Delhi District Court
State vs . Hari Singh And Ors. on 29 April, 2014
State Vs. Hari Singh and Ors.
FIR NO: 300/10
PS: Dabri
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE-01, DWARKA COURTS, NEW DELHI.
In the matter of :--
SC No. : 04/13
FIR No. : 300/10
Police : Dabri
Station
Under : u/s 363 / 364A/ 302/ 201 /
Section 120B /174A of Indian
Penal Code, 1860.
State
Versus
1. Hari Singh
S/o late Ishwari
R/o Village Dhakpura
Meera Pur
P.S.Mujaria
Distt.Badaun (UP
2. Partap Bhan @ Bablu
S/o Kripa Shankar
R/o Village Khaduiya
PS Sikandar Pur Vaish
Distt. Kashi Ram Nagar (UP)
3. Usman Khan @ Bunty
FIR NO: 300/10 1/76
State Vs. Hari Singh and Ors.
FIR NO: 300/10
PS: Dabri
S/o Shahbuddin Khan
R/o Village Kheria Patikara
Distt.Firozabad (UP)
4. Rajender
S/o Ramdayal
R/o Village Laha (Lahia)
Puran Pur
Distt. Pilibhit (UP)
5. Rahul Gupta
S/o Raj Kumar Gupta
R/o House No.116/300, Gali No.2
West Sagar Pur
Delhi.
6. Dinesh Kumar
S/o Chittar Singh
R/o Mohalla Badaria
Dr.Satya Parkash Gupta Wali Gali
Soron, Distt.Kashi Ram Nagar, UP ... Accused persons
Date of institution of case : 21.02.2011
Date on which judgment reserved : 16.04.2014
Date on which judgment pronounced : 29.04.2014
JUDGMENT
1. The brief facts of the present case are that Yash aged 13 years, who was the son of the complainant Pradeep Kumar had left for his school Navjeevan Academy School, Madhu Vihar, Delhi on 10.09.2010 at around 7.15 a.m. However, when FIR NO: 300/10 2/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri he did not return to his house in the evening, his father/complainant had made a search for him with his friends and relatives and when no proof of his could be found, ultimately a complaint was made to PS Dabri in the night where the complainant Pradeep expressed his apprehension that his child Yash might have been kidnapped by some person.
2. On the basis of complaint Ex.PW4/A of Sh.Pradeep Kumar, FIR No. 300/10, u/s 363 IPC was registered at PS Dabri and matter was taken up for investigation.
3. During the course of investigation, all possible measures including publication in papers were made by the police to trace victim Yash but he could not be traced. Suddenly, on 18.09.2010, a ransom call was received by complainant Pradeep demanding Rs.1 crore from him from mobile no. 9560197271. On the receipt of information by police regarding ransom call, Section 364A IPC was added and raids were conducted in the area of Kashi Ram Nagar, UP but victim Yash could not be traced. Thereafter, on 25.09.2010, complainant Pradeep Kumar again received a ransom call on his mobile number from other mobile no.8923174470. The ransom calls were being received from different parts of western UP i.e.Kasganj, Soron, Nagaria and Pilibhit. However, neither FIR NO: 300/10 3/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri accused nor victim Yash could be traced. Thereafter, on 29.10.2010, investigation of this case was transferred to Crime Branch, Delhi.
4. During the course of investigation, verification was made with regard to mobile nos. 9560197271 and 8923174470. The mobile no. 9560197271 was found to have been issued in the name of one Nagma, who was examined but she denied of having purchased any mobile sim card and further told the police that she had lost her purse which was containing ID card and photograph. Thereafter, it was found during further investigation that said phone was being used by one Sh. Shivam, S/o Sh. Ramji Lal till 17.09.2010 and thereafter, he had sold the SIM to two boys in the nearby park.
5. With regard to mobile no. 8923174470, it was found that said mobile phone was issued in the name of one Shamshad, resident of Etah, UP. It was also found during investigation that another case with regard to Kidnapping of Nikesh Kumar was registered vide FIR No. 256/10, PS Vikaspuri on 04.10.2010 and in both cases, ransom calls were being received from same mobile no. 8923174470. Thereafter, police had the clue that gang involved in both the kidnapping cases, is the same.
FIR NO: 300/10 4/76FIR NO: 300/10 PS: Dabri
6. Since accused involved in both the cases were the same, therefore, FIR No.256/10, PS Vikaspuri and present case were jointly investigated.
7. On 24.10.2010 in the matter pertaining to PS Vikaspuri, IO SI P.C.Yadav had arrested five persons namely Hari Singh, Usman Khan, Radhey Shyam, Dinesh Kumar and Rahul Gupta and all accused except accused Radhey confessed their involvement in kidnapping and thereafter, committing murder of Nikesh Kumar, victim of case pertaining to Vikaspuri.
8. All the aforesaid four accused persons also confessed of having kidnapped and murdered victim Yash of this case and throwing away his body in a jungle near Pilibhit, UP. The aforementioned accused persons also confessed that they had removed the belongings of victim Yash for using the same in demand of ransom.
9. After arrest of accused persons, they were taken on police remand for 11 days and at the instance of accused persons, dead body of Nikesh pertaining to case FIR No. 256/10, PS Vikaspuri was recovered.
10.From the interrogation of accused, it also came to the FIR NO: 300/10 5/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri knowledge of police that accused Dinesh Kumar, Pratap Bhan, Usman and Rahul Gupta were residing in the area of Sagarpur, Delhi and they all were friendly with each other and they all wanted to earn easy money and thought of kidnapping some boys from Delhi. Accused Rahul Gupta had offered to take his known friends to UP. It had also come to the knowledge of police that accused Rahul Gupta was the ex-student of the Navjeewan School where victim Yash was also studying and he was the person, who had allured victim Yash to accompany him to UP on the pretext of showing some places in UP. As per plan, all accused had take victim Yash by train to Bareilly and from there they had reached Pilibhit where accused Hari Singh also met them. From there, they had gone to the house of accused Rajender but accused Rajender refused to keep Yash as hostage in his house. Thereafter, they had taken Yash in the jungle of Pilibhit to find some place where he could be secretly confined. However, it was time when there was flood all over the jungle and they did not find any suitable place to keep Yash, therefore, they killed him and his belongings were removed to demand ransom. Thereafter, accused Hari Singh began demanding ransom from father of Yash Kumar but since father of Yash Kumar put a pre-condition of speaking to his son first before delivery of ransom, therefore, they could not get ransom from the kidnapping of Yash Kumar and therefore, they FIR NO: 300/10 6/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri had kidnapped another boy Nikesh Kumar on 30.09.2010.
11.On the basis of disclosure statement of accused persons, SI P.C.Yadav recovered school shirt and school pant of victim Yash Kumar at the instance of accused Hari Singh from his house in Railway Colony in Pilibhit. School bag of Yash Kumar was recovered at the instance of accused Dinesh from his house in Distt. Kashi Ram Nagar, UP and on 28.10.2010, school tie, school belt was recovered at the instance of accused Usman from his village in Kheriya Patikara, Distt.Firozabad (UP).
12.On 28.10.2010, all accused persons had led the police to the jungle near Jatpura, Distt. Pilibhit and they pointed out the place in jungle where they had thrown dead body of victim Yash Kumar. Thereafter, jungle was thoroughly searched by the police with the help of villagers but dead body of victim Yash could not be recovered. It was informed by the villagers that 50 days have elapsed from the date of alleged murder and possibility of dead body being recovered was quite remote as same might have been eaten by wild animals present in the jungle.
