Delhi District Court
State vs . Jai Pal Etc. on 30 September, 2011
State Vs. Jai Pal etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 40/2008
ID No. 02403R0233782005
State Vs. : 1. Jaipal Singh
S/o Sh Kehar Singh
R/o Village Balrao, P.S Arniya,
Bullandshahar, U.P
2. Raj Kumar
S/o Sh Dharam Singh
R/o Village Killa, P.S Khurja,
Bullandshahar, U.P
3. Smt Chhoti
W/o Sh Raj Kumar
R/o Village Killa, P.S Khurja,
Bullandshahar, U.P
4. Pratap
S/o Sh Ramesh
R/o Jhuggi no. 1257, C Block,
Mujeser, Faridabad (Haryana)
SC No. 40/08 1/64
State Vs. Jai Pal etc.
5. Tinchu Chobey
S/o Sh Subash Chand
R/o Village Hayatpur Bijhera,
P.S Ladha, Aligarh, UP
6. Vijay Kumar Sharma
S/o Sh Jangi Lal Sharma
R/o Village Birot, P.S Lodha,
Aligarh, UP
7. Manoj @ Babloo
(P.O accused)
S/o Sh Tara Chand,
R/o Dungara Jaat, P.S
Jhangirabad, Bullandsahar, UP
8. Javed (P.O accused)
S/o Sh Khalil Ahmad,
R/o Jhuggi No. 310, Sunlight
Colony, Seema Puri, New Delhi
9. Vinod (P.O accused)
S/o Sh Padam Singh,
R/o Gopal Dharamkanta,
Loha Mandi, Ghaziabad, UP
SC No. 40/08 2/64
State Vs. Jai Pal etc.
10. Chander Singh(P.O accused)
S/o Sh Govind Singh
R/o Village Sandhan, P.S
Achhavera, District Agra, UP
11. Reshampal (P.O accused)
S/o Sh Kehar Singh
R/o Village Balrao, P.S Arniya,
Bullandsahar, UP
FIR No. 193/2001
P.S. Sarita Vihar
U/s 302/363/364A/201/120B IPC
Date of Institution : 18/10/2004
Date when arguments
were heard : 24/09/2011
Date of Judgment : 30/09/2011
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the facts of the prosecution case are as follows:
SC No. 40/08 3/64
State Vs. Jai Pal etc. Complainant Jawahar Singh lodged report, scribed in DD No. 11 B Ex PW8/A at 10.05 am on 13/05/2001 at police station Sarita Vihar that his son Anand, of age 6 years, of height about 3 feet, fair colour, slim body having lower tooth broken, wearing red and green vest, white colour pyjami had slept with them at their house at previous night at about 9 pm but when they woke up in the morning they did not find their son in the house. Upon search in the neighborhood, they did not find any clue and also they did not have suspicion over anybody. Since the said son of complainant was missing, complainant wanted his son to be searched. PCR was informed and copy of DD was entrusted to PW7 then SI Raj Singh.
On 28/05/2001, complainant again went to police station Sarita Vihar and gave his statement Ex PW3/A that since 12/05/2001 his aforesaid son was missing and he had searched for his said son at his own level at all possible places but could not find any clue and was convinced that his son had been kidnapped by some unknown person but had no suspicion over anybody.
After recording aforesaid statement, PW8 ASI Dilip Singh wrote tehrir Ex PW8/A and case FIR No. 193/01, Ex. PW4/A SC No. 40/08 4/64 State Vs. Jai Pal etc. under Section 363 IPC was registered. Matter was investigated. Missing boy was searched but no clue was found. On 06/06/2001, investigation was entrusted to PW7 then SI Raj Singh and that day complainant delivered an inland letter to said SI. Said letter found mention that its scribe was having the said missing boy Anand with him who was well and there was demand for making arrangement of Rs 12 lakhs and to wait for second letter. Again on 11/06/2001 complainant Jawahar Singh produced a letter to PW7 then SI Raj Singh. Said letter found mention to the parents of boy Anand that second letter is being sent, boy Anand was well, to make arrangement of ransom of Rs 12 Lakhs, not to inform police or else, they will face loss and wait for third letter so as they have to come and in case they tried to play any prank then they will not get their son.
On 22/06/2001 complainant gave another ransom letter to PW7 then SI Raj Singh. It found mentioned therein that the boy Anand was with them, asking them to bring Rs 12 Lakhs and they have to move on Aligarh Road via Palwal to stop at Gomat Ki Piau, to proceed from there to Chandous, then to Dawer Railway Station to Dawer village between 12 to 2 pm and their person will meet to SC No. 40/08 5/64 State Vs. Jai Pal etc. collect ransom money on 23/06/2001, Saturday while they have to stop their vehicle for 20 minutes, three kilometers ahead of Gaumat. They were asked to bring only three persons and Maya was to come compulsorily.
PW7 then SI Raj Singh searched for Anand but did not find any clue. Investigation was entrusted to PW9 SI Harish on 06/07/2001. That day complainant PW3 Jawahar Singh and PW13 Smt Maya Devi told PW9 that their acquaintance was residing at Pul Prahlad Pur and some unknown person made a call at their telephone number 6811677 and called Maya there and when she had talked with the person calling then the calling person made demand of ransom of Rs 12 Lakhs, asking to come between 12.30 pm to 3 pm on 10/07/2001 at Tamkoli Ki Pulia, in the area of police station Gawahana to get the boy Anand against ransom money. Under the supervision of PW9, PW13 with ransom money reached at the given time at the afore given place. On a motor cycle accused Tinchu Chobey and Javed were moving around in suspicious condition, were stopped, enquired and left.
On 17/08/2001 the investigation was transferred to SC No. 40/08 6/64 State Vs. Jai Pal etc. Special Staff, South District and was entrusted to SI Akhleshwar Yadav, PW22. Enquiries were made. Handwritings of suspects were obtained. PW13 told to PW22 on 17/09/2001 that on 10/07/2001 when she had gone with ransom money to given place Tamkoli Ki Pulia then those two boys who were roaming on motor cycle were found, those were the persons who had come to obtain ransom money and were having with them his son Anand as she had seen those two persons in the night of 11/07/2001 at police station Sarita Vihar where she had gone and they were sitting there. From police station Sarita Vihar it was ascertained that accused Tinchu Chobey and Javed were arrested on 11/07/2001 in FIR No. 283/01 and 282/01 respectively, both under Arms Act. PW22 arrested accused Tinchu Chobey on 24/09/2001, recorded his disclosure statement.
PW22 arrested accused Vijay and Manoj @ Babloo on 17/02/2002 and recorded the disclosure statement of these accused. Since accused Javed and Vinod were evading arrest, proclamation proceedings were initiated against them. Despite efforts the kidnapped boy could not be recovered.
On 19/07/2004, PW13 came to the office of Special Staff, SC No. 40/08 7/64 State Vs. Jai Pal etc. to PW22 and narrated that at her own level she has ascertained that her minor son was kidnapped by Pratap, resident of Faridabad, his brother in law (Sala), Resham Pal, Jaipal, both of village Balran at Khurja and Raj Kumar @ Raju and his wife Choti, resident of Village Kila, Khurja and these were the persons who had demanded the ransom from her. Also she told that Chander, resident of Faridabad, if arrested then his son could be recovered.
On 20/07/2004, accused Raj Kumar and later his wife Choti were arrested and their disclosure statements were recorded.
