Delhi District Court
Fir No. 83/05 State vs . Devender Singh Yadav & Ors. Page 1 Of 27 on 26 April, 2011
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 120/09.
FIR No. 83/05.
P.S. Sultan Puri.
U/S: 363/364-A/34 IPC.
State
Versus
1. Devender Singh Yadav,
S/o Sh. Rajender Singh,
R/o Village Hargan Pur,
PS Nasir Pur, Distt. Ferozabad,
UP.
2. Jagbir Singh @ Tony, S/o Sh. Satram,
R/o Village Kuduk Pur, PS Makswan Pur,
Distt. Ferozabad, UP.
3. Vijay @ Vijender, S/o Sh. Jai Prakah Joshi,
R/o Village Sehgal Pur, PS Shikohabad,
UP.
Date of Institution : 30.05.2005.
Date of Argument : 18.02.2011.
Date of Judgment : 13.04.2011.
JUDGMENT
1. Prosecution case is that on 14.01.2005, complainant Mohd. Irshad came at the Police Station and gave statement that his son has been kidnapped. He stated that on 13.01.2005 at about 3.00 pm, his son Imran, aged about five years, had gone out to play in the ground but did not return back. Despite search, he was not found. FIR FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 1 of 27 under Section 363 IPC was registered. On 31.01.2005, Mohd. Irshad again came at the police station and informed that he has received ransom calls on his residential phone No. 55766129 and mobile No. 9818221486 demanding Rs. 3 lakhs for the release of his son. Statement of Mohd. Irshad was recorded and Section 364-A IPC was added and the investigation was entrusted to SI C.L. Meena on 05.02.2005. IO obtained the call details. The ransom calls were received from telephone No. 05614-234796 and 05614-254717 on 30.01.2005 and 31.01.2005. On enquiry, it was found that both these numbers were the STD numbers of Bhadrauli and Jarar in District Agra. On 05.02.2005, ransom calls of Rs. 3 lakhs were received on telephone No. 55766129 of Mohd. Irshad from telephone No. 05614-224158 and 05614-224129. These phone numbers were also of Bhadrauli and Jarar in District Agra. A special team was constituted to verify these telephone numbers under the supervision of SI C.L. Meena and ASI Azad Mohd. It was found that telephone numbers 224158 and 224129 were of the area of Jarar and telephone No. 234796 and 254717 were of the area of Bhadrauli. Calls detail of telephone No. 224129 and 224158 were obtained from BSNL office, Baha. On scrutiny of the call details, it was noticed that the caller who made the ransom call, used to contact telephone No. 921329702 at Delhi after making the ransom call. On enquiry in Delhi, it was found that telephone No. 9213129702 was in the name of Devender Singh. The negotiations took place between the complainant and kidnappers on telephone No. (s) 9897145668, 9897722166 & 9897154123 for the payment of the ransom money and for release of Imran. The conversation was heard from a parallel line. From the conversation, it appeared that the telephone calls were being made from the area near Shikohabad, District Ferozabad. Raj Kumar @ Puppy was the main suspect in the kidnapping. He and his brother in law Jagbir Singh were noticed near the house of Mohd. Irshad on the day of incident. The police team under the supervision of IO SI C.L. Meena was sent to Shikohabad, FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 2 of 27 District Ferozabad. The assistance of local police was also taken. On 27/28.02.2005, local police of Shikohabad recovered the kidnapped child from accused Vijay @ Vijender and Jagbir Singh. Separate cases bearing FIR No. 78/05 under Section 307 IPC, FIR No. 79/05 under Section 25/27 Arms Act and FIR No. 80/05 under Section 25/27 Arms Act were registered against the accused for firing at the police party and on account of recovery of arms and ammunitions from them at Shikohabad. It was found that telephone No. 05676-252315 was STD telephone of Checha Pur Chowk, PS Naseer Pur, District Ferozabad. The STD booth owner Ajay Yadav on enquiry stated that Shyam Singh, his associate Parkishit, Jagbir @ Tony, Mukesh @ Chinuva and Raj Kumar @ Puppy, brother in law of Jagbir were making calls from his STD booth since last one and a half months to Delhi and other places. He disclosed that Shyam usually talked with his brother Devender on his phone No. 9213129702 and Devender also used to call at his STD number for talking to Shyam. The child was released on the superdari of his father. Statement of Imran was recorded under Section 161 Cr. PC wherein he stated that Puppy had taken him from the field and handed over to Jagbir who took him in a bus to the helmet factory of Devender and Jagbir took him to Agra in a bus and from there to his village where he was kept captive by Jagbir with the help of his associates Shyam, Parikshit, Mukesh and Vijay. Accused Devender was arrested on 01.03.2005. On interrogation, he gave disclosure statement. Accused Jagbir and Vijay who were arrested by the Shikohabad Police were arrested in the present case. Accused Devender Singh pointed out the STD booths at Bhadrauli, Farera and Jarar. All the STD booth attendants identified accused Devender and gave the names of two others as Raj Kumar @ Puppy and Parkishit. Telephone bearing No. 9213129702 was recovered from accused Devender Singh. During police remand, accused Jagbir Singh pointed out the place where Raj Kumar @ Puppy had handed over Imran to him. The phone number 9897722166 used by Jagbir Singh was earlier FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 3 of 27 seized by Shikohabad Police. The call details of incoming and outgoing calls of the period 01.01.2005 to 31.03.2001 of complainant Mohd. Irshad as also the telephones from which the ransom calls were made were collected. Statement of Imran was got recorded under Section 164 Cr. PC. On completion of investigation, charge sheet was filed under Section 363/364-A/120-B/34 IPC against accused Devender Singh Yadav, Jagbir Singh and Vijay. Accused Raj Kumar @ Puppy, Mukesh, Parikshit and Shyam Singh could not be arrested. They were kept in Column No. 2 of the charge sheet.
