is why he was unable to give the details of the sites mentioned above. According to him, about 2025 police staff were present at Bahari OP including fourfive Sub Inspectors. He has further deposed that Bahari OP was functioning in a pakka structure. He has further deposed that they found a jeep there which was of SI Anuj and did not meet any other police officials prior to reaching at Bahari OP where they met SI Anuj. According to the witness, they had not intimated SI Anuj about their arrival prior to their reaching there. He has testified that they left for Budhma village from Bahari OP at about 1:45 PM and had a briefing with SI Anuj at Bahari OP for about ten minutes and they all i.e. five persons including Kameshwar Bahgat, Paryas Bhagat, ASI Jaivir, himself and SI Anuj left for Budhma village in one vehicle which was private jeep managed by SI Anuj whose number he does not recollect. He has also deposed that they all were in civil dress and reached at Budhma at about 2:10 PM. According to him, they did not contact Mukhiya/ Sarpanch or chowkidar of Budhma village and none of them joined the investigations in his presence.
(47) He has further deposed that railway line was from West to East St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 40 and they saw accused Rajesh Rishi Dev about 4050 steps north side of the railway line. He has further deposed that secret informer told about Rajesh Rishi Dev. He has further deposed that the place from where they apprehended accused Rajesh Rishi Dev was a vacant place near the shed and the place from where the child was recovered was about 200250 meters away from the place of apprehension of accused Rajesh Rishi Dev. He has further deposed that he did not recollect the description of clothes worn by the accused Rajesh Rishi Dev at the time of his apprehension. He has admitted that there was a basti and a railway station near the place of apprehension of accused Rajesh Rishi Dev. He has further admitted that no public person was joined during the arrest, personal and disclosure of accused. He has further deposed that there was a huge gathering at the place of apprehension of the accused. The witness has denied the suggestion that accused Rajesh Rishi Dev was not resident of Budhma village. He has further deposed that they did not collect any proof of identity in respect of accused Rajesh Rishi Dev.
(48) The witness has denied the suggestion that accused Rajesh Rishi Dev was not involved in the present incident or that he was not arrested in the manner as deposed by him. He has further denied the suggestion that they have falsely implicated the accused Rajesh Rishi Dev on the behest of Kameshwar Bhagat only to solve their case. He has further denied the suggestion that accused Rajesh Rishi Dev was forced to sign blank papers which later on developed into documents exhibited. He has St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 41 further denied the suggestion that no site plan of place of recovery of kidnapped child or place of apprehension of accused had been prepared in his presence. He has deposed that arrest memo, disclosure statement, personal search of accused Rajesh Rishi Dev were prepared in the Police Post Bahari. He has further denied the suggestion that he was deposing falsely. He has further denied the suggestion that accused Pankaj Bhagat was falsely implicated in the present case in connivance with the family of the kidnapped child. He has further denied the suggestion that accused Pankaj Bhagat did not make any disclosure statement or that the same was recorded by the IO of his own. He has further denied the suggestion that accused Pankaj Bhagat was compelled to sign some blank papers which were later on converted into various memos. He has further denied the suggestion that they had falsely implicated accused Pankaj Bhagat in the present case only to work out the present case.
(49) PW18 SI Shailender Kumar is the investigating officer of this case and he has deposed that on 13.10.2012 he was posted as Incharge Police Post Subzi Mandi, Azadpur, Delhi and on that day the investigations of the present case was assigned to him. He has further deposed that he made efforts to search for the kidnapped child namely Krishna @ Golu as well for the search of accused persons. According to the witness, on the next day i.e. on 14.10.2012 he got send WT message to all SSPs and DCPs in India and all SHOs in Delhi vide Ex.PW18/A and uploaded the description of the kidnapped child on the net vide Ex.PW18/B. The witness has further St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 42 deposed that he checked the call details record of mobile number 9717804923 of complainant Ghanshyam and accused Pankaj Bhagat bearing No. 9971292098. He has testified that he constituted a raiding party comprising of ASI Jaivir Singh and Constable Bhagwan Singh and sent them to various places for the search of accused and kidnapped child including Bihar. He has further deposed that he examined the witnesses Ghanshyam, Reena, Santosh Kumar, Rajender Bhagat, Chinta Paswan and it was revealed that the kidnapped child Krishna @ Golu was last seen with the accused Pankaj Bhagat and Juvenile Ram Kumar. According to the witness, the child was recovered by the raiding team from Bihar who also arrested accused persons namely Pankaj Bhagat and Rajesh Rishi Dev and brought the child to Delhi along with the accused persons and another accused namely Ram Kumar who was Juvenile. He has also deposed that during the course of investigations he took the judicial custody remand of both the accused. He has proved having collected the birth certificate of Krishna @ Golu vide Ex.PW6/A mentioning his date of birth as 19.08.2010 and seized the same vide seizure memo Ex.PW7/B. (50) He has further deposed that he collected the call details record of the mobile phones including the customer application form and the call details record of mobile No. 9971292098 is Ex.PW18/C and call details record of mobile No. 9717804923 is Ex.PW18/D and the customer application form and the supporting documents in respect of the aforesaid St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 43 phones are collectively Ex.PW18/E. The witness has correctly identified the accused Rajesh Rishi Dev and accused Pankaj Bhagat. He has further deposed that after completion of the investigations he prepared the charge sheet and filed the same in the court for trial.
(51) In his crossexamination by Ld. Defence Counsel (Amicus Curiae), he has admitted that first time he saw the accused Rajesh Rishi Dev and accused Pankaj Bhagat at Delhi when they were brought by ASI Jaivir. He has further deposed that the recovery of the child was not effected in his presence nor the arrest of accused persons were conducted in his presence. He has further deposed that he could not say as to how the kidnapped child was recovered and accused persons were arrested at Bihar. He has further deposed that it was Kameshwar Bhagat, the grandfather of the kidnapped child who identified the accused Rajesh Rishi Dev. According to the witness, he personally did not take any steps to verify the identity of Rajesh Rishi Dev and has voluntarily explained that there was no dispute with regard to the identity and hence there was no question of taking any steps. He has further deposed that as per the verification conducted by ASI Jaivir, Rajesh Rishi Dev belongs to Budhma village but he did not carry out any separate verifications.
(52) He has further deposed that the family of the child had not expressed their suspicion on accused Rajesh Rishi Dev and had only expressed their suspicion on accused Pankaj Bhagat. He has further deposed that he did not get any TIP conducted of accused Rajesh Rishi Dev and has St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 44 voluntarily explained that it was not required as the child was recovered in the presence of the grandfather of the child and the other family member of the child. He has admitted that the arrest and apprehension of accused Pankaj Bhagat was not made in his presence. According to the witness, he had sent the WT message to SSP concerned in respect of the accused Pankaj Bhagat as suspicion had been expressed upon him by the family of the child. He has also deposed that between 13.10.2012 and 22.10.2012 they were trying to locate accused Pankaj Bhagat at various places and has has voluntarily explained that at one point of time the location of mobile phone had also come of Punjab. He has further deposed that a raiding team had also been sent to Punjab but they could not locate Pankaj Bhagat and similarly the location was also shown at Bihar and hence immediately he send the team to Bihar.
(53) He has denied the suggestion that he did not make any inquiries between 13.10.2012 till 22.10.2012 and has further denied the suggestion that they did not make any efforts and were led in the investigations by the grandfather of the child Kameshwar Bhagat. He has further denied the suggestion that he had falsely implicated the accused persons at the behest of the family of the kidnapped child. He has further denied the suggestion that he had prepared the charge sheet in a routine and mechanical manner without any application of mind. He has further denied the suggestion that he had not investigated the present case fairly and properly or that he was deposing falsely.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 45 STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(54) After completion of prosecution evidence the statements of both the accused recorded under Section 313 Cr.P.C. wherein all the incriminating material was put to them which they have denied. The accused Rajesh Rishi Dev has stated that he is innocent and has been falsely implicated. According to the accused, he belongs to village Tiri, PS Vidyanathpur, Distt. Saharsa, Bihar and on the date of his arrest he was going to his inlaws house at Budhma. The accused has further stated that some police persons gathered near the house of his inlaws and they asked him whether he knew Lakhiya Devi on which he identified the house of Lakhiya Devi. He has also stated that thereafter the police asked him to accompany them to the Police Station for some formalities and later on they arrested him and implicated him in this case. According to the accused, he is not known to any Pankaj or Ram Kumar.
(55) The accused Pankaj Bhagat has stated that he is innocent and has been falsely implicated. According to the accused, he belongs to VPO Uteshra, PS Salkhua Bazar, Distt. Saharsa, Bihar and on the date of his arrest he was going to visit his inlaws house at Budhma. The accused has further stated that some police persons gathered near the house of his in laws and they asked him whether he knew Lakhiya Devi on which he identified the house of Lakhiya Devi. He has also stated that thereafter the police asked him to accompany them to the Police Station for some formalities and later on they arrested him and implicated him in this case. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 46
According to the accused, he is not known to any Pankaj or Ram Kumar. (56) The accused Rajesh Rishi Dev has examined two witnesses in his defence. DW1 Rajender Sadha has deposed that the accused Rajesh Rishi Dev belongs to his village Baijnathpur and known to him as such. According to the witness, Rajesh Rishi Dev resides in the village and used to work there as a labour. He has further deposed that he is aware that the in laws of Rajesh belongs to village Budhma, PS Bhahrai, Distt. Madhepura and Rajesh used to visit his inlaws house.
(57) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he has no information regarding the kidnapping incident. He is unable to tell any specific date on which accused Rajesh Rishi Dev had visited the house of his inlaws.
(58) DW2 Ram Prashad Rishi Dev is the father in law of the accused Rajesh who has deposed that his daughter Banti Devi is married to accused Rajesh Rishi Dev who belongs to village Baijnathpur. According to the witness, the accused Rajesh used to work as labour in his village and used to visit their house occasionally. The witness has also deposed that the accused Rajesh Rishi Dev was arrested in the present case when he had come to his (witness's) village but he (witness) was not at his house being away to Punjab.
