Rajasthan High Court - Jodhpur
Om Prakash vs State Of Rajasthan on 2 November, 2020
Author: Sandeep Mehta
Bench: Sandeep Mehta
[CRLAD-38/2019 & 55/2019]
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 38/2019
Om Prakash S/o Sh. Shankarlal, Aged About 30 Years, By
Caste Brahmin, Resident Of 12 O 19 R.C.Vyas Colony, P.S.
Subashnagar, Bhilwara. (Presently Lodged In Dist. Jail,
Bhilwara)
----Appellant
Versus
State Of Rajasthan, Through PP
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 55/2019
Kuldeep Singh @ Monu S/o Shri Rajendra Singh Rajput,
Aged About 27 Years, Resident Of F-208, Near Pathwari,
Subhashnagar, Dist. Bhilwara. (At Present Lodged In
District Jail, Bhilwara)
----Appellant
Versus
State, Through PP
----Respondent
For Appellant(s) : Mr. Umesh Shrimali}
Mr. Deepak Menaria}
For Respondent(s) : Mr. Anil Joshi, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE KUMARI PRABHA SHARMA
Judgment
JUDGMENT PRONOUNCED ON ::: 02/11/2020
JUDGMENT RESERVED ON ::: 25/08/2020
BY THE COURT : (Per Hon'ble Mehta, J.)
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[CRLAD-38/2019 & 55/2019] 2 These two appeals have been preferred by the accused appellants being aggrieved of the judgment dated 31.10.2018 passed by learned Additional Sessions Judge No.3, Bhilwara in Sessions Case No.119/12 (53/10) (39/10) by which, they were convicted and sentenced as below:-
Appellants Conviction for Sentences
Offences under
Sections
365 I.P.C. 7 Years' R.I. with fine of
Rs.15,000/- each in
default 15 days' SI
364A I.P.C. Life Imprisonment with
Om Prakash fine of Rs.25,000/- each
S/o Shankar in default, 6 months' R.I.
Lal
& 302 I.P.C. Life Imprisonment with
Kuldeep Singh fine of Rs.25,000/- each
@ Monu S/o in default, 6 months' S.I.
Rajendra Singh 201 I.P.C. 3 Years' S.I. with fine of
Rs.10,000/- each in
default 15 days' SI
120B I.P.C. Life Imprisonment with
fine of Rs.25,000/- each
in default, 6 months' S.I.
All the sentences were ordered to run concurrently.
Brief facts relevant and germane for disposal of the appeals are noted hereinbelow:
Pankaj Vyas (P.W.2) lodged a written report (Ex.P2) to the S.H.O. P.S. Kotwali, Bhilwara on 2.4.2010 at 3.30 PM stating therein that he was a resident of Jawahar Nagar, Bhilwara. 2-3 days preceding the day of incident, two boys claiming themselves to be from the Dadhich community, were continuously trying to approach him to gain his confidence. These boys told the informant that the tests (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 3 etc. of his 6 months old child could be carried out at the Ramsnehi Hospital or Gupta Hospital. On 2.4.2010, the informant got a call from a mobile No.94686-06139 on his mobile No.94132-71454 asking him to reach Ramsnehi Hospital. At that time, the informant was at his work place and thus, he dropped off his wife Renu (P.W.30) and sister Jaya (P.W.4) alongwith his six months old child at the hospital and went back to his job. Both the boys met them at the hospital and took the child with them under the pretext of carrying him to the lab. When they did not return for about 10 minutes, the informant's wife and sister became alarmed and started searching for the child and the boys. They called the informant and told him about the happening. The informant tried to call on the mobile No.94686-06139 which was not picked up for 2 to 3 attempts. At about 2.15 P.M., the phone was answered and the receiver warned the informant that the child was safe with them and that he should not inform the Police and that he would get a call back after some time. On the basis of the report lodged by Pankaj, an F.I.R. No.212/2010 came to be registered at the P.S.Kotwali, Bhilwara for the offences under Sections 363 and 365 I.P.C. and investigation was commenced. The site inspection plan (Ex.P1) was prepared. The Investigating Officer could lay hands on evidence suggesting involvement of the accused Omprakash S/o Shankar Lal, Kuldeep Singh @ Monu S/o Rajendra Singh (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 4 and Avinash @ Omprakash S/o Madan Lal in the kidnapping of the infant and on that basis, all the three accused persons were arrested. Omprakash S/o Shankar Lal gave information to the Investigating Officer under Section 27 of the Evidence Act regarding the concealment of the dead body of the child inside a Baori (manmade waterbody) situated inside the Chittorgarh Fort. Acting in furtherance of such information, the Investigating Officer along with the accused and witnesses proceeded to Chittorgarh Fort and the dead body of the infant was recovered upon being pointed out by the accused. It was subjected to post mortem and then handed over to father Pankaj Vyas for performing last rites. The sequence of the informations given by the accused to the Investigating Officer under Section 27 of the Evidence Act and the recoveries effected at their instance in furtherance of these informations is narrated hereinbelow in a chart form for the sake of convenience:-