2. After compliance of Section 207 Cr. PC, case was committed to Sessions Court. Charge under Section 120-B, Section 363 IPC read with Section 120-B and 364-A IPC read with Section 120- B IPC was framed against the accused to which, they pleaded not guilty.
3. In order to prove its case, prosecution examined 19 witnesses. PW-1 is HC Umed Singh, Duty Officer. He had recorded the FIR Exbt. PW-/A. PW-2 is Mohd. Irshad. He is the complainant. He deposed that his son Imran, aged about five years had been missing from the house since 13.01.2005 at about 4.00 pm. Despite search, he could not trace out his son. In the evening, he made a mising report with the police and thereafter in the morning of 14.01.2005, he went to the police station where his statement Exbt. PW-2/A was recorded. He deposed that one Puppy @ Raj Kumar had accompanied him to the police station to lodge complaint regarding his missing son. Puppy @ Raj Kumar had also accompanied him in search of his son for about 3- 4 days. But thereafter, he was missing from the house on the pretext that his wife was not well. He further deposed that after about 17 days i.e. 30.01.2005 in the night time, he received an STD call on his mobile FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 4 of 27 phone No. 9818221486 and the caller only asked his name and directed that he would again contact him in the morning at 10.00 or 11.00 am. On 31.01.2005 at about 11.30 am, he received another call on his mobile phone and the caller informed him that the child was with him and that they would release his son if he would give them Rs. 3 lakhs and threatened that if he would try to lodge the complaint to the police, they would kill his son and he and his family members would face dire consequences. This call was received on his land line No. 55766129 Tata Indicom. He informed the police. The police sent a raiding party to Bhadrauli, UP. He stated that the kidnapper called him with money at 4-5 places but he did not meet him at any of the said place. He further deposed that when he along with police party reached PS Shikohabad, he found accused Jagbir and Vijay @ Vijender already present there. They were known to him. He identified them at the police station and disclosed to the police that after kidnapping of his son by Puppy, he handed over his son to Jagbir Singh who is the brother in law of Puppy. He deposed that after 3-4 days on 28.02.2005, his son was recovered by the police and the custody of his son was handed over to him. He stated that accused Devender Singh Yadav was arrested vide memo Exbt. PW-2/C and his personal search was conducted vide memo Exbt. PW-2/D. Jagbir pointed out the place where the child was handed over to him by Raj Kumar vide memo Exbt. PW-2/E. He had also pointed out the factory vide memo Exbt. PW-2/F. He further deposed that accused Devender had got recovered one mobile phone make Nokia/Tata Indicom set from third Yamuna Pushta which was seized vide memo Exbt.PW-2/G. He proved the disclosure statements given by Devender as Exbt. PW-2/H. PW-3 is Imran. He deposed that one Puppy uncle, who was known to him, took him from an open field to his house and gave his custody to accused Jagbir who was standing near a temple. Accused Jagbir took him to his factory and made him change his FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 5 of 27 clothes and gave biscuit to eat. He then took him to his house by bus. Accused Jagbir then took him to his village and handed him to a person named Junva. He deposed that he was then handed over to accused Vijay by accused Jagbir. He stayed with accused Vijay for two months. The mother and sister of accused Vijay were also residing there. Police recovered him from the house of accused Vijay. He further stated that accused Vijay used to talk rubbish with him and also burnt his left arm with a Biri. On being asked about the role of accused Devender by the learned APP, the witness replied that Jagbir had taken him to the factory of accused Devender and he was given biscuits in the said factory.
PW-4 is ASI Azad Mohd. He deposed that on 23.01.2005, investigation of this case was handed over to him. He tried to trace the kidnapped child but he was not traceable. He prepared the posters from the photograph of Imran and pasted them at different places. He had handed over the photographs of Imran at the office of Missing Persons Squad. He had recorded the statement of Irshad and added Section 364-A/120-B IPC.