(59) In his crossexamination the witness has deposed that he has no information regarding the kidnapping incident nor is he able to give any specific date on which Rajesh Rishi Dev had visited his village. He has St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 47 admitted that he was not present in his village on the day when Rajesh was arrested. According to the witness, the accused Rajesh was not arrested in his presence and he came to know about the same later on from the villagers. He has testified that he had never gone to any police station nor he made any complaint to any authority regarding lifting of Rajesh Rishi Dev by the police. He has denied the suggestion that he is deposing falsely only to save the accused Rajesh from penal consequences being his son in law.
FINDINGS:
(60) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the memorandum of arguments filed on behalf of the parties and the evidence on record. My findings are as under:
Identity of the accused:
(61) In so far as the accused Pankaj Bhagat is concerned, his identity is not disputed. He is related to the victim being the maternal uncle/ Mama of the mother of the child and was on good visiting terms with his family and is also named in the FIR. The accused Rajesh Rishi Dev is stated to be the friend of accused Pankaj Bhagat and from his house the child was allegedly recovered. The accused Rajesh Rishi Dev was unknown to the victims previously but he has been identified in the Court by Prayag Bhagat St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 48 and Kameshwar Bhagat as the person from whose house the kidnapped child was recovered. In view of the above I hereby hold that the identity of both the accused Rajesh Rishi Dev and Pankaj Bhagat stands established.
Kidnapping of the child and ransom calls:
(62) The case of the prosecution is that the infant son of Ghanshyam Bhagat had been kidnapped and he had suspicion on his distant relative Pankaj Bhagat. On the date of incident i.e. 13.10.2012 the child was last seen with accused Pankaj Bhagat and his brother in law Ram Kumar by the persons living in the locality. Sh. Rakesh Saxena (PW6) Sub Registrar (Birth & Death Department) has proved the Birth Certificate of the victim child which is Ex.PW6/A according to which the date of birth of the child is 19.8.2010 thereby establishing that on the date of incident i.e. 13.10.2012 the child was aged Two years, one month and twenty four days. The first information given to the police vide DD No. 31 PP dated 13.10.2012 which is Ex.PW4/A proves that at 9:40 PM an information had been received from Police Control Room through telephone No. 9990910353 wherein the accused Pankaj has been specifically named as the person who had taken two boys away.
(63) Santosh Kumar (PW10) the nephew/ Bhanja of Ghanshyam Bhagat in relationship who is also an eye witness and had seen the accused Pankaj Bhagat standing near the house of Ghanshyam Bhagat in the evening while he was returning home and later on he came to know about the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 49 incident he informed about the presence of Pankaj Bhagat. He has proved that Ghanshyam Bhagat was trying to contact at 100 number but he could not make the call on which Ghanshyam Bhagat made a call from the mobile phone of Santosh Kumar i.e. mobile phone bearing No. 9990910353. (64) Pursuant to the said information the statement of the complainant was recorded vide Ex.PW7/A on the same day and an FIR Ex.PW2/A was registered wherein the complainant Ghanshyam Bhagat had specifically mentioned that the child had been last seen with the accused Pankaj Bhagat and a resident of the same area i.e. Rajender Bhagat had informed him about the same after which he had been making the repeated calls to his mobile No. 9971292098 but without speaking Pankaj disconnected the calls and switched off the phone. The complainant Ghanshyam Bhagat had also mentioned in his complaint that Pankaj was standing near his house for a very long time and his child was last seen with him. After the investigations of the case commenced, a demand was made by the accused Pankaj Bhagat from the father of the child. Initially the accused demanded Rs. Two Lacs, then Rs. Ten Lacs and then Rs. One Crore for the release of his son. This aspect is borne out and proved by Ghanshyam Bhagat the father of the child and finds confirmation from the electronic record.
(65) Therefore, I hold that the prosecution has been able to prove the kidnapping of the child Krishan @ Golu i.e. taking away of the child by Pankaj Bhagat without the knowledge or consent of his parents/ natural St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 50 guardian. However, in so far as the aspect of ransom demand is concerned, no doubt the complainant who is the father of the child states that the accused Pankaj Bhagat had made a demand initially of Rs. Two Lacs which he raised to Rs. Ten lacs and then Rs. One Crore but I may observe that nowhere any of the witnesses of the prosecution including the complainant i.e. the father of the child Ghanshyam Bhagat has alleged that the accused Pankaj Bhagat had ever threatened to cause death or hurt to the child Krishan @ Golu or by his conduct gave rise to reasonable apprehension that the child may be put to death or hurt.
(66) This being the background, I hereby hold that in so far as the aspect of kidnapping of the child is concerned (Section 363 r/w 365 IPC) the same stands proved but not the aspect of ransom as contemplated under Section 364A Indian Penal Code.
Electronic Evidence:
(67) Sh. R.K Singh (PW5) Nodal Officer from Bharti Airtel Ltd.
has proved that the mobile no. 9717804923 has been issued to Ghanshyam Bhagat vide Customer Application Form which is Ex.PW5/A on the basis of the ID Proof i.e copy of PAN card and copy of water bill which are Ex.PW5/B1 and Ex.PW5/B2. He has proved the call detail record of above phone no. 9717804923 for the period of 13.10.2012 to 22.10.2012 which is Ex.PW5/C. The witness R.K. Singh (PW5) has further proved that the mobile no. 9971292098 has been issued in the name of Chinta Paswan St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 51 S/o Rattan Paswan vide customer application form which is Ex.PW5/D, copy of ID proof is Ex.PW5/E, call details record from 13.10.2012 to 22.10.2012 which collectively Ex.PW5/F and the Cell ID chart which is Ex.PW5/G. Here, I may observe that Chinta Paswan in whose name the mobile no. 9971292098 has been allotted, has been examined as PW9. He has proved that he knew the accused Pankaj Bhagat who used to sell tomatoes at Azadpur Mandi near his shop and he had given his ID Proof i.e. election ID Card to Pankaj Bhagat for obtaining the SIM for his mobile phone. He has further proved that the SIM No. 9971292098 was being used by the accused Pankaj Bhagat.
(68) Further, it has been proved by the public witnesses i.e. Kameshwar Bhagat (PW13) and Prayag Bhagat and also by the various police witnesses i.e. ASI Jaiveer Singh (PW15) & Ct. Bhagwan Singh (PW17) at the time of his apprehension the accused Rajesh Rishi Dev was carrying a mobile phone make Micromax (with two SIMs of Airtel) bearing IMEI No. 911232960619164 and IMEI No. 911232960619162 which mobile phone is Ex.P1 and the SIM cards are Ex.P2 and Ex.P3. (69) I have gone through the Call Detail Records of the above said mobile numbers. A careful analysis of the same confirms and corroborates the case of the prosecution and the testimony of the complainant Ghanshyam Bhagat. For the sake of convenience, the relevant entries of the Call Detail Records of the mobile no. 9971292098 being used by the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 52 accused Pankaj Bhagat along with the location details establishing his location at various points of time and lending credence to the prosecution version, are enumerated in a tabulated form as under:
Sr. Calling No. Called No. Date Time Duration Location No. 1 9718478700 9971292098 13.10.12 03:18 41 Sec Village (Pankaj PM Bharola, Bhagat) Azadpur, Delhi.
2 9971292098 9540235358 13.10.12 05:26 141 Sec Village
(Pankaj PM Bharola,
Bhagat) Azadpur,
Delhi.
3 9971292098 9582746006 13.10.12 05:36 18 Sec Village
(Pankaj PM Bharola,
Bhagat) Azadpur,
Delhi.
4 9891056586 9971292098 13.10.12 06:10 15 Sec Civil Lines,
(Pankaj PM New Delhi
Bhagat)
5 9999848979 9971292098 13.10.12 06:22 15 Sec Shahdara,
(Pankaj PM Delhi
Bhagat)
6 9717804923 9971292098 13.10.12 06:26 31 Sec Swathhya
(Ghanshyam (Pankaj PM Vihar,
Bhagat) Bhagat) Shahadra
Delhi.
7 8376050211 9971292098 13.10.12 07:54 51 Sec Ghaziabad,
(Pankaj PM UP
Bhagat)
8 9717804923 9971292098 13.10.12 07:57 67 Sec UP West
(Ghanshyam (Pankaj PM Circle
Bhagat) Bhagat)
9 8877940373 9971292098 14.10.12 08:48 163 Sec Punjab
(Pankaj AM
Bhagat)
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 53
10 9871047033 9971292098 16.10.12 03:38 36 Sec VPO
(Pankaj PM Meghuna,
Bhagat) Distt.
Khagaria,
Bihar
11 887643385 9971292098 17.10.12 5:40 142 sec Village
(Pankaj PM Paharpur,
Bhagat) Distt. Saharsa,
Bihar
12 9717804923 9971292098 18.10.12 09:43 43 Sec VPO Kabira,
(Ghanshyam (Pankaj AM Distt.
Bhagat) Bhagat) Saharsa,
Bihar
13 9717804923 9971292098 18.10.12 02:19 428 Sec VPO
(Ghanshyam (Pankaj PM Belwara,
Bhagat) Bhagat) Distt.
Saharsa,
Bihar
14 9582148304 9971292098 19.10.12 8:55 33 VPO Meguna,
(Pankaj AM Distt.
Bhagat) Khagaria,
Bihar
15 9953620635 9971292098 20.10.12 3:02 43 Village
(Pankaj PM Gandhi Nagar,
Bhagat) Madheypura,
Bihar (area
where the
child was kept
with Rajesh
Rishi Dev)
16 9977643385 9971292098 21.10.12 07:00 14 Sec Village
(Pankaj AM Bhodal,
Bhagat) Madheypura,
Bihar (area
where the
child was kept
with Rajesh
Rishi Dev)
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 54
(70) The aforesaid call details record of the mobile phone No.