Sr. Exhibit Recovery Date of seizure At the No. instance of
1. Ex. P4 Dead Body (Eklavya 9.4.2010 Accused Vyas-Deceased) in a 12:20 PM Omprakash Vimal bag with 2 S/o stones Shankarlal
2. Ex.P36 Nazriye, Amulet, 9.4.2010 Accused Silver Bracelets 02:40 PM Omprakash (Kade) & Bags S/o Shankarlal
3. Ex.P42 Access 125 Scooter 13.4.2010 Accused 02:00 PM Omprakash (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 5 S/o Shankarlal
4. Ex.P41 Hero Honda Deluxe 13.4.2010 Accused Motorcycle of 02:30 PM Omprakash Accused S/o Omprakash Shankarlal
5. Ex.P54 Pyjama, underwear 15.4.2010 Accused & t-shirt of the 04:10 PM Omprakash Deceased S/o Shankarlal
6. Ex.P56 A pair of anklet of 15.4.2010 Accused the deceased 05:30 PM Omprakash S/o Shankarlal
7. Ex.P81 T-shirt and Jeans 17.4.2010 Accused worn by Accused Avinash 06:00 PM Avinash at the Hospital
8. Ex.P/ 84 T-shirt and Jeans 17.4.2010 Accused (worn by Accused Kuldeep 04:50 PM Kuldeep at the hospital), a Mobile Phone & Broken pieces of SIM Cards
9. Ex.P88 Silver bracelets 18.4.2010 Accused (Kade) & 05:00 PM Kuldeep Handkerchief
10. Ex.P79 Ration Card in the 19.4.2010 Accused name of Akram and 07:00 PM Omprakash Photocopy of the S/o Driving Licence in the name Shankarlal Radheshyam Acharya List of Articles:
No. Article
1&2 Pant & T-shirt of Accused Kuldeep Singh
3&4 T-shirt and pant of Accused Avinash
5 Anklet (Paayjeb) of Deceased (Eklavya)
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[CRLAD-38/2019 & 55/2019]
6
6 Handkerchief and 2 bracelets (kade)
7 Sigmatel Mobile Phone & the IMEI number
8 Taaveez, Kada and Nazariye
9 Ration Card & Driving License Photocopy
10 Used t-shirts and other clothing items of a child
11 2 envelopes of the blood samples sent
12 1 mobile article
13 3 mobile articles
14 Vimal bag
15 2 stones found with the deceased body in Vimal bag
The accused Kuldeep Singh @ Monu and Avinash @ Omprakash were subjected to test identification at the hands of Renu (P.W.30) and Jaya (P.W.4) who correctly identified these two accused persons as the kidnappers of the child. Both the witnesses also identified the clothes worn by the accused at the time of kidnapping.
Call details of the respective mobile numbers were procured from the concerned telecommunication companies. The clothes of the deceased and other incriminating articles recovered during the investigation, were forwarded to the FSL for chemical and serological examination. After concluding the investigation, charge- sheet came to be filed against the accused appellants Omprakash S/o Shankar Lal, Kuldeep Singh @ Monu S/o Rajendra Singh and the accused Avinash @ Omprakash S/o Madan Lal Luhar for the offences under Sections 363, 364A, 365, 302, 201 and 120B I.P.C.
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[CRLAD-38/2019 & 55/2019] 7 Since the offences were Sessions triable, the case was committed to the court of Sessions Judge, Bhilwara from where, it was transferred to the court of the Additional Sessions Judge No.3, Bhilwara for trial. The trial court framed charges against the accused persons in the above terms. They pleaded not guilty and claimed trial. The prosecution examined as many as 61 witnesses, exhibited 241 documents and 15 articles to prove its case. After conclusion of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution case, which they denied and claimed that they were innocent and had been falsely implicated in the case. However, no evidence was led in defence.
The learned trial court, proceeded to hear the arguments of the Public Prosecutor and the defence counsel, appreciated the evidence available on record and delivered the impugned judgment dated 31.10.2018, whereby the two accused appellants were convicted and sentenced as above, whereas, the third accused Avinash @ Omprakash S/o Madan Lal was convicted only for the offence under Section 365 I.P.C. and was sentenced to 7 years R.I. on that count. It appears that the accused Avinash @ Omprakash S/o Madan Lal has served the sentence awarded to him by the trial court and has not filed an appeal. The two accused appellants who were sentenced (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 8 to life imprisonment, have preferred the abovementioned appeals, which are being heard and decided together by this judgment.