PW-5 is Sh. M.N. Vijayan, Nodal Officer from Tata Tele Services Ltd. He stated that on 28.05.2005 at the request of the ACP, he handed over the call details of incoming and outgoing calls of telephone No. 55766129 and 9213129702 from 01.01.2005 to 31.01.2005. He produced the copy of subscriber details and cell site ID with location which are Mark A to E respectively.
PW-6 is Constable Gurdial Singh. He is the witness of investigation who assisted SI C.L. Meena. On 28.02.2005, he accompanied SI C.L. Meena to PS Kotwali, Shikohabad where SI C.L. Meena took the custody of Imran vide memo Exbt. PW-2/B. He stated that accused Jagbir and Vijay were interrogated by the IO and his FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 6 of 27 statement was recorded. On 01.03.2005, he again joined the investigation with SI C.L. Meena and went to Kartar Nagar, Bhajan Pura at the house of Ram Babu Sharma with SI C.L. Meena, Constable Ashok Kumar and complainant Irshad from where accused Devender was arrested at the instance of the complainant. Accused Devender gave disclosure statement Exbt. PW-2/H and handed over the mobile from which he had made the ransom calls. The mobile phone was seized vide memo Exbt. PW-2/G. He further deposed that on 07.03.2005, accused Jagbir and Vijender, who were produced in the court of Sh. M.K. Nagpal, MM, were arrested with the permission of the court and on interrogation they gave disclosure statements Exbt. PW- 6/C and Exbt. PW-6/D respectively.
PW-7 is Rajbir Singh, owner of STD booth of "Shiv Bajrang Hello Center" located at Farera and the number of his phone was 234796. He stated that he was told by the police that a call was made from his shop to Delhi and that they wanted to know about the person who made the said call on 30.01.2005. He told them that number of people come to make the call and therefore he cannot identify each of them. Rajbir Singh was declared hostile and was cross examined by the learned APP. He denied that he had stated to the police that accused Devender and his friend Jagbir had come at his shop on 30.01.2005 and made a call to Delhi from his STD shop.
PW-8 is Rameshwar Singh, owner of STD booth at Baha. He deposed that in the year 2005, accused Devender Yadav came at his shop and made a call to Delhi from his STD booth. He further deposed that police had brought accused Devender and he identified the accused as the person who made the call from his STD Booth at telephone No. 224158. He deposed that police had prepared the pointing out memo Exbt. PW-8/A. FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 7 of 27 PW-9 is Rajesh Dixit, owner of PCO of "Dixit STD" at village Bhadrauli, Agra. He stated that his telephone No. is 254717 and that on 31.01.2005, police brought a boy identified as Jagbir at his shop and that he told the police that Jagbir had called from his booth about one and a half months ago. Police then prepared the pointing out memo Exbt. PW-9/A. Rajesh Dixit was declared hostile and was cross examined by the learned APP. He admitted in cross examination that Devender also came at his shop with the police officials on 31.01.2005. He admitted that on 05.03.2005, accused Devender came at his shop with police and police enquired from him as to whether Devender had made a call from his shop. He stated that accused Devender might have made a call from his booth on 31.01.2005. He admitted that on the pointing out of accused Devender, pointing out memo Exbt. PW-9/A was prepared by the IO.
PW-10 is Manish Jain, attendant of STD booth "Ring Home" situated at Baha, Agra. He stated that the number of telephone of his STD booth is 224129 and that on 05.03.2005, police brought someone at his booth but he stated that he cannot identify that person. He deposed that he cannot tell whether any of the accused had made call from his booth on 05.02.2005. He had handed over a photocopy of the register of telephone calls which is Exbt. P-1 and the same was seized by the police vide memo Exbt. PW-10/A. Manish Jain was also declared hostile and was cross examined by the learned APP. He denied that accused Devender and Raj Kumar made call from his booth to telephone No. 55766129 and to another number at Delhi. He denied that on 05.03.2005, police came at his booth with accused Devender or that he identified accused Devender as the person who made a call to Delhi from his STD booth.
PW-11 is Sh. R.K. Singh, Nodal Officer from Bharti Airtel Ltd. He had handed over the computer generated call details of the FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 8 of 27 mobile phone No. 9818221486, 9897722166, 9897145668 and 9897154123 of the period 01.01.2005 to 31.03.2005 which are Exbt. PW-11/B. PW-12 is Ajay Yadav, operator of STD booth of Chaichai Pur crossing at Village Hargan Pur. He stated that accused Devender used to make telephone call from Delhi at his STD booth and talked to his brother Shyam Singh and other family members. He further stated that he did not pay attention to the conversation which took place between Devender and his family members. He stated that he does not know Jagbir @ Tony Parikshit, Mukesh and Raj Kumar.