9971292098 which was being used by the accused Pankaj Bhagat, conclusively establishes that calls were made by the complainant Ghanshyam Bhagat to the accused Pankaj Bhagat and the location of the accused Pankaj Bhagat at the time of his arrest. From the analysis of the above call detail records, the following facts stand emerge:
➢ That on the date of incident i.e. on 13.10.2012 till 5:36 PM the accused Pankaj Bhagat was in the area of village Bharola, Azadpur, Delhi (area where the house of the complainant is situated) thereby lending credence and support to the testimony of Santosh Kumar (PW10) that he had seen the accused Pankaj Bhagat standing in the gali near the house of Ghanshyam Bhagat. ➢ That on the date of incident i.e. on 13.10.2012 at 6:10 PM the accused Pankaj Bhagat was in the area of Civil Lines, Delhi and at 6:22 PM he was in the area of Shahdara, Delhi thereby proving the route taken by the accused Pankaj Bhagat after kidnapping the child. ➢ That on the same day i.e. on 13.10.2012 at 6:26 PM the complainant Ghanshyam Bhagat made a call to the accused Pankaj Bhagat while he (accused) was in the area of Swasthya Vihar, Shahdara, Delhi which call lasted only for 31 seconds thereby corroborating the testimony of Ghanshyam Bhagat that he was repeatedly trying to make calls to Pankaj Bhagat who disconnected his calls. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 55 ➢ That on the same day i.e. 13.10.2012 at 7:54PM the accused Pankaj Bhagat was in the area of Ghaziabad, U.P. and at 7:57 PM while the accused Pankaj Bhagat was in the area of U.P. West Circle, the complainant Ghanshyam Bhagat made a call to the accused Pankaj Bhagat which call lasted for 67 seconds.
➢ That on 14.10.2012 at 8:48 AM the accused Pankaj Bhagat was in Punjab showing that after kidnapping the child the accused first went to Punjab.
➢ That on 16.10.2012 at 3:38 PM the location of the accused Pankaj Bhagat was of VPO Meghuna, District Khagaria, Bihar. ➢ That on 17.10.2012 at 5:40 PM the location of the accused Pankaj Bhagat was of VPO Paharpur, District Saharsa, Bihar. ➢ That on 18.10.2012 at 9:43 AM while the accused Pankaj Bhagat was present in the area of VPO Kabira, District Saharsa, Bihar the complainant Ghanshyam Bhagat made a call to the accused which call lasted for 43 Seconds.
➢ That on 18.10.2012 at 2:19 PM while the accused Pankaj Bhagat was present in the area of VPO Belwara, District Saharsa, Bihar the complainant Ghanshyam Bhagat made a call to the accused which call lasted for 428 Seconds.
➢ That on 19.10.2012 at 8:55 AM the location of the accused Pankaj Bhagat was of VPO Meghuna, District Khagaria, Bihar. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 56 ➢ That on 20.10.2012 at 3:02 PM the location of the accused Pankaj Bhagat was of Village Gandhi Nagar, District Madheypura, Bihar where the house of Rajesh Rishi Dev is situated and where the accused Pankaj Bhagat had left the child on 20.12.2012. ➢ That on 21.10.2012 at 7:00 AM the location of the accused Pankaj Bhagat was of Village Bhodal, District Madheypura, Bihar i.e. the same area from where the child was recovered from the shed/ house of accused Rajesh Rishi Dev and from where both the accused Rajesh Rishi Dev and Pankaj Bhagat were arrested.
(71) Further, the analysis of above Call Details Record of mobile No. 9971292098 and also the Call Details Record of mobile no. 9717804923 belonging to the complainant Ghanshyam Bhagat, show that Ghanshyam Bhagat was continuously in touch with certain number which also find reflected in the Call Details Record of the accused confirms that he was talking to his relatives and from these numbers calls were also made to the number of accused Pankaj Bhagat.
(72) A dispute has been raised by the Ld. Defence Counsels on the aspect of user of mobile phone by the accused Pankaj Bhagat. It is submitted that the mobile phone bearing No. 9971292098 does not belong to him and has been planted upon him only to work out the present case. I have considered the rival contentions and I may observe that when the aforesaid electronic evidence was put to the accused Pankaj Bhagat under Section 313 Cr.P.C. he has simply denied the same. In case if the mobile St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 57 phone was not recovered from the possession of the accused Pankaj Bhagat as proved by the prosecution then it became all the more necessary for him to explain how he came into his possession. Further the analysis of the location chart of the mobile phone recovered from the possession of the accused Pankaj establishes his location at the place of incident during the time of incident of kidnapping of the child and also at District Madheypura, Bihar two days before his arrest and at the time of his arrest. (73) The case of the prosecution is that the accused Pankaj Bhagat along with his brother in law Ram Kumar (juvenile) had taken the kidnapped child to village Budhma, District Madheypura, Bihar and left the child at the house of his friend Rajesh Rishi Dev on 20.10.2012. Here, I may observe that after the accused Rajesh Rishi Dev was apprehended on 22.10.2012 he made a disclosure statement (Ex.PW15/A) to the effect that two days prior to his arrest the accused Pankaj Bhagat who is his distant relative, had brought a kidnapped child to him and offered him Rs.10,000/ for keeping the child with him.
(74) However, before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 58 discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(75) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(76) It further provides five illustrations as to what would constitute a fact which are as under:
i. That there are certain objects arranged in a certain order in a certain place, is a fact ii. That a man heard or saw something, is a fact. iii. That a man said certain words, is a fact.
iv. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
v. That a man has a certain reputation, is a fact. (77) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 59 accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (78) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "...... Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 60 thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.
27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 61 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(79) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 62 of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence....."
(80) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 63 applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence....."
(81) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 64 place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(82) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 65 admissible.
(83) Applying the settled principles of law to the facts of the present case, it is evident that the fact that the accused Pankaj Bhagat had brought the kidnapped child in village Budhma, District Madheypura, Bihar at the house of Rajesh Rishi Dev on 20.10.2012, was not within the knowledge of the Investigating Agency. It was only after the coaccused Rajesh Rishi Dev made the disclosure statement that the police came to know about the said fact which find due corroboration and confirmation from the Call Details Record Ex.PW5/F showing his location in District Madheypura, Bihar on 20.10.2012. I, therefore, hold that in terms of the ratio laid down in the case of Shaukat Hussain Guru Vs. NCT of Delhi (Supra) this portion of the disclosure statement of accused Rajesh Rishi Dev is admissible in evidence.
(84) The electronic evidence on record establishes the calls made by Ghanshayam Bhagat to the accused Pankaj Bhagat on various dates when the ransom was demanded by the accused Pankaj Bhagat. Further, it stands established that the location of the accused Pankaj Bhagat is shown in the area where the incident took place and then in District Madheypura, Bihar from where the kidnapped child was ultimately recovered. The defence has not been able to successfully demolish the case put forth by the prosecution as aforesaid. In view of the above I hereby hold that the electronic evidence is compatible to the prosecution case and independently corroborates the testimonies of the various prosecution witnesses.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 66 Allegations against the accused Pankaj Bhagat and Rajesh Rishi Dev:
(85) The main kingpin behind the kidnapping of the child Krishan @ Golu is the accused Pankaj Bhagat who is distantly related to Ghanshyam Bhagat and was on visiting terms with him. At the time of the incident the child Krishan @ Golu was about two - two and a half years old and was kidnapped by accused when the child was coming out of the house to purchase the biscuits. According to the complainant Ghanshyam Bhagat, when he returned from his work in the evening at about 5:00 PM he met his child Krishan @ Golu to whom he had given some money for purchasing biscuits from a nearby shop but thereafter the child did not return and could not be found despite efforts. On local inquiry Ghanshyam Bhagat was informed by the neighbours that they had seen the accused Pankaj Bhagat near his house throughout the day and the child was last seen with the accused Pankaj Bhagat and his brother in law Ram Kumar (juvenile) at about 7:007:30 PM after which the child was went missing. Ghanshyam Bhagat made repeated calls to Pankaj Bhagat but initially the calls were not attended to by the accused Pankaj (a fact which find reflected from the Call Detail Records of the accused Pankaj) and he (Pankaj) disconnected the calls. It is further the case of the prosecution that after about two days the complainant managed to speak to Pankaj Bhagat and it was then that Pankaj told him that the child was with him and initially demanded Rs. One lac, then Rs. Ten lacs and then Rs. One crore for release of the child Krishan @ Golu which was objected to by Ghanshyam Bhagat. Thereafter the police St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 67 was informed about the said calls and the details there of. Information was also given by the complainant to his father in law who was known to the accused Pankaj Bhagat. Bihar police was also taken into confidence and it was revealed that Pankaj Bhagat had gone to village Madhyepura. The father in law of Ghanshyam Bhagat namely Kameshwar Bhagat and he along with his Samdhi Prayag Bhagat went to District Madheypura along with the police officials of Delhi Police and Bihar Police went to village Budhma District Madheypura where about oneone and a half kilometer before the Railway Station, they met the accused Rajesh Rishi Dev as they had information that Pankaj Bhagat was residing at the house of Rajesh Rishi Dev and thereafter they reached to the house of accused Rajesh Rishi Dev where they found Ram Kumar (juvenile) sitting inside with the child in his lap on which the child was recovered.