13.Thereafter, on 02.11.2010, IO of this case collected all relevant FIR NO: 300/10 7/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri documents from SI P.C.Yadav and arrested accused Hari Singh, Usman, Dinesh and Rahul Gupta in this case and during the course of investigation, one Sanjay Gupta, resident of Uttam Nagar stated that he had last seen Yash Kumar at the bus stand with the boy whom he had identified as accused Rahul Gupta.
14.Accused Hari Singh also disclosed to the police that he had destroyed the SIM of mobile phone no. 8923174470 and had thrown the same in the nala (drain) at Pilibhit, UP. Police also made search for the said SIM Number but the same could not be traced.
15.During the course of investigation, Shivam also identified accused Rahul and Usman as the same persons whom he had sold his SIM bearing no. 9560197271. Thereafter, Udai Narain, father of another boy namely Nikesh Kumar of FIR No. 256/10, PS Vikaspuri had also identified accused Dinesh and Usman as the same persons, who had collected ransom from him at Bareilly Railway station.
16.During investigation, TIP of belongings of victim Yash Kumar recovered from accused persons was got conducted and complainant Pradeep Kumar duly identified all the items of FIR NO: 300/10 8/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri victim Yash Kumar correctly.
17.Efforts were also made to trace remaining accused namely, Pratap Bhan and Rajender and since they could not be arrested, 82 Cr.P.C.proceedings were initiated against them. However, in the meanwhile, accused Pratap Bhan surrendered before the court on 12.01.2011 and he was arrested and was taken on police remand. During the police remand, spectacles and one school badge of victim Yash Kumar were recovered from his house. Police also recovered during the course of investigation mobile no. 9557524138 from accused Hari Singh and comparative analysis of mobile no. 8923174470 with the mobile no. 9557524138 proved that location of both the numbers always remained the same. The IO also collected information from Navjeevan Academy where victim Yash Kumar was studying and attendance register of the school showed that victim had attended the school on 10.09.2010 and evidence was also collected to show that accused Rahul Gupta also used to study in the same school and used to travel with victim Yash Kumar in the same bus. Thereafter, on 17.01.2011, complainant of this case had handed over a compact disc (CD) allegedly containing the recorded conversation which took place between him and the kidnapper and also between his wife and the kidnapper. The voice of the FIR NO: 300/10 9/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri kidnapper was identified that of accused Hari Singh in the police station and thereafter, after obtaining the permission of the court, voice sample of accused Hari Singh was taken in FSL, Rohini and CD was also sent to FSL, Rohini for comparison with the voice sample of accused Hari Singh.
18.The call detail record of mobile phone of accused Rahul Gupta was also obtained which showed his location in Kasganj on 10.09.2010 and in Pilibhit on 11.09.2010.
19.Initially, charge sheet was filed against four accused persons namely, Hari Singh, Usman Khan, Dinesh Kumar and Rahul Gupta u/s 363/364A/302/201/120B IPC.
20.With regard to accused Pratap Bhan and Rajender, investigation was still continuing.
21.After the filing of charge sheet in the court, proceedings u/s 82 Cr.P.C.were completed against accused Rajender and he was declared a Proclaimed Offender on 15.04.2011. With regard to accused Pratap Bhan, charge sheet was filed in the court on 30.04.2011.
22.After hearing the arguments on the point of charge, FIR NO: 300/10 10/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Ld.Predecessor of this court framed charge against accused Hari Singh, Dinesh Kumar, Usman Khan, Rahul Gupta and Pratap Bhan on 05.05.2011 for the offence u/s 363/364A/302/201 read with Section 120B IPC and thereafter, the matter was posted for evidence.
23.During the course of recording of evidence in trial of five accused persons namely Hari Singh, Dinesh Kumar, Usman Khan, Rahul Gupta and Partap Bhan, supplementary charge sheet against accused Rajinder was received by assignment before the Ld.Predecessor of this court on 24.12.2011 and after hearing arguments on charge, charge was framed against accused Rajinder for the offence u/s 363/364A/302/201/120B and u/s 174A IPC to which he pleaded not guilty and claimed trial.
24.The trial of accused Rajinder was conducted separately initially and four witnesses i.e. PW1 ASI Ragender, PW2 Sh.Sumit Dass, Ld.MM, Tis Hazari Courts, Delhi, PW3 HC Rajender Hooda and PW4 HC Bachhu Singh were examined.
25.Thereafter, vide order dated 30.05.2012, ld.Predecessor of this court clubbed the case of accused Rajinder with the case of other five accused persons and thereafter, counsel for accused FIR NO: 300/10 11/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Rajinder had filed on record a list of 08 witnesses, who were to be recalled for the purpose of cross-examination out of the witnesses who were already examined in the trial of five co- accused persons. At the time of hearing of application of accused Rajinder, he only limited his right to cross examine PW Pradeep Kumar and IO SI Sukhbir Malik.
26.Now, I shall discuss as to what evidence was led on record in the trial of five accused persons which evidence is also required to be read against accused Rajinder as he was granted permission to recall the witnesses examined for the purpose of cross examination and he chose to examine two of the witnesses.
27.The prosecution has examined in all 29 witnesses.
28.PW1 Sh.Deepak Tomar is the Assistant Nodal Officer from Vodafone Essar Limited, New Delhi and he has proved on record the call detail records of mobile phone no. 9873325619 and 9873245888. He has also proved that mobile phone no. 9873245888 was issued in the name of Mrs.Kanchan Kumari, w/o Sh.Pradeep Kumar, who is complainant in this case and call detail record of said mobile phone was proved on record for the period from 17.09.2010 till 16.10.2010. PW1 also proved FIR NO: 300/10 12/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri that mobile number 9873325619 was in the name of Sh.Usman Khan, S/o Shahbuddin Khan.
29. PW2 Sh.Hayad Singh Jethi was the Nodal Officer from Unitech Wireless, Meerut, UP and he had proved the call detail records of mobile phone no. 8923174470 w.e.f. 25.09.2010 till 15.10.2010 and also proved that said mobile phone was issued in the name of one Shamshad, S/o Mohd.Hanif.
30.PW3 Sh.Alok Nath Goswami is the Superintendent, M/s. Navjeevan Academy Sr.Secondary School, Madhu Vihar, Sector-3, Dwarka, New Delhi where the victim Yash used to study. He deposed that victim Yash was studying in class VIIIth Sec.B of their school and he attended the school till 10.09.2010. The attendance register for the month of September, 2010 of class VIIIth Sec.B. Ex.PW3/A was also proved on record by him. He has also proved on record that accused Rahul Gupta also studied in their school in the year 2008.
31.In his cross examination, he admitted that victim Yash was availing school transport facility and on 10.09.2010, exams were going on and they came to know at about 12.30 p.m.regarding missing of victim Yash when he was found FIR NO: 300/10 13/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri absent in the school bus.