PW-13 is SI Anandi Prasad. He is the First IO. On 14.01.2005, he had recorded the statement of Mohd. Irshad and prepared the Rukka Exbt. PW-13/A on the basis of which, FIR was recorded by the Duty Officer.
PW-14 is Sh. Bhupesh Kumar, the then MM. He had recorded the statement of Master Imran under Section 164 Cr. PC.
PW-15 is SI Brij Mohan Verma from Police Station Kotwali Shikohabad, District Ferozabad, UP. After recovery, the child remained in his custody till 28.02.2005, on which date he was handed over to his father vide memo Exbt. W-2/B. He had also made entry in the Malkhana Register with regard to the deposit of mobile phone recovered from accused Jagbir.
PW-16 is SI (Retired) Sahdev Dwivedi from PS Shikohabad Kotwali. He is the IO of case FIR No. 78/05 under Section 307 IPC PS Shikohabad. He stated that accused Vijay and Jagbir were arrested by Inspector R.K. Singh, the then SHO PS Shikohabad and a child named Imran, aged about five years was recovered from their FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 9 of 27 possession. The child was handed over to HC Brij Mohan, Head Moharar, PS Kotwali. He further stated that one mobile phone bearing No. 9897722166 was recovered from the possession of accused Jagbir Singh.
PW-17 is Constable Balwan. He is the witness of investigation. He stated that on 05.03.2005, accused Devender led the police party at the four telephone booths where all the booth attendants identified him as the person along with other co-accused Raj Kumar @ Puppy, Parikshit and Jagbir made telephone calls to Delhi to Mohd. Irshad regarding the ransom call and kidnapping of his son Imran. He stated that the pointing out memos were prepared at the instance of accused Devender. He further deposed that on 08.03.2005, accused Jagbir pointed out the helmet factory at Bhajan Pura were the child was kept vide pointing out memo Exbt. PW-2/F and also took the police party at Pratap Vihar, Gole Market, Kiradi Village where he pointed out the place of handing over the child Imran to him by co-accused vide pointing out memo Exbt. PW-2/E. PW-18 is Inspector C.L. Meena. He is the Investigating Officer of this case. During investigation, he along with other police staff went at Agra to verify the ransom calls. He collected the call details and came to know that calls were made from Baha and Jarar and found that every ransom call, a call was being made at Delhi on number 9213129702. On 15.02.2005, Mohd. Irshad informed him about the receipt of another ransom call. On verification of the said call, it was found that the call was made from a PCO situated at Checha Pur Chowk, Village Hargan Pur. He also came to know that phone No. 9213129702 belonged to accused Devender. On 28.02.2005 on coming to know about the recovery of child at PS Shikohabad from accused Vijay and Jagbir Singh in case FIR No. 78/05 under Section 307 IPC, he went at PS Shikohabad and obtained the custody of Imran FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 10 of 27 from HC Brij Mohan. The victim was brought to Delhi and his statement was recorded in question-answer form on 01.03.2005. From his statement, he came to know about the involvement of accused Devender Singh Yadav, who was then arrested from Gautam Vihar, Gali No. 2, Bhajan Pura from the house of Bablu Prasad where a helmet making factory was being run. Accused Devender Singh gave disclosure statement Exbt. PW-2/H and then got recovered a mobile phone bearing No. 9213129702 make Nokia from the said house. On 05.03.2005, accused Devender pointed out the PCOs situated at Baha, Jarar, Bateshwar Naka and Bhadrauli vide separate pointing out memos and he was identified by the attendants of all the four PCOs. Accused Jagbir Singh and Vijay were also arrested in the present case on being produced in court on production warrants and on interrogation, they gave disclosure statements Exbt. PW-6/C and Exbt. PW-6/D respectively. Accused Jagbir pointed out the place at Gole Market, Pratap Vihar where he was handed over the custody of Imran by Raj Kumar @ Puppy. He also pointed out the factory of co-accused Devender Singh Yadav vide pointing out memo Exbt. PW-2/F. During investigation, he collected the calls details of Airtel and Tata Indicom and got recorded the statement of Imran under Section 164 Cr. PC .
PW-19 is Inspector R.K. Singh, the then SHO, PS Shikohabad. On the basis of secret information that a kidnapped child was present at the house of Vijay Joshi, he along with police staff raided the house of accused Vijay Joshi and recovered Imran from there.
4. Statements of all the three accused were recorded under Section 313 Cr. PC wherein they stated that they were innocent. They refused to lead any evidence in their defence.
5. Arguments have been heard from the learned counsels of FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 11 of 27 accused as also from the learned APP. The learned APP has argued that Imran has proved that he was kidnapped by accused persons, Mohd. Irshad has proved the receipt of ransom calls from the kidnappers and Inspector R.K. Singh has proved the recovery of kidnapped child from accused Vijay and Jagbir. It is thus argued that prosecution has been able to prove the charge against the accused persons. The learned defence counsels have made following submissions:-
i) Imran is a child witness, aged about five years. His testimony cannot be accepted without corroboration.
ii) Accused Vijay and Jagbir from whom the child was allegedly recovered by the local police of Shikohabad have since been acquitted by the Sessions Court of Shikohabad in case FIR No. 78/05 under Section 307 IPC and therefore the recovery of child as alleged is not proved.