Shri Umesh Shrimali, Advocate representing the appellant Omprakash S/o Shankar Lal and Shri Deepak Menaria, learned Amicus Curiae, representing the accused Kuldeep Singh @ Monu S/o Rajendra Singh, vehemently and fervently urged that there is hardly any evidence worth the name on record of the case, so as to connect the appellants with the alleged crime of kidnapping and murdering the child of the informant Pankaj Vyas. They contended that there was no evidence in the hands of the Investigating Officer so as to have arrested the accused persons in this case and thus, manifestly, the entire process of investigation including the arrest of the accused and the recoveries allegedly effected at their instance, is fabricated. They further contended that the mobile SIM No.94686- 06139 which was allegedly used to call the informant Pankaj Vyas was issued in the name of one, Radheshyam Acharya, and the prosecution has not offered any plausible evidence so as to prove that the said mobile number was linked to the appellant Kuldeep @ Monu in any manner. They further contended that the mobile call details on which, the trial court placed reliance, so as to draw an inference against the accused regarding their complicity in crime, are inadmissible in evidence for the simple reason (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 9 that the same were not proved as per law. Neither of the two suspected SIM Cards were registered in the name of the accused appellant Kuldeep Singh @ Monu and thus, the call details are of no use whatsoever. The Investigating Officer was already aware of the fact that the dead body of the child was lying in the Baori of the Chittorgarh Fort and thus, the factum of recovery thereof cannot be read against the accused Omprakash S/o Shankarlal. It was further contended that the entire process of recovery of the ornaments etc. of the deceased child which the Investigating Officer claimed to have effected in furtherance of the informations allegedly provided by the accused under Section 27 of the Evidence Act, is tainted because the ornaments had already been recovered from the child's dead body as is apparent from the recovery memo (Ex.P4). It was contended that since these recoveries, which are highly incriminating in nature, were fabricated by the Investigating Officer, it has to be inferred that the entire process of investigation is tainted and the evidence collected by the Investigating Officer ought to be discarded. It was further urged that the handwriting experts' report (Ex.P199), which the trial Court relied upon so as to draw an inference that the accused appellant Kuldeep Singh @ Monu got the SIM cards issued by fabrication and impersonation, and made the disputed entries in the Register (Ex.P8) is inadmissible in evidence because the (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 10 procedure prescribed under the Identification of the Prisoners Act, was not duly followed while collecting the specimen handwritings/signatures of the accused. Learned counsel further contended that though in the F.I.R. dated 2.4.2010, only one mobile number i.e. 94686-06139 was mentioned, which was allegedly used for making the ransom call; but as late as on 6.4.2010 another report (Ex.P65) was submitted without any foundation regarding the demand of ransom from the phone No.94686-05578. They urged that these deliberate concoctions were made in the prosecution case with the contrivance of the Investigating Officer which give rise to a strong indication regarding the fabrication of evidence with the sole objective of somehow or the other, securing conviction of the accused appellants.
Learned counsel for the appellants relied upon the judgments rendered by Hon'ble the Supreme Court in the case of Tomaso Bruno & Anr. Vs. State of U.P. reported in (2015)7 SCC 178, Vijay Thakur Vs. State of H.P. reported in (2014) 14 SCC 609 and Murlidhar & Ors. Vs. State of Rajasthan reported in (2005)11 SCC 133 in support of their contention that the chain of circumstances has not been proved by cogent and convincing evidence and thus, the accused deserve to be acquitted of the charges.
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[CRLAD-38/2019 & 55/2019] 11 On these grounds, learned counsel for the appellants vehemently and fervently contended that the impugned judgment is unsustainable on facts as well as in law and hence, the same is liable to be set aside and the accused appellants deserve to be acquitted by giving them the benefit of doubt.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the learned counsel for the appellants and urged that the prosecution has proved its case against the appellants by convincing direct evidence of witnesses Pankaj, Jaya and Renu and circumstantial evidence in the form of motive and recoveries. The Investigating Officer had no reason to falsely implicate the accused appellants in this case. The evidence of the first informant Pankaj (P.W.2), his wife Renu (P.W.30) and his sister Jaya (P.W.4), is absolutely natural and trustworthy. These witnesses have given unimpeachable evidence establishing that the two accused appellants first, inveigled the complainant to bring his child to Ramsnehi Hospital and stealthily took him taken away from the custody of the ladies, on the ruse that he was being taken to the lab. By virtue of the handwriting experts report (Ex.P.199), the prosecution has duly proved that the accused Kuldeep Singh @ Monu got the SIM No.94686-06139 issued by appending the fake signatures of one Radheshyam Acharya and the SIM No.94686-05578 (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 12 by using forged and fabricated identification documents of one Akram. Both these numbers were used for hatching the conspiracy to kidnap the child and for demanding ransom from family members. The accused offered no explanation whatsoever as to why he got the SIM cards issued by means of fabrication. The fact regarding the calls being put to the informant's mobile No.94132-71454 by using the aforesaid SIM numbers, was duly proved by complainant Pankaj Vyas (P.W.2) in his sworn testimony, who also gave convincing evidence to the effect that his child was taken away from the hospital whereafter, he called on the suspects' mobile No.94686-06139 and got a reply that the child had been kidnapped and a threat was also extended that the Police should not be informed. The report (Ex.P199) also proves that entries in the register (Ex.P8) were made by the accused Kuldeep at Ramsnehi Hospital, which further strengthens the prosecution case against him. He further contended that the significant links of circumstantial evidence in form of motive, recoveries and the handwriting expert's report, corroborate the ocular testimony forming a complete sequence of events sufficient to affirm the guilt of the accused. As per him, the impugned judgment is justified in holding the accused appellants guilty. On these grounds, he sought dismissal of both the appeals.