On application for seeking production of accused Jaipal from Bullandshahar Jail, accused Jaipal was produced before Area Metropolitan Magistrate on production warrant on 27/07/2004 from said Bullandshahar Jail. Accused Jaipal was interrogated, arrested and his disclosure statement was recorded. Police custody remand of accused Jaipal was obtained. Accused Jaipal led the police party to Plot No. H8, Sector 63, Noida wherein nearby gutter on the pointing out of accused Jaipal from inside said gutter the remnants of skeleton of a boy including skull, 72 bones were recovered, which proceedings were photographed and video graphed SC No. 40/08 8/64 State Vs. Jai Pal etc. and said remnants were seized.
On 29/07/2004 accused Pratap was arrested and his disclosure statement was recorded.
On 31/07/2004 the postmortem examination of the skull and the bones were got conducted. In the course of police custody remand the specimen handwritings of accused were obtained, sent to FSL, report of its comparison was obtained. Blood samples of the parents of boy Anand as well as the remnants of the bone were sent for DNA Finger Printing Examination. In the course of investigation, the investigating agency also recorded the statements of PW1 Rakesh and his wife PW6 Sushma Devi to the effect that pursuant to hiring of Maruti van by Jaipal, Resham Pal, Raj Kumar and Choti; kidnapping of minor boy Anand of neighborhood at the house of Chander at hut at Sarita Vihar; said minor Anand was taken in the maruti van to Village Sikander Pur Kota where Raj Kumar and his wife Choti and kidnapped boy Anand stayed for two days while the others along with PW1 Rakesh had gone to Khurja Peth where they left PW1 Rakesh, Jaipal and Pratap went to village Balran and Jai Pal and Reshampal returned after two days; Choti went to her parental house; Jaipal and SC No. 40/08 9/64 State Vs. Jai Pal etc. Resham Pal, Raj Kumar took away the kidnapped boy from the house of PW1 and PW6.
After completion of investigation, chargesheet was filed.
2. Since accused Javed, Vinod, Manoj, Chander Singh and Resham Pal evaded arrest, so initially NBWs and later proclamation process was issued against them. In terms of orders of Metropolitan Magistrate, dated (1) 24/11/2004, accused Javed and Vinod; (2) 15/01/2005, accused Chander Singh and Reshampal and (3) 27/04/2005 accused Manoj @ Babloo respectively were declared proclaimed offenders.
3. On completing the requirements of Section 207 Cr.PC, the case was committed to the Court of Sessions. CHARGE:
4. In terms of order dated 13/09/2005, charge was framed against accused persons by my Ld. Predecessor for the offences under Sections 120B; 363/120B IPC; 364A/120B IPC; 302/120B IPC and SC No. 40/08 10/64 State Vs. Jai Pal etc. 201/120B IPC to which accused persons pleaded not guilty and claimed trial.
WITNESSES:
5. To connect the accused with the offences charged, the prosecution has examined in all 24 witnesses namely PW1 Sh Rakesh; PW2 Sh Sant Ram; PW3 Sh Jawahar Singh; PW4 HC Liyakat Ali; PW5 SI R.S Naruka; PW6 Smt Sushma Devi; PW7 Inspector Raj Singh; PW8 ASI Dilip Singh; PW9 SI Harish Kumar; PW10 SI Balbir Singh; PW11 SI Madan Pal; PW12 HC Swadesh Pal; PW13 Smt Maya Devi; PW14 HC Giriraj; PW15 Dr. Sanjeev Lalwani; PW16 Ct Rajbir; PW17 HC Ramesh Chand; PW18 HC Rajesh Kumar; PW19 Ct Udaivir Singh; PW20 HC Yogender Singh; PW21 Ms. Deepa Verma; PW22 Inspector Akhileshwar Yadav; MHC(M) PW23 HC Jagpal Singh and PW24 Dr Sanjeev.
STATEMENTS OF ACCUSED:
6. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to SC No. 40/08 11/64 State Vs. Jai Pal etc. the accused persons. Accused persons pleaded innocence and false implication. All accused persons denied to lead defence evidence. ARGUMENTS
7. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
8. Ld. Addl. PP argued that accused Jaipal, Raj Kumar, Choti and Pratap were last seen in the company of deceased victim minor boy Anand in terms of testimonies of PW1 and PW6 and none of these accused have been able to explain when they parted the company of the victim boy Anand in their statements under Section 313 Cr.P.C; aforesaid four accused had kidnapped the boy Anand, had taken him to Village Sikander Pur Kota, Aligarh from where after a couple of days accused Jaipal, Reshampal and Raj Kumar took away the minor victim from the house of PW1 and PW6; that pursuant to disclosure statement of accused Jaipal, he had led the police party to plot no. H8, Sector63, Noida wherein near by gutter the remnants SC No. 40/08 12/64 State Vs. Jai Pal etc. of skeleton of a boy including skull, 72 bones were recovered on pointing out of accused Jaipal which proceedings were photographed and video graphed and said remnants were seized; though the DNA Finger Print Examination of the blood samples of parents of minor boy Anand namely PW3 and PW13 could not be matched with the remnants of the aforesaid bones recovered but in the superimposition examination PW24 Dr. Sanjeev determined with 80% certainity that the photograph of deceased minor boy Anand matched with the skull recovered aforesaid; the specimens of accused Jaipal were obtained in the course of police custody remand which the forensic expert found to be identical with the writing of the ransom notes delivered at the place of parents of the minor victim boy Anand; accused Tinchu Chobey and Vijay had been sent by the other co accused to collect the ransom money and that prosecution has been able to prove its case against the accused beyond reasonable doubt.
9. Ld. Defence Counsels argued that PW1 and PW6 were relatives of proclaimed offender accused Resham Pal and their testimonies are contradictory inter se as well as the presented case of SC No. 40/08 13/64 State Vs. Jai Pal etc. prosecution. On one hand PW1 stated that accused Jaipal, Pratap, Raj Kumar and Choti had come to their place 4/5 years prior to 29/11/05 with two children of age 4 years and 2 years respectively but per contra to testimony of PW1, Smt Sushma PW6, wife of PW1 stated on 15/09/2006 that these four accused persons alongwith one child of age 5/6 years had come to their place at Aligarh 3 /4 years ago in the morning at 4 am and accused Raj Kumar, Choti with the child remained in their house while Jaipal and Pratap remained for two hours and left for other place. It was also argued that both PWs 1 and 6 in the course of their cross examination admitted that PW1 was kept in illegal custody by police officials for few days, for which PW6 even did not enquire from police as to for what PW1 was being taken and so confined; which testimonies of PW1 and PW6 revealed that these witnesses were under tremendous pressure to name the aforesaid four accused persons as those persons who had brought the minor kidnapped boy at their place; also that PW1 was even unable to recognize the kidnapped boy's photograph. Also was argued that PW3 demolishes the version of ransom call; the alleged ransom letters were not shown to PW3 in the course of SC No. 40/08 14/64 State Vs. Jai Pal etc. his examination nor did PW3 say that these were the same which were handed by him to the police; PW6 did not whisper a word of her relative Resham Pal to be accompanying the other four accused on their visit at their home with the kidnapped boy; till one investigating officer remains incharge of the investigation, there is version of arrival of ransom letters and on the day of change of the investigating officer, the version of ransom shifts from letters to calls; there are contradictions and discrepancies in respect of receipt, handing over of ransom letters and even the original ransom letter placed on record having the stamps/mark of it being posted does not matches with the specimen writing of accused Jaipal while those ransom letters which bear no stamp of post and for which there is no date specified for its delivery to police, with those the writing of accused Jaipal are found matching by forensic expert and these are on the face of record manipulated documents; despite accused Jaipal having been called from outstation jail by way of production warrants, arrested with the permission of the court, the courts of the Metropolitan Magistrate and the Link Metropolitan Magistrate available at the elbow of the officers of investigating agency, yet SC No. 40/08 15/64 State Vs. Jai Pal etc. outside the court room, disclosure statement of accused Jaipal is allegedly recorded where there is admitted availability of public persons but no efforts were made by officers of investigating agency for either joining any public witness or for getting confession of accused recorded by adverting to procedure established under Section 164 of the Code of Criminal Procedure and within a couple of hours also the officers of investigating agency show the alleged recovery of the remnants of bone and skull from a gutter at Noida at the instance of accused Jaipal, which proceedings are complete farce; though for several years the crime remained a mystery but suddenly one fine day the mother of minor victim boy Anand namely PW13 Maya gets some information from own sources, undisclosed to police or court, about involvement of some of the arrayed accused; such information PW13 says that she received regarding involvement of accused Pratap and Chander which she informed to police to apprehend them but in the DD Mark PW22/A, dated 19/07/2004, the suspicion allegedly raised by PW13 is on accused namely Chander, Pratap, Jaipal, Resham Pal (P.O accused), Raj Kumar and Choti; there has been no investigation as to from where the alleged letters of SC No. 40/08 16/64 State Vs. Jai Pal etc. ransom came while the person on whose phone the alleged ransom call was received had neither been examined in the course of investigation nor cited nor examined as a prosecution witness; the DNA Finger Printing Test of the blood samples of the parents of the minor victim boy Anand did not match with the alleged recovered skull and remnants of bones; even the alleged superimposition test conducted by PW24 was stated to be having only 80% certainty and there were still 20% chances of the said skull to be not of the victim boy Anand but of some other similar aged minor; the story of the prosecution is not worth acceptability, being not digestible with the pinch of salt as pursuant to allegations of kidnapping, no demand of ransom was raised for considerable period; the prosecution story is a concocted one and recovery of the remnants of bones planted upon the accused Jaipal by the officers of investigating agency in overzealousness to show the case solved. It has been argued that prosecution has failed to prove its case against the accused beyond reasonable doubt and the accused deserve acquittal.
