Delhi District Court
State vs . Sudhir Etc. Fir No.1133/2014 Ps Aman ... on 5 July, 2022
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IN THE COURT OF MR. NEERAJ GAUR : ASJ-05 : NORTH-
WEST : ROHINI COURTS/DELHI
In the matter of :-
(Sessions Case No.52305/2016)
CNR No.DLNW010005602015
FIR No. : 1133/2014
Police Station : Aman Vihar
U/s : 364A/120B IPC
STATE
Versus
(1) Sudhir @ Vicky
S/o Sh. Ram Kumar
R/o Village Tatoora PS Kotwali
Shahar Distt. Hardoi, UP
(2) Ravi Kashyap
S/o Sh. Shri Pal
R/o Village Tatoora PS Kotwali
Shahar Distt. Hardoi, UP
(3) Sushil @ Buddha
S/o Sh. Ram Kumar
R/o R/o Village Tatoora PS Kotwali
Shahar Distt. Hardoi, UP
......Accused
Date of institution : 23.01.2015
Date of arguments : 30.05.2022, 08.06.2022
Judgment Pronounced on : 05.07.2022
Decision : All the three accused held guilty
and convicted u/s 364A IPC and
u/s 120B (1) IPC
JUDGMENT
State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 1 of 17
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PROSECUTION CASE
1. The prosecution case in brief is that the 7 ½ years old child Gaurav Pal went missing from near his house on 16.10.2014. His family including his father Mahinder Pal tried to search the child but could not find him. A complaint was made to the police. On the next date, the complainant received a call from a mobile No. demanding Rs.8 Lacs ransom amount for releasing the child. On the basis of location of the mobile phone, a team of police officials alongwith complainant proceeded towards village Hardoi. On a shop on main road, the complainant noticed his son with 2 persons. One of the persons was accused Sudhir who was a distant relative of the complainant. Accused Sudhir @ Vicky and Ravi Kashyap were apprehended and the child was rescued. Both the accused persons were checked and mobile phones and Sim cards were recovered.
Both the accused persons confessed that they alongwith accused Sushil @ Buddha made a plan to kidnap the child for ransom. The statement of the kidnapped child was recorded. State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 2 of 17
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2. The voice samples of the two accused persons were obtained. The initial charge-sheet was filed against accused Sudhir and Ravi Kashyap as accused Sushil @ Buddha was absconding. Accused Sushil @ Buddha was subsequently arrested and a supplementary charge-sheet against him was filed.
CHARGE
3. Vide order dated 02.03.2015, charges u/s 364A read with section 120B IPC were framed against the accused Sudhir and Ravi Kashyap. Vide order dated 16.07.2015, the same charges were framed against accused Sushil @Buddha. The accused persons pleaded not guilty and claimed the trial. PROSECUTION EVIDENCE
4. To prove the charges, the prosecution examined total 14 witnesses whose testimonies are discussed here under.
5. PW-4 Sh. Mahinder Pal deposed that he was working as a contractor in NDPL for last ten years. He has a son namely Master Gaurav Pal (examined as PW-5) aged about 7½ years. On 16.10.2014, the child State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 3 of 17
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Gaurav Pal came back to his house from his school at about 1:30 p.m. After removing his shoes, PW-5 went outside the house and from there, he went missing. PW-4 deposed that accused Sudhir @ Vicky and accused Buddha were the cousins of PW-4 (Bua's son). PW-5 Rahul deposed that the accused Buddha took PW-5 from his house on the pretext of purchasing biscuits from a shop. The shop was found closed and accused Ravi was also there. Accused Buddha and Ravi told PW-5 that they would purchase the biscuits and accused Ravi and Vicky were also present there. Accused Ravi, Buddha and Vicky took PW-5 to a house on foot and then took PW- 5 to some other place in a bus. Accused asked PW-5 to demand from his father / PW-4 an amount of Rs.8 Lacs. PW-4 Mahinder Pal further deposed that on finding his son missing, he made a complaint to the police which is Ex.PW-4/A.
6. PW-6 SI Bhupesh/IO deposed that he made an endorsement Ex.PW-
6/A on the complaint for registration of FIR. PW-2 HC Bharat Lal, Duty Officer recorded the present FIR Ex.PW-2/A on the basis of the said rukka and PW-2 further made endorsement Ex.PW-2/B on the rukka. PW-2 issued a certificate Ex.PW-2/C u/s 65 of the Evidence Act.
