Delhi District Court
State vs Bishambar on 30 September, 2011
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IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 66/10
FIR No. 100/10
P.S. Jahangir Puri
U/s 364A/120B IPC
State Versus Bishambar
S/o Megh Singh
R/o Vill Takha, PP Urav,
P.S. Sirsaganj,
Distt. Firojabad, UP
Date of Receipt : 15.11.2010
Date of arguments : 22.09.2011
Date of Decision : 30.09.2011
JUDGMENT :
1. The accused Bishambar has been chargesheeted by Police Station Jahangir Puri for commission of offences under Sections 364A/120B IPC.
2. Case of the prosecution, briefly stated is that on 22.02.2010, Bhupender left home at about 6.00 pm without informing anybody. On 28.02.2010, his family members informed the police station Jahangir Puri about this and DD no. 18 A was recorded in this respect. On 12.03.2010, Sh. Harish, brother of Bhupender received a call on his mobile number 9250690387 from mobile FIR No. 100/10 : PS Jahangir Puri : State vs. Bishambar : Page 1 of 6 2 number 08979172961 and someone told him that his brother is with them and demanded Rs. 10 lacs. Caller initially demanded Rs. 10 lacs, but later on asked him to bring Rs. 8 lacs and further informed that boy (his brother) will be delivered at Ghaziabad. He reported the matter to the police. FIR was registered. During investigation, it was found that mobile number 0897917296 was obtained in the name of Sh. Radhey Shyam from Raghvender Telecom. From the owner of Raghvender telecom, Sh. Raghvender, it came to the notice of the police that this SIM was purchased by one Bishamber by giving ID proof of Radhey Shyam. Accused Bishamber was apprehended, but said SIM Card could not be recovered. The boy i.e. brother of Harish could not be recovered. After completion of the investigation, chargesheet against the accused was filed.
3. Learned Metropolitan Magistrate after complying with the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 364 A IPC is exclusively triable by the Sessions Court.
4. Accused was charged for the offences punishable U/s 364A IPC read with Section 120B IPC. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
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5. Prosecution in order to prove the guilt of the accused examined 16 witnesses and thereafter, prosecution evidence was closed.
6. Statement of the accused was recorded u/s 313 Cr.P.C, wherein he pleaded innocence and denied the entire evidence. He stated that he is innocent and has been falsely implicated in this case after obtaining his signatures on blank papers. He wished to lead evidence in his defence and examined Brahma Chand as DW1, who stated that there was some dispute between Raghvender and Bishamber with respect to the agricultural land, but now same has been settled. Thereafter, the defence evidence was closed and case was fixed for final arguments.
7. I have heard ld. Addl. PP for the State, ld. defence counsel for the accused and perused the record.
8. Ld. Addl. PP submitted that in the present case, a boy aged about 22 years went missing. Thereafter, a call was received by PW1, which was made from the mobile no. 0897917296 and according to PW3, said SIM was purchased by the accused from his shop as he was dealing in the SIM cards. Call details of the mobile phone of PW1 has been proved on record as Ex. PW12/A and said call details clearly shows that two calls were made from mobile no. 0897917296 on the mobile phone of PW1, firstly at about 6.57 pm and other at 7.05.47 pm. This clearly shows that accused was involved FIR No. 100/10 : PS Jahangir Puri : State vs. Bishambar : Page 3 of 6 4 in kidnapping of Bhupender and thereafter demanding ransom. SIM was destroyed after use and it was deliberately purchased in the name of a third person to conceal the identity. All these facts clearly point out towards the guilty mind of the accused and his involvement in the commission of offence and the ransom call was made, which was received by PW1. Ld. Addl. PP submitted that merely because, the boy has not been recovered from his custody, does not mean that he did not kidnap him or he is not involved in the commission of offence of kidnapping and demanding ransom. It is prayed that prosecution has discharged the onus placed upon it and proved the guilt of the accused beyond reasonable doubt, accused be held guilty.
9. Ld. defence counsel for the accused submitted that there is no evidence on record that accused kidnapped the boy or kept him in custody or in captivity somewhere. According to the prosecution case itself, the boy who went missing was mentally retarded as mentioned in Ex. PW13/A and he might have gone somewhere. Even the report is that he left home without informing any body. There is nothing on record that he was kidnapped either by the accused or by any other person in connivance of accused. There is also no evidence that accused kept him in captivity or that accused made a call demanding ransom. There is nothing on record that any threat was extended by the caller to harm Bhupender or to cause his death, which is also necessary ingredients of Section 364A IPC. Learned counsel submitted that in absence of all these ingredients, accused is liable to be FIR No. 100/10 : PS Jahangir Puri : State vs. Bishambar : Page 4 of 6 5 acquitted. Ld. counsel in support of his arguments relied upon two judgemnts (i) Pappu & Etc. vs. State, 2006 (1) JCC 36 and (ii) Preeti Verma vs The State of Delhi 2010 [2] JCC 1346.
10. After hearing the arguments and going through the record, I found that for making out a case u/s 364 A IPC as held by the Hon'ble Supreme Court in a case titled as Vinod vs. State of Haryana AIR 2008 SC 1148, it is required to be proved that :
(i) That the accused kidnapped or abducted the person ;
(ii) That kept him under detention after such kidnapping or abduction ;
(iii) That Kidnapping or abduction was for ransom ; and,
(iv) That demand has to be communicated.
11. That Hon'ble Supreme Court in another case titled as Anil @ Raju Namdev Patil vs. Administration of Daman and Diu 2006 (13) SCC page 36 held that for sustaining a conviction for the offence punishable u/s 364A, it is necessary to prove that accused threatened to cause death or harm to said person.
12. Now, in the present case, after considering the evidence on the record, I found that there is nothing on record that accused kidnapped Bhupender or that accused was seen in the company of Bhupender at relevant time, when he went missing or that anybody in his village or at any other place, saw him FIR No. 100/10 : PS Jahangir Puri : State vs. Bishambar : Page 5 of 6 6 in the company of boy Bhupender. There is also no evidence on record that caller, who made the call to PW1 extended any threat to cause harm to Bhupender or kill him, which is also one of the necessary ingredient of Section 364A IPC as held by the Hon'ble Supreme Court. The only evidence against the accused is on record that SIM, which was purchased in the name of Radhey Shyam, was used for making a call to PW1. No doubt, this creates suspicion about his involvement in the offence, but suspicion cannot take the place of proof. Even otherwise, it has also come on record that Raghvender examined as PW3 was having dispute with the family of the accused as he himself has admitted that brothers of the accused used to threaten him and that is why, he did not used to visit the village of the accused. The only evidence which come against the accused is of PW3 Raghvender and there was a family dispute between Raghvender and family of the accused. Therefore, in my opinion, it would not be safe to rely upon the testimony of Raghvender.
13. Under these circumstances and keeping in view the submissions and the fact that all the necessary ingredients of Section 364A IPC have not been proved on record and there is no evidence on record of any conspiracy between Shiv Raj and present accused, I acquit accused Bishamber giving him benefit of doubt.
Announced in open Court
on today i.e. 30.09.2011 (V.K. BANSAL)
ADDL. SESSION JUDGE : ROHINI : DELHI
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