(86) Coming first to the testimony of Ghanshyam Bhagat (PW7) the relevant portion of the same is as under:
"....... I have been residing alognwith my wife Smt. Reena Devi and my two sons Sumit Kumar aged about 12 years and my another son namely Krishna @ Golu aged about 3 ½ years old since four - five years. My brother Kapish Bhagat also residing with me. I am doing the business of vegetable supply from my shop at Azadpur Subzi Mandi. My distant relative Pankaj also residing in the H.No. 95 near our house and he used to visit my house regularly On 13.10.2012 I went for my work at about 12.00Noon and at ab out 5.00 I came to my house. I came to know from my family members that Pankaj came St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 68 to my house at about 4.00PM and left the house after remaining some time in the house. When I reached at the house, Pankaj had already left the house. After 1015 minutes I gave a currency note of Rs.10/ to my son Krishan @ Goli aged about 3 years at that time, for some biscuits and he went to the nearby house. He did not return back for about 30 minutes and I thought that he was playing with other children. I went to the nearby shop and searched for my son Krishna @ Golu but he was not found there. My other family members and relatives searched for my son Krishna in the area but he was not found. One shopkeeper namely Rajender Bhagat told me that he had seen my son Krishna with Pankaj while crossing the GTK Road and he did not suspect Pankaj being my relative. I immediately made call on the mobile phone of Pankaj by mobile phone bearing no. 9717804923 but Pankaj disconnected the same and did not respond. I made call him for four - five time but he did not respond and thereafter he switched off his mobile phone. Then I suspected that Pankaj had took away my son Krishna. At about 9.00PM I made a call to the police at 100 number and police officials reached at my house. After about 30 minutes SI Shailender, Chowki Incharge, came to my house. He recorded my statement vide Ex.PW7/A bearing my signatures at point A and he conducted his proceedings. I told the mobile number of Pankaj to the police. SI Shailender also searched for my son Krishna in the whole area and in the houses of my relatives but my son Krishna @ Golu was not found.
I continuously tried to make contact with Pankaj about my son by making call on his mobile phone but he was not responding. After three days I again made St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 69 call to him and he picked the phone and he told me that my son Krishna was with him and to make arrangement for money. I also heard the voice of my son. Thereafter he disconnected the mobile phone. I again tried to make contact with him but he did not respond. After one or two days accused Pankaj made a call to me and Pankaj allowed to talk with my son Krishna. On the next day at about 56PM I made call to Pankaj and he picked the same and he demanded Rs. Two lacs then Rs. Ten lacs and then Rs. One crore for release of my son Krishna. I told him that I am unable to arrange Rs. One Crore even my selling my whole property and my whole body. Thereafter I informed above said demand of Pankaj to SI Shailender. Thereafter at the instance of SI Shailender I used to make contact with Pankaj but Pankaj did not respond on his mobile and he made calls to me from different numbers and demanded Rs. One crore for release of my son. I handed over the copy of birth certificate of my son Kishan Kumar @ Krishna @ Golu to the police which is Ex.PW6/A and police received the same and seized the same vide memo Ex.PW7/B bearing my signatures at point A. After 1415 days my son was recovered from Distt. Madhepura, Bihar by the police in the presence of my father Kameshwar Bhagat and my father in law Sh.
Prayag Bhagat. They informed me that my son was recovered from the house of Rajesh Rishi. My son was handed over to me by the police. Accused Pankaj is present in the court today. Witness correctly identifies the accused Pankaj in the court....."
(87) In his crossexamination the witness has admitted that the accused Pankaj Bhagat is his distant maternal uncle in relationship and used St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 70 to regularly visit their house. He has further admitted that he had a good business of supply of vegetables at various hotels and accused Pankaj Bhagat was into the sale of tomatoes and that he also used to purchase tomatoes for business purpose as Pankaj Bhagat was also doing the business of tomatoes. He has admitted having purchased tomatoes from the accused Pankaj Bhagat for about fivesix months and has stated that he used to purchase the tomatoes worth Rs.2530 thousand and paid the money according to the purchases and sometimes are fivesix days. According to him, the distance between the shop of Rajender Bhagat and the GTK road is about 200 meters and there are two turns for going to GTK Road from his shop. He has explained that Rajender Bhagat is into the business of selling onions and has denied that Rajender Bhagat had never informed him about the incident.
(88) The testimony of Ghanshyam Bhagat finds due corroboration from the testimony of Rajender Bhagat (PW11) who is nowhere related to him but known to him. He has confirmed that he had told Ghanshyam Bhagat that he had seen the child with accused Pankaj Bhagat and Ram Kumar (juvenile) while they were coming from the side of Azadpur mandi and were stepping down from the stairs towards the underground crossing while they were going towards Azad Nagar after crossing the road through the underpass. The relevant portion of his testimony is as under:
"....... I am an original resident of village Agarpur, Disst. Bhagalpur, Bihar. I used to sell onions in Azadpur Subzi Mandi in ABlock, near park. I know Ghanshyam St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 71 Bhagat being a resident of the same locality and is an original resident of Bihar. I also know Pankaj Bhagat who used to sell Tomatoes in front of my shop. Accused Pankaj Bhagat and Ghanshyam are relatives and both are visiting terms with each other. I also know Ram Kumar the brother in law of accused Pankaj who also used to visit the shop of Pankaj and used to come in our locality.
On 13.10.2012 at about 7:30 PM I was coming to my shop from Adarsh Nagar after recharging my mobile phone. I saw Pankaj and Ram Kumar while they were coming from the side of the Azadpur Mandi and they were stepping down from the stairs toward the underground crossing and they were going towards the Adarsh Nagar after crossing the road through the underpass. Three years child Golu S/o Ghanshyam was in the lap of accused Pankaj Bhagat at that time. I did not suspect accused Pankaj as he was visiting terms with Ghanshyam and was his relative. I reached at my shop and after some time I heard some noise that Golu was missing. Then I told Ghanshyam that I had seen Golu with accused Pankaj. Accused Pankaj Bhagat is present in the court today and witness correctly identifies accused Pankaj....."
(89) He has been crossexamined at length. He has explained that his village Bhadola is at a walking distance of five minutes from Azadpur Mandi. He has denied the suggestion that he did not see the child with accused Pankaj Bhagat and Ram Kumar (juvenile).
(90) The testimony of Rajender Kumar finds due corroboration from the testimony of Santosh Kumar (PW10) a resident of the same area St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 72 and is the nephew/ Bhanja of Ghanshyam Bhagat. According to Santosh Kumar at about 6:30 PM he was going to the house of Ghanshyam Bhagat when he saw the accused Pankaj standing in the gali near the house of Ghanshyam Bhagat. Here, I may observe that being known to each other and reside in the same area it is but natural that Rajender Bhagat and Santosh Kumar would be in a position to identity the accused Pankaj Bhagat. In this testimony Santosh Kumar (PW10) has proved that at about 9:009:30 PM he again went to the house of the complainant when he came to know that his son Krishan @ Golu was missing and he was trying to make contact at 100 number but could not make the call on which he (complainant) took his mobile phone bearing No. 9990910353 and made a call at 100 number (a fact which finds established from DD No.31 PP which is Ex.PW4/A). In his crossexamination Santosh has stated that he had not heard about any dispute between Ghanshyam Bhagat and Pankaj Bhagat. (91) The wife of the complainant Ghanshyam Bhagat namely Reena Devi (PW8) has also confirmed the testimony of the complainant to the extent that on the date on incident i.e. 13.10.2012 at about 4:00 PM the accused Pankaj had come to their house to visit them in a routine way and also played with Krishan @ Golu and after about 1015 minutes he went away. She has further corroborated the testimony of Ghanshyam Bhagat to the extent that while she was preparing tea for her husband, he gave Rs.10/ to her son who went away to the nearby shop but did not return after which they searched for the child who was then found after about ten days from St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 73 Budhma, Madheypura, Bihar.
(92) Coming next to the testimony of the most material witnesses i.e. the father of complainant Ghanshyam Bhagat namely Kameshwar Bhagat (PW12) and Prayag Bhagat (PW13) who are the actual persons who had gathered information regarding the movement of accused Pankaj Bhagat and hared the information with Delhi Police as well as Bihar Police and went to the house of Rajesh Rishi Dev from where the kidnapped child was recovered. The relevant portion of the testimony of Kameshwar Bhagat (PW12) is reproduced as under:
"....... Ghanshyam is my son. He have been residing at H.No. 88, Village Bhadola, Azadpur, Delhi alongwith his wife and two sons, Sumit aged about 810 years and second son Golu @ Kishan aged about three years. I also used to visit his house occasionally. I also knew Pankaj Bhagat who is in relationship as maternal uncle of my daughter in law Reena Devi and he belonging to our area. Pankaj Bhagat also used to sell tomato in Azadpur Mandi.
On 13.10.2012 at about 10.00PM I was informed by my son Ghanshyam about kidnapping of Golu @ Kishan by mobile phone at my resident at village Vankatti. After two - three days I came to know that Pankaj took away Golu @ Kishan and I alongwith my relatives also searched Pankaj and Golu @ Kishan in our area.
On 22.10.2012 two police officials of Delhi Police came at our village during the investigation of this case and contacted me. I had information that accused Pankaj was going to Village Budhma, Distt. Madhepura. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 74 I alongwith the above said two police officials and my relative Prayag Bhagat also went towards Budhma, Distt Madhepura, Bihar. One or one and a half kilometer before Budhma Railway Station, Rajesh Rishi Dev met us and we asked about his residence as we had secret information as Pankaj Bhagat was residing at his residence. Thereafter we reached at the house of Rajesh Rishi Dev at Budhma where one boy namely Ram Kumar met us and Golu @ Kishan was in his lap at that time. I identified Golu @ Kishan and police took possession of Golu @ Kishan. Rajesh Rishi Dev and Ram Kumar were taken into custody by police and thereafter we reached at the Bhara Police Chowki and Bihar Police was informed about all the proceedings.
Written work was also done by the police. Golu @ Kishan was recovered vide memo Ex.PW12/A bearing my signatures at point A. Rajesh Rishi Dev was arrested vide Ex.PW12/B bearing my signatures at point A. His personal search was taken vide Ex.PW12/C bearing my signatures at point A. Secret information was received that Pankaj was present at the house of Rajesh Rishi Dev. Thereafter we again reached at the house of Rajesh Rishi Dev alongwith Bihar Police at about 8.30PM and accused Pankaj was found there and he was identified by me. Police arrested accused Pankaj Bhagat vide Ex.PW12/D bearing my signatures at point A. His personal search was taken vide Ex.PW12/E bearing my signatures at point A. All three persons Pankaj Bhagat, Rajesh Rishi Dev and Ram Kumar were produced before the court at Madhepura, Delhi. Thereafter I alongwith the police and accused persons and Golu @ Kishan reached at Delhi and after conducting the proceedings Golu @ Kishan was handed over to his parents. Both St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 75 accused Pankaj Bhagat and Rajesh Rishi Dev are present in the court today and witness correctly identifies both the accused persons. I can also identify the accused Ram Kumar if shown to me. Court observation: Ram Kumar is a juvenile and facing trial before the JJB.