10. The prosecution case is based on the circumstancial SC No. 40/08 17/64 State Vs. Jai Pal etc. evidence. The recovery of remnants of the bones and the skull purported of the minor victim/deceased Anand, is alleged to have been effected on 27/07/2004 from Noida. The minor victim/boy Anand went missing while sleeping in his house in the night of 12/5/2001. After the missing of the minor boy victim Anand on the night of 12/5/2001 the case remained mystery for more than three years. In terms of prosecution case, the mother of minor victim boy Anand Smt Maya laid suspicion on accused Chander, Pratap, Jaipal, Resham Pal (P.O accused), Raj Kumar and Choti on 19/07/2004.
11. In AIR 1952 S.C. 343, "Hanuman Govind Nargundkar v. State of M.P.," it was held that ''In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge,(1838) 2 Lewin 227) where he said :
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the SC No. 40/08 18/64 State Vs. Jai Pal etc. individual, the more likely was it, considering such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.''
12. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [(1984) 4 SCC 116], it was held that ''the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; SC No. 40/08 19/64
State Vs. Jai Pal etc. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
13. In the light of the legal position, the evidence on record is to be appreciated. In the present case, the prosecution has relied upon the circumstantial evidence.
LAST SEEN EVIDENCE:
14. First of all, prosecution relied upon last seen evidence of PW1 Sh Rakesh and PW6 Smt Sushma, wife of PW1. Before proceeding to appreciate the testimonies of PW1 and PW6, it would be appropriate to know what the Hon'ble Supreme Court has to say about "last seen evidence".
14(i). In the case of "State of U. P. vs. Satish,"AIR 2005 SC No. 40/08 20/64 State Vs. Jai Pal etc. SUPREME COURT 1000, it has been observed as under:
"The last seen theory comes into play where the time gap between the point of time when accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
14(ii). In case of Ramreddy Rajesh Khanna Reddy Vs. State of A.P. 2006(10) SCC 172, it has been observed as under:
"The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such cases, the court should look for some corroboration."
14(iii). The law is very well settled that the last seen evidence is vital evidence when the case of the prosecution is based on circumstantial evidence. The court has to be circumspect and look SC No. 40/08 21/64 State Vs. Jai Pal etc. for some corroboration.
15. Adverting to the facts of the present case, PW1 Rakesh when examined testified on 29/11/2005 that 4/5 years ago accused Jaipal, Pratap, Choti, Raj Kumar and brother in law of Jaipal with their driver and two children of age 4 years and 2 years respectively came in a white coloured maruti at their residence at Village Sikander Pur Kota, Aligarh, U.P. There accused Raj Kumar, Choti with said two children had remained in their home while in the maruti van accused Jaipal, Pratap as well as PW1 with driver went away as PW1 had to purchase buffalo from Khurja. After two days accused Jaipal came on motorcycle to house of PW1 and took away both aforesaid children, accused Raj Kumar and Choti. PW1 further improved upon his version saying accused Choti had gone in bus that morning (after two days) while in the afternoon accused Raj Kumar and the two children had gone with accused Jaipal on motorcycle. PW1 further deposed that after one and half/two months, he went to the place of his sister at Village Balram where he saw a boy whom he had earlier seen at his house and who was SC No. 40/08 22/64 State Vs. Jai Pal etc. brought by accused Jaipal etc. and he had seen that boy in the garden of Gajraj while said boy was alongwith accused Raj Kumar. PW1 stated that later police came to him and had shown him the photograph of the boy which he identified as the boy brought to his home but in the course of his testimony PW1 stated that he could not then identify the photograph due to lapse of considerable time. As PW1 resiled from his previous statement, he was cross examined at length by Ld. Addl. PP for the State and then he parrot like admitted of boy of age 6/7 years was brought by accused Jaipal, Pratap, Raj Kumar and Choti in maruti van on the early morning of 13/05/2001 while the van was driven by its driver; that at the house of accused Raj Kumar at Village Sila a quarrel took place and these husband and wife with child will remain there and after remaining there for sometime in maruti van accused Jaipal, Pratap and driver accompanied by PW1 went away; that PW1 returned that evening from Khurja after purchasing buffalo; that two days later accused Jaipal, Resham Pal (P.O accused) came on motorcycle to his house and took away the boy, accused Raj Kumar and Choti; that after one and half/two months later PW1 had gone to Village Balram where at SC No. 40/08 23/64 State Vs. Jai Pal etc. the house of uncle of accused Resham Pal (P.O accused) PW1 had seen the same boy and with the boy accused Raj Kumar, Jaipal, Pratap and Resham Pal (P.O accused) were there; on 23/07/04 police came to house of PW1 and had showed him the photograph of the boy Mark X whom he identified to be the same boy brought on 13/05/2001 by the accused at his house and whom he had seen in Village Balram, abovesaid.
16. PW6 Sushma Devi, wife of PW1, testified on 15/09/2006 before my Ld. Predecessor that 3 /4 years back at about 4 am accused Jaipal, Pratap, Raj Kumar, Choti, wife of Raj Kumar with 5/6 years old child came in a white maruti van to their house; accused Jaipal stated to her that a quarrel took place at their village and requested them to keep Raj Kumar, his wife Choti and the child in their house; accused Jaipal and Pratap remained there for two hours and after about two hours they left their house in maruti van while Raj Kumar , Choti and the child remained there. PW6 further stated that accused Raj Kumar, Choti with said child remained at their house for two days and on the third day accused Pratap and Jaipal came on a motorcycle SC No. 40/08 24/64 State Vs. Jai Pal etc. on their house, took that child, Raj Kumar and Choti with them. Photograph Ex PX shown to PW6 was identified by her to be of the aforesaid child.