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[CRLAD-38/2019 & 55/2019] 13 We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned judgment and have minutely sifted through the evidence available on record.
The prosecution case is based on direct testimony as well as on significant links of circumstantial evidence.
The most important witnesses of the prosecution who gave direct evidence implicating the accused are the first informant Pankaj Vyas (P.W.2), Jaya Kumari Vyas (P.W.4) and Renu Vyas (P.W.30). Before adverting to other material on record, we proceed to discuss the evidence of these three witnesses.
Pankaj Vyas (P.W.2) categorically stated in his sworn testimony that he got a call on his mobile No.94132-71454 from phone No.94686-06139 in the evening of 28.3.2010. The caller introduced himself as Gopal Sharma and told that he was Dadhich by caste and that his society had formulated a policy of issuing a life insurance cover of Rs.1 lac @ Rs.11/- only exclusively on offer to the people from the community. The caller also claimed that he knew the informant's father Shri Rajendra Vyas who used to work in the RSEB. He gave out the details of various places where the informant's father had been posted. Since the person claiming to be Gopal Sharma shared accurate details about his father, Pankaj developed faith in the caller and agreed to meet him. However, the caller avoided and stated that a (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 14 booklet was being issued wherein the details of the family members of Dadhich Community would be published and that two boys of the community would visit the home of the informant for making a survey and to collect all the family details. The informant divulged his address to the caller, who again called Pankaj on 29.3.2010 from the same mobile number and told that the boys who were to visit his house would be coming the next day. Pankaj informed his wife, sister and mother about this call. An hour later, around 7 P.M., the person named Gopal Sharma made another call to Pankaj and took his family details. He pertinently asked whether Pankaj had an issue, on which, the informant replied that he had a six months old son named Eklavya. On this, the caller stated that the society was holding a camp for free check up of children aged one month to five years. He asked the informant as to whether his child was suffering from any health problems, upon which, the informant apprised the caller that his child was having issues of vomiting and diarrhoea. Pankaj was offered another allurement by the caller, who stated that the vaccines, which were available in the govt. hospital, were expensive as well as ineffective and thus, he should get the child vaccinated with the aid of the caller's society, as this opportunity was only being provided to the people of Dadhich community. On 31.3.2010, the informant's wife Renu called him at work and informed that two boys had (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 15 visited their home with a register and had taken down all the details of the family and had asked her to bring the child to Guruji Hotel for check up. The lady refused saying that she was alone upon which, the two boys enquired from her whether she wanted to get her child checked at Ramsnehi Hospital or Gupta Hospital. The spouses conferred and agreed to take their child to the Ramsnehi Hospital for medical check up. On 1.4.2010, a boy dropped by at Pankaj's house, while his mother was alone in the house and his wife had gone to Kishangarh to attend some function and thus, he was sent back. On 2.4.2010, the informant got a call from mobile No.94686-06139 and was asked to bring the infant to Ramsnehi Hospital. Pankaj communicated that he was on duty and would come there with the child during lunch break i.e. between 1 and 2 pm. The caller informed Pankaj that he would have to leave the child at Ramsnehi Hospital at about 2 P.M. and that they would drop him back home after the check up was done. A fresh call was received by Pankaj at 1.15 PM, pressing him to reach the hospital with the child. Pankaj then went to his house, picked up his wife Smt.Renu, sister Ms.Jaya and his six months old son Eklavya and reached Ramsnehi Hospital at about 1.55 PM on a motorcycle. He left his family members at the hospital and returned to duty. On an update received from his wife Renu that the two boys had taken the child and were nowhere to be found, Pankaj (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 16 called on the mobile No.94686-06139, but got no response. He rushed back to the hospital, met his wife and sister and tried to look out for the suspects and his child but without any success. They realised that the child might have been kidnapped, whereupon, the police was informed. The suspects could somehow be contacted on mobile phone after repeated attempts. Pankaj was warned/instructed to keep the matter under wraps so as to ensure safety of the child. The Police undertook the procedure of preparing the site inspection plan etc. On 04.04.2010, a call was received on the informant's wife Smt. Renu's phone from mobile No.94686-05578. The caller apprised that the child was safe with them and the Police should not be informed. Renu told Pankaj about this call. Again on 05.04.2010, a call was received on his wife's mobile No.94609-94291 at about 11.30 PM from the same mobile No.94686-05578. The caller told that her son was safe with them and that if they wanted to ensure the child's safety, then no tocsin should be raised. The caller also instructed to make arrangement of Rs.2 lacs as ransom for safe return of the child. She was further informed that the update regarding the mode, manner and place of delivery of the money and return of the child would be intimated later by a call. She was also threatened that if she tried to inform anyone, the child would be killed. Upon