Iii) In cross examination, PW-2 Mohd. Irshad has stated that he saw accused Jagbir and Vijay at PS Shikohabad prior to the recovery of the child and therefore the story of prosecution regarding the recovery of kidnapped child from the house of accused Vijay on 27.02.2005 is doubtful.
iv) Mohd. Irshad in his cross examination stated that the conversations were recorded by the police in mobile phone of ACP Mr. Khushwaha and some of the conversations were recorded in the CD but neither the CD nor the transcript of the recorded conversation has been produced and call detail records do not connect the accused as the maker of the ransom calls.
v) There is no evidence that Devender was in any way involved in the kidnapping of Imran.
6. Accused Vijay and Jagbir have taken the defence that they were illegally confined for many days at Police Station Shikohabad FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 12 of 27 where they were also shown to the complainant and were also forced to sign certain blank papers. Accused Devender has taken the defence that he was lifted on 23.02.2005 and was wrongfully confined at PS Mangol Puri and thereafter he was shifted to PS Sultan Puri where he was shown to public persons and was forced to sign some blank papers.
7. I have considered the submissions made by the learned APP and the learned counsels of accused and have carefully gone through the records of the case. I shall deal with all the submissions made by learned counsels point by point. As per complaint Exbt. PW- 2/A as also the testimony of complainant Mohd. Irshad, the age of Imran at the relevant time was only five years. It is the contention of the defence that being of a tender age, victim was not competent to testify. However, I do not find any force in the submission of the learned counsels. It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. Under Section 118, a child is competent to testify, if it can understand the questions put to it, and give rational answers thereto. The sole test is whether witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth.
8. In a very recent case of State of Karnataka Vs. Shantappa Madivalappa Galapuji 2009 Crl. LJ 2442 SC, it has been observed as under:-
"6. The Indian Evidenct Act, 1872 (in short "The Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 13 of 27 be a competent one. On the contrary, Section 118 of the Evidence envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease-whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States (159 US
523). the evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001 (9) SCC 129)] 2001 AIR SCW 81.
7. In Dattu Ramrao Sakhara v. State of Maharashtra [ (1997) 5 SCC 341] it was held as follows: (SCC p. 343, para 5):
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
8. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 14 of 27 obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
9. Conviction can be based on sole testimony of child witness. In the case of Suryanarayana Vs. State of Karnataka 2001 Crl. LJ 705 SC, such child was only four years old. No inherent defect was pointed out in his testimony and conviction was maintained on sole testimony of such child witness. It was observed as under:-
"Admittedly, Bhavya (PW-2), who at the time of occurrence was about four years of age, is the only solitary eye-witness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eye-witness. The evidence of a child witness cannot be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW-2 cannot be discarded only on the the ground of her being of Teen age. The fact of being PW-2 a child witness would require the Court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence.FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 15 of 27
Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not."
10. In view of the principles of law laid down in the afore-cited judgments, the testimony of PW-3 Imran cannot be outrightly rejected, merely because he is a child witness. PW-3 Imran has categorically deposed that one Puppy had taken him from an open field and gave him to accused Jagbir who was standing near a Mandir. Accused Jagbir took him to his factory and made him change the clothes and gave biscuits to eat. After that, he took him to the village and handed over his custody to accused Vijay. He stayed with accused Vijay for two months. The mother and sister of accused Vijay were also residing there. According to him, police recovered him from the house of accused Vijay. With regard to the role of accused Devender, he stated that accused Devender was having a factory of helmets and he was given biscuits in the said factory. Before recording the statement of Imran, court had put general questions to him and proceeded to record his statement only after satisfying itself that he was able to give answers to the questions put to him and was competent to depose. The learned defence counsels have submitted that in cross examination, Imran has stated that his father had told the names of the accused persons outside the court and therefore he is a tutored witness FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 16 of 27 and his testimony cannot be relied upon. In cross examination, Imran has denied the suggestion that he has deposed against the accused at the asking of his father and Chacha. He denied that accused had not taken him from the custody of his parents or that he deposed at the instance of his parents. It is thus evident that Imran was only told about the names of the accused by his father and not about the deposition he was to make in court. Imran has withstood the test of cross examination. There is no reason why he would depose falsely against the accused persons. I therefore have no reason to disbelieve the testimony of PW-3 Imran.
