Delhi District Court
State (Govt. Of Nct Of Delhi) vs Mona @ Pooja on 10 October, 2018
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI
01, (SOUTH) SAKET COURTS : NEW DELHI
Crl. Appeal No. : 179/2018
FIR No. : 221/2010
P.S. : Neb Sarai
In the matter of :
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi
...... Appellant
VERSUS
1. Mona @ Pooja
D/o Sh. Ram Prakash
R/o E1 st, 55, Madangir
Ambedkar Nagar, New Delhi
2. Afroz
S/o Sh. Manjul
R/o House no. 197, A Block
Sangam Vihar, New Delhi
3. Jain Sadhvi Beena Kumari @ Beena Jain Sadhvi
D/o Sh. Prem Chand Jain
R/o 3742, Jain Nagar,
Karala, New Delhi
4. Nanni W/o Sh. Jawala Prasad
R/o House no. A926, Subhash Camp
Crl. Appeal No. : 179/2018 1/18
Dakshinpuri, New Delhi
5. Shaira @ Kallo
W/o Sh. Subhash
R/o House no. B1394
Sangam Vihar, New Delhi
....... Respondents/Accused
Date of Filing : 08.05.2018
Date of Arguments : 28.09.2018 & 10.10.2018
Date of Order : 10.10.2018
O R D E R
1. This is an appeal filed by state aggrieved by the impugned judgment dated 30.01.2018 whereby all the accused persons were acquitted of the offences u/s 420/467/471/363/34 IPC.
2. Prosecution case was based upon the facts that somewhere on or around September 2010, all the accused persons entered into criminal conspiracy to kidnap the minor child from custody of his natural guardians and gave him to one Rajnish Jain on adoption in lieu of money while executing adoption documents of the said child having reason to believe that the facts mentioned therein were untrue and accused Mona and Afroz also used the said document as genuine for the purpose of getting it registered before Sub Registrar, Delhi. Further, accused Mona and Afroz made PW Rajnish to believe that they were natural guardians of said minor child and was giving the child to PW Rajnish on adoption as Crl. Appeal No. : 179/2018 2/18 per law, thus, cheated him.
3. After filing of the charge sheet, charge 363/420/467/471/34 IPC and u/s 120B IPC r/w sec/ 420/467/471 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
4. Prosecution in support of its case examined 14 witnesses. After leading of evidence, recording of statement of accused persons and conclusion of final arguments, Ld. Trial court vide impugned judgment, acquitted all the accused persons for the offences charged of, which judgment is under challenge before this court.
5. In terms of the case of prosecution, PW2 Rajnish Jain had approached accused Beena Sadhvi for adoption of male child and he was provided the phone number of accused Mona by her. He was called by accused Mona at Jain Mandir, Chandni Chowk where he went alongwith his wife. Rajnish Jain was made approver in the matter and was examined as PW2 whereas his wife was examined as PW1.
6. PW2 in his deposition before the court stated about his desire to have male child and therefore he approached accused Beena Sadhwi and was provided phone number of one Mona by her. On 23.8.2010, accused Mona telephonically called him and told him that she could arrange a male child for him. He alongwith his wife went to Jain Mandir, Chandni Chowk, where accused Mona and Afroz were present, besides presence of three/four women and one boy. Both the accused Mona and Afroz were identified by this witness in the court. PW2 took male child from Mona Crl. Appeal No. : 179/2018 3/18 and gave her Rs.20,000/ and he was informed by Mona that she will get prepared adoption deed after her delivery as she was pregnant. Later on, he alongwith his wife went to the office of SDM, where both Mona and Afroz were present. Adoption deed was prepared at the SDM office . On 16.10.2010, he came to know from the Police of P.S. Neb Sarai that the male child who was given to them by accused Mona and Afroz was a kidnapped child.
7. PW1 corroborated the statement of PW2 regarding her accompanying her husband to a place near Lal Quila where Mona and Afroz met them and handed over male child to them. According to her, after about one month, they went to the office of SDM at Geeta Colony where Mona and Afroz met them and documents relating to adoption papers were prepared. The original adoption papers were not issued by the office of SDM and later on, they came to know from the police that the child was kidnapped child.
8. PW2 stated about adoption deed having been prepared which according to him was got prepared by accused Mona and Afroz and since he was not well versed with English language, he did not go through the contents of adoption deed before signing it. He denied that the adoption deed was got prepared by him through his Advocate or that he had given allurement to Mona and Afroz to become false natural parents of the said child. PW1 stated that the said adoption deed was got prepared by her husband and she did not know whether accused Mona and Afroz were Crl. Appeal No. : 179/2018 4/18 natural father and mother of the child as mentioned in adoption deed.