this, Pankaj and his wife, rushed to the Police Station Kotwali and lodged yet another report (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 17 (Ex.P65) on 06.04.2010. On 09.04.2010 at about 10.50 P.M., the informant got a call from the Police Station that he would have to accompany them for bringing his son back from Chittorgarh. On this, Pankaj immediately went to the Police Station Kotwali Bhilwara alongwith Shri Jamna Lal, Jagdish and his maternal uncle Shri Vishnu Bhatt. The Police Officers of the P.S.Kotwali accompanied the informant and his companions while they proceeded to Chittorgarh alongwith the accused Omprakash Joshi S/o Shankar Lal. They reached Vijay Stambh, Chittorgarh. Someone stated that the dead body of Eklavya was in the Baori. Omprakash S/o Shankar Lal pointed in the direction of Baori indicating that the dead body was lying there and then he descended the stairs of the Baori with the Police officials and brought out a bag in which the child's body was packed and strong stench was emanating from therefrom. Omprakash Joshi S/o Shankarlal admitted in front of everyone present that he had killed the child, packed his dead body in the bag of Vimal Gutkha and had thrown it in the Baori. When the bag was opened, the child's dead body was seen lying therein. The Police undertook the process of preparation of the relevant memoranda including site inspection plan etc. Pankaj categorically stated that the accused persons had kidnapped the child for ransom and had killed him thereafter.
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[CRLAD-38/2019 & 55/2019] 18 We have carefully gone through the exhaustive cross- examination conducted from this witness and find that other than trivial contradictions, which were sought to be elicited from his deposition, nothing significant had been extracted which could diminish the evidentiary worth of this witness's testimony. Thus, the sequence of the events i.e. the allurements given by the accused for facilitating the kidnapping viz. the calls received from the suspected SIM numbers, demand of ransom and factum of recovery of the dead body at the instance of the accused Omprakash S/o Shankarlal has been established from the evidence of Pankaj.
Jaya Kumari Vyas (P.W.4) is the sister of the first informant and aunt (Bua) of the child. In her evidence, she gave out the minute details of the events preceding the kidnapping in tandem with the evidence of Pankaj. She gave the description of the two suspects as a tall and a short boy. She pertinently stated that the two boys who met them at the hospital, engaged them in filling up the forms etc. and put them off guard. Thereafter, the tall boy, who had gone to the lab with her sister-in-law, came and stood beside her and he was holding the child in his arms. Her sister-in-law Renu was also standing nearby. She was filling up the forms. Her sister-in-law Renu was sent back to the lab and in the meantime, the tall boy who was holding Eklavya, disappeared. When she looked around for the (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 19 shorter boy, he was also missing. She thought that the child might have been taken to the lab for the health check up. She completed the forms and went down to the lab and saw her sister-in-law Renu standing alone. She asked about the two boys and the child, to which Renu replied that the child was with the boys who had been left with Jaya. Upon this, the witness stated that she was busy filling up the forms and taking advantage of this, both the boys escaped with the child in a clandestine manner. They called Pankaj and informed him about the unfortunate turn of events. Pankaj arrived at the hospital in a few minutes and tried to contact the boys, who did not take the calls. Pankaj and Renu went to inform the Police, leaving the witness behind in the hope that the boys would return. She kept on searching for the boys and finally, approached Ankit (P.W.5), an employee of the hospital, and apprised him of the incident. On his suggestion, they checked the CCTV footage in the hospital's monitor, on which it came to light that both the boys had indeed taken away her nephew by tricking them. She identified the tall boy as Avinash @ Omprakash and the shorter boy as Kuldeep Singh @ Monu in her evidence. She also stated that the shorter boy had given her a register in which some details were filled, which she left behind at the Ramsnehi Hospital. The said register was seized by the Police and was proved by the witness as Ex.P/8 in her testimony. Jaya duly verifed the articles of the child (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 20 recovered during investigation. The witness also stated that after the two boys had been arrested by the Police, she and her sister-in-law Renu got a summon from the court on which, they went to the jail on 15.04.2010, where they correctly identified both the kidnappers. The test identification memorandum of Kuldeep Singh was exhibited as Ex.P10 and that of Avinash as Ex.P11. She also identified the clothes worn by the accused Kuldeep Singh and Avinash vide test identification Memorandums Ex.P12 and Ex.P13 respectively. These clothes were also identified by the witness in the court. We have carefully gone through the exhaustive cross-examination conducted on the witness by the defence counsel and find that nothing significant was extracted by the defence which can diminish the evidentiary worth of her testimony. Furthermore, on the aspect of the cross-examination conducted regarding the identification of the two boys as kidnappers, it is clear that, other than a bald suggestion that the Police had pointed out the two boys to her in the test identification proceedings, no question was put to her which could create a doubt on the identification of the two accused as being the kidnappers. Thus, we are satisfied that evidence of this witness is trustworthy.