11. Case FIR No. 78/05 under Section 307 IPC was registered against accused Vijay and Jagbir at PS Shikohabad. Separate cases bearing FIR No. 79/05 and 80/05 under Section 25/27 Arms Act were also registered at PS Shikohabad against them. It has come on record that vide judgment dated 18.02.2006, Fast Track Court of District Ferozabad acquitted accused Vijay and Jagbir in all the three cases. The learned defence counsels have argued that accused have once been tried by a court of competent jurisdiction and acquitted of such offence and therefore they are not liable to be tried again for the same offence or any other offence.
12. PW-19 Inspector R.K. Singh deposed that on receipt of a secret information, he along with other police staff went to the house of accused Vijay Joshi and while they were still outside the door of his house, accused Vijay Joshi on opening the door, immediately rushed back shouting "Police-Police" and simultaneously fired at the police party with a country made pistol. In the meanwhile, co-accused Jagbir also came out from another room and fired at the police party with a .315 bore Katta. Both the accused were overpowered and weapons were recovered from them. On their interrogation about the kidnapped boy, they pointed out towards the room on the Eastern side of the FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 17 of 27 house from where, Imran, aged about five years, who was lying on a cot, was recovered. Since FIR of kidnapping was already registered at Delhi at PS Mangol Puri, FIRs were recorded only under Section 307 IPC and 25/27 Arms Act against accused Vijay and Jagbir at PS Shikohabad. The learned Sessions Court acquitted the accused mainly on the ground that prosecution had not produced Imran as a witness in the said case and complainant Sahdev Dwivedi and SHO R.K. Singh could not be produced to prove the incident and no opinion was obtained regarding the fact that the recovered weapons were in a working condition. The cases registered at PS Shikohabad and the case registered under Section 364-A IPC at PS Sultan Puri are independent of each other and therefore the trial of the present case shall not amount to double jeopardy to the accused. In the present case, prosecution has produced victim Imran as also Inspector R.K. Singh, SHO PS Shikohabad and SI Sahdev Dwivedi. Hence, the outcome of case FIR No. 78/05, FIR No. 79/05 and 80/05 has no bearing on the present case.
13. The learned counsels of accused have argued that there is no public witness of recovery of child from accused Vijay and Jagbir and if prosecution story of the incident is to be believed, public would have gathered on hearing the sound of firing. Inspector R.K. Singh in cross examination states that no public person had gathered at the spot so much so that even the victim did not get up and kept sleeping. It is thus stated that prosecution version of the incident is not believable.
14. Admittedly, there is no public witness of the incident of recovery of child from accused Vijay and Jagbir. Inspector R.K. Singh (PW-19) has deposed that public persons were requested to join the raiding party but they refused. It is not uncommon these days that public persons avoid becoming witnesses. Moreover, there is no principle of law that without corroboration by independent witnesses, FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 18 of 27 the testimonies of the police personals cannot be relied upon. The presumption is that a person acts honestly applies as much in favour of police personnel as to the other persons. It will thus not be proper to distrust and suspect the testimonies of the police officials without goods grounds. The statements given by police officers as witnesses should be given same weight as the statements made by the other witnesses. Merely because no one from the neighbourhood gathered on hearing the sound of firing or because Imran did not awake because of the sound of firing, would not make the testimony of Inspector R.K. Singh less credible. There is no reason to disbelieve the testimony of Inspector R.K. Singh who recovered the victim from accused Vijay and Jagbir.
15. In his examination in chief itself, PW-2 Mohd. Irshad stated as under:-
"When I along with police party reached at Police Station Shikohabd, accused Jagbir and Vijay @ Vijender were already present there and they were known to me so I identified them in the said police station and I also disclosed to the police that after the kidnapping of my son by Puppy, he handed over my son to Jagbir Singh, who is the brother in law/Jeeja of Puppy. Thereafter 3-4 days later, my son was got recovered by the said police station on 28.02.2005. The custody of my son was handed over there."
16. Surely, the aforesaid statement given by Mohd. Irshad is little confusing and puzzling and is not in consonance with the evidence of other prosecution witnesses. In further cross examination, Mohd. Irshad stated as under:-
"Accused Jagbir was seen by me at PS Shikohabad but I do not remember the date but he was seen by me at about 4.00 pm and was seen by me before the recovery of the child. When we proceeded to Delhi from Shikohabad, I saw the accused at PS FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 19 of 27 Shikohabad, either it may be before 28.02.2005 or 3/4.03.2005."
17. It appears from the cross examination of Mohd. Irshad that he was little confused with regard to the date on which he had seen accused Vijay and Jagbir at the police station. He is not sure whether he saw them before 28.02.2005 or 3/4.03.2005. As per the testimony of Inspector R.K. Singh, the child had already been recovered on 27.02.2005 and therefore there is a possibility that Mohd. Irshad may have seen the accused at the police station when he went there for the custody of his recovered child. Be as it may, only on the basis of an isolated statement either in examination in chief or in cross examination of a witness, the entire evidence of the prosecution witnesses cannot be disbelieved. On the basis of the aforesaid statement given by Mohd. Irshad, the testimony of victim Imran implicating the accused for his kidnapping and that Inspector R.K. Singh proving the recovery of the victim from the custody of accused Vijay and Jagbir, cannot be disbelieved.