17. The material contradictions, inter se testimonies of PW1 and PW6 going to the root of the matter are apparent on the face of record. PW1 speaks of the accused Jaipal, Pratap, Raj Kumar and Choti having come at his place with driver of maruti van and two children, of age 4 years and 2 years respectively and said two children remained in their house for two days with accused Raj Kumar and Choti. Per contra, PW6 testified that these accused having come in white maruti van to their house with 5/6 years child. Whereas PW1 deposed that two days later accused Jaipal came on motorcycle, took both children, accused Raj Kumar and Choti, again PW1 improves his version by saying Choti having gone in bus in morning while accused Raj Kumar and both children went with accused Jaipal. But on the other hand, PW6 says accused Choti went at her parents house while accused Pratap, Jaipal and the children went back on motorcycle. PW6 did not say that accused Choti had left that morning but instead SC No. 40/08 25/64 State Vs. Jai Pal etc. stated that Choti had gone at the same time when the aforesaid accused had left their home. In the course of the cross examination by Ld. Addl. PP for the State, PW1 admitted that after two days alongwith accused Jaipal, accused Reshampal (P.O accused), who was brotherinlaw of PW1 had accompanied him to house of PW1 and taken away accused Raj Kumar, Choti and the children back. PW6 did not whisper about accused Reshampal (P.O accused) having come at their home to fetch the child alongwith accused Jaipal despite the fact that said accused Reshampal was the relative of PW1 and PW6. Instead PW6 stated that the person who accompanied accused Jaipal was not known to her.
18. PW1 testified that one and half or two months later PW1 had gone at place of his sister at Village Balram and had seen at garden of Gajraj one boy who was brought by accused Jaipal etc. at his house, which boy was with accused Raj Kumar then. In the course of cross examination by Ld. Addl. PP for the State, PW1 parrot like admitted that one and half/two months later when he went to Village Balram at place of uncle of Reshampal (P.O accused) SC No. 40/08 26/64 State Vs. Jai Pal etc. namely Gajraj, there that boy was there alongwith accused Raj Kumar, Jaipal, Pratap and Reshampal (P.O accused). Aforesaid Gajraj had neither been cited nor examined as prosecution witness in the course of investigation or in the court from whose testimony it could have been elicited or brought on record as to when and which accused, if it was so, had brought any child at his place and if so brought then who was that child.
19. In the course of his testimony, PW1 elicited that he was apprehended by the police in this case, kept for 3 /4 hours, but was not produced before any Court nor was taken to the local police station at his village, brought to Delhi by Delhi Police and detained for 2/3 days by the Delhi Police.
20. PW6 also admitted that when accused Raj Kumar brought police to their house, then PW1 was apprehended first, brought to Delhi and only on the fourth day PW1 came back to his house. PW6 stated that police kept PW1 in their custody for four SC No. 40/08 27/64 State Vs. Jai Pal etc. days, for which no complaint was lodged by PW6 in this regard nor did she enquire from the police as to why PW1 was being taken by the police. PW6 stated that she had not moved any bail application for release of PW1 and for said period of four days she did not make any enquiry about PW1.
21. PW6 stated that police officials had not made enquiries from any of her neighbors though the neighbors had collected on arrival of police at her place. Per contra, the investigating officer, PW22, testified that on 20/07/2004 he made enquiries from neighbors of PW1 and PW6, even had shown them the photograph of the kidnapped child and many persons of the village had confirmed that the kidnapped child whose photograph was shown by him to them, was kept in the house of PW1. PW22 further added that the villagers had also identified the accused Raj Kumar and Choti who remained there in the said house with the kidnapped boy. PW22 admitted that he had not recorded the statement of any villagers/neighbors of PW1 and PW6 who told him of the kidnapped boy having been kept there by accused Raj Kumar, Choti etc. PW22 SC No. 40/08 28/64 State Vs. Jai Pal etc. had not given any notice in writing to any of these villagers/neighbors nor had placed any document showing names and details of said villagers.
22. It is the case of the prosecution that the minor boy Anand of age 6/7 years was kidnapped, given to consume substance laced with sedative in transit to Village Sikander Pur Kota, District Aligarh at the place of PW1 and PW6 on the next morning of kidnapping of the boy Anand. It is not the case of the prosecution that the said boy Anand remained unconscious for next two days. Instead on record is the version of PW22, aforesaid, of many villagers having seen said boy and accused Raj Kumar and Choti in the house of PW1 and PW6. Any school going boy of age 6/7 years, when is kidnapped by unknown persons, is bound to show his emotions on seeing strangers with a hope and spirit to save and manage any how out of the clutches of kidnappers. PW1 and PW6 were absolutely silent about the conduct of such boy Anand at their place for two days when they were examined before my Ld. Predecessor. The investigating officer PW22 chose not to record statement of any villagers/neighbors of SC No. 40/08 29/64 State Vs. Jai Pal etc. PW1 and PW6 with respect to whom PW22 stated that such villagers/neighbors of PW1 and PW6 told him of having seen the kidnapped boy at house of PW1 and PW6. Whether the aforesaid kidnapped boy Anand was kept for two days at the house of PW1 and PW6 in a confined manner or he was permitted to move around, is not borne out of evidence on record. The version of PW1 and PW6 clearly proves on record that for few days w.e.f 20/07/2004 PW1 was suspect of the crime committed and was infact kept in illegal custody for few days. The version of PW1 and PW6 also projects the semblance of truth in the contention of the Ld. Defence Counsel that ways of police are not strange to common man. The testimonies of PW1 and PW6, elicited herein before, clearly project that circumstances for PW1 and PW6 on arrival of the officials of Delhi Police at their home at Village Sikander Pur Kota on 20/07/2004 with accused Raj Kumar were such that PW1 had no option but to become Yes Man to what all was being said by the officers of investigating agency to him, in failure of which, he faced consequences of being hauled up as an accused. The testimonies of PW1 and PW6 are not free from blemishes. Per contra, they suffer SC No. 40/08 30/64 State Vs. Jai Pal etc. from patent contradictions, severe infirmities, inter se and the fact that they were under tremendous pressure to name arrayed accused as the offenders. Shaken testimonies of PW1 and PW6 lack credence to base conviction of accused on them.
EVIDENCE OF DEMAND OF RANSOM
23. PW3, father of minor boy victim Anand lodged report, recorded in DD No. 11 B on 13/05/2001, Ex PW8/A, in police station Sarita Vihar. It found mention that the minor boy Anand who slept at 9 pm previous night in the house was not found in the house in morning. PW3 further testified that they lodged the FIR with the police on 28/05/2001 when they received ransom letter of Rs 12 Lakhs. The first information report, copy Ex PW4/A, was recorded on the basis of statement Ex PW3/A of PW3, dated 28/05/2001. There is no whisper of any ransom letter of Rs 12 Lakhs in Ex PW3/A. Only mention is that some unknown person has kidnapped the boy Anand whom the first informant with his family had searched but could not find any clue, therefore, wanted legal action. SC No. 40/08 31/64
State Vs. Jai Pal etc.
24. PW3 stated that in the month of June or July, he received ransom demand letters for release of his son which he handed over to the Investigating Officer.
25. PW8 ASI Dilip Singh had recorded statement Ex PW3/A of PW3 Jawahar, father of victim boy Anand on 28/05/2001. Thereafter PW8 had got registered the FIR after which the case file was handed over to PW7, the then SI Raj Singh. There is no whisper of any ransom letter received by PW8 from PW3 or any of his family member.
26. PW7 the then SI Raj Singh testified that on 6/6/01 the investigation was entrusted to him which remained with him till 3/7/2001, in which period he kept on observation the telephone number in question at Okhla Telephone Exchange and had made efforts to search the kidnapped boy Anand who could not be traced. As per PW7, nothing incriminating came on the telephone, kept SC No. 40/08 32/64 State Vs. Jai Pal etc. under his observation, during investigation.