Renu Vyas (P.W.30) also gave evidence almost in tandem with that of Jaya. She was also made to identify the two accused in the test identification proceedings. The (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 21 memoranda of test identification were exhibited in her evidence as Ex.P10 and P11. She also identified the clothes of her child as well as the clothes of the two accused vide memorandums Ex.P66 to 71. She identified the two accused persons namely Kuldeep @ Monu and Avinash in the court as the kidnappers of her child and so also the clothes worn by them at the time of kidnapping. We have thoroughly perused the cross-examination conducted from this witness and find that her testimony is absolutely natural and trustworthy. An absurd suggestion was given to her regarding enmity with Omprakash S/o Shankarlal, which she refuted. On going through the entire cross-examination conducted from the witness Smt. Renu (P.W.30), we are duly satisfied that nothing significant was extracted by the defence counsel which can detract from the evidentiary worth of her deposition. On a perusal of cross-examination conducted from the witness, it is clear that bald suggestions were given to her that photographs of the accused were splashed in the newspapers after they were arrested and that she had seen those photographs before the test identification proceedings which she emphatically denied. A further suggestion was given to the witness that the Police gave her the photographs of the arrested accused and assisted her in identifying them in the jail. We are of the opinion that this defence theory, apart from being totally frivolous, is also untenable for the simple reason that there (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 22 was no animosity whatsoever between the complainant Pankaj and his family members and the accused persons, which could spur the two ladies to wrongly identify the offenders in the test identification proceedings at the cost of leaving out the real culprits. Therefore, we are in conformity with the finding recorded by the trial court that from the evidence of these three witnesses, it can be concluded beyond all manner of doubt that the accused Kuldeep @ Monu and Avinash unquestionably kidnapped the minor Eklavya for the purpose of extorting ransom and that Omprakash S/o Shankarlal got the infant's dead body recovered from the Baori at the Chittorgarh Fort.
The evidence pertaining to procurement of the SIM No.94686-06139 by fraudulent means was given by Moolchand (P.W.9) J.T.O. Kotadi and Narayan Lal (P.W.10) Sales Executive in BSNL. Radheshyam himself appeared in evidence as P.W.43 and stated that he never procured the BSNL SIM of the above number. The fact that the mobile No.94686-06139 was used to call on the mobile number of Pankaj has been stated by Pankaj himself and was also duly verified from the call details.
The case was investigated by Rajendra Singh (P.W.57). His evidence is most material and a succinct summary thereof is referred to herein below.
The witness was posted as a Sub Inspector at the Kotwali Bhilwara on 02.04.2010. Investigation of the case (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 23 arising from F.I.R. No.212/2010 lodged by Pankaj was assigned to him. He inspected the place of incident i.e. Ramsnehi Hospital with the assistance of Pankaj (P.W.2) and Renu (P.W.30) and prepared the site inspection plan (Ex.P1) and recorded the statements of various witnesses connected with the case. In addition to the recoveries made at the instance of the accused, the Investigating Officer effected the following recoveries during investigation:
Sr. Exhibits Date of Seizure Seizure Items No.