32.PW4 Sh.Pradeep Kumar is the complainant and father of victim Yash. He has deposed on oath that on 10.09.2010, victim Yash left for the school as usual at about 6.45/7 a.m. in the school bus. He also deposed that from the school, victim Yash used to go to boarding facility at D-Block, Janakpuri as he and his wife both were employed and used to reach home at about 5 or 6 p.m. However, when victim Yash did not return by 7.30 p.m., they lodged police complaint Ex.PW4/A. He has also deposed on oath that on 18.09.2010, he received a call on his mobile phone no.9873245888 from mobile phone no. 9560197271 and the caller told him that victim Yash is in their custody and if he wanted to see him alive then he should pay Rs.1 crore to the caller. The caller repeatedly demanded Rs.1 crore for about two more days. Thereafter, he deposed that on 25.09.2010, he started raising ransom call from same caller but from different mobile no. 8923174470 who again asked him to arrange for demanded money. PW4 also deposed that he also asked caller to allow him to talk to his son but he did not agree for the same. PW4 deposed that he continued to receive ransom call from the said mobile phone till 15.10.2010. Thereafter, on 29.10.2010, police informed him that they have apprehended 5 culprits, who had kidnapped his son Yash and asked him to FIR NO: 300/10 14/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri reach Kasganj, UP. Thereafter, he went to Kasganj, UP where he was taken to jungle of Pilibhit, UP alongwith five accused persons and in the forest near a temple, four accused persons told that they had killed his son at that place and accordingly, Ex.PW4/B was prepared. He further deposed that despite search of dead body of his son, same could not be traced. It was deposed to by him that he had recorded the voice of the person, who had called him and had prepared a CD of the said mobile conversation and had handed over the same to the police on 17.01.2011 which was seized vide seizure memo Ex.PW4/C. PW4/complainant deposed that he had identified the articles of victim Yash before the Ld.MM vide TIP proceedings conducted on 07.01.2011, 28.02.2011, 07.04.2011 and 08.12.2011.
33. PW5 Constable Kallu Ram was posted at PS Dabri on 10.09.2010 as DD writer and he has proved DD entry number 115B Ex.PW5/A. The said DD was regarding information given with regard to missing of Yash.
34.PW6 Sh.Sanjay Gupta is the friend of PW4 Pradeep Kumar/complainant and both are in the business of property dealing. PW6 Sh.Sanjay Gupta has deposed on oath that on 10.09.2010 at around 10.45 a.m., he had seen deceased Yash FIR NO: 300/10 15/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri alongwith one more boy on the main road which is known as Gali No.40 near school in which victim Yash was studying. Victim Yash had greeted him and further stated to PW6 that he is going alongwith his friend. PW6 further deposed that on 03.11.2010, he had gone alongwith complainant and his wife to the office of Crime Branch where he had identified the boy whom he had seen alongwith Yash, as Rahul Gupta.
35. In his cross examination by counsel for accused Rahul Gupta, PW6 deposed that he came to know about missing of victim Yash after 18-20 days of the incident when Pradeep and his brother were affixing posters in Madhu Vihar area near his house.
36.PW7 Sh. Shishir Malhotra is the Nodal Officer of Aircel Ltd., Delhi and he has proved ownership of mobile phone no. 7503050520 as belonging to Mrs.Indu Devi, W/o Sh.Raj Kumar Gupta, R/o Sagarpur, New Delhi. He has also proved call detail record of said mobile phone no. for the period from 01.09.2010 till 26.01.2011.
37.PW8 Sh.Vishal Gaurav is the Nodal Officer from Bharti Airtel Ltd.and he has proved ownership of mobile phone no. 9560197271 as belonging to Ms.Nagma, R/o Jagdamba Vihar, FIR NO: 300/10 16/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Delhi. He also proved call detail record of said mobile phone no. from 15.09.2010 to 30.09.2010 vide Ex.PW8/C. PW8 also proved ownership of mobile phone no. 9557524138 as belonging to Mrs. Geeta Devi, R/o Pilibhit, UP and proved call detail record for the period from 01.09.2010 till 23.10.2010 vide Ex.PW8/G.
38.PW9 Sh.Ved Prakash Rai was the school bus driver of Navjeevan School, Madhu Vihar, Sec.3, Dwarka, New Delhi where victim Yash was studying. He has deposed that victim Yash used to come to school in his bus from his residence and from Sagarpur area, one more student namely Rahul Gupta also used to board his bus for the school. He duly identified accused Rahul Gupta, who used to accompany victim Yash in the school bus.
39.PW10 Sh.Uday Narain Singh is the father of victim Nikesh Kumar, who was also kidnapped from Vikaspuri regarding which FIR No. 256/10, PS Vikaspuri was registered. He has also deposed on oath that on 30.09.2010, his son Nikesh Kumar was kidnapped and on 03.10.2010, he had received a ransom call demanding Rs.50 lacs from mobile phone no. 8923174470 on his son's mobile phone no. After negotiation, the amount was brought down to Rs.2.5 lacs which he had FIR NO: 300/10 17/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri delivered on 09.10.2010 at Bareilly Railway Station alongwith his brother. Said amount was collected by three accused persons namely Usman, Partap and Dinesh.
40.Despite grant of opportunity, said witness was not cross examined by any of the accused.
41.PW11 Sh.Vipin Kumar is the uncle of victim Yash and he had gone alongwith parents of Yash to Kasganj, UP and then to Pilibhit, UP to search for the body of deceased Yash.
42.PW12 Smt.Kanchan Kumari is the mother of victim Yash. She has deposed that accused Hari Singh used to call her husband demanding ransom of Rs.1 crore as their son was in his custody from two different mobile phone nos. 9560197271 and 8923174470. She has also deposed that on 03.11.2010, she had gone to the office of Crime Branch where she had identified the voice of accused Hari Singh as the caller, who made ransom call to them.
43.PW13 ASI Jagdish Chand has proved registration of FIR no. 300/10, PS Dabri on the basis of rukka received from Ct.Lakhan and he also proved the copy of FIR vide Ex.PW13/A and his endorsement on the rukka vide Ex.PW13/B. FIR NO: 300/10 18/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri
44.PW14 Sh.Vishal Gogne, Ld.MM has proved on record that he had conducted TIP of case property i.e.one white shirt, one navy blue colour pant, one school bag, one school belt and one school tie on 07.01.2011 vide TIP proceedings Ex.PW14/A. He has also proved conducting of TIP of one school badge and one spectacle on 28.02.2011 and since having regard to the peculiar nature of the school badge, since no identical badge was found, therefore, TIP was not conducted and TIP of the spectacle was got conducted vide Ex.PW4/X1 and the case property was duly identified by Pradeep Kumar.
45.PW15 Constable Lakhan Singh deposed on oath that he took the rukka to the police station and got the FIR registered. PW15 deposed that he had wrongly mentioned the name of ASI wrongly as Ashwani. In fact, he was associated with ASI Ashok on the night of incident.
46.PW16 ASI Kuldeep deposed that on 25.10.2010, he was posted as Head Constable in SOS Crime Branch, Sunlight Colony, Delhi. PW16 deposed that with regard to investigation in case FIR No. 256/10, PS Vikaspuri, he alongwith SI P.C.Yadav and other statf had gone to Kasganj, UP. Four or five accused in that case were taken on police remand and FIR NO: 300/10 19/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri accused Hari Singh accompanied them. He deposed that he did not remember the name and particulars of other four accused persons, who were accompanying them. PW16 deposed that he deposited the pullindas handed over to him in the Malkhana of Crime Branch on 01.11.2010 on return.
47.PW17 Lady Constable Manoj deposed that on 10.09.2010, she was posted at Police Control Room and at 11.25 p.m., she received information regarding the disappearance of Yash Kumar, son of Pradeep Kumar. PW17 proved the PCR Form vide Ex.PW17/A.