27. PW9 SI Harish Kumar testified of having received investigation on 6/7/2001 and that PW3 then met him, told him about receipt of ransom call of Rs 12 Lakhs through his relative, staying in Prahladpur. No such version of receipt of ransom call by PW3 through his relative staying in Prahladpur has been testified by PW3 in his deposition in court. Even in the version of PW9, there is no whisper of any letters of ransom delivered to him or taken on record by him. There is no seizure memo of any of the stated three ransom letters Exts PW13/P1 to PW13/P3 in respect of which Smt Maya Devi, PW13, mother of minor victim boy Anand, testified that she had handed over the same to police. PW13 has not been specific as to which amongst Exts PW13/P1 to PW13/P3 was the first, second or third ransom letter. In the course of her cross examination, PW13 elicited that first ransom letter was received by her after about 17/18 days which was received by post; second letter was received by her on 24/06/2001 which she handed over to the police on the same day; again PW13 says that second letter was received by her after 2/3 SC No. 40/08 33/64 State Vs. Jai Pal etc. days of first letter while third letter was received by her on 24/06/2001.
28. Letter Ex PW13/P1 and Ex PW13/P3 bearing questioned writings Q3 and Q3/1; Q2 and Q2/1 respectively do not bear any stamp of postal authority to elicit it being posted or having gone through the channels of the postal authority. Letter Ex PW13/P2 bears the stamp of the postal authority of Post Office Badar Pur and Delhi Cantt. with the stamp of postage being due and it bears the questioned writings Q1 and Q1/1. Also on record is a letter Ex PW13/P4 embodying information to PW3 and PW 13 that their son Anand was lifted by six persons, their son being alive, the offenders wanting money and those offenders at present then staying in Janak Puri. Said letter Ex PW13/P4 was received in the envelope Ex PW13/P5 bearing the postal stamp dated 28/1/2002 of Post Office Badar Pur and the questioned writings of the letter being Q4 and Q4/1 and of the envelope being Q4/2.
SC No. 40/08 34/64
State Vs. Jai Pal etc.
29. In terms of the FSL report Ex PW21/A of the forensic expert PW21 Ms. Deepa Verma, the writings of accused Jaipal in specimen writings S21 to S34, Exts PW22/P1 to PW22/P14 matched with questioned writings Q2 and Q2/1; Q3 and Q3/1 only. These questioned writings Q2, Q2/1, Q3 and Q3/1 were of those letters which bear no postal stamp of postal authority depicting those letters to have been posted or having gone through the chain of the postal authority regarding dispatch and delivery. There is no seizure memo of these two documents Ex PW13/P1 and Ex PW13/P3 on record to show as to when these letters were received by the officers of investigating agency. None amongst the investigating officers examined have vouched to have received these letters from either PW3 or PW13 i.e the parents of the minor victim boy Anand.
30. For taking the specimen writing of the accused Jaipal while accused was in police custody remand no permission from Metropolitan Magistrate was taken by the investigating agency inter alia in violation of Section 5 of the Identification of the Prisoners Act and in terms of the law laid in cases (1) Avadesh vs State of SC No. 40/08 35/64 State Vs. Jai Pal etc. Delhi, 2009 (3) LRC (Del) D.B (7) and (2) Sukhvinder Singh & Ors. vs. State of Punjab 1994 (5) SCC 152, such report of expert regarding such specimen writing cannot be read in evidence.
31. PW13 Smt Maya Devi testified that they used to take vehicle of PW2 Sant Ram to search boy Anand; said Sant Ram used to reside at Prahlad Pur and had received message on telephone of his employer to call PW13 on the phone which message PW2 had given to PW13 and she had gone there to attend the call; had conversation with the caller on phone when police had accompanied her. PW13 stated that the caller had asked her on phone to reach at Tamkoli Ki Pulia with Rs 10 Lakhs at Aligarh in the area of P.S Gabhana.
32. PW2 testified that he used to drive vehicle no. DL3C0046 belonging to Joginder Fauji and that PW13 with her family and Chander had gone to Ajmer in said vehicle when Chander told PW2 that he was also working as driver. Due to SC No. 40/08 36/64 State Vs. Jai Pal etc. PW13, PW2 had come into contact with said Chander. After some period son of Maya Devi, PW13, was kidnapped and PW2 had accompanied PW13 in his vehicle to search the child at various places. While returning from Aligarh, PW2 saw accused Chander (P.O acused) sitting under a bridge, when said Chander got his vehicle stopped, made enquiries and then PW2 gave his telephone number as well as telephone no. 6811677 of PW13 Maya Devi asking him to make telephone call to PW2 at said number as Maya Devi was residing in his neighborhood. As per PW2, some telephone calls were received at the residence of his employer Joginder Fauji; later PW2 had a telephone conversation with caller from Aligarh who asked PW2 to get him contacted with PW13. PW2 stated to said caller that at 4 pm he would be able to get the contact of said caller with PW13 Maya Devi. At about 4 pm, PW2 brought PW13 at residence of Joginder Fauji to have conversation with said caller and Maya Devi had brought police with her and then PW13 as well as police had conversation with caller. PW2 stated that the caller had demanded ransom of Rs 12 Lakhs for release of child of PW13 and called them towards Tamkoli Ki Pulia at Aligarh. SC No. 40/08 37/64
State Vs. Jai Pal etc. Even after 5/7 days PW2 accompanied PW13 , her son in his vehicle towards Tamkoli Ki Pulia; police had accompanied them in other vehicle when two persons who came on motorcycle were apprehended by the police and interrogated; one amongst them being accused Tinchu Chobey.
33. PW3 Sh Jawahar Singh, father of the kidnapped boy Anand did not whisper a word of any ransom call received. The version of the telephonic conversation including ransom demand narrated by PW 2 and PW13 is inter se contradictory and lacks credence, elicited above. Even said Joginder Fauji had neither been examined in the course of investigation nor cited or examined as prosecution witness in support of prosecution version. No call detail records of the telephone where ransom call was made, have been procured and proved in accordance with procedure established by law.
RECOVERY OF THE SKELTAL REMAINS:
SC No. 40/08 38/64
State Vs. Jai Pal etc.
34. The application for seeking production warrants of accused Jaipal from Bullandshahar Jail was moved on 24/07/2004 before Ld. Metropolitan Magistrate by the IO, PW22 and the production warrants were issued for 27/07/2004.
35. As per the version of the prosecution, accused Jaipal was produced on 27/07/2004 after lunch interval before Ld. Metropolitan Magistrate at Patiala House Courts and he was permitted by the Ld. Metropolitan Magistrate to be interrogated and formally arrested.
36. PW18 HC Rajesh Kumar testified that after such permission, accused was briefly interrogated, then after permission accused was arrested, pursuant to which accused was interrogated thoroughly and his disclosure statement Ex PW18/B was recorded outside the court room of Ld. Metropolitan Magistrate where several public persons were there. PW18 could not tell if IO requested any public person despite the fact that he is the witness of said disclosure statement.
SC No. 40/08 39/64
State Vs. Jai Pal etc.
37. PW22 the then SI Akhileshwar Yadav testified that when they left their office at 1 pm on 27/07/2004 he was accompanied by PW18 Rajesh , PW20 HC Yogender Singh, PW17 then Ct Ramesh and other members of his staff.
38. PW17 HC Ramesh Chand did not whisper a word of having accompanied PW22 to Patiala House Courts or any disclosure statement given by accused Jaipal pursuant to his arrest.