State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 4 of 17
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7. PW-4 further deposed that on 17.10.2014 at about 5:30 p.m., PW-4 received a call on his mobile phone no.7530999387 from a mobile phone no.7830987702. The caller demanded an amount of Rs.8 Lacs from PW-4 as ransom for returning the son of PW-4. The caller also allowed PW-4 to talk to his child / PW-5. PW-4 Mahinder Pal informed about this call to PW-6 SI Bhupesh and SI Bhupesh put the mobile numbers on tracker and he also took out the location of the caller that came out to be of Hardoi, UP. PW-6 also arranged the recording facility in the mobile phone of PW-4 so that the next call could be recorded.
8. PWs deposed that on 17.10.2014, PW-6/ IO alongwith PW-4 Mahinder Pal, PW-3 Const. Aman and other police staff left for Barsoiyan Village, Hardoi, UP. On the way to Hardoi, the caller from the other side was in touch with PW-4 and was repeating the demand of Rs.8 Lacs. The ransom caller called them firstly to Farukhabad and PW-4 alongwith other police staff reached at Farukhabad Railway Station but no contact could be made from the caller. PW-6 came to know that the location of the kidnapped child State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 5 of 17
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was at Barsoiyan Village, P.S. Lonar, UP. On 18.10.2014, they reached at the said village at about 7 p.m. On reaching there near high way at a tea shop, PW-5 Master Gaurav was recovered from the possession of accused Sudhir @ Vicky and Ravi. The recovery memo of the child Ex.PW-3/B was prepared. From the search of accused Ravi, one mobile phone Nokia with vodafone SIM card was recovered. From the possession of accused Sudhir, two Airtel SIM cards were recovered. The said articles were seized vide Seizure Memo Ex.PW-3/A. PW-5 further disclosed the involvement of accused Sushil @ Buddha. Accused Ravi was the caller who was talking to the complainant/PW-4 and making the ransom demands.
9. The mobile phone of the complainant/PW-4 was seized vide Memo Ex.PW-3/J. PW-6 interrogated accused persons and recorded the disclosure statement Ex.PW-3/G and Ex.PW-3/H. Accused Ravi and Sudhir @ Vicky were arrested and personal searched vide Memos Ex.PW-3/C, Ex.PW-3/D and Ex.PW-3/F. Before seizure of the mobile phone of PW-4, PW-6 got prepared a transcript Ex.PW-6/B (colly) of the telephonic conversations.
State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 6 of 17
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10. Nokia mobile phone black colour and three SIM cards recovered from accused Ravi and Sudhir were identified by the PWs as Ex.P-1 and P-2 respectively. The mobile phone of the complainant/PW-4 is Ex.P-3.
11. PW-4 further deposed that the ransom call was made by accused Ravi and his voice was identified by PW-4 when Master Gaurav was recovered. PW-4 was threatened to pay the ransom amount if he wanted his son alive. PW-4 deposed that he went to FSL, Rohini where his voice samples were taken.
12. PW-11/SI Arun Kumar deposed that on 25.12.2014, the investigation of the case was assigned to him and he filed the chargesheet against accused Sudhir @ Vicky and Ravi Kashyap. On 04.02.2015, accused Sushil @ Buddha surrendered in the Rohini Court and PW-11 sought permission for his interrogation vide application Ex.PW-11/A. Accused Sushil @ Buddha was formally arrested vide Memo Ex.PW-11/B and supplementary chargesheet Ex.PW-11/C was filed.
State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 7 of 17
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13. PW-14/SI Satish Kumar deposed that on 27.09.2016, the further investigation of the case was assigned to him. He moved an application for getting the voice samples of accused Ravi Kashyap and Sudhir. On 30.09.2016, they were produced before the Court and PW-14 moved an application Ex.PW-14/A for getting the voice samples. Order Ex.PW-14/B dated 30.09.2016 was passed. On
06.10.2016, PW-14 alongwith Const. Ram Kumar went to FSL where specimen voice samples of accused Sudhir @ Vicky and Ravi Kashyap were taken on two audio cassettes. The said two audio cassettes were sealed by PW-14 and seized vide Memo Ex.PW-14/C and were deposited in malkhana. On 07.10.2016, the voice samples of complainant/PW-4 Mahinder Pal were taken at FSL and the audio tape thereof was sealed and seized vide Memo Ex.PW-14/D and were deposited in malkhana.