48.PW18 ASI Ravinder deposed that on 24.10.2010, he was posted as ASI in SOS, Crime Branch, Daryaganj, Delhi. PW18 deposed that on that day, SI P.C.Yadav of crime branch had arrested five accused namely Hari Singh, Dinesh Kumar, Usman Khan, Rahul Gupta and Radhey Shyam in FIR No. 256/2010, PS Vikaspuri. PW18 deposed that he had gone to Kasganj, UP on 15.10.2010 in connection with investigation of case FIR No. 256/10 and in the night of 25.10.2010, SI P.C.Yadav alongwith other staff members alongwith aforesaid five accused reached Kasganj. PW18 deposed that on 26.10.2010, the dead body of kidnapped boy in case FIR no. 256/10 was recovered from the fields of Manpur Nagaria in FIR NO: 300/10 20/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Kasganj. PW18 deposed that on 27.10.2010, accused Hari Singh, Radhey Shyam, Rahul Gupta and Usman Khan made separate disclosure statements disclosing that clothes of kidnapped boy Yash in case FIR No. 300/10 are at their respective houses.
49.After his part examination in chief, the said witness was dropped by the Ld.Addl.PP for state vide order dated 28.09.2012 being a witness of repetitive facts.
50.PW20 SI P.C.Yadav deposed that on 24.10.2010, he was posted as SI at SOS Crime Branch, Sunlight Colony, Delhi. PW20 was the investigating officer of case FIR No. 256/10, PS Vikaspuri. On 25.10.2010, PW20 arrested five accused persons namely Hari Singh, Dinesh, Usman, Radhey Shyam and Rahul. PW20 deposed that during interrogation of accused persons, all accused persons except accused Radhey Shyam admitted their involvement in the kidnapping and murder of victim Yash. PW20 proved the disclosure statement of accused Hari Singh, Radhey Shyam, Dinesh, Usman and Rahul Gupta vide Ex.PW20/A, Ex.PW20/B, Ex.PW20/C, Ex.PW20/D and Ex.PW20/E. PW20 deposed that he alongwith his team consisting of inspector K.P.Singh, SI Sukhbir Malik, SI Rajender, ASI Ravinder and ASI Rajinder and others reached FIR NO: 300/10 21/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Kasganj, UP and on 26.10.2010, PW20 recovered the dead body of victim Nikesh in case FIR No. 256/2010, PS Vikaspuri. PW20 further deposed that as per disclosure statement of accused Hari Singh, he alongwith some members of his team reached Pilibhit, UP where at the instance of accused Hari Singh, he recovered the school dress of victim Yash, which was produced by accused Hari Singh from an iron almirah from a railway quarter near pilibhit railway station and the same was seized vide seizure memo Ex.PW20/I. PW20 deposed that thereafter, accused Dinesh led the police party to his house at Soran, District Kashiram Nagar and handed over one school bag of victim Yash. The same was seized vide seizure memo Ex.PW20/J. PW20 further deposed that on 28.10.2010, accused Usman @ Bunty led the police party to his village Kheriya Patikar, P.S.Jasrana, District Farukhabad, UP and handed over school tie and school belt of victim Yash which was taken out by him from one iron box which was kept in a room in his house. The same was also seized vide seizure memo Ex.PW20/K. PW20 deposed that on 29.10.2010, all accused persons led the police party to the jungle near village Jhatpura, PS Puranpur, Pilibhit, UP and in the jungle, they pointed out one place and stated that they strangulated victim Yash at that particular place and dead body was abandoned in the jungle. PW20 proved the pointing out memo which is FIR NO: 300/10 22/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri already Ex.PW4/B. PW20 deposed that he made all possible efforts to trace out the body of victim Yash but same could not be traced. PW20 deposed that he was told by local villagers that jungle was inhabited by all kinds of wild animals, so there was a remote possibility of recovery of dead body after more than one month. PW20 deposed that thereafter, he alongwith his team and accused persons came back to Delhi. PW20 deposed that all the recovered articles which were kept in the custody of HC Kuldeep Singh were deposited in the malkhana of PS Crime Branch. PW20 further deposed that on 02.11.2010, he handed over the relevant documents to SI Sukhbir Malik.
51.PW 19 Ct. Vikal Singh and PW24 SI Rajender were the members of the crime team of PW20 SI P.C.Yadav and have corroborated the testimony of PW20 SI P.C.Yadav and, therefore, their deposition which is similar to PW20 SI P.C.Yadav is not being repeated herein.
52.PW21 HC Narender Godara deposed that on 12.01.2011, he was posted as Head Constable in SOS Crime Branch and on that day, he alongwith SI P.C.Yadav had reached the court of Sh.Sanjay Jindal, ld.ACMM. Dwarka Courts, where accused Pratap Bhan had surrendered and he proved the arrest memo FIR NO: 300/10 23/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri of accused Pratap Bhan vide Ex.PW20/E.
53.PW22 ASI Ashok Kumar deposed that on 10.09.2010, he was posted as ASI in PS Dabri. PW22 deposed that DD No.115B was entrusted to him for suitable action which was regarding missing of a child. PW22 deposed that on receipt of information, he had gone to the house of Pradeep Kumar where he recorded his statement and got the FIR registered. PW22 deposed that during investigation, he made efforts to search victim Yash by sending wireless messages all over India, sending missing information alongwith photograph of the child to Doordarshan and getting a missing notice published in the newspapers. PW22 deposed that on 14.09.2010, the investigation of the case was transferred to some other police officer.
54.PW23 Sh.Sumit Das , Ld.MM has proved on record that he had conducted TIP of case property i.e. School badge vide Ex.PW23/A and the case property was duly identified by Pradeep Kumar.
55.PW25 Ms.Nagma, R/o Jagdamba Vihar, West Sagarpur, Delhi deposed that in August, 2010, her voter I.Card, ATM Card, 2-3 passport size photographs and certain other documents were FIR NO: 300/10 24/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri stolen from her house regarding which her father had made NCR no. 1194/10, PS Dabri. PW25 on being shown the Customer Application Form in respect of mobile phone no. 9560197271 although identified her photograph on the same but stated that she had not signed the same and she had never applied for abovesaid mobile number.
56.PW26 ASI Raj Kumar had taken accused Hari Singh from Tihar Jail to FSL, Rohini where voice sample of accused Hari Singh was taken and an audio cassette of the same was handed over to SI Sukhbir Malik vide seizure memo Ex.PW26/A.
57.PW27 SI Sukhbir Singh Malik deposed that on 29.09.2010, he was posted as SI in SOS Crime Branch, Sunlight Colony, New Delhi. PW27 deposed that investigation of FIR No. 300/10 was entrusted to him by the order of ACP SOS. PW27 deposed that on studying the case file, he came to know that a minor boy named Yash has been kidnapped and his parents are receiving ransom calls for a sum of Rs.1 crore from mobile phone nos. 9560197271 and 8923174470. PW27 deposed that on analyzing the call detail records of these two mobile phones, he came to know that the location of callers from these mobile phones was around Bareilly, Kasganj and Pilibhit area in UP.