39. Three pages purported disclosure statement of accused Jaipal Ex PW18/B is stated by PW22 and PW18 to have been recorded outside the court room of Ld. Metropolitan Magistrate pursuant to obtaining permission to interrogate and formally arrest accused Jaipal. The court room of the Ld. Metropolitan Magistrate, the Link Metropolitan Magistrate were at the elbow of the officers of the investigating agency. If accused Jaipal wanted to make confession, having come on production warrants from outstation jail, SC No. 40/08 40/64 State Vs. Jai Pal etc. then what prevented the investigating officer PW22 and his fellow team members for taking recourse to the procedure embodied in Section 164 Cr.P.C for getting the confession of accused Jaipal recorded in terms thereof and to proceed in accordance with law. Even despite admitted availability of many public persons outside court room, no efforts were even made by PW22 or his fellow team members for joining them in recording of the disclosure statement of accused Jaipal.
40. Before laying of suspicion by PW13 on accused persons on 19/07/04, the case remained mystery for the officers of the investigating agency. The investigating agency after alleged receipt of suspicion narrating facts from PW13 allegedly apprehended accused Raj Kumar and Choti on 20/07/2004; accused Raj Kumar was taken to Village Sikander Pur Kota at Aligarh at the house of PW1 and PW6.
41. Neither PW22 SI Akhileshwar Yadav nor PW20 HC SC No. 40/08 41/64 State Vs. Jai Pal etc. Yogender Singh nor PW10 SI Balbir Singh even whispered in their testimonies of having gone in the morning of 27/07/2004 at 6.10 am to Bullandshahar Jail, having met the Superintendent Jail there, in the course of their testimonies in the court, which fact is found mention in the case diary no. 113 of investigating agency dated 27/07/2004, on advertence thereto.
42. PW18 HC Rajesh speaks of having joined investigation with PW22 on 27/07/2004 at about 12 noon when he accompanied PW22, IO to Patiala House Courts with other police officials. PW22 speaks of having left his office with other police officials at 1 pm for Patiala House Courts while his aforesaid case diary reveals the said time as 1.30 pm. Why the aforesaid prosecution witnesses did not whisper a word of their visit to Bullandshahar Jail in the morning of 27/07/2004, the day of arrest of accused Jaipal, pursuant to production at Patiala House Courts, remains not explained. Why such sequence of the occurrence of facts were not disclosed by the investigating officer PW22, also remained unexplained.
SC No. 40/08 42/64
State Vs. Jai Pal etc.
43. PW22 speaks of having left Patiala House Court after seeking police custody remand of accused Jaipal at about 3.30/4 pm. PW18 says of the time then to be 4/4.30 pm. As per PW22, they had gone first to P.S. Sector 58, Noida where one Ct Udaivir of PP Model Town was provided as the local assistance to them who remained with them till 9 pm.
44. PW18 HC Rajesh Kumar testified that accused Jaipal took police team near CISF Camp, Ghaziabad, then they went to PP Model Town, Sector 58, Noida where PW19 Ct Udaivir joined investigation. In the cross examination, PW18 gave a different version saying from Patiala House Court, they had gone first to P.S Sector 58 and then they reached there at 5.30/6 pm.
45. PW20 HC Yogender Singh stated that accused Jaipal took police team to near CISF Camp, Ghaziabad and thereafter they had gone to PP Model Town, Sector 58, Noida. In his cross examination PW20 says only SI Akhileshwar Yadav went to PP SC No. 40/08 43/64 State Vs. Jai Pal etc. Model Town from where PW19 joined investigation. PW17 did not say a word of having gone to P.S Sector 58 or PP Model Town at Noida though he is stated to be the person who accompanied the team led by PW22.
46. PW22 stated that accused Jaipal led them to place in Sector 63, Noida in front of plot No. H8 where there was a gutter/sewer hole which was 10/11 feet deep, located between two electricity poles bearing nos. S63/67 and S63/68, some construction work was also in progress near the spot from where 8/10 labourers, working, were called to join the proceedings, but none of them agreed and PW22 called photographer PW14 HC Giriraj and crime team to the spot. PW22 stated that then he procured small ladder and a spade (phawara) from the persons where construction work was going on at some distance. Crime team was called at the spot. PW22 added that HC Rajesh, PW18, was sent inside the gutter with a spade who removed some mud/earth from inside the gutter and pieces of skeleton of a child started coming out from the mud/earth. The skeleton of the skull was found separately besides SC No. 40/08 44/64 State Vs. Jai Pal etc. which total 72 bones were recovered from said gutter. PW22 stated that one cloth was also recovered from earth/mud with the bones and the entire process of recovery of abovesaid bones/skeleton was got videographed and still photographs were also taken. PW5 SI R.S. Naruka, Incharge Crime Team has proved his report Ex. PW5/A. PW11 SI Madan Lal, Draughtsman proved his prepared scaled site plan of said place of recovery as Ex. PW11/A.
47. The tenor of deposition of PW18, PW19 and PW20 is that on reaching near Plot No. H8, Sector 63, Noida between electric poles nos. S63/67 and S63/68 and on pointing out of accused Jaipal towards the sewer hole telling PW22 that he and accused Pratap had dumped the body of child inside the gutter, then in terms of directions of IO, PW22, PW18 entered inside the gutter with the help of ladder; subsequent thereto crime team and photographer was also called at the spot. The proceedings displayed in the video cassette Ex PW14/P15 depict not of removal of mud/earth from inside the gutter with which pieces of skeleton of child started coming out from the mud/earth but infact the skull and the bones SC No. 40/08 45/64 State Vs. Jai Pal etc. lying outside the said gutter; the ladder being visible inside the gutter and a person peeping out of the gutter with portion above chest visible.
48. In terms of the version of the aforesaid witnesses PW18, PW20 and PW22 only PW18 went inside the gutter with a spade. The depth of the gutter was 10/11 feet, as per PW22. If that was so then at the depth of 10/11 feet below ground level, if a person is removing earth/mud inside the gutter with a spade, by no figment of imagination his body portion above chest could be visible outside the sewer/gutter. In such event, another person is required to move inside the sewer/gutter to assist the person at the bottom level of the sewer/gutter and the such assisting person may be at the top level of the sewer/gutter to handle or assist in removal of the earth/mud and other recoveries from inside the sewer/gutter to be placed outside the gutter. Fact of the matter remains that as per presented case of prosecution none else, excepting PW18 went inside aforesaid gutter/sewer.
SC No. 40/08 46/64
State Vs. Jai Pal etc.
49. No public persons, labourers near side the said place of recovery of the skeleton remains were joined in investigation nor proceeded against for their refusal, if any, in terms of law. PW22 speaks of that when accused Jaipal pointed out the spot i.e aforesaid gutter/sewer, then some more persons from Special Staff were called and these persons came with SI Vijay Singh. No such version of coming of more persons from Special Staff including SI Vijay Singh is borne out of the testimonies of PW18, PW19 and PW20.
50. In terms of testimony of PW22, at the said place of gutter at Noida, the construction work was still in progress. No investigation at all was done qua the said aspect, as to since when the construction work of the gutter commenced there and about its progress. It is the case of the prosecution that accused Jaipal and Pratap had strangulated the kidnapped boy Anand and threw his body in the sewer/gutter almost three years prior to recovery of the skeleton remains, aforesaid. On 27/07/2004 the sewer/gutter was found without any cover/lid. The gutter/sewer as demonstrated in positives of the photographs, Exts PW14/P8 to PW14/P14 and the SC No. 40/08 47/64 State Vs. Jai Pal etc. video cassette Ex PW14/P15 does not appear to be three years old, as is projected in the prosecution version.
51. In his testimony PW22 speaks of recovery of one cloth with the other skeleton remains from the said sewer/gutter. PW22 does not speak of the torn stripe shirt Ex PW18/P1 and necker (half pant) Ex PW18/P2 to have been recovered from inside the sewer/gutter till the case property, aforesaid, was produced by Mal Khana Mohrar and shown to him when PW22 immediately says that these were recovered from inside the sewer/gutter with the skeleton remains. The other cloth alleged by PW22 to have been recovered from the gutter was not produced in court in the course of evidence.