9. Much of the reliance was sought by Ld. Counsel for both these accused persons/respondents from the observation of Ld. Trial court that in the statement of PW1, she had stated that adoption deed was got prepared by her husband as well as PW2 himself in Ex. PW2/A (Ex. PW2/A is the confessional/disclosure statement recorded by police) stated that he himself got the adoption deed prepared. As also observed by Ld. Trial court, no independent witness was examined by the prosecution to prove that the deed was got prepared by the accused persons .
10. PW3 who was posted as Sub Registrar during the relevant period and had handed over the original adoption deed to the IO alongwith the copy of the deficiency memo. As deposed by him, adoption deed was presented by Afroz Khan and Mona Khan for giving in the adoption of the child namely Yash in favour of Beenu Jain and Rajneesh Jain. The said adoption deed was not registered as there was no identification document of Mona Khan and birth certificate of child Yash, therefore he returned the adoption deed and sent a deficiency memo to Afroz Khan.
11. In response to the question that for registration of adoption deed, whether they are concerned only about the name and address or also with the eligibility of the adoption, PW3 answered that they verify the person who has presented the documents for registration as well as the identity of addressees as mentioned in the document and also go through the clauses as mentioned in the adoption deed. He admitted that as per the documents, Crl. Appeal No. : 179/2018 5/18 first party seemed to be Muslim as they had written their names as 'Khan' and second party seemed to be 'Jain' as they had mentioned their title as 'Jain', besides mention in adoption deed that both the parties declared that they were Hindus and governed by Hindu Customs and Rites. He specifically stated that the documents i.e. adoption deed was presented by Accused Afroz Khan and Mona Khan personally.
12. Contention of Ld. Counsel for accused/respondent was that there was no identification of accused Mona and Afroz since the identity documents, as stated by PW3, were not available nor PW3 had identified any of them. It was also submitted that no register was produced by PW3 regarding any such entry with regard to presentation of adoption deed in the sub registrar office.
13. PW3 was discharging his duties as government functionary and it was he who had handed over the original adoption deed to the IO from the official record . No question or suggestion was put to PW3 with regard to any entry made in the register or non production of the register. There was no identification problem with regard to identity of accused Afroz Khan and as stated by this witness, identification document of Mona Khan was not produced but the adoption deed was presented to him directly and personally by accused Afroz Khan and Mona Khan. Prosecution seem to have not cared for the fact that this witness referred to handing over of the original adoption deed to the IO, yet was put the copy of the same in his deposition which was marked 'A' , whereas the original of the same was Crl. Appeal No. : 179/2018 6/18 later on got exhibited as Ex. PW9/A1. Fact remains that Mark 'A' as photocopy of Ex. PW9/A1 also bears the affixation of photographs of both the accused Mona and Afroz , PW1 and PW2 as well as the child. No question or suggestion was put to this witness nor this plea was ever raised with regard to the photographs on mark 'A' or upon Ex. PW9/A1 were not of accused Mona and Afroz.
14. Ld. Counsel for respondents also stated about Ex. PW9/A1 having the mention of name of PW1 i.e. Beenu Jain, whereas the copy of adoption deed mark PW14/A contained the mention of name as Madhu Jain. It was submitted that there was no clarification on record that Madhu Jain and Beenu Jain was the same person.
15. It may be noted that the copy of adoption deed mark PW14/A was produced by PW2 being the unsigned draft copy, whereas Ex. PW9/A1 is the original adoption deed having been presented in the office of Sub Registrar. Name of PW1 was mentioned in the original adoption deed , whereas in the draft copy i.e. mark PW14/A though the name was mentioned as Madhu Jain but rest of the particulars i.e. the name of husband and address etc. are the same. In the original adoption deed Ex. PW9/A1, after putting the white fluid, the name was corrected as Beenu Jain which itself answers the objection raised by Ld. Counsel for respondents/accused.
16. Ld. Counsel for respondents also submitted that the FSL report though was not exhibited on record for want of the presence of the expert Crl. Appeal No. : 179/2018 7/18 but the signatures of accused Mona did not match with the signatures on adoption deed.
17. Though CFSL report is the document, per se, admissible in evidence but it is also borne out from the record that this witness was summoned and had also appeared before Ld. Trial court but was discharged unexamined and thereafter was not called again. At the same time, since Ld. Counsel for respondents himself has placed reliance upon the same, the CFSL report is perused. The authorship of the signatures upon the dispute documents tallied with the signatures of accused Afroz, whereas for accused Mona, the authorship of questioned signatures could not be fixed. FSL report carries the evidentiary value as corroborative piece of evidence which confirms the participation of accused Afroz and for accused Mona also, there is no opinion with respect to denying the authorship but having not been able to fix the authorship, report remains inconclusive qua accused Mona.