At this stage Ld. Addl. PP seeks permission to put leading question to the witness about the manner of the incident and the recovery from the accused Pankaj.
Heard. Permission is granted.
It is correct that when we reached at Village Golma and thereafter Village Budhma where we came to know about Ganesh Bhagat and we came to know from a secret information that the kidnapped child/boy was kept at the house of Rajesh Rishi Dev. It is correct that after getting the information we reached at Bharrai Police Chowki where Chowki Incharge and Si Anuj Kumar Singh met us and thereafter Rajesh Rishi Dev first taken into custody at near Railway Station Budhma. It is correct that document Ex.PW12/F was prepared by Delhi Police in my presence and the same bears my signatures at point A. it is correct that one mobile phone of micromax with two SIMs of Airtel was recovered in the personal search of the accused Pankaj Bhagat. The same was seized by police vide seizure memo Ex.PW12/F....."
(93) He has been crossexamined at length wherein he has admitted that at the time of raid the accused Rajesh Rishi Dev was not at home and has explained that Rajesh Rishi Dev had infact been already apprehended by the police before they could reach the house. He has further admitted that Rajesh Rishi Dev was not known to them previously and it was some public person who had first identified him whose details he is unable to tell. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 76 He has explained that there were some ladies who had pointed out towards the accused Rajesh Rishi Dev. He has denied the suggestion that the accused Rajesh Rishi Dev had been lifted by the police and illegally detained and got involved in the present case.
(94) Coming next to the testimony of Prayag Bhagat (PW13), he is the Samdhi of Kameshwar Bhagat and has proved the recovery proceedings of the child. The relevant portion of his testimony is as under:
"........ Kameshwar Bhagat is my Samdhi in relationship.
Ghanshyam is the son of Kameshwar. Ghanshyam is residing at the village Bhadola, Delhi. I came to know that son of Ghanshyam was kidnapped from Delhi and we also search the kidnapped boy Golu in the area.
On 22.10.2012 I join the investigations with Delhi police and Kameshwar Parshad was with us and we received the information that the kidnapped boy was kept in village Bhudhma. We reached at the police chowki Bharari, PS Madhipura and thereafter chowki incharge also came with us. Rajesh Rishi Dev was apprehended by the police 1 ½ Km before the Budhma railway station. Thereafter we reached at the house of Rajesh Rishi Dev where Golu was found in the lap of Ram Kumar. Police took the possession of Golu vide already EX PW 12/A bearing my signatures at point B. Police arrested accused Rajesh Rishi Dev vide already EX PW 12/B bearing my signatures at point B and took his personal search vide already EX PW 12/C bearing my signatures at point B. Ram Kumar was also taken into custody by the police. Thereafter we all returned back to the police chowki Bharari where police prepared the documents and conducted their written work. At about 8 PM, the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 77 secret information was received at the police chowki that accused Pankaj was present at the house of Rajesh Rishi Dev. We all went to the house of Rajesh Rishi Dev where Pankaj was present and identified by me and Kameshwar and he also arrested by the police vide already EX PW 12/D bearing my signatures at point B. His personal search was also taken vide already EX PW 12/E bearing my signatures at point B. Both accused Pankaj Bhagat and Rajesh Rishi Dev are present in the court today and witness correctly identifies both the accused persons. I can identify the accused Ram Kumar if shown to me (Ram Kumar is facing trial before the JJB).
At this stage Ld. Addl. PP seeks permission to put leading question to the witness about the recovery of the mobile phone from the accused Pankaj.
Heard. Permission is granted.
It is correct that recovery memo already EX PW 12/F bearing my signatures at point B. It is correct that one mobile phone of MICROMAX with double SIM recovered from the possession of the accused Pankaj and same was seized by the police....."
(95) He has also been crossexamined at length wherein he has proved that it was on 22.10.2012 that an unknown person told him about the kidnapped child which information he had given to the Delhi Police officials. He has confirmed that he reached Police Chowki Bahari at about 3:30 PM where he met two Delhi Police officials and and four Bihar police officials along with Kameshwar Bhagat. He has further stated that he had signed twothree documents while sitting in the Police Station. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 78 (96) It is writ large that the documents regarding apprehension and arrest of the accused were prepared at Police Chowki and signed by Kameshwar Bhagat and Prayag Bhagat. The testimonies of both these public witnesses on the aspect of apprehension and arrest of the accused find due corroboration and confirmation from the testimony of ASI Jaiveer Singh (PW15) & Ct. Bhagwan Singh (PW17) and Anuj Kumar Singh (PW16) of Bihar Police. This witness Anuj Kumar Singh (PW16) of Bihar Police has corroborated the testimony of these public witnesses (Kameshwar Bhagat and Prayag Bhagat) and Delhi Police officials (ASI Jaiveer Singh and Ct. Bhagwan Singh) on the aspect of constitution of Police Team for purposes of recovery of the child and also confirmed that they were assisted by Kameshwar Bhagat and Prayag Bhagat. He has further proved that the Local Chowkidar of the area was also joined to identify Rajesh Rishi Dev who had informed them about the distinctive mark on the eye of Rajesh Rishi Dev. He has explained that they had a secret information that Rajesh had hidden the child somewhere in the fields and there was a talk in the village regarding the same and it was the Chowkidar who pointed out towards the accused Rajesh who was coming on foot from the railway line side and he could be identified with the distinctive mark on his eye. He has then confirmed that it was the accused Rajesh Rishi Dev who led them to the tin shed situated near the railway line. According to this witness, thereafter the child was recovered who was sitting with Ram Kumar (juvenile). He has further stated that local persons had gathered there at that St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 79 time and informed them that as soon as they had come from the railway line side, one person who was of fair colour with a problem in his one eye/ Glaucoma had run away towards fields. He has further proved that after the child was recovered, in the evening they received information from the Sarpanch that some person had been surrounded in the Makka fields and on reaching there they found a large number of public persons/ residents of the village who were ready to pounce upon one boy in the Makka fields and he was informed by the public persons that he was the same boy who had run away and that is why public had caught him and he was then identified by Kameshwar as Pankaj Bhagat. Here, I may observe that during the trial this Court has also observed that the accused Pankaj Bhagat is having Glaucoma in one eye i.e. on the left eye, on the basis of which he could be easily identified by this distinctive identification mark and even accused Rajesh Rishi Dev is having Glaucoma on the right eye which is much more distinct and apparent than that of Pankaj Bhagat. The recovery of the child from the shed at the instance of the accused Rajesh Rishi Dev where the child was found along with juvenile Ram Kumar has been established (no observation is being made with regard to the juvenile Ram Kumar who is facing trial separately and nothing of what has been stated herein above shall be deemed to be a bearing having merits of the trial of juvenile Ram Kumar). (97) The apprehension and arrest of the accused has been duly proved by the prosecution. I do not find any merit in the arguments raised by the Ld. Defence Counsels that no documents regarding the ownership of St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 80 the shed/ land in question, since it is writ large that the area is a village area and hardly 50 meters from the railway line showing that it is a government land. It is also borne out from the evidence on record that the area is highly isolated with Makka crop and a water logging. It is not unusual in areas of Bihar, Jharkhand, Chattisgarh and parts of Eastern Uttar Pradesh where kidnappings for ransom are rampant for the villagers to be on high alert and to assist the Government Agencies. The local information system which include village Chowkidars, Pradhans etc. have been sensitized in these areas on these aspects and sharing of information with police in case of any new person or child is noticed in the village is common and hence the sequence of events as they have emerged are natural and probable. (98) In so far as the various contradictions and discrepancies in the testimonies of various public witnesses so highlighted by the Ld. Defence Counsels with regard to the clothes worn by the accused at the time of their apprehension, the number of police officials who were present, the place where the various documents were prepared, the time when the child was last seen with the accused, the time when the child was recovered etc. are concerned, I may observe that the witnesses could not have anticipated the occurrence which so often has an element of surprise and the mental faculties therefore cannot be expected to be attuned to absorb the details. Also, the powers of observation differ from person to person and what one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 81 another. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. [Ref.: Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717]. (99) There is no history to animosity between the complainant and the accused and also there is no reason why not only the Delhi Police but also the Bihar Police would falsely implicate the accused Rajesh Rishi Dev and Pankaj Bhagat in the case. Admittedly, the accused persons did belong to the families having comfortable financial condition and even in the Court could not afford any private counsel. There is not much difference in the social status/ financial position of the complainant Ghanshyam Bhagat and of the accused Pankaj Bhagat and Rajesh Rishi Dev. They all come from a lower middle class families and it is noticed that the financial status of both the accused is inferior than that of Ghanshyam Bhagat. Therefore, under the given circumstances there is no reason why not only the Delhi Police but also the Bihar Police would falsely implicate both the accused. The testimonies of the public witnesses find independent corroboration from the electronic record as already discussed herein above. (100) This being the background, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Pankaj Bhagat of having kidnapped the child Krishan @ Golu from the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 82 lawful guardianship of his parents and secretly and wrongfully confined him. In so far as the aspect of criminal conspiracy is concerned, it is evident that there is no evidence on record to prove the same. However, the fact that the accused Pankaj Bhagat kidnapped the child who was found in the shed which had been pointed out by the accused Rajesh Rishi Dev, confirms the common intention of both the accused to conceal the child in the shed/ house of Rajesh Rishi Dev which aspect finds independent corroboration from the electronic record of the mobile phone of accused Pankaj Bhagat. Therefore, I hold the accused Pankaj Bhagat guilty of the offence under Sections 363 r/w 365 r/w 34 Indian Penal Code.