18. Mohd. Irshad in his cross examination stated that some of the conversations between him and the accused were recorded in the CD and mobile phone of ACP Khushwaha but IO Inspector C.L. Meena in his cross examination has denied that any such CD was prepared or any conversation was recorded by ACP Khushwaha in his mobile phone and therefore the question of production of CD or recorded transcript does not arise.
19. Prosecution is also relying on the call detail records to prove the ransom call made by the accused to Mohd. Irshad for releasing his son. Mohd. Irshad has deposed that the ransom calls were received on his mobile phone bearing No. 9818221486 and land line No. 55766129 of Tata Indicom. As per prosecution case the FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 20 of 27 ransom calls were made from the PCOs and also from mobile phone No. 9897721166 which was recovered from accused Jagbir Singh. Sh. M.N. Vijayan, Nodal Officer from Tata Tele Services deposed that he had handed over the call details of telephone numbers 55766129 (of Mohd. Irshad) and 9213129702 (recovered from accused Devender) for the period 01.01.2005 to 31.01.2005. Sh. R.K. Singh (PW-11) Nodal Officer, Bharti Airtel deposed that he had handed over the call details of mobile phone No. 9818221486, 9897722166, 9897145668 and 989715423 for the period 01.01.2005 to 31.03.2005.
20. The computer generated electronic record is evidence, admissible at a trial if proved in the manner specified by Section 65-B of the Evidence Act. Sub Section (1) of Section 65-B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in sub-section (2) of Section 65B. Following are the conditions specified by sub-section (2):
a) the computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer;
c) The computer was operating properly, and if not, was not such as to affect the electronic record of its accuracy;
d) Information reproduced is such as is fed into computer in the ordinary course of activity.
21. Under sub-section 4 of Section 65B, if evidence is desired to be led under Section 65B, it would be admissible if a certificate is tendered, signed by a person either occupying responsible official position in relation to the computer or being in the management of the FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 21 of 27 relevant activities; provided the following is certified:
a) electronic record containing the statement is identified with description of how it was produced;
b) that electronic record was a computer print out generated by a device particulars whereof are given;
c) deals with matters to which conditions in sub-section (2) relate.
22. In the case of Devesh Kumar Vs. State Criminal Appeal No. 793/2004, the Delhi High Court held that it cannot look to the computer generated sheets for the reason that the same have not been proved to be electronic record generated on sheets. In the present case, there is no averment from the two Nodal Officers with regard to compliance of sub-section (1) and (2) of Section 65B nor is there any certificate described in sub-section (4) certifying the contents in the manner as set out in sub section and therefore the call detail records are not proved in a proper manner. Moreover, the STD shop operators Rajbir Singh (PW-7) and Manish Jain (PW-10) have not identified accused Devender as the person who made call from their STD booths. PW-8 Rameshwar Singh deposed that Devender Yadav had made a call to Delhi from his STD booth in the year 2005 but he could not tell the date and month when the said call was made. In cross examination, he stated that he did not know accused Devender prior to this incident. He admitted that he cannot tell the name of the person who made the call from his STD booth only two days prior. It is thus astonishing how he remembered that accused Devender, who was not known to him, had made call from his STD booth. Rameshwar Singh in further cross examination stated that accused Devender made a call from his shop only 3-4 days prior to when he was brought by the police at his shop. As per prosecution case, the ransom call was made from his STD booth on 05.02.2005 but accused Devender was arrested in the month FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 22 of 27 of March, 2005 after the recovery of child and thereafter he pointed out the STD booth where he was identified by the STD operator. Thus, the testimony of Rameshwar Singh is not trustworthy and is of no help in establishing that Devender Yadav had made ransom call from the STD booth. The fourth STD booth operator i.e. Rajesh Dixit (PW-9) in his examination in chief states that it was Jagbir who had called from his booth and does not speak of accused Devender. He was declared hostile and was cross examined by the learned APP. In cross examination, by way of suggestion, he admitted that on 05.03.2005, Devender came at his shop along with police officials and police enquired from him as to whether he had made a call from his shop to which he stated that he might have made a call from his booth on 31.01.2005. Thus, it is evident that even Rajesh Dixit is not sure about the identity of accused Devender.