18. PW9 who was the Practicing Advocate in Sub Registrar Office, Geeta Colony deposed that he used to give his witness to the documents prepared by the deed writer for registration. Identities of the parties were checked by deed writer and he endorsed as witness. On 20.09.2010, Sh. Rajnish Jain, Smt. Beenu Jain, Mohd. Afroz Khan and Mona Khan had executed an adoption deed regarding the child which was given into adoption by Afroz and Mona to Mr. Rajneesh Jain and Beenu. The adoption deed was pending for want of birth certificate of child and ID of Crl. Appeal No. : 179/2018 8/18 Mona. He identified adoption deed Ex. PW9/A1 which was witnessed by him bearing his seal and signatures and stated that signatures on the documents were affixed in his presence, though he was not able to identify who had signed where. He admitted that he cannot identify the signatures of the other persons and accused present in the court, who had signed where or at what point but denied the suggestion that signatures were not affixed in his presence or that he had signed on the dotted line as a witness though admitted that now he cannot identify any of the accused persons present in the court.
19. What transpires now on record that the adoption deed was got prepared and was also witnessed by PW9. The adoption deed was presented for registration but due to deficiency of documents, same was not registered and the deficiency memo was sent. Both accused Mona and Afroz as well as PW1 and PW2 had signed over the adoption deed with affixing of their photographs and as specifically deposed by PW9, signatures on the documents were put in his presence. No suggestion was put to this witness as well with regard to the photographs on Ex. PW9/A1 being not of accused Mona and Afroz. Therefore, the execution of the adoption deed by the parties stands established on record.
20. PW2 though had sought to clarify that he was not well versed with English language, therefore he did not go through the adoption deed before signing but as per the settled law, all the signatories to the documents are presumed to have read and understood the contents of the Crl. Appeal No. : 179/2018 9/18 same. Suggestion put to PW2 on behalf of accused Mona and Afroz that he had given allurement to Mona and Afroz to become false natural parents of said child, rather itself is acknowledgment of their presence and participation in the alleged crime whereby they agreed to sign over the adoption deed, therefore cannot be absolved of the charge to get prepared the adoption deed which was a forged document to their own knowledge and for the user of the same by presenting it before the Sub Registrar for the purpose of registration, the offence u/s 467/471/34 of IPC are made out against both of them.
21. PW2 has become approver in the matter otherwise he might have also faced the similar consequence at least with regard to the establishment of charge against him u/s 467/471 IPC.
22. There is consistent deposition of PW1 and PW2 with regard to handing over of child to them by accused Mona and Afroz, besides the fact established on record with regard to the recovery of the child at the instance of accused Mona. Though the disclosure statement made by accused persons are not admissible in evidence but qua the disclosure statement of accused Mona to the extent that it led to recovery of kidnapped boy from PW2 is admissible coupled with the deposition of other prosecution witnesses on this aspect.
23. Ld. Counsel for respondents submitted that PW2 was made approver in the matter and therefore his testimony cannot be relied upon. Ld. Trial court also referred to section 133 of Indian Evidence Act Crl. Appeal No. : 179/2018 10/18 alongwith illustration (B) to section 114 and also relied upon Bhiva Doulu Patil Vs. State of Maharashtra wherein it was noted that the danger of acting on accomplice evidence is not merely that the accomplice is on his admission a man of bad character who took part in the office and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution . The real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. Therefore the only safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused".
24. Ld. Counsel for respondents submitted that whenever two views are possible and the view already taken by ld. Trial court would prevail as the discretion has already been exercised by Ld. Trial court in favour of the acquittal, besides the fact that PW2 himself was suspect, whereas testimony of his wife i.e. PW1 was only hear say.
25. Per contra, it is submitted by Ld. Prosecutor that approver in the matter is made due to the compulsion since such crimes are committed in secrecy and it becomes difficult to nail the accused persons or connect them to the commission of crime for want of evidence.
26. It may be noted that if the testimony of approver is not to be relied upon or believed, then there was no reason for law makers to incorporate this provision in books of law though the safeguards are to be adopted as Crl. Appeal No. : 179/2018 11/18 also noted in authority (supra). In the instant matter, though it is correct that PW2 preferred to become approver, however it is not the case that PW2 was instrumental in kidnapping of the child or selling of the child in lieu of money but was the person who wanted to adopt the child, therefore cannot be termed as accomplice in stricter sense at least to that extent. Though it remains a fact that despite having sufficient suspicion as narrated by him in his deposition, he decided to go ahead with the adoption of the child that too by making payment in lieu of the same.