FIR NO: 300/10 25/76FIR NO: 300/10 PS: Dabri
58.PW27 deposed that on 30.09.2010, he examined witnesses Sanjay Gupta, Shivam, Pradeep Kumar, father of kidnapped boy and Kanchan Kumari, the mother of kidnapped boy. PW27 deposed that Sanjay Gupta told him that he had seen Yash going alongwith some other boy on 10.09.2010 and Yash had wished him and also told him that the other boy is his friend. Sanjay Gupta also told him that he had seen them near Navjeevan Academy School, Madhu Vihar where Yash was studying. PW27 deposed that during investigation of FIR no. 300/10, file of another case bearing FIR No. 256/10, PS Vikaspuri was transferred to SOS Crime Branch and the investigation of the case was entrusted to SI P.C.Yadav of SOS. PW27 deposed that during investigation, he came to know that FIR no. 256/10 was related to kidnapping of one boy Nikesh Kumar and his parents had also received ransom calls from mobile no. 8923174470. PW27 deposed that on comparative study of two files, it was revealed that ransom calls stopped coming in the present case i.e. FIR No. 300/10 and thereafter, ransom calls started coming in case FIR No. 256/10, PS Vikaspuri. PW27 deposed that they came to know that the kidnappers in both the cases are one and the same group.
59.PW27 has further corroborated the testimony of PW20 SI P.C.Yadav with regard to having visited Kasganj, UP where FIR NO: 300/10 26/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri dead body of Nikesh of FIR No. 256/2010, PS Vikaspuri was recovered and recoveries made from accused Usman, Dinesh, Partap and Hari Singh of various articles of victim Yash and of having visited jungle in Pilibhit where accused had shown the place of dumping of dead body of victim Yash.
60.PW27 deposed that on 03.11.2010, he formally arrested accused Hari Singh, Dinesh, Usman and Rahul in present case in his office vide arrest memos Ex.PW20/L, Ex.PW20/M, Ex.PW20/N and Ex.PW20/O. PW27 deposed that on the same day, witness Sanjay Gupta came to their office and identified accused Rahul Gupta saying that he had seen Yash alongwith him on 10.09.2010. On the same day, complainant Pradeep Kumar and his wife Kanchan Kumari also come to the office and on talking to accused Hari Singh, they identified his voice saying that it is the same voice by which ransom calls were made to them. PW27 deposed that witness Shivam also came to their office on the same day and identified accused Usman and Rahul Gupta saying that he had sold a SIM Card to them.
61.PW27 deposed that on 12.11.2011, accused Pratap surrendered in the court and he was arrested by PW20 SI P.C.Yadav as he was out of station on that day. On return, he had recorded the disclosure statement of accused Pratap and FIR NO: 300/10 27/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri thereafter on 14.01.2011 accused Pratap had led them to his village Khuduya, District Kanshiram Nagar, UP where from his house spectacle and monitor badge of victim Yash was recovered from an iron box which was seized vide seizure memo already Ex.PW19/B.
62.PW27 deposed that complainant Pradeep Kumar had recorded the ransom call on his mobile phone and had prepared a CD of the same and the said CD was handed over to him on 17.01.2011 which was seized by him vide seizure memo already Ex.PW4/C.
63.PW27 deposed that since accused Rajinder could not be arrested despite efforts and he was successful in evading his arrest, he was declared PO on 15.04.2011.
64.PW27 deposed that all the exhibits of the present case were sent to FSL, Rohini for forensic examination vide RC No. 440/21/2011 dated 20.09.2011.
65.PW27 deposed that accused Rajinder surrendered before the court of Ld.ACMM on 29.09.2011 and he arrested him vide arrest memo already Ex.PW3/A. FIR NO: 300/10 28/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri
66.PW27 deposed that accused Rajinder led them to his house in village Laha, District Pilibhit, UP and got recovered a steel tiffin box and class pass of Yash. The tiffin box was on a wooden shelf alongwith other utensils and the class pass was kept in a cardboard box. The same were seized vide seizure memo already Ex.PW3/C.
67.IO also deposed regarding conducting of TIP of various articles seized from accused before the ld.MM. Finally, IO deposed that he had initially filed charge sheet against accused Hari Singh, Usman, Rahul and Dinesh. Later on, supplementary charge sheet was filed against accused Pratap and finally another supplementary was filed against accused Rajinder.
68.PW28 Sh.V. Lakshmi Narasmhan, Sr.Scientific Officer (Physics) Forensic Science Laboratory, Government of NCT of Delhi and PW29 Dr.C.P.Singh, Assistant Director, Physics, FSL, Rohini, Delhi have proved their FSL report Ex.PW28/A and have further deposed that they had compared voice sample recorded on audio cassette of accused Hari Singh with questioned CD and had found the voice of accused Hari Singh same in both CD and audio cassette.
FIR NO: 300/10 29/76FIR NO: 300/10 PS: Dabri
69.After filing of supplementary charge sheet with regard to accused Rajinder, his separate trial was conducted for a short period wherein four witnesses were examined.
70.PW1 ASI Ragender deposed that on 13.12.2010, he was posted as HC in SOS Crime Branch. He deposed that on 13.12.2010, he affixed the process u/s 82 Cr.P.C. against accused Rajinder on the notice board of concerned Magistrate and on the front wall of the house of accused situated at Village Lahia, PS Puranpur, District Pilibhit, UP. PW1 proved his report Ex.PW1/A.
71.PW2 Sh.Sumit Dass, ld.MM has proved on record that he had conducted TIP of case property i.e.one tiffin box and the badge on 08.12.2011 vide TIP proceedings Ex.PW2/A and the case property was duly identified by Pradeep Kumar.
72.PW3 HC Rajender Hooda deposed that on 29.09.2011, he was posted as HC in SOS Crime Branch, Daryaganj Kotwali. PW3 proved arrest memo and disclosure statement of accused Rajender vide Ex.PW3/A and Ex.PW3/B. PW3 also proved the seizure memos of tiffin box and badge PW3 deposed that thereafter, accused Rajinder took them to forest in Jatpura village where he pointed out the place where he had committed FIR NO: 300/10 30/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri murder of deceased Yash alongwith his associates. He proved the pointing out memo vide Ex.PW3/D. PW3 identified the case property i.e. Tiffin box and school badge.
73.PW4 HC Bachhu Singh deposed that on 24.03.2011, he was posted as Head Constable in SOS Crime Branch, Sunlight Colony, Delhi. He deposed that on that day, proclamation u/s 83 Cr.P.C.issued against accused Rajinder was entrusted to him for execution. PW4 deposed that when he alongwith Ct.Ram Singh went to the house of accused Rajender, he was not present in the house and wife of accused Rajinder, who was present in the court, also ran away from the house after seeing them. PW4 deposed that he recorded the statement of two neighbours of accused namely Jagan Nath and Mukesh, who stated that there is no movable or immovable property in the name of accused Rajinder. PW4 proved his report vide Ex.PW4/A and the statements of witnesses recorded by him vide E.PW4/B, Ex.PW4/C, Ex.PW4/D and Ex.PW4/E.
74.No other witness was examined by the prosecution. Accordingly, prosecution evidence was closed.
75.After the closure of prosecution evidence, all incriminating evidence was put to all six accused separately u/s 313 Cr.P.C.
FIR NO: 300/10 31/76FIR NO: 300/10 PS: Dabri Accused persons in their examination denied their involvement in the case and submitted that they have been falsely implicated by the police.
76.All accused refused to lead any defence evidence. Thereafter, the matter was posted for final arguments.
77.I have heard Sh.Aditya Kumar, ld.Addl.PP for state and Sh.Tanveer Quisar, ld.counsel for accused Hari Singh, Rahul Gupta, Dinesh and Usman, Sh.S.N.Verma, ld.counsel for accused Rajinder and Sh.Nalin Sahai, ld.counsel for accused Partap Bhan and have perused the material on record.