(101) In so far as the provisions of Section 364A Indian Penal Code is concerned, the primary element of Section 364A Indian Penal Code is that there should be a fear to cause death of hurt to such kidnapped child or if the accused gives a reasonable apprehension that the kidnapped child may be put to death or hurt. In the present case though the father of the victim child has proved the aspect of ransom demand but he has neither alleged nor testified on the aspect of threats nor the prosecution has led any evidence to show that at the time of asking the ransom the accused by his act or conduct threatened to cause death or hurt to the child or create a reasonable apprehension that the child may be put to death or hurt. Therefore, the accused Pankaj Bhagat is acquitted of the charge under Section 364A Indian Penal Code.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 83 (102) Coming now to the accused Rajesh Rishi Dev. It is evident that he is not involved in kidnapping of the victim child but it has been established and proved by the prosecution that he wrongfully concealed and confined the kidnapped child despite knowing that the child Kishan @ Golu had been kidnapped. Here, I may observe that as per the provisions of Section 368 Indian Penal Code 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. Therefore, I hereby hold that the accused Rajesh Rishi Dev is guilty for the offence under Section 368 Indian Penal Code and is liable to be punished for the same offences for which the coaccused Pankaj Bhagat has been held guilty i.e. Sections 363 r/w 365 r/w 34 Indian Penal Code. FINAL CONCLUSIONS:
(103) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 84
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(104) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the testimonies of the various prosecution witnesses and the evidence on record the following aspects stand established:
➢ That Ghanshyam Bhagat is residing at House No. 88, Village Bharola, Azadpur, Delhi along with wife Smt Reena Devi and his two sons Sumit Kumar aged about 12 years and another son namely Krishna @ Golu aged 3½ years (kidnapped child).
➢ That Ghanshyam Bhagat is doing the business of vegetable supply from shop at Azadpur Mandi.
➢ That Pankaj Bhagat is a distant relative of Ghanshyam Bhagat being St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 85 the Mama in relation of his wife and was also residing in the House no. 95 near his house and was a frequent visitor to his house. ➢ That on 13.10.2012 at about 5:00 PM when Ghanshyam Bhagat came to his house from his work, he came to know from his family members that Pankaj had come to his house at about 4:00 PM and left the house after remaining for some time in the house. ➢ That after tenfifteen minutes, a currency note of Rs.10/ was given to Krishan @ Golu the child of Ghanshyam Bhagat for purchasing biscuits on which the child went to the nearby house but did not return back till about 30 minutes.
➢ That Ghanshyam Bhagat then went to the nearby shop and searched for his son Krishna @ Golu but he was not found there. ➢ That the shopkeeper Rajender Bhagat told Ghanshyam Bhagat that he had seen the child Krishan with Pankaj while crossing the GTK Road but he did not suspect Pankaj as he (Pankaj) was his relative. ➢ That thereafter Ghanshyam Bhagat immediately made call on the mobile phone of Pankaj bearing No. 9971292098 through his mobile phone bearing no. 9717804923 but Pankaj disconnected the same and did not respond.
➢ That Ghanshyam Bhagat made calls to Pankaj for four - five times but Pankaj did not respond and thereafter he switched off his mobile phone after which he suspected that Pankaj had took away his son Krishan.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 86 ➢ That at about 9:00 PM, Ghanshyam Bhagat made a call to the police at 100 number from the mobile No. 9990910353 belonging to his nephew Santosh Kumar and reported the kidnapping of his son. ➢ That pursuant to the information, SI Shailender went to the house of Ghanshyam Bhagat and recorded his statement on the basis of which the present case was got registered.
➢ That SI Shailender Kumar (IO) then made inquiries from the neighbours and Rajender Bhagat informed him that at about 7.30 PM he was coming to his shop at Adarsh Nagar after recharging his mobile phone when he saw Pankaj and Ram Kumar while they were coming from the side of Azadpur Mandi and they were stepping down from the stairs towards the underground crossing and were going towards the Adarsh Nagar after crossing the road through the underpass and the child Golu was in the lap of accused Pankaj Bhagat at that time but he did not suspect the accused Pankaj since Pankaj was on visiting terms with Ghanshyam and was his relative. ➢ That Santosh Kumar the nephew of Ghanshaym Bhagat also informed SI Shailender Kumar that at about 6.30 PM, he was going to the house of Ghanshyam Bhagat when he saw that accused Pankaj was standing in the gali near the house no. 88 of Ghanshyam Bhagat. ➢ That Ghanshyam Bhagat provided the mobile number of Pankaj Bhagat i.e. 9971292098 to the police which mobile phone was put on tracking.
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 87 ➢ That Ghanshyam Bhagat continuously tried to make contact with Pankaj about his son by making call on his mobile phone but Pankaj was not responding.
➢ That after three days when Ghanshyam Bhagat again made a call to Pankaj, this time Pankaj picked up the phone and told him that his son Krishan was with him and asked him to make arrangement for money. ➢ That after one or two days, accused Pankaj allowed Ghanshyam Bhagat to talk with his son Krishan and on the next day, at about 56 PM Ghanshyam Bhagat made a call to Pankaj who picked up the same and first demanded Rs. 2 lacs from him then Rs. 10 lacs and then Rs. One Crore for release of his son Krishan.
➢ That thereafter Ghanshyam Bhagat informed about the above said demand of Pankaj to SI Shailender and thereafter at the instance of SI Shailender he started making contact with Pankaj but Pankaj did not respond on his mobile but he (Pankaj) made calls to him from different numbers and demanded one crore for release of his son. ➢ That Ghanshyam Bhagat also informed his father Kameshwar Bhagat who was residing in Village Vankatti at Bihar about the incident. ➢ That Kameshwar Bhagat the grandfather of the child and a resident of Bihar along with his relatives also searched for their relative Pankaj Bhagat and child Golu @ Kishan in their area and with people known to them.
➢ That on 22.10.2012 ASI Jaivir Singh and Ct. Bhagwan Singh reached St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 88 at Village Utesara, Distt. Seharsa at the residence of accused Pankaj but he was not found present after which they reached at Village Simri, Bhakhtiyarpur where Kameshwar Bhagat father of complainant met them who was already having an information that the kidnapped child was kept near Madhepura.
➢ That thereafter Kameshwar Bhagat and Prayag Bhagat were included in the investigations and they reached at Police Chowki Bharai where Chowki Incharge SI Anuj was joined and they all reached at Village Budhma where at the instance of secret informer Rajesh Rishi Dev was apprehended near Budhma Railway Station. ➢ That on interrogation Rajesh Rishi Dev disclosed that the kidnapped child was kept at his house on which they reached the house of Rajesh Rishi Dev which is near the Railway Station adjoining the Railway Lines where kidnapped child was found in the lap of Ram Kumar and Kameshwar identified the kidnapped child.
➢ That the accused Rajesh Rishi Dev was then arrested whereas the accused Ram Kumar who was found to be a juvenile was also apprehend.
➢ That they all returned back to the police chowki and in the meanwhile SI Anuj Chowki Incharge received secret information that accused Pankaj came at the house of the accused Rajesh on which they all immediately reached there and the accused Pankaj was apprehended by them, after which the accused Pankaj Bhagat was arrested. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 89 ➢ That from the possession of accused Pankaj Bhagat one mobile phone of Micromax black colour with double SIM having IMEI No. 911232960619164 and IMEI No. 911232960619162 was recovered which was taken into possession.
➢ That thereafter the accused persons and the kidnapped child were brought to Delhi.
(105) The electronic evidence on record establishes the calls made by Ghanshayam Bhagat to the accused Pankaj Bhagat on various dates when the ransom was demanded by the accused Pankaj Bhagat. The electronic evidence is compatible to the prosecution case and independently corroborates the testimonies of the various prosecution witnesses. It stands established that on the date of incident i.e. on 13.10.2012 till 5:36 PM the accused Pankaj Bhagat was in the area of village Bharola, Azadpur, Delhi (area where the house of the complainant is situated) thereby lending credence and support to the testimony of Santosh Kumar (PW10) that he had seen the accused Pankaj Bhagat standing in the gali near the house of Ghanshyam Bhagat; that on the date of incident i.e. on 13.10.2012 at 6:10 PM the accused Pankaj Bhagat was in the area of Civil Lines, Delhi and at 6:22 PM he was in the area of Shahdara, Delhi thereby proving the route taken by the accused Pankaj Bhagat after kidnapping the child; that on the same day i.e. on 13.10.2012 at 6:26 PM the complainant Ghanshyam Bhagat made a call to the accused Pankaj Bhagat while he (accused) was in the area St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 90 of Swasthya Vihar, Shahdara, Delhi which call lasted only for 31 seconds thereby corroborating the testimony of Ghanshyam Bhagat that he was repeatedly trying to make calls to Pankaj Bhagat who disconnected his calls;
that on the same day i.e. 13.10.2012 at 7:54PM the accused Pankaj Bhagat was in the area of Ghaziabad, U.P. and at 7:57 PM while the accused Pankaj Bhagat was in the area of U.P. West Circle, the complainant Ghanshyam Bhagat made a call to the accused Pankaj Bhagat which call lasted for 67 seconds; that on 14.10.2012 at 8:48 AM the accused Pankaj Bhagat was in Punjab showing that after kidnapping the child the accused first went to Punjab; that on 16.10.2012 at 3:38 PM the location of the accused Pankaj Bhagat was of VPO Meghuna, District Khagaria, Bihar; that on 17.10.2012 at 5:40 PM the location of the accused Pankaj Bhagat was of VPO Paharpur, District Saharsa, Bihar; that on 18.10.2012 at 9:43 AM while the accused Pankaj Bhagat was present in the area of VPO Kabira, District Saharsa, Bihar the complainant Ghanshyam Bhagat made a call to the accused which call lasted for 43 Seconds; that on 18.10.2012 at 2:19 PM while the accused Pankaj Bhagat was present in the area of VPO Belwara, District Saharsa, Bihar the complainant Ghanshyam Bhagat made a call to the accused which call lasted for 428 Seconds; that on 19.10.2012 at 8:55 AM the location of the accused Pankaj Bhagat was of VPO Meghuna, District Khagaria, Bihar; that on 20.10.2012 at 3:02 PM the location of the accused Pankaj Bhagat was of Village Gandhi Nagar, St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 91 District Madheypura, Bihar where the house of Rajesh Rishi Dev is situated and where the accused Pankaj Bhagat had left the child on 20.12.2012; that on 21.10.2012 at 7:00 AM the location of the accused Pankaj Bhagat was of Village Bhodal, District Madheypura, Bihar i.e. the same area from where the child was recovered from the shed/ house of accused Rajesh Rishi Dev and from where both the accused Rajesh Rishi Dev and Pankaj Bhagat were arrested.