14. PW-7 HC Raj Kumar deposed that on 25.10.2014, he was working as MHC(M) when PW-6 SI Bhupesh deposited two sealed pullandas that were deposited in the malkhana vide Entry Ex.PW-7/A made in Register No.19.
State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 8 of 17
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15. PW-8 HC Nem Singh/ MHC(M) deposed that on 06.10.2016, he received two pullandas from PW-14/1SI Satish Kumar that were deposited in the malkhana vide Entry Ex.PW-8/A. On 07.10.2016, PW-8/HC Nem Singh/MHC(M) received two pullandas from PW- 14/SI Satish Kumar that were deposited in the malkhana vide Entry Ex.PW-8/B. On 28.10.2016, total three pullandas were sent to FSL through Const. Mohd. Hasim/PW-13 vide Entry Ex.PW-8/C made in the Register No.21. After the receipt of the FSL result, PW-8 made endorsement against relevant entries in Register No.19. PW-8 further deposed that he requested the Court of Sh. Jag Mohan Singh, Ld. MM to provide the sample seal vide request Ex.PW-8/D before sending the exhibits to FSL. The sample seal of J.S. was provided by the Ld. Court that was sent to FSL through HC Mohd. Hasim alongwith the exhibits, forwarding letter and RC.
16. Dr. C.P. Singh/PW-10, Asstt. Director (Physics), FSL, Rohini deposed that on 14.12.2016, he supervised examination of case property that was internally forwarded by Computer Forensic Unit of FSL. PW-9 Sh. Gitesh Patel, Asstt. Chemical Examination (Physics), FSL, Rohini, received a sealed parcel that was found State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 9 of 17
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containing a PEN drive Mark Ex.1 containing the DATA extracted from submitted mobile phone and its memory card. The relevant data was having questioned voice of speaker containing conversation of two persons. The same was compared with the specimen voice of accused Ravi Kashyap and of PW-4/Mahinder Pal Singh and the voices matched. The report prepared by PW-9 is Ex.PW-9/A.
17. PW-12 Sh. Ajay Kumar, Senior Scientific Assistant (Documents), FSL, Rohini deposed that he examined the suspect storage media i.e. memory card and retrieved the data therein into a PEN drive Ex.P3A. He sent the PEN drive alongwith the exhibits to Physics Division for further examination and he prepared his report Ex.PW- 12/A. STATEMENT OF ACCUSED AND DEFENCE
18. The entire incriminating evidence was put to the accused persons u/s 313 CrPC. The accused person denied the evidence and claimed that they were falsely implicated. The accused persons opted not to lead the defence evidence.
State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 10 of 17
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ARGUMENTS AND FINDINGS
19. It is submitted by Ld. Defence Counsels that in the entire transcript Ex.PW-6/B, there is no mention of any threat to kill the child. It is submitted that the transcript rather suggests that the conversation was not in respect of kidnapping anyone and it was a casual conversation between two persons.
20. Ld. APP for the State argued that the transcript was in respect of a telephonic conversation between the complainant/PW-4 and accused Ravi. The said conversation took place after a ransom call had already been received by PW-4 to pay Rs.8 Lacs and the said telephone call clearly suggests that the kidnapped child was with the caller. Not only this, the kidnapped child Gaurav was also made to talk to PW-4 during the same call and the caller was insisting to get at least Rs.7 Lacs.
21. I agree with Ld. APP for the State that the telephonic conversation was in respect of the kidnapped child and ransom and it cannot be treated as a general conversation. So far as the element of threat is State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 11 of 17
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concerned, the conversation between PW-4 and the child Gaurav clearly suggests that the child was crying during the conversation and PW-4 was assuring him that he will bring him back. PW-4 was beseeching the accused to give food to the child. Accused Ravi was threatening PW-4 that he should not act smart and that he should get Rs.7 Lacs.
22. Section 364A IPC is not confined to cases of express threat to cause death or hurt. It includes the cases when the accused, by his conduct, gives rise to a reasonable apprehension that the kidnapped person may be put to death or hurt. The conversation between PW-4 and accused Ravi clearly suggests an element of threat to the kidnapped child if PW-4 would not fulfill the demands. Moreover, the said telephonic conversation between PW-4 and accused Ravi was preceded by an earlier call on 17.10.2014. In his testimony dated 22.09.2016, PW-4 clearly deposed that the caller had asked him to pay ransom and had threatened to pay it if he wanted his son alive.