78. It was contended by the counsel for accused persons that in the present case, there is no eye witness and the entire case of prosecution rests upon circumstantial evidence. It was further stated by counsel for accused persons that with regard to two mobile phone nos. 9560197271 and 8923174470 from which allegedly ransom calls were made, there is no evidence on record to connect any of accused persons with the aforementioned two mobile numbers. Hence, there is no evidence to show that accused had demanded ransom from PW4 Pradeep Kumar after kidnapping his son/victim Yash.
FIR NO: 300/10 32/76FIR NO: 300/10 PS: Dabri
79.It was further submitted that even the last seen of PW6 Sanjay Gupta is not believable as PW6 Sanjay Gupta was good friend of PW4 Pradeep Kumar and was known to him for the past 20-25 years and both were in the same business of property dealing. Therefore, it is not believable that for 20 days after disappearance of victim Yash, PW6 Sanjay Gupta will not come to know about missing of victim Yash.
80.It was further submitted that at the time when PW6 Sanjay Gupta claimed to have seen victim Yash in the company of accused Rahul Gupta, victim Yash was in the school taking his examination as per evidence of PW3 Sh.Alok Nath Goswami.
81.It was further submitted that accused Rahul Gupta was not previously known to PW5 Sanjay Gupta and, therefore, his TIP was required to be got conducted in this case to establish his identity. However, no such judicial TIP was got conducted of accused Rahul Gupta and his identity before the police and before the court by PW6 Sanjay Gupta is of no consequence.
82.Lastly, it was submitted that alleged recoveries made of articles of victim Yash, at the instance of all accused except accused Rahul Gupta are planted one and require to be discarded. It was submitted that all the recoveries from accused persons FIR NO: 300/10 33/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri except accused Rahul Gupta were made from different places in UP and despite availability of public witnesses/police officials of UP, they were not made witness to recovery proceedings. Therefore, recovery is not as per Section 100 of Cr.P.C.and is not admissible. It was further submitted that it is not believable that any person will keep the articles like spectacle, tiffin, school bag, tie etc. of a small boy aged 13 years with him which are of no value to him just to have them recovered at the instance of police later on.
83.Lastly, it was submitted that FSL report Ex.PW28/A and evidence of PW28 and PW29 whereby they have found the voice recorded by PW4 on the CD to be matching with that of voice sample given by accused Hari Singh is also not admissible in law as the CD recorded from the mobile phone was handed over to the IO on 17.01.2011 i.e.after arrest of accused Hari Singh on 24.10.2010. Therefore, possibility of CD being prepared when accused Hari Singh was in custody of police cannot be ruled out and prosecution has failed to establish that CD is not a doctored document.
84.To conclude, it was submitted that chain of circumstances has not been established by prosecution which unerringly points towards the guilt of accused. It was further submitted that none FIR NO: 300/10 34/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri of the circumstances have been proved on record which shows involvement of accused persons in kidnapping and murder of victim Yash. Accordingly, it was prayed that all accused be acquitted for the offence with which they have been charged.
85.In support of their contention, counsel for accused has relied upon the following judgments:-- Kali Ram Vs. State, 2010 (2) JCC 1578; G.R.Chandrashekara Vs. State of Karnataka, 2003 Crl.L.J.5089; Khalaksingh and Ors. Vs. State of M.P., 1992 Crl.L.J.1150; Maruti Rama Naik Vs. State of Maharashtra, AIR 2003 SC 3884; R.Venkatesan Vs. State; 1980 Crl.L.J.41; All India Anna Dravida Munnetra Kazhagam Vs. L.K.Tripathi and Ors., AIR 2009 SC 1314; Chandrakant Ratilal Mehta and Ors., Vs. The State of Maharashtra, 1993 Crl.L.J.2863; Krishnan Vs. State, AIR 2008 SC (Supp.) 2010; Dhan Prasad and Ors. Vs. State of UP, 2003 Crl.L.J.4127; Sampath Kumar Vs. Inspector of Police, Krishnagiri, AIR 2012 SC 1249; State of Goa Vs. Pandurang Mohite, AIR 2009 SC 1066; Balkar Singh Vs. State of UP, 1990 Crl.L.J.77; State of Haryana Vs. Jagbir Singh and anr., AIR 2003 SC 4377; Liyakat Hussain Vs. State, 2009 (107) DRJ 184 (DB); Majendran Langeswaran Vs. State (NCT of Delhi) & anr., Crl.Appeal No. 1300 of 2009; Govinda Naik Vs. State of Orissa; 2003 Crl.L.J. 4179; Laxman @ Janga Vs. State, Crl.A.144/2010; Ravi Kumar and Ors. Vs. State, 2013(2) FIR NO: 300/10 35/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri ADR 162; Ghanshyam Prasad Yadav Vs. State, 2013 (1) JCC 74; Ramesh Vs. State of NCT of Delhi, 2013(1) JCC 50; Kamal Bora Vs. State of Assam, 2003 Crl.L.J.3275; Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, 2008 (1) Crimes 191 (SC); and State of UP Vs. Arun Kumar Gupta, AIR 2003 SC 801.
86.On the other hand, counsel for complainant and the Ld.Addl.PP for state submitted that prosecution has established the chain of circumstances in this case which unerringly points towards the guilt of accused.
87.It was submitted that mobile phone recovered from accused Hari Singh shows his location to be in the same area from which ransom calls were made from mobile phone no. 8923174470. It was further submitted that voice recording done by complainant/PW4 Pradeep Kumar on his mobile phone was found to be duly matched with the voice sample taken of accused Hari Singh which shows that he was the person who was making ransom calls to PW4 Pradeep Kumar. It was further submitted that recoveries of victim Yash's articles at the instance of all accused except accused Rahul Gupta further shows that after killing victim Yash, they had kept the same articles with them just to demand ransom from PW4 Pradeep FIR NO: 300/10 36/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Kumar. It was further submitted that in case pertaining to FIR No. 256/10, PS Vikaspuri, ranson calls were were made from same mobile phone no. 8923174470 and even dead body of Nikesh was recovered at the instance of present accused persons. Even the father of victim Nikesh had identified accused persons to whom Rs.2.5 lacs was given at Aligarh railway station. Therefore, present accused are the same accused, who are involved in the murder and kidnapping of victim Yash. It was further submitted that accused Rahul Gupta was ex-student of Navjeevan Academy School where victim Yash used to study and PW3 Sh.Alok Nath Goswami has proved on record that accused Rahul Gupta used to study in the same school and PW9 Sh.Ved Prakash Rai, bus driver has proved on record that accused Rahul Gupta used to travel with victim Yash in the same school bus. Further, it is proved by PW6 Sanjay Gupta that accused Rahul Gupta was seen in the company of victim Yash and accused Rahul Gupta was duly identified before police on 03.11.2010 by PW6 Sanjay Gupta as the same person, who was last seen in the company of victim Yash. Further, the location of mobile phone of accused Rahul Gupta was found in the area of UP where victim Yash was killed. It was further proved that victim Yash after kidnapping by accused Rahul Gupta was taken to UP where other accused persons met him and killed victim Yash.
FIR NO: 300/10 37/76FIR NO: 300/10 PS: Dabri
88.Lastly, it was submitted that prosecution has established on record complete chain of circumstances which shows involvement of accused persons in kidnapping and murder of victim Yash. Accordingly, it was prayed that accused be convicted for the offence they have been charged with. In support of his contention, counsel for complainant has relied upon the following judgments:- Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, (2012) 4 SCC 37; Kaushal Singh Vs. State (NCT) of Delhi, 194(2012) DLT 342 (DB); Sunil Vs. State, 196(2013) DLT 540 (DB); Shyamal Ghosh Vs. State of West Bengal; (2012) 7 SCC 646; and State (NCT of Delhi) Vs. Prakash, 191 (2012) DLT 137(DB).