52. From every act of the investigating agency what the court expect is the fairness. Fairness of investigation in this case is not apparent from the face of record. The recovery of skeleton remains shown to have been recovered at the instance of accused Jaipal have not been so recovered in the presence of any independent witness. SC No. 40/08 48/64
State Vs. Jai Pal etc. No independent witness had been joined in the recording of the disclosure statement of accused Jaipal Ex PW18/B despite admitted availability of such persons at the elbow of the officers of the investigating agency. Outside, the room of Court of law, officer of investigating agency of the rank of SI namely PW22 recorded the disclosure statement of accused Jaipal as Ex PW18/B. The confession of the accused Jaipal, if any, then could have been recorded in terms of Section 164 of Code of Criminal Procedure by the Ld. Metropolitan Magistrate, if said accused was so willing to give. Why PW22 did not move any application before Ld. Metropolitan Magistrate, seeking recording of confession of accused Jaipal U/s 164 of Cr.P.C. remains absolutely not explained. Nothing prevented PW22 in moving such application before Ld. Metropolitan Magistrate. Of course, police officers at the outset cannot be said to be untrustworthy but when in a serious case of kidnapping with alleged motive of ransom, the minor victim boy is yet to be recovered till three years of such offence(s) and such case is being investigated, suspicion is laid over a person who is produced as an under trial prisoner of other court from outside jail then what is expected by a SC No. 40/08 49/64 State Vs. Jai Pal etc. Court from such an officer of investigating agency is to produce such an accused before Metropolitan Magistrate in case that accused is willing to make confession so as to get the confession recorded in terms of law and then proceed further. Overzealousness on the part of investigating officer is apparent from the face of record as in the morning of 27/07/2004 at 6.10 am he with other police officers departs from Delhi to Bullandshahar Jail, meets the Jailer there, ensuring production of accused Jaipal that day in court of Delhi later but yet for reasons best known to him, conceals his visit to Bullandshahar Jail from this Court. It so appears that the investigating officer was over ambitious and over anxious to effect recovery that day itself, to project the long pending case to be solved.
53. PW22 testifies of the fact that entire process of recovery of above said bones and skeleton from inside said gutter/sewer was got videographed. Video recording in cassette Ex PW14/P15 instead depicts of the skeleton remains apparently having been outside said gutter/sewer prior to such video recording. SC No. 40/08 50/64
State Vs. Jai Pal etc.
54. By non joining of independent witnesses to the alleged disclosure statement of accused Jaipal, not adopting the procedure of recording confession of accused Jaipal in Court premises in terms of mandate of law and subsequent non joining of independent witnesses to alleged search and seizure of skeleton remains, conjointly makes it difficult for the Court to accept the alleged recovery of skeleton remains at the instance of accused Jaipal and such recovery appears doubtful. The elicited intrinsic circumstances qua alleged recovery of skeleton remains at the instance of accused Jaipal raises considerable amount of suspicion in mind regarding the complicity of the accused in commission of the alleged offences. Even falsehood is sometimes given an adroit appearance of truth, so that truth disappears and falsehood come on the surface. This appears to be one of those cases.
55. It is the case of prosecution that accused Jaipal and Pratap had undertaken some work of floor rubbing/polishing at CISF Camp, Ghaziabad and in the course of such work during the tenure of their stay at CISF Camp, Ghaziabad, accused Jaipal and Pratap SC No. 40/08 51/64 State Vs. Jai Pal etc. strangulated the neck of minor victim boy Anand in Sector 63, Noida near aforesaid sewer and had thrown his body in the afore stated sewer/gutter. Fact remains that in the course of investigation, it has not been ascertained as to where and under whom such work was undertaken by accused Jaipal and Pratap and as to at which place these accused were staying during the course of such work, so as to establish and prove on record the last seen evidence of the minor victim boy Anand with them at such place to prove the substratum of the case of investigation/prosecution. It has also not been made clear as to if accused Jaipal and Pratap were engaged in such rubbing/polishing work at CISF Camp, Ghaziabad then at their back who used to confine or take care of the minor boy victim Anand prior to his alleged strangulation. This facet of the case remains not investigated and had it been unfolded then there would have been some positive evidence on record for the investigating agency/prosecution to bring on record and prove the last seen evidence in respect of the minor boy victim Anand prior to his murder.
SC No. 40/08 52/64
State Vs. Jai Pal etc. EXPERT EVIDENCE FOR SKELETON REMAINS
56. PW15 Dr. Sanjeev Lalwani has proved his postmortem report Ex PW15/A of the examination of skeleton remains brought to him purportedly of deceased Anand with the alleged history given by the officers of investigating agency. The bones examined by PW15 were :
1. Skull full
2. Mandible with teeth
3. Right and left scapula
4. Right and left clavicle
5. Right and left humerus
6. Right and left radius and ulna
7. 11 ribs of right side and 10 ribs of left side including first rib
8. Right and left femur
9. Pieces of right and left hip bones 10.4 pieces of sacrum
11. Epiphysis of head of humerus of both sides SC No. 40/08 53/64 State Vs. Jai Pal etc.
12.Epiphysis of lower end of femur of both sides and upper end of left side
13.Epiphysis of upper end of left tibia
14. Tibia and fibula of both sides
15.Coccyx
16.Vertebrae (two lumbar, 10 thoracic and first and second cervical)
17. Calcaneum of right side and
18.Two metacarpals PW15 was of the opinion that the said bones appeared to be of one individual of human species; anatomical features of mandible and skull indicated that skull and bones could be of male;
however, further confirmation could be done using DNA Finger printing on preserved bones, the stature and dental data indicate that age of person whose skeleton remains were examined, could be of about 67 years of age while PW15 was unable to give the (1) cause of death in this case, (2) the weapon used in causing the death and in respect of time since death, the opinion of PW15 was that in case of SC No. 40/08 54/64 State Vs. Jai Pal etc. unprotected burial of dead body, the skeletonisation could take place, could occur within the time period as narrated by IO in brief facts.
57. In Ex PW15/A, accordingly PW15 was inter alia of the opinion that these skeletal remains could be of male person of 6/7 years of age, which he so deposed in court. PW15 did not rule out the possibility of the skeletal remains to be belonging to a female child of that age.
58. PW24 Dr. Sanjeev, Senior Scientific Officer, CFSL, Chandigarh testified of having examined the skull Ex PW24/P1 sent to him and purportedly recovered from sewer/gutter at the instance of accused Jaipal, alongwith the antemortem photograph of child Anand, the computerized developed photograph Ex PW24/B and the computerized superimposition photo Ex PW24/C and gave his report Ex PW24/A. PW24 stated that aforesaid skull was incomplete without mandivle i.e without the lower jaw. Also PW24 stated that SC No. 40/08 55/64 State Vs. Jai Pal etc. after an intensive scientific examination/superimposition examination, he found the maximum number of anatomical points and anthropological parameters of human skull matched with the corresponding anatomical/anthrometeric parameters of the antemortem photograph because of which the skull and the antemortem photograph could be of the same person. PW24 clarified that he could say that the skull and antemortem photograph to be possibly of the same person with 80% certainty. In terms of testimony of PW24, still there were chances of 20% of the skull to be of some different person than boy Anand shown in the antemortem photograph.