(106) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(107) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 92 electronic and circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
(108) In view of the above, I hold the accused Pankaj Bhagat guilty of the offence under Sections 363 r/w 365 r/w 34 Indian Penal Code. He is however acquitted of the charge under Section 364A Indian Penal Code since though the father of the victim child has proved the aspect of ransom demand but he has neither alleged nor testified on the aspect of threats nor the prosecution has led any evidence to show that at the time of asking the ransom the accused by his act or conduct threatened to cause death or hurt to the child or create a reasonable apprehension that the child may be put to death or hurt.
(109) Further, the accused Rajesh Rishi Dev is guilty for the offence under Section 368 Indian Penal Code and is liable to be punished for the same offences for which the coaccused Pankaj Bhagat has been held guilty i.e. Sections 363 r/w 365 r/w 34 Indian Penal Code. Both the accused are accordingly convicted.
(110) Be listed for arguments on sentence on 6.1.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 2.1.2014 ASJII(NW)/ ROHINI
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 93
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 23/2013 Unique Case ID No.: 02404R0028962013 State Vs. (1) Rajesh Rishi Dev S/o Mahender Rishi Dev R/o VPO Budhma, District Madhepura, Bihar (Convicted) (2) Pankaj Bhagat S/o Jai Kishore Bhagat R/o VPO Uteshra, PS Salkhua Bazar, Distt. Saharsa, Bihar (Convicted) FIR No.: 291/12 Police Station: Mahendra Park Under Sections: 363/365/368/364A/34 IPC Date of Conviction: 2.1.2014 Arguments concluded on: 13.1.2014 Date of Sentence: 15.1.2014 APPEARANCE:
Present: Sh. Shiv Kumar, Additional Public Prosecutor for the State.
Accused Rajesh Rishi Dev in Judicial Custody with Sh. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 94 Abhishek Kaushik Advocate/ Amicus Curiae.
Accused Pankaj Bhagat in Judicial Custody with Sh. Rajeev Kaul Advocate/ Amicus Curaie.
ORDER ON SENTENCE:
As per allegations on or before 13.10.2012 both the accused Rajesh Rishi Dev and Pankaj Bhagat along with their associate Ram Kumar (since juvenile) hatched a criminal conspiracy to kidnap Krishan @ Golu S/o Ghanshyam Bhagat aged about three years and on 13.10.2012 pursuant to the said criminal conspiracy they kidnapped Krishan @ Golu from the lawful guardianship of his parents and thereafter threatened to cause death or hurt to the child Krishan @ Golu or by their conduct gave rise to a reasonable apprehension that Krishan @ Golu may be put to death or hurt and demanded Rs. One Crore for release of the child Krishan @ Golu. It has been further alleged that on 22.10.2012 at village Budhna, PS Madhepura, District Madhepura, Bihar in pursuance to the above criminal conspiracy both the accused along with Ram Kumar (juvenile) knowing that Krishan @ Golu had been kidnapped or has been abducted, wrongly concealed and confined the child.
However, on the basis of the testimonies of the various prosecution witnesses particularly the father of the child i.e. complainant Ghanshyam Bhagat, mother of the child Smt. Reena Devi; residents of the area i.e. Chinta Paswan, Santosh Kumar, Rajender Bhagat and also on the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 95 basis of the testimonies of the various witnesses of recovery i.e. Kameshwar Bhagat, Prayag Bhagat, ASI Jaivir Singh & Ct. Bhagwan Singh of Delhi Police and SI Anuj Kumar Singh of Bihar Police, this Court has held the accused Pankaj Bhagat guilty of the offence under Sections 363 r/w 365 r/w 34 Indian Penal Code. He is however acquitted of the charge under Section 364A Indian Penal Code. Further, the accused Rajesh Rishi Dev has been held guilty for the offence under Section 368 Indian Penal Code, liable to be punished for the same offences for which the coaccused Pankaj Bhagat has been held guilty i.e. Sections 363 r/w 365 r/w 34 Indian Penal Code.
Vide the above Judgment this Court has observed that the prosecution has been able to establish that Ghanshyam Bhagat is residing at House No. 88, Village Bharola, Azadpur, Delhi along with wife Smt Reena Devi and his two sons Sumit Kumar aged about 12 years and another son namely Krishna @ Golu aged 3½ years (kidnapped child); that Ghanshyam Bhagat is doing the business of vegetable supply from shop at Azadpur Mandi; that Pankaj Bhagat a distant relative of Ghanshyam Bhagat being the Mama in relation to his wife, was also residing in the House no. 95 near his house and was a frequent visitor to his house; that on 13.10.2012 at about 5:00 PM when Ghanshyam Bhagat came to his house from his work, he came to know from his family members that Pankaj had come to his house at about 4:00 PM and left the house after remaining for some time in the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 96 house; that after tenfifteen minutes, a currency note of Rs.10/ was given to Krishan @ Golu the child of Ghanshyam Bhagat for purchasing biscuits on which the child went to the nearby house but did not return back till about 30 minutes; that Ghanshyam Bhagat then went to the nearby shop and searched for his son Krishna @ Golu but he was not found there; that the shopkeeper Rajender Bhagat told Ghanshyam Bhagat that he had seen the child Krishan with Pankaj while crossing the GTK Road but he did not suspect Pankaj as he (Pankaj) was his relative; that thereafter Ghanshyam Bhagat immediately made call on the mobile phone of Pankaj bearing No. 9971292098 through his mobile phone bearing no. 9717804923 but Pankaj disconnected the same and did not respond; that Ghanshyam Bhagat made calls to Pankaj for four - five times but Pankaj did not respond and thereafter he switched off his mobile phone after which he suspected that Pankaj had took away his son Krishan; that at about 9:00 PM, Ghanshyam Bhagat made a call to the police at 100 number from the mobile No. 9990910353 belonging to his nephew Santosh Kumar and reported the kidnapping of his son.
It has also been established that pursuant to the information, SI Shailender (IO) went to the house of Ghanshyam Bhagat and recorded his statement on the basis of which the present case was got registered; that SI Shailender Kumar then made inquiries from the neighbours and Rajender Bhagat informed him that at about 7.30 PM he was coming to his shop at Adarsh Nagar after recharging his mobile phone when he saw Pankaj and St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 97 Ram Kumar while they were coming from the side of Azadpur Mandi and they were stepping down from the stairs towards the underground crossing and were going towards the Adarsh Nagar after crossing the road through the underpass and the child Golu was in the lap of accused Pankaj Bhagat at that time but he did not suspect the accused Pankaj since Pankaj was on visiting terms with Ghanshyam and was his relative; that Santosh Kumar the nephew of Ghanshaym Bhagat also informed SI Shailender Kumar that at about 6.30 PM, he was going to the house of Ghanshyam Bhagat when he saw that accused Pankaj was standing in the gali near the house no. 88 of Ghanshyam Bhagat; that Ghanshyam Bhagat provided the mobile number of Pankaj Bhagat i.e. 9971292098 to the police which mobile phone was put on tracking; that Ghanshyam Bhagat continuously tried to make contact with Pankaj about his son by making call on his mobile phone but Pankaj was not responding.
Further, it has been established that after three days when Ghanshyam Bhagat again made a call to Pankaj, this time Pankaj picked up the phone and told him that his son Krishan was with him and asked him to make arrangement for money; that after one or two days, accused Pankaj allowed Ghanshyam Bhagat to talk with his son Krishan and on the next day, at about 56 PM Ghanshyam Bhagat made a call to Pankaj who picked up the same and first demanded Rs. 2 lacs from him then Rs. 10 lacs and then Rs. One Crore for release of his son Krishan; that thereafter Ghanshyam Bhagat informed about the above said demand of Pankaj to SI Shailender St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 98 and thereafter at the instance of SI Shailender he started making contact with Pankaj but Pankaj did not respond on his mobile but he (Pankaj) made calls to him from different numbers and demanded one crore for release of his son; that Ghanshyam Bhagat also informed his father Kameshwar Bhagat who was residing in Village Vankatti at Bihar about the incident on which Kameshwar Bhagat the grandfather of the child, a resident of Bihar along with his relatives also searched for their relative Pankaj Bhagat and child Golu @ Kishan in their area and with people known to them.
The prosecution has also been able to establish that on 22.10.2012 ASI Jaivir Singh and Ct. Bhagwan Singh reached at Village Utesara, Distt. Seharsa at the residence of accused Pankaj but he was not found present after which they reached at Village Simri, Bhakhtiyarpur where Kameshwar Bhagat father of complainant met them who was already having an information that the kidnapped child was kept near Madhepura; that thereafter Kameshwar Bhagat and Prayag Bhagat were included in the investigations and they reached at Police Chowki Bharai where Chowki Incharge SI Anuj was joined and they all reached at Village Budhma where at the instance of secret informer Rajesh Rishi Dev was apprehended near Budhma Railway Station; that on interrogation Rajesh Rishi Dev disclosed that the kidnapped child was kept at his house on which they reached the house of Rajesh Rishi Dev which is near the Railway Station adjoining the Railway Lines where kidnapped child was found in the lap of Ram Kumar and Kameshwar identified the kidnapped child; that the accused Rajesh St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 99 Rishi Dev was then arrested whereas the accused Ram Kumar was found to be a juvenile was also apprehended; that they all returned back to the police chowki and in the meanwhile SI Anuj Chowki Incharge received secret information that accused Pankaj came at the house of the accused Rajesh on which they all immediately reached there and the accused Pankaj was apprehended by them, after which the accused Pankaj Bhagat was arrested; that from the possession of accused Pankaj Bhagat one mobile phone of Micromax black colour with double SIM having IMEI No. 911232960619164 and IMEI No. 911232960619162 was recovered was taken into possession; that thereafter the accused persons and the kidnapped child were brought to Delhi.