89.I have considered the rival submissions made by respective counsels and have perused the judgments relied upon by respective counsels. There can be no dispute with regard to law relied upon by defence counsel as well as prosecution.
90.The accused have been charged u/s 363/364A/302/201/120B IPC for entering into a criminal conspiracy of kidnapping victim Yash for the purpose of putting him under reasonable apprehension of death in order to compel his father to pay ransom and of having committed murder of victim Yash and of FIR NO: 300/10 38/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri destruction of evidence i.e.dead body of victim Yash.
91.Apart from said charges, accused Rajinder had also been charged for the offence u/s 174A IPC for having failed to appear before the court despite publication of proclamation u/s 82 Cr.P.C.
92.The initial burden is upon the prosecution to prove its case.
93.The entire prosecution case rests upon the circumstantial evidence as there is no eye witness in the present case to kidnapping and murder of victim Yash.
94. The law with regard to appreciation of circumstantial evidence has been laid down by the Hon'ble Supreme Court of India in the matter of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 wherein a three-Judge Bench has laid down five golden principles which constitute the "panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra, AIR 1973 SC 2622: (1973) 2 SCC 793, it was opined that it is a primary principle that:-
(a) the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be' FIR NO: 300/10 39/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri and `must be' is long and divides vague conjectures from sure conclusions.
(b) 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;
(c) the circumstances should be of a conclusive nature and tendency that they should exclude every possible hypothesis except the one to be proved;
(d) that 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
(e) that it must show that in all human probability the act must have been done by the accused."
95. In Padala Veera Reddy v. State of Andhra Pradesh and Ors.
1989 Supp (2) SCC 706 : 1991 SCC (CRI) 407, Supreme Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the FIR NO: 300/10 40/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. A similar view has been reiterated in Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172.
96. In Ram Singh v. Sonia and Ors., AIR 2007 SC 1218, while referring to the settled proof pertaining to circumstantial evidence, Supreme Court reiterated the principles about the caution to be kept in mind by Court. It has been held therein in para 39 that "......in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused FIR NO: 300/10 41/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri beyond all reasonable doubts."
97. In Ujagar Singh v. State of Punjab, (2007) 13 SCC 90, after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, Supreme Court held in para 14 that "......it must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted."
98.Keeping in view the aforesaid principles, I shall proceed to scrutinize and evaluate the circumstances whether the said circumstances establish the guilt of the accused beyond reasonable doubt.
99.The prosecution is relying upon the following circumstances to prove the guilt of accused:--
(a) Records of two mobile phone nos. 9560197271 and 8923174470 to show that ransom calls were made by the accused to PW4 Pradeep Kumar, father of victim Yash.
(b) Last seen evidence to establish that victim Yash was last seen on 10.09.2010 in the company of accused Rahul Gupta.
(c) Voice record of accused Hari Singh to show that he was FIR NO: 300/10 42/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri the person, who had made ransom call to PW4 Pradeep Kumar.
(d) Lastly, recovery of various articles of victim Yash from the possession of accused persons to show their involvement in kidnapping and murder of victim Yash.
100.I shall discuss each circumstance separately to find out as to whether circumstance has been proved or not and whether circumstances taken cumulatively leads to inescapable conclusion that accused only are guilty of the offence?
LAST SEEN
101.The "last seen circumstance" is a sub-species of circumstantial evidence based prosecution. "Last Seen"
doctrine essentially provides that "where the time gap between the point of time when accused and deceased were seen last alive and when deceased is found dead, is so small that possibility of any person other than the accused being author of the crime become impossible. [Reference in this regard is made to judgment of the Hon'ble Supreme Court of India delivered in State of U.P.Vs. Satish, (2005) 3 SCC 114 and Ramreddy Rajesh Khanna Reddy Vs. State of Andhra Pradesh, (2006) 10 SCC 172].FIR NO: 300/10 43/76
State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri
102.In the present case, the dead body of victim Yash has not been recovered but that will not be fatal to the prosecution case if otherwise the evidence of last seen is reliable and trustworthy. (Reference is made to judgment of Hon'ble Supreme Court of India delivered in Mani Kumar Thapa Vs. State of Sikkim, AIR 2002 SCC 2920).
103.Now, let us see whether in the present case, last seen evidence of deceased Yash being found in the company of accused Rahul Gupta can be believed or not?
104.The star witness of the prosecution with regard to accused Rahul Gupta being last seen in the company of deceased Yash on 10.09.2010 is PW6 Sanjay Gupta. PW6 Sanjay Gupta has deposed that he was known to PW4 Pradee Kumar, father of deceased for the past 20-25 years and had seen deceased Yash in the company of one person on 10.09.2010 at about 10.45 a.m. The said person with whom deceased Yash was last seen was not known to PW6 Sanjay Gupta previously. The testimony of PW6 Sanjay Gupta regarding seeing of deceased Yash in the company of accused Rahul Gupta near his school on 10.09.2010 at 10.45 a.m. is not believable in the light of testimony of PW3 Sh.Alok Nath Goswami of Navjeevan FIR NO: 300/10 44/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Academy School, Madhu Vihar, Dwarka where deceased Yash was studying in class VIIIth. As per testimony of PW3 Sh.Alok Nath Goswami, deceased Yash had attended the school on 10.09.2010 and his attendance sheet Ex.PW3/A proves the said fact. It has come in the cross examination of PW3 Sh.Alok Nath Goswami that on 10.09.2010, school examination were going on and at about 12.30 p.m.in the afteroon, they came to know about the disappearance of deceased Yash when he was not present in the school bus. Therefore, from the testimony of PW3 Sh.Alok Nath Goswami, it is proved that deceased Yash was present in the school on 10.09.2010 and only at 12.30 p.m., it was discovered that he was not present in the school bus when students had to return to their houses.
105.It is not the case of prosecution that deceased Yash had not appeared in the examination on 10.09.2010 and it is also not the case of prosecution that he bunked the school on 10.09.2010. The evidence of PW3 Sh.Alok Nath Goswami suggests that missing of deceased Yash came to their notice when students started boarding their school bus for going to their house at 12.30 p.m.meaning thereby that prior to that deceased Yash was not missing from school and he had attended the school on that date.
FIR NO: 300/10 45/76FIR NO: 300/10 PS: Dabri
106.In the light of testimony of PW3 Sh.Alok Nath Goswami, it appears doubtful that PW6 Sanjay Gupta would have seen deceased Yash at 10.40 or 10.45 a.m. in the company of accused Rahul Gupta. Therefore, this fact alone creates a great doubt in the last seen circumstance and cannot be believed.
107.The second ground for disbelieving PW6 Sanjay Gupta to have last seen accused Rahul Gupta in the company of deceased Yash is the fact that PW6 Sanjay Gupta was into the same business of property dealing as that of PW4 Pradeep Kumar and was known to victim's father i.e.Pradeep Kumar for the last 20-25 years. It has also come in the cross examination of PW6 Sanjay Gupta that he occasionally used to visit the house of Pradeep Kumar and used to talk to him occasionally. The very fact that deceased Yash was previously known to PW6 Sanjay Gupta also shows that relation between the family of PW6 Sanjay Gupta and Pradeep Kumar was more than friendly and they were on visiting terms at each other's house.