1. Ex. P8 02.04.2010 The purported register of Dadhich Community executive handed over by the accused to the witness Jaya
2. Ex. P176 to 02.04.2010 The CCTV footage of 189 the Ramsnehi hospital
3. Ex. P74 03.04.2010 Original GSM Sim No. 94686-05621 Applica-
tion form with ID proof of Akram Khan
4. Ex. P77 03.04.2010 Original GSM Sim No. 94686-05578 Applica-
tion form with ID proof of Akram Khan
5. Ex. P20 03.04.2010 Original GSM Sim No. 94686-06139 Applica-
tion form with ID proof of Radheshyam Acharya
6. Ex. P91 18.06.2010 Registration receipt of the Ramsnehi Hospital issued by Arun Soni
7. Ex P45 27.05.2010 R.C. of Access Scooter & its Insurance certific-
ate
8. Ex. P46 27.05.2010 Motor Insurance cer-
tificate of the Access Scooter
9. Ex. P161 & 162 03.04.2010 Motor-cycle payment receipt in the name of (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 24 accused Omprakash
10. Ex. P26 13.04.2010 2 envelopes of the blood samples and control samples recov-
ered from the crime scene The witness then procured the details pertaining to the SIM No.94686-06139 from the JTO Kotadi including the original application forms and seized the same vide Ex.P19. The accused Omprakash S/o Shankar Lal was arrested vide Arrest Memo (Ex.P23) and in furtherance of the information provided by him under Section 27 of the Evidence Act (Ex.P155), the dead body of the child was recovered vide memo Ex.P4. The body was subjected to post mortem and was handed over to the relatives for performing last rites. The accused Avinash was arrested vide memo Ex.P24 and was kept Baparda. The accused Kuldeep Singh was arrested vide arrest memo Ex.P25 and was kept Baparda. Their clothes were seized vide seizure memos (Ex.P81 & P84). A scooter No.RJ6SA8736 was recovered and got examined through the mobile forensic unit vide memo Ex.P26. The accused Kuldeep Singh provided verification of the place of kidnapping i.e. Ramsnehi Hospital vide memo Ex.P27. The accused Omprakash S/o Shankar Lal gave information under Section 27 of the Evidence Act and recoveries of clothes and ornaments of the child were effected in furtherance thereof vide memos (Ex.P54 & P56). We find no reason to doubt these highly incriminating recoveries. The seized articles were deposited with the Malkhana Incharge. (Downloaded on 04/11/2020 at 08:18:47 PM)
[CRLAD-38/2019 & 55/2019] 25 Call details of the suspects' mobile numbers were procured from the respective service providers alongwith the certificates/forwarding letters. The two accused namely Kuldeep @ Monu and Avinash and the clothes worn by them at the time of kidnapping were subjected to test identification at the hands of the witnesses Jaya and Renu and test identification memos were exhibited as Ex.P197 & P198, Ex.P12 & P13 respectively. The specimen handwritings of Radheshyam Acharya (Ex.P219 & P221) and the accused Kuldeep Singh (Ex.P117 to P125) were taken for the purpose of comparison with the suspected handwritings on the mobile SIM procurement documents and the register (Ex.P8). On going through the entire cross- examination conducted from the witness, we fail to find anything which can extenuate the evidentiary worth of his testimony. The evidence given by the witness regarding the steps of investigation undertaken by him inspires confidence and is not tainted or unconvincing in any manner. Thus, evidence of this witness corroborates the testimony of the important prosecution eye-witnesses Pankaj Vyas (P.W.2), Renu Vyas (P.W.30) and Jaya Kumari Vyas (P.W.4) on material counts and there is no reason to doubt his version.
Dinesh Kumar (P.W.33) gave evidence to the effect that the SIM No.94686-05621 and SIM No.94686-05578 were both issued in the name of one Akram Khan. (Downloaded on 04/11/2020 at 08:18:47 PM)
[CRLAD-38/2019 & 55/2019] 26 The witness Salma appeared in evidence as P.W.3. She was a Ward Member of Ward No.30. She stated in her evidence that no person by the name Akram Khan with the address House No.30F, Near Bada Mandir, Gulmandi, Old Bhilwara, used to reside in the Ward. She also gave a certificate to this effect to the Police.
Umesh Ojha (P.W.56) Dy.S.P. Bhilwara gave evidence to the effect that the accused Kuldeep Singh was presented before him for the purposes of collecting his specimen handwriting/signatures. The witness gave satisfactory evidence fortifying the fact that the specimen handwriting/signatures of the accused Kuldeep Singh were collected by the Investigating Officer in his presence.
The specimen handwriting of the accused Kuldeep and the handwriting/signatures on the suspected fabricated mobile SIM application forms (Ex.P20) and the register (Ex.P8) were forwarded to the FSL Expert for comparison from where, a report (Ex.P199) was received, establishing the fact that the specimen handwriting of the accused Kuldeep Singh @ Monu, tallied with the handwriting/signatures of the person portrayed to be Radheshyam in the mobile SIM application forms. This report fortifies involvement of the accused Kuldeep in the kidnapping to the hilt.
The Chinese manufactured mobile of Sigmatel and the broken pieces of SIM were recovered at the instance of the (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 27 accused Kuldeep vide seizure memo (Ex.P84). The broken pieces of SIM were joined together and upon tallying, the identification numbers mentioned thereupon, the same matched with the details of the SIM issued for mobile No.94686-06139 in the name of Radheshyam Acharya. Thus, it has been established beyond all manner of doubt that Kuldeep got the said SIM issued fraudulently and used the same to call the first informant for executing the conspiratorial design of kidnapping the child for ransom. Even if we assume for a moment that the call details have not been proved properly by procuring and exhibiting the certificates under Section 65B of the Evidence Act, the fact that the handwriting of Kuldeep matched with the handwritings on the SIM application form referred to supra and the fact that the recovered broken pieces of the SIM were retrieved from him, duly establishes the fact that it was none other than Kuldeep, who used the SIM for putting calls to the first informant and his wife.