59. In terms of the DNA Finger Printing Report, dated 10/01/2005 of Dr. Anupama Raina of AIIMS placed on record by the investigating agency, though the DNA was successfully extracted from the blood samples of the PW3, PW13 and the skeletal remains purported to have been recovered from sewer/gutter at instance of accused Jaipal but on performing of genotype analysis for 16 different loci, it was observed by the expert that the DNA sample did not SC No. 40/08 56/64 State Vs. Jai Pal etc. amplify at any loci. Accordingly, the expert concluded that therefore, no definite conclusion could be drawn. Thus it could not be proved on record that the DNA Finger Printing of the blood samples of the parents of minor victim boy Anand matched with the skeletal remains aforesaid recovered. It could not be conclusively proved that the skeletal remains were of the minor victim boy Anand.
ARREST OF ACCUSED
60. Accused Tinchu Chobey was arrested on 24/09/2001 in the evening in the presence of PW12 HC Swadeshi Pal at the office of Special Staff, South District and on 17/02/2002 accused Vijay was arrested at Aligarh Jail in this case. There is no cogent admissible evidence on record to elicit or prove any incriminating fact showing the complicity of these accused having any prior meeting of mind or having conspired in any way/manner with the coaccused or having kidnapped minor boy victim or of wrongful detention of said minor boy victim or his murder or causing disappearance of any evidence connecting with said murder. PW22 testified that on 17/09/2001 SC No. 40/08 57/64 State Vs. Jai Pal etc. complainant PW3 informed him that his child was with accused Tinchu Chobey and one Javed who were apprehended on suspicion at Tamkoli Ki Pulia, near police station Gawahana, District Aligarh, UP where ransom of Rs 10 Lakhs was demanded and when on the next day of their apprehension, the complainant had gone to police station Sarita Vihar with his wife PW13, he had seen said two persons sitting in said police station Sarita Vihar. PW22 also testified that PW3 complainant also told that his wife PW13 Maya Devi identified the said persons in police station Sarita Vihar as the persons who were apprehended from Tamkoli Ki Pulia, in the area of police station Gawahana. PW3, the complainant, did not whisper a word of such information given by him to PW22. PW13 says she had gone to police station and identified said Tinchu Chobey and Javed at police station and then returned to her house. PW13 also stated that on 11/7/01 both accused Tinchu Chobey and Javed were arrested by police near Kalindi Kunj. PW13 stated that on 10/07/2001, they had gone at Tamkoli Ki Pulia where ransom was demanded and there accused Tinchu Chobey and Javed were stated to be roaming around on a motorcycle in suspicious condition. These accused were SC No. 40/08 58/64 State Vs. Jai Pal etc. intercepted, enquired and left that day. No overt or covert act on part of said accused Tinchu Chobey and/or Javed has been proved on record by any legally admissible evidence to infer or establish of any demand of ransom by them on that day or any day later. Even stated disclosure statement Ex PW10/B dated 24/09/2001 of accused Tinchu Chobey overleaf its first page finds mention that at said Tamkoli Ki Pulia on 10/07/2001, "Do Saksh Saki Halat Mein Ghoom Rahe The". How would an accused give such disclosure attributing aspersion upon himself and his accomplice? It simply projects the said narration being a brain child of someone else excepting the accused Tinchu.
61. In terms of the arrest memo Ex PW22/D accused Raj Kumar is stated to have been arrested at 3 pm on 20/07/2004 at Village Kila Mewai, Tehsil Khurja, Bullandshaher, U.P. In terms of the arrest memo Ex PW22/F, accused Choti is stated to have been arrested on 20/07/2004 at 1 pm at taxi stand, Village Khurja. The time and place of these two accused mentioned in their aforesaid arrest memos is in contradiction with the presented case of prosecution and version of PW22, in terms of which accused Raj SC No. 40/08 59/64 State Vs. Jai Pal etc. Kumar was arrested at 1 pm at taxi stand, Village Khurja and accused Raj Kumar is stated to have led the police officials to Village Kila Mewai and got his wife Choti arrested later that afternoon.
62. Pursuant to arrest of accused Pratap on 29/07/2004 the subsequent investigation did not reveal of any fact or pointing of any place to the officers of investigating agency which was not prior known to them in the course of investigation. So, the pointing out memos Ex. PW18/G, Ex. PW18/H, Ex. PW18/I of the places pointed out by accused Pratap pale into insignificance. FINAL ANALYSIS
63. There exists on record not one but more than one hypothesis of the offences committed i.e., (1) as per the case of the prosecution that the accused Jaipal, Pratap, Raj Kumar, Choti with P.O. accused conspired, kidnapped the minor boy Anand for ransom, kept him in their illegal confinement at various places, the boy was murdered by accused Jaipal and Pratap who abandoned the body of SC No. 40/08 60/64 State Vs. Jai Pal etc. the boy in the sewer/gutter of Noida; (2) the offence of the kidnapping of victim (may be for ransom) and murder pursuant to conspiracy was committed by person(s) other than any of the accused since there was no cogent evidence of (a) deceased having been last seen in the company of any or all of the accused prior to his death; (b) any or all accused confining the boy Anand at various places pursuant to conspiracy; (c) dumping the body of the minor victim in the stated sewer/gutter (not looking in photographs alike one constructed three years prior to alleged date of recovery of skeletal remains) by accused Jaipal and Pratap and (3) there being every likelihood of any child (other than victim Anand), male or female, of such age being murdered/put to death having been so dumped in said sewer/gutter by any other criminal during the period of three years prior to such recovery of skeletal remains. The facts so established by the prosecution on record are not consistent with the only hypothesis of the guilt of the accused, that is to say, they are explainable on any other hypothesis except that the accused is guilty; the circumstances are not of a conclusive nature and tendency; the circumstances are not such by which the guilt of the accused is fully SC No. 40/08 61/64 State Vs. Jai Pal etc. established and the chain of the evidence is not that complete so as to not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it has not been proved that in all human probability the acts must have been done by the accused.
64. In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86], it was pointed out that ''great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.''
65. In Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P. [(2006) 10 SCC 172], Hon'ble Supreme Court while reiterating the settled legal position, observed "It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of SC No. 40/08 62/64 State Vs. Jai Pal etc. the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence."
66. Accordingly, the circumstances since raise a doubt against the fairness of investigation and there being no cogent and clinching last seen evidence on record proved by the prosecution that the deceased was last seen in the company of any or all of the accused and the relatives of the deceased may have been convinced by the officers of the investigating agency that the accused were responsible for the death of minor victim boy Anand, the relatives of the deceased might have agreed to falsely implicate the accused with a view to ensure the punishment to the culprits, after due deliberation to strengthen the case of prosecution by showing the recovery of the skeletal remains at the instance of accused Jaipal. In the backdrop of afore appreciated evidence on record, last seen evidence qua deceased lacking credence; tainted recovery of the skeletal remains, when taken together, makes the case of prosecution not convincing and serious lacuna having crept in the prosecution SC No. 40/08 63/64 State Vs. Jai Pal etc. version bringing forth other hypothesis, all in totality, elicit that the pieces of incriminating circumstances are not reliable and the evidence is not clinching and the circumstances, so proved, do not form such chain of events, as would permit no conclusion other than one of guilt of the accused. Suspicion, howsoever, grave it may be cannot be a substitute for proof. I find that the prosecution has not been successful in proving its case against the accused, beyond reasonable doubt, on the basis of circumstantial evidence led in this case. The accused deserve and are given benefit of doubt and are accordingly acquitted for the offences charged. Bail bonds of accused Vijay and Tinchu Chobey are cancelled and sureties discharged. All other four accused in jail be released from jail, if not required else where for which Superintendent Jail be so directed. File be consigned to the record room and it can be recalled on appearance or production of Proclaimed Offender accused person(s).
Announced in the open court (GURVINDER PAL SINGH)
on dated 30/09/2011 ASJ (FTC)/SD/ NEW DELHI
SC No. 40/08 64/64