23. PW-3 Imran in his testimony stated that he was taken to the factory of accused Devender by Jagbir where he was given biscuits. He identified accused Devender in court. Therefore, it cannot be held that there is no evidence against accused Devender regarding his involvement in the kidnapping. From the testimony of PW-3, it is evident that Puppy had kidnapped Imran and handed over him to Jagbir who took him to the factory of Devender and from there, he was taken to the house of accused Vijay from where the police had recovered him. Mohd. Irshad has proved that he had received ransom calls from kidnappers. Despite having failed to connect the accused with ransom calls through call detail records and their identification by the PCO operators, the only logical inference is that it could be none else but the kidnappers i.e. accused persons who had made ransom calls of Rs. 3,00,000/- to the father of the victim. To attract the provisions of Section 364-A, prosecution has to prove that the accused kidnapped the child and kept him under detention after such kidnapping and that the kidnapping was for ransom. It is not the demand of ransom FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 23 of 27 alone, but it is when the conduct of the person who demands ransom that gives rise to a reasonable apprehension that the person for whose release the demand has been made, on failure such person may be put to death or caused hurt, that the provision is attracted. PW-2 Mohd. Irshad has deposed that the kidnappers had made demand of Rs. 3,00,000/- for the release of his son and threatened that in case he tried to lodge complaint with the police, they would kill his son and that he along with the family members, would face dire consequences. Thus, the offending act of the accused constitutes an offence under Section 364-A IPC.
24. In cases of conspiracy, the agreement between the conspirators cannot generally be directly proved but only inferred from the established facts of the case, because conspiracy is a clandestine activity and persons generally do not form illegal covenants openly. Thus, conspiracy need not be established by evidence of the actual agreement between the conspirators. The overt acts raise a presumption of an agreement and knowledge of the purpose of conspiracy. In the present case, the circumstances cumulatively considered and weighed unerringly point to the collaboration of accused persons to various acts done in furtherance of the conspiracy. Hence, I am of the opinion that prosecution has been able to prove the charges against accused. I therefore hold all the three accused guilty and convict them under Section 120-B IPC, Section 363 IPC read with Section 120-B IPC and under Section 364-A IPC read with Section 120-B IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NW-03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 13.04.2011.
FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 24 of 27IN THE COURT OF SH. RAVINDER DUDEJA; ADDL.
SESSIONS JUDGE-03; NW; ROHINI; DELHI Sessions case no. 120/09 FIR No. 83/05 PS: Sultanpuri U/s: 363/364-A/120B IPC State Versus (1) Devender Singh Yadav s/o Sh. Rajender Singh r/o village Harganpur, PS Nasirpur, Distt. Ferozabad, UP (2) Jagbir Singh @ Tony s/o Sh. Satram r/o village Kudukpur, PS Makswanpur, Distt. Ferozabad, UP (3) Vijay @ Vijender s/o Sh. Jai Prakash Joshi r/o Village Sehgalpurl, PS Shikhohabad, UP Order on Sentence
1. Arguments have been heard from Ld. APP on behalf of State as also from Sh. Aseem Bhardwaj, advocate Amicus Curiae for convicts Vijay and Devender and Sh. Anubhav Dubey, advocate on behalf of convict Jagbir Singh. On behalf of convicts Vijay and Devender, it has been argued that they are not previous convicts. It is stated that convict Vijay is unmarried person and driver by profession. His aged mother and a younger brother are financially dependent on him. It is stated FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 25 of 27 that convict Devender used to work as labourer in a helmet factory and is a married person having a daughter aged about 9 years and old parents who are dependent on him for their survival. On behalf of convict Jagbir Singh @ Tony, it has been argued that convict Jagbir is also not a previous convict and has five minor children and aged parents. It is also stated that brother of Jagbir has expired and three minor children of his late brother are also dependent on him for their survival. Request has been made for taking a lenient view. Ld. APP has prayed for awarding appropriate sentences for the convicts.
2. Section 364-A IPC provides death punishment or life imprisonment with fine for the offence of kidnapping for ransom. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence. It is a settled law that in rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the court to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded.
3. No doubt, the convicts are involved in a heinous act of kidnapping of a small child aged only five years for the purpose of ransom, yet the present case does not fall within the category of rarest of rare case which may deserve the imposition of death sentence. Considering the totality of facts and circumstances, all the three convicts are sentenced with life imprisonment with fine of Rs. 5,000/- each, in default of payment of which, they shall undergo six months Simple imprisonment u/s 364-A IPC FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 26 of 27 r/w section 120-B IPC. They are sentenced with life imprisonment u/s 120-B IPC with fine of Rs. 5,000/- each, in default of payment of which, they shall undergo six months Simple imprisonment. They are also sentenced with three years Rigorous Imprisonment u/s 363 IPC r/w section 120-B IPC with fine of Rs. 4,000/-, in default of payment of which, they shall undergo four months simple imprisonment. All the sentences shall run concurrently. Convicts shall get the benefit of Section 428 Cr. P. C. for the period during which they have remained in custody during investigation/ trial. Copy of judgment and order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE-03:
North West: ROHINI: DELHI Announced in open court on 26-04-2011 FIR No. 83/05 State Vs. Devender Singh Yadav & Ors. Page 27 of 27