Both the threatening calls were part of the same transactions and have to be seen together and not in isolation. State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 12 of 17
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23. It is further argued by Ld. Defence Counsels that the police has not proved any call detail record of the mobile phone numbers and the prosecution could not establish that any phone call was made or any telephonic conversation took place between the accused persons and PW-4.
24. In this regard, Ld. APP for the State argued that the child was recovered from the possession of the accused Ravi and Sudhir. At the time of recovery, PW-4 identified accused Sudhir as his cousin.
One mobile phone with a Vodafone Sim was recovered from Ravi and two Airtel Sim cards were recovered from Sudhir. PW-6 SI Bhupesh was leading the team to Hardoi alongwith PW-4 Mahinderpal and both of them have clearly deposed that a mobile phone with call recording facility was provided by the IO/PW-6 to PW-4. It is submitted by Ld. APP that the prosecution has established the genuineness of the audio call recordings. PW-12/ Sr. Scientific Officer FSL proved that he had retrieved the data from the memory card into a pendrive. PW-10 Dr. C.P Singh supervised the process of examination conducted by Sh. Geetesh Patel/PW-9. PW-9 compared the voice sample of accused Ravi with the audio State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 13 of 17
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recording of the telephonic conversation and gave his report Ex.PW- 9/A. He gave the expert opinion that the voice recordings of the telephonic conversations matched the voice sample of the accused Ravi Kashyap as well as of PW-4 Mahinder Pal Singh. It is argued by Ld. APP that it was not necessary to prove the CDRs when two of the accused persons were apprehended at the time of recovery of the child and when there was overwhelming evidence available with the police.
25. I have considered the aspect of non-filing of the CDRs of the mobile phone. It is for the investigating agency to collect the evidence which is considered necessary for the investigation. The filing of call detailed record of the conversation could have a corroborative value. However, every case does not demand a corroboration. In the case in hand, accused Sudhir and Ravi were apprehended alongwith the kidnapped child/PW-5. The prosecution has proved the telephonic conversation made by accused Ravi with PW-4. PW-5 further identified the accused persons who had taken him on the pretext of giving biscuits and who had asked PW-5 to call his father/PW-4 and demand Rs.8 Lacs. In my opinion, the absence of State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 14 of 17
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CDR of the mobile phones is not fatal to the investigation or to the prosecution case.
26. Ld. Counsel for accused Ravi further argued that accused Ravi was not related to PW-4. Accused Sudhir and Sushil were in relation to PW-4. Accused Ravi was simply a co-villager with accused Sudhir and Sushil and happened to be present at a tea stall. It is argued that accused Ravi had no motive to kidnap the child of PW-4 and he is liable to be acquitted.
27. Against accused Ravi, there is ocular evidence of PW-5/kidnapped child Gaurav who identified accused Ravi and stated that accused Ravi was there at the closed shop when he was initially taken by accused Sushil @ Buddha. Then accused Sushil and Ravi told that they would purchase biscuits for him. This was happening in Delhi when PW-5 was initially enticed by the accused persons. PW-5 further stated that he was then taken to some place on a bus by the accused persons. Besides this, accused Ravi has been with co-
accused Sudhir when the kidnapped child was recovered. The voice of accused Ravi has been proved and it is duly proved that it was State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 15 of 17
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him who was making the ransom calls and was negotiating with PW-4 and calling him to bring the money.
28. Now I will proceed to examine the charges framed against the accused persons in the light of the legal provisions. The relevant legal provisions are reproduced herein below :-
a) Section 364A IPC. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine
b) Section 120B IPC. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
29. The circumstances of the present case proved on record clearly suggest that a conspiracy was hatched by the accused persons to State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar Page No. 16 of 17
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kidnap PW-5 for ransom. The offence of kidnapping for ransom is punishable with death or imprisonment for life. Charge u/s 120B (1) IPC is duly proved against all the accused persons. The prosecution has further proved on record that PW-5 was kidnapped and PW-4 was threatened to pay ransom amount of Rs.8 Lacs by putting him under threat of causing death or hurt to the kidnapped child. Charge u/s 364A IPC is also duly proved against all the accused persons beyond reasonable doubts.
CONCLUSION
30. In view of the foregoing discussion, I hold all the three accused persons guilty and accordingly convict them u/s 364A IPC and u/s 120B (1) IPC.
Announced in the Open Court (Neeraj Gaur)
On : 05th July 2022 ASJ05/NorthWest District
Rohini Courts/Delhi/05.07.2022
State Vs. Sudhir Etc. FIR No.1133/2014 PS Aman Vihar
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