It was categorically stated by the witnesses Pankaj, Renu and Jaya, that the mobile numbers (1) 94686-06139 and (2) 94686-05578 were used firstly to lure the complainant party to bring the child to the hospital and thereafter, for demand of ransom. It may be stated here that circumstantial evidence in form of the recovery of the infant's dead body, the report of handwriting expert, recovery of the broken pieces of SIM and the ornaments of (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 28 the child are important links in the chain of circumstantial evidence which provide strong corroboration to the direct evidence in the form of the testimony of Renu and Jaya, whose substantive evidence by itself is sufficient to affirm the guilt of the accused Kuldeep Singh @ Monu and Avinash @ Omprakash in this case as being the perpetrators of the offence of kidnapping the child for demand of ransom. On going through the record, we find that the trial court convicted the accused Avinash @ Omprakash only for the offences under Sections 363 and 365 I.P.C. and acquitted him from the charges under Sections 364A, 302, 201 and 120B I.P.C. However, we are of the view that acquittal of the accused Avinash @ Omprakash from the charge under Section 364A I.P.C. was totally uncalled for because once the fact regarding he and Kuldeep having kidnapped the child for the purpose of ransom was established, by virtue of reverse burden of proof, the accused Avinash @ Omprakash was under an obligation to explain the circumstances following the act of kidnapping. Thus definitely, the charge under Section 364A I.P.C. was established against the accused Avinash @ Omprakash as well. However, as the State has not preferred any appeal against his acquittal, we are prevented from passing any judgment on this aspect.
From the interrogation made from these two accused, it came to light that after kidnapping the child, they handed (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 29 him over to the accused Omprakash S/o Shankar Lal, who killed the child and disposed off the dead body in a Baori at the Chittorgarh fort after putting it into a bag. When Omprakash was interrogated, he gave a voluntary information (Ex.P155) to the Investigating Officer in furtherance whereof, the child's corpse was recovered vide memorandum (Ex.P4). Ornaments and clothes of the child were also recovered vide memo (Ex.P54) in furtherance of the information provided by Omprakash S/o Shankar Lal to the Investigating Officer under Section 27 of the Evidence Act. Omprakash S/o Shankar Lal was the cousin brother of Pankaj (P.W.2) and thus, he himself avoided to remain a part of the actual kidnapping. However, he was definitely the mastermind behind the entire criminal conspiracy because he knew Pankaj's entire family closely. The factum of the informations given by the accused Omprakash under Section 27 of the Evidence Act and the recovery of the dead body and ornaments etc. of the child in furtherance thereof, has been duly proved by the evidence of the Investigating Officer, the first informant Pankaj and the Panch Witnesses viz. P.W.18 Jagdish and P.W.52 Jamna Lal. Thus, complicity of Omprakash S/o Shankar Lal in the crime is well proved.
When the dead body was inspected, an amulet was tied on the neck of the child in a black string and a coin of 5 Paisa was threaded therein after making a hole. Both Jaya (P.W.4) and Renu (P.W.30) categorically deposed in their (Downloaded on 04/11/2020 at 08:18:47 PM) [CRLAD-38/2019 & 55/2019] 30 evidence that this kind of string with an amulet and a 5 Paisa coin had been put in on the neck of the child. Thus, the fact that the dead body was of Eklavya is duly corroborated by the evidence of the witness Pankaj, Jaya and Renu irrespective of the fact that Dr.Vinay Mathur (P.W.39) who conducted the post mortem of the dead body, stated in his evidence that the child's body was not identifiable.
The handwriting expert's report (Ex.P199) duly establishes the fact that the accused Kuldeep Singh @ Monu procured the disputed mobile SIM Card No.94686-06139 by using fabricated documents and assuming the fake identity of Radheshyam. The lawful procedure followed for procuring the specimen and the disputed handwritings has been duly narrated in the evidence of the witness Umesh Ojha (P.W.56) and there is no reason to cast any suspicion on the testimony of this witnesses.
The principles laid down by Hon'ble the Supreme Court in the judgments cited by the defence counsel are well established and indisputable. However, in the present case, we have concluded that the prosecution has proved its case by convincing direct as well as circumstantial evidence establishing the guilt of the accused beyond all manner of doubt and hence, these precedents are of no aid to the accused for assailing the impugned judgment. (Downloaded on 04/11/2020 at 08:18:47 PM)
[CRLAD-38/2019 & 55/2019] 31 In view of the discussion made hereinabove, we are of the firm opinion that the findings recorded by the learned trial court in the impugned judgment while arriving at the conclusion of guilt against the accused appellants, are based on a thorough and apropos appreciation of the evidence available on record.
The findings so recorded in the impugned judgment do not suffer from any infirmity, illegality or perversity warranting interference therein.
Thus, we find no reason to interfere in the impugned judgment.
Accordingly, the appeals being devoid of any merit, are dismissed.
Record of the trial court be sent back forthwith. (KUMARI PRABHA SHARMA),J (SANDEEP MEHTA),J /tarun goyal/ (Downloaded on 04/11/2020 at 08:18:47 PM) Powered by TCPDF (www.tcpdf.org)