This Court has further observed that the electronic evidence on record established the calls made by Ghanshayam Bhagat to the accused Pankaj Bhagat on various dates when the ransom was demanded by the accused Pankaj Bhagat and it has been held that the electronic evidence is compatible to the prosecution case and independently corroborates the testimonies of the various prosecution witnesses. It has been established that on the date of incident i.e. on 13.10.2012 till 5:36 PM the accused Pankaj Bhagat was in the area of village Bharola, Azadpur, Delhi (area where the house of the complainant is situated) thereby lending credence and support to the testimony of Santosh Kumar (PW10) that he had seen the accused Pankaj Bhagat standing in the gali near the house of Ghanshyam Bhagat; that on the date of incident i.e. on 13.10.2012 at 6:10 PM the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 100 accused Pankaj Bhagat was in the area of Civil Lines, Delhi and at 6:22 PM he was in the area of Shahdara, Delhi thereby proving the route taken by the accused Pankaj Bhagat after kidnapping the child; that on the same day i.e. on 13.10.2012 at 6:26 PM the complainant Ghanshyam Bhagat made a call to the accused Pankaj Bhagat while he (accused) was in the area of Swasthya Vihar, Shahdara, Delhi which call lasted only for 31 seconds thereby corroborating the testimony of Ghanshyam Bhagat that he was repeatedly trying to make calls to Pankaj Bhagat who disconnected his calls; that on the same day i.e. 13.10.2012 at 7:54PM the accused Pankaj Bhagat was in the area of Ghaziabad, U.P. and at 7:57 PM while the accused Pankaj Bhagat was in the area of U.P. West Circle, the complainant Ghanshyam Bhagat made a call to the accused Pankaj Bhagat which call lasted for 67 seconds; that on 14.10.2012 at 8:48 AM the accused Pankaj Bhagat was in Punjab showing that after kidnapping the child the accused first went to Punjab; that on 16.10.2012 at 3:38 PM the location of the accused Pankaj Bhagat was of VPO Meghuna, District Khagaria, Bihar; that on 17.10.2012 at 5:40 PM the location of the accused Pankaj Bhagat was of VPO Paharpur, District Saharsa, Bihar; that on 18.10.2012 at 9:43 AM while the accused Pankaj Bhagat was present in the area of VPO Kabira, District Saharsa, Bihar the complainant Ghanshyam Bhagat made a call to the accused which call lasted for 43 Seconds; that on 18.10.2012 at 2:19 PM while the accused Pankaj Bhagat was present in the area of VPO St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 101 Belwara, District Saharsa, Bihar the complainant Ghanshyam Bhagat made a call to the accused which call lasted for 428 Seconds; that on 19.10.2012 at 8:55 AM the location of the accused Pankaj Bhagat was of VPO Meghuna, District Khagaria, Bihar; that on 20.10.2012 at 3:02 PM the location of the accused Pankaj Bhagat was of Village Gandhi Nagar, District Madheypura, Bihar where the house of Rajesh Rishi Dev is situated and where the accused Pankaj Bhagat had left the child on 20.12.2012; that on 21.10.2012 at 7:00 AM the location of the accused Pankaj Bhagat was of Village Bhodal, District Madheypura, Bihar i.e. the same area from where the child was recovered from the shed/ house of accused Rajesh Rishi Dev and from where both the accused Rajesh Rishi Dev and Pankaj Bhagat were arrested.
This being the background, the accused Pankaj Bhagat has been held guilty of the offence under Sections 363 r/w 365 r/w 34 Indian Penal Code. However, he has been acquitted of the charge under Section 364A Indian Penal Code since though the father of the victim child has proved the aspect of ransom demand but he has neither alleged nor testified on the aspect of threats nor the prosecution has led any evidence to show that at the time of asking the ransom the accused by his act or conduct threatened to cause death or hurt to the child or create a reasonable apprehension that the child may be put to death or hurt. Further, the accused Rajesh Rishi Dev has been held guilty of the offence under Section St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 102 368 Indian Penal Code, liable to be punished for the same offences for which the coaccused Pankaj Bhagat has been held guilty i.e. Sections 363 r/w 365 r/w 34 Indian Penal Code. Both the accused have been accordingly convicted.
Heard arguments on the point of sentence. The convict Rajesh Rishi Dev is stated to be aged about 40 years having a family comprising of aged parents, wife, two sons and four daughters. He is totally illiterate and is a Labour by profession.
The convict Pankaj Bhagat is stated to be aged about 25 years having a family comprising of wife and one daughter. He is totally illiterate and is a Labour by profession.
Ld. Amicus Curiae for the convicts have vehemently argued that both the convicts are first time offenders and have no previous criminal involvements. It is pointed out that both the convicts are helping hands of their respective families and due to long detention of the convicts, their family members are facing great hardships. It is prayed that a lenient view be taken against the convicts.
On the other hand the Ld. Addl. Public Prosecutor has prayed that a stern view be taken against the convicts keeping in view the allegations involved and the fact that the child Krishan @ Goly was aged about 2 ½ years at the time of the incident.
I have considered the submissions made before me and I may note that the Hon'ble Apex Court has in the case of Rajiv Vs. State of St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 103 Rajasthan [1996 A.I.R. (SC) 787]: [1995(4) Crimes 695]: [1996(2) S.C.C. 175]: [1995(8) J.T. 520] observed that:
"...... Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
The Hon'ble Court has further observed that:
After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha Vs. State of Callifornia, (402 US 183 : 28 L.D. 2d 711) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 104 appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In Dhananjoy Chatterjee Vs. State of W.B., 1994(3) RCR (Crl.) 359 (SC): 1994 (2) SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminal and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment ......"
Further, it has been held by the Hon'ble Apex Court in the case of Surjit Singh Vs. Nahara Ram & Anr. reported in 2004 (50) ACC 179(SC) that:
"......... Law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 105 State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to new challengers and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermining social order and lay it in ruins. Protector of society and stamping out criminal proclivity must be object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet challenges confronting the society. In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system, to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc....."
The main object of the provisions of 364A Indian Penal Code is to prevent minor children from being seduced for improper purposes and also to protect the rights and privileges of the guardians having the lawful charge of custody of their minor wards. Kidnapping a child from the custody of his parents for ransom is a serious crime and no sympathy can be shown to a person who in his capacity as a servant/ employee has abused and exploited the trust so reposed upon him by the employer. Using a small/ helpless child as an instrument to extort money is the worst kind of offence. St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 106
As on date kidnapping has become a major problem faced by our society. It is a profitable business specifically, if the victim is a small child belonging to a poor family. In the recent past Delhi has experienced a spurt and rise in the incidents of kidnapping and exploitation of small children belonging to poor families for ransom, trafficking, beggary and human organs trade. Kidnapping is an offence against the society and the courts cannot shut their eyes to permit the guilty to get away with lighter punishments just because the existing statutory laws do not sufficiently cover various situations. Under these circumstances the courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges.
India's capital Delhi has one of the highest numbers of missing children and the country has no central data on the number of children who go missing or what has happened to them. In Delhi alone as many as 3,529 cases of kidnapping were reported during the year 2011 whereas in the year 2012 a total number of 3,675 cases of kidnapping were reported showing that there is a 4.14% rise in kidnapping cases. The data further reveals that seven children, mostly from extremely poor families, go missing every hour with a count of 165 a day and about 10% or 6,000 children who went missing were infants less than a year old. In an answer to a right to information question by an NGO Alliance for Peoples' Rights, the Delhi Police revealed that 2,161 children had been registered as missing in New St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 107 Delhi in a span of 270 days in 2010 i.e. an average of eight children going missing every day of which 603 are yet to be traced. Outer Delhi topped the list with 1,090 followed by NorthEast Delhi with 1,031. The Right to Information filed in January to ascertain the number of children gone missing from the capital places reveals Outer Delhi at the highest pedestal with an average of two children missing per day followed by Jahangir Puri, Aman Vihar, Sultanpuri areas. According to the National Human Rights Commission over 44,000 children go missing every year. The National Centre for Missing Children says there are 10 lacs runaways in India every year, that is, a child runs away from home every 30 seconds.
Serious is the problem and hence stringent should be the punishment. In the words of Mr. Justice A. Pasayat in the case of Siddarama and Ors. Vs. State of Karnataka [2006 IV AD (Crl.) SC 78] it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal while achieving the avowed object of law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be.
Coming to the case in hand, the only mitigating factor is that both the convicts are young boys and are not involved in any other criminal case whereas the aggravating factor is that the victim / child Krishan @ Golu himself was aged 2 ½ years old at the time of the incident. In the St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 108 present case keeping in view the mitigating circumstances as highlighted above and the fact that the convicts are first time offenders, I award the following sentences:
1. The convict Pankaj Bhagat is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.10,000/ for the offence under Section 363 r/w 365 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
2. Similarly, the convict Rajesh Rishi Dev is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.10,000/ for the offence under Section 368 IPC punishable in the present case under Sections 363 r/w 365 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
Benefit of Section 428 Cr.P.C. shall be given to both the convicts for the period undergone by them during the trial as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 109 New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 15.1.2014 ASJII(NW)/ ROHINI
St. Vs. Rajesh Rishi Dev Etc., FIR No. 291/12, PS Mahendra Park Page No. 110