27. As already noted, PW2 would have faced similar consequences at least u/s 467/471 IPC, had he not become an approver. As far as the testimony of PW1 is concerned, that cannot be considered hearsay since she herself was witness to handing over of the child as well as the recipient of the child and had also participated in the execution of the adoption deed as well as had presented herself for registration of the adoption deed. If the contention of Ld. Counsel for appellant is accepted that wherever two views are possible, then the view taken by Ld. Trial court has to prevail, then there is no purpose for incorporation of provision of appeal against the acquittal because in that eventuality, it is only the view of Ld. Trial court which would prevail and no scope would remain for the appellate court to appreciate the evidence afresh.
28. It was further submitted by Ld. Counsel for respondents that in the arrest memo of accused persons, section 420/468/471 IPC were also mentioned though by that time, there was no material for invoking the Crl. Appeal No. : 179/2018 12/18 said sections. IO PW14 stated that the accused persons were arrested at the spot and there was no forged document on record till the time of arrest or till the preparation of arrest memo and except for disclosure statement, there was no other material for invoking the said sections. Though he also stated that there was no written permission sought for invoking section 420/468/471 IPC but permission was granted by Additional SHO who was present when the arrest memo was prepared. It may be noted that the disclosure statements of accused persons were recorded vide disclosure memos bearing section 363 IPC only whereas the disclosure statement of accused Jain Sadhvi Beena carries mention of section 363/420/468/471/34 IPC which is also of the same date i.e. 16.10.2010 as well as the mention of all the above stated sections in the arrest memos of accused persons which either support the contention of counsel for respondents with regard to preparation of arrest memos on the subsequent occasion or as submitted by Ld. Prosecutor that the arrest memos had been prepared on the same date but the sections were mentioned later on . In any of the eventualities, it is the investigating agency which ought to act diligently. Reliance is placed upon 2012 VII AD (S.C) 541 Dayal Singh & Ors. Vs. State of Uttaranchal wherein it was observed that " Acts of ommission and commission, deliberate or otherwise, committed by the investigating agency or other significant witnesses instrumental in proving the offence is not fatal to the case of prosecution. As observed, the IO has failed to perform his duties in accordance with the requirement of law, and there has been some defect in the investigation, it will not be to the benefit of accused persons to the extent that Crl. Appeal No. : 179/2018 13/18 they would be entitled to an order of acquittal on this ground.
29. Reliance is further placed upon Ram Bali Vs. State of Uttar pradesh (2004) 10 SCC 598 while placing reliance upon Karnel Singh Vs. State of M.P. (1995 ) 5 SCC 518, it was observed that " in case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective
30. The fact remains that not only the testimonies of PW1 and PW2 have remained consistent but as already observed have been corroborated by the other material on record . Recovery of kidnapped child from the custody of PW1 and PW2 is also established on record. FIR in this respect had already been registered upon the complaint of the father of child. Ld. Counsel for respondents pointed out that in the statement of PW2 recorded u/s 164 Cr.P.C. it was mentioned that they were called by accused Mona to reach near Lal Quila at 7/7.30 p.m. on 23.8.2010 whereas in the FIR registered u/s 363 IPC of the same date, time of missing of the child had been recorded as after 9 p.m.
31. In the deposition before the court, no time was mentioned by either PW1 or PW2 of their arrival near Lal Quila or when the child was handed over to them. The child was found missing from his home, consequent to which the FIR was registered and the child later on was found with PW2 is the established fact on record, therefore some diversion of time here and there may not be the ground sufficient to discard the entire testimony of prosecution witnesses which otherwise inspires confidence.
32. Ld. Trial court also noted regarding the delay in arrest of PW2 to which Crl. Appeal No. : 179/2018 14/18 Ld. Prosecutor submitted that no such explanation was ever sought either by the defence or by the court itself from PW14 who had categorically stated that on 16.10.2010 when kidnapped child was recovered, then PW2 produced the adoption deed which fact is self explanatory that on the basis of the further investigation on adoption deed, PW2 was arrested after around one week i.e. on 23.10.2010 since otherwise also it is not necessary to arrest any suspect immediately if the IO was satisfied with regard to non requirement of his arrest immediately.
33. With regard to role of accused Jain Sadhvi Beena Kumari, both PW1 and PW2 stated that she had provided the phone number of accused Mona upon their asking as they were interested in adopting a male child and they came to know that Jain Saadhvi could make available child for adoption. Providing of phone number of accused Mona by Jain Sadhwi ipso fact does not point out towards her involvement in kidnapping of the child and handing over of the child against money in favour of PW1 and PW2 nor she has been assigned any role with regard to the preparation and user/attempt for registration of the adoption deed. The disclosure statements of the accused persons, as already stated, do not carry any evidentiary value.