108.PW6 Sanjay Gupta had stated to the IO SI Sukhbir Malik on 30.09.2010 that he had seen deceased Yash in the company of one person whom he can identify, if shown to him. It is not believable that PW6 Sanjay Gupta, who was in the same property business as that of Pradeep Kumar and who was FIR NO: 300/10 46/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri good friend of PW4 Pradeep Kumar for the last 20-25 years and was in touch with him on telephone, although occasionally, will not come to know about kidnapping and missing of victim Yash from father of victim Yash i.e.Pradeep for around 20 days i.e.from 10.09.2010. The missing of Yash would have been a big shock for PW4 Pradeep Kumar and he would have definitely discussed with his relatives and friends to find out his whereabouts. Therefore, PW6 Sanjay Gupta being not aware of missing of victim Yash till 30.09.2010 is a fact which is difficult to believe.
109.The deposition made by PW6 Sanjay Gupta in his cross examination as to in what manner he came to know about missing of victim Yash is also not believable. In his cross examination, PW6 Sanjay Gupta had deposed that he came to know about missing of victim Yash when PW4 Pradeek Kumar and his brother were affixing posters in Madhu Vihar near his house. The manner in which PW6 Sanjay Gupta became aware about missing of victim Yash is not believable as nowhere PW4 Pradeep Kumar has deposed in his evidence that he and his brother had affixed posters in Madhu Vihar area near house of PW6 Sanjay Gupta and on the said date, he was apprised by PW6 Sanjay Gupta of having seen victim Yash in the company of one more person on 10.09.2010. There FIR NO: 300/10 47/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri is no poster which has been seized by the police to lend credence to the testimony of PW6 Sanjay Gupta to show that he became aware after seeing the poster of victim Yash which was affixed by his father to trace his whereabouts. This fact also makes the testimony of PW6 Sanjay Gupta unreliable and untrustworthy.
110.Lastly, the evidence of PW6 Sanjay Gupta to have identified accused Rahul Gupta as the same person, who was last seen in the company of victim Yash is also not worthy to be believed. As per the statement recorded of PW6 Sanjay Gupta on 30.09.2010 by IO SI Sukhbir Malik, PW6 Sanjay Gupta stated that he can identify the person, who was going alongwith victim Yash on 10.09.2010. Even in the cross examination of PW6 Sanjay Gupta, it has come on record that he had apprised PW4 Pradeep Kumar that he can identify the person, who was accompanying his son Yash on 10.09.2010. Therefore, from the evidence which has come on record, it is evident that the person, who was accompanying victim Yash was not previously known to PW6 Sanjay Gupta . Therefore, in the present circumstances, holding of Test Identification Parade after the arrest of accused Rahul Gupta was imperative to establish his identity and ability of PW6 Sanjay Gupta in identifying the person to have been last seen in the company of victim Yash.
FIR NO: 300/10 48/76FIR NO: 300/10 PS: Dabri
111.In the present case, Test Identification Parade of accused Rahul Gupta was not got conducted and he was identified by PW6 Sanjay Gupta on 03.11.2010 in the police station at Sunlight Colony, New Delhi. No weightage can be given to identification of accused Rahul Gupta before the police as possibility of false implication of accused Rahul Gupta cannot be ruled out as he used to study in the same school as that of victim Yash and used to travel with him in the bus.
112.Further, in the matter of Dana Yadav Vs. State of Bihar, AIR (2002) SC 3325, it was held by the Hon'ble Supreme Court of India that "holding of Test Identification Parade is not required where accused is previously known to the witness or where accused is apprehended from the spot. However, failure to hold test identification parade where accused is not previously known to a witness and identification of accused for the first time in the court is from its nature inherently of a weak character which should not form basis of conviction. It was further held by the Hon'ble Supreme Court of India that previous identification in the test identification parade is a check valve to the evidence of identification of accused by a witness and same is rule of prudence and not of law. It was further held by the Hon'ble Supreme Court of India that the purpose of test FIR NO: 300/10 49/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri identification parade is to test the observation, grasp, memory, capacity to recapitulate as to what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in a court."
113.In the present case, PW6 Sanjay Gupta was not previously known to accused Rahul Gupta and, therefore, holding of test identification parade in this case was mandatory to test the reliability and credibility of PW6 Sanjay Gupta in identifying accused Rahul Gupta as the same person whom he had last seen in the company of victim Yash.
114.Test Identification Parade of accused Rahul Gupta would have also tested the observation and memory of PW6 Sanjay Gupta while identifying the person, who was last seen in the company of victim Yash. However, for reasons best known to IO, no test identification parade of accused Rahul Gupta was got conducted in this case. Further, it is not explained by the IO as to how PW6 Sanjay Gupta had identified accused Rahul Gupta in the police station on 03.11.2010. It has not come in the evidence of PW6 Sanjay Gupta that he identified accused Rahul Gupta from number of various persons, who were shown FIR NO: 300/10 50/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri to him in the police station. Therefore, identification of accused Rahul Gupta in the police station by PW6 Sanjay Gupta on 03.11.2010 is of no relevance in establishing the identity of accused Rahul Gupta. Only test identification parade of accused Rahul Gupta at the stage of investigation could have helped the prosecution in establishing his identity as the same person, who was last seen in the company of deceased Yash. Non-holding of test identification parade of accused Rahul Gupta also creates doubt in the prosecution story that accused Rahul Gupta was last seen in the company of deceased Yash on 10.09.2010.
115.In the light of above discussion, last seen theory put forward by prosecution is full of loopholes as discussed hereinabove and no relevance can be placed upon the last seen which has come on record and prosecution has miserably failed to establish the circumstance of victim Yash being seen last in the company of accused Rahul Gupta. The possibility of accused Rahul Gupta being implicated in this case on the basis of his traveling with victim Yash in the same school bus and studying in the same school where victim Yash used to study cannot be ruled out.
MOBILE PHONE RECORDS FIR NO: 300/10 51/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri
116.The case of the prosecution is that father of victim i.e.PW4 Pradeep Kumar had received ransom call between 18.09.2010 till 15.10.2010 on his mobile no. 9873245888 on different occasions from two different mobile phone nos.9560197271 and 8923174470.
117.PW1 Sh.Deepak Tomar, Asstt. Nodal Officer of Vodafone Essar Ltd.has proved that mobile phone no. 9873245888 was in the name of Mrs.Kanchan Kumari, who happens to be the wife of PW4 Pradeep Kumar by bringing on record the customer application form Ex.PW1/G.
118.Further, as per evidence of PW8 Sh.Vishal Gaurav, Nodal Officer of Bharti Airtel Ltd., the telephone calls were made to mobile no. 9873245888 from mobile no. 9560197271 on 18th, 20th, 21st, 22nd, 23rd and 24th September, 2010 from various places in UP like Kasganj, Budaun, Bareilly and Pilibhit as per call detail record Ex.PW8/C for the period from 15.09.2010 till 30.09.2010. Therefore, from the aforesaid evidence, it is proved that PW4 Pradeep Kumar indeed received calls from mobile no. 9560197271 from 18.09.2010 till 24.09.2010.
119.The prosecution was further required to prove that mobile phone no. 9560197271 had any connection with any of FIR NO: 300/10 52/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri accused. However, the evidence which has come on record of PW8 Sh.Vishal Gaurav proves that said