34. The other accused persons namely Shaira and Nanni were also not named by PW1. Though PW1 identified them as those women who were present at the spot when accused Mona and Afroz delivered male child to them and identified them in the court but in cross examination, she stated that at the time of handing over of the child, many public persons were present and she was not aware how many persons were coming for delivery of the child, though denied that accused Shaira and Nanni were not present at Jain Mandir. Whereas Crl. Appeal No. : 179/2018 15/18 PW2 referred to merely presence of three/four women alongwith accused Mona and Afroz. As already noted, except for the mention of their presence, no role has been assigned to these accused persons and the disclosure statements, as already noted, is not admissible in evidence. There being no material on record connecting them to the commission of crime i.e. kidnapping of the child, handing over of kidnapped child to PW1 and PW2 or their participation in preparation and user of the forged document i.e. adoption deed, thereby they deserve to be accorded benefit of doubt.
35. Charge in the matter was framed u/s 363/420/467/471 IPC and also u/s 120B r/w section 420/467/471 IPC. The kidnapped child was handed over by accused Mona and Afroz to PW1 and PW2 and they also pretended to be natural guardians of kidnapped child. The child, later on, was recovered at the instance of accused Mona. Ld. Counsel for respondents submitted that there is no direct or indirect evidence against accused Mona or Afroz regarding kidnapping of the child. Section 361 IPC refers to taking of the child out of the keeping of the lawful guardian of such minor without the consent of such guardian is said to kidnap such minor or person from lawful guardianship. Accused Afroz and Mona have been found to be persons having the custody of minor out of the lawful custody of his guardians and they were neither the natural guardians of the minor nor the custody of the child with them was with the consent of the natural guardians. Therefore, this act on their part constitutes the offence u/s 363/34 IPC.
36. In terms of charge, accused Mona and Afroz made PW2 believe and represented themselves as natural guardians of kidnapped child to PW2 and further gave the child in adoption to him, thereby they cheated him. PW1 and Crl. Appeal No. : 179/2018 16/18 PW2 have specifically stated that they were suspicious regarding the child being given in adoption as of accused Mona and Afroz and also had raised question but as stated by PW2 in the statement recorded u/s 164 Cr.P.C. that he was influenced by his greed for male child . He had asked about the parentage of child as the child did not appear to be of Mona's, upon which Mona retorted back and said " Baccha Lena Hai to Lo Nahi to Jao " and also assured that if there would be any legal tangle, then she will see to it. In the deposition of PW1 before the court, she stated that the features of the child were that of Mangloid Race (Nepali). She had asked about this anomaly from both and she did not know whether the birth certificate of any other document relating to child was given to them or not. She did not know whether accused Mona and Afroz were natural father and mother as mentioned in adoption deed. PW2 in his deposition before the court also stated about the features of the child were that of Mangloid Race (Nepali) and when he had asked for birth certificate of the child , he was informed that they did not have birth certificate but PW1 and PW2 later on were called to reach SDM office for preparation of adoption deed.
37. It may be noted that in societal parlance, demand for child to adopt remains high while fewer and fewer children are being relinquished for adoptions. As a result, world wide children are trafficked for adoption. The lines between illegal and unethical are further blured due to desperation of adopters to turn a blind eye to the obvious red flags which also happened in instant matter.
38. Apparently this was not the case of clear deception as despite suspicion, PW2 proceeded ahead for taking the custody of the child, therefore as far as Crl. Appeal No. : 179/2018 17/18 offence u/s 420 IPC is concerned, same is not made out as PW2 had not been cheated at least on this aspect.
39. Prosecution has also been able to prove sharing of the unlawful design to commit an illegal act on the part of accused Mona and Afroz , thereby succeeds in establishing the charge u/s 120B of IPC r/w sec. 467/471 IPC.
40. Having discussed as above, instant appeal filed by state is partly allowed. Respondent/accused Jain Sadhvi Beena Kumari @ Beena Jain Sadhvi, Nanni and Shaira, remain acquitted of all the charges. Respondent/accused Mona @ Pooja and Afroz stand convicted for the offences u/s 363/467/471/34 IPC and section 120B IPC r/w sec. 467/471 IPC.
Digitally signed SAVITA by SAVITA RAO
RAO Date: 2018.10.12
14:17:16 +0530
Announced in the Open Court (Savita Rao)
Today on 10.10.2018 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi
Crl. Appeal No. : 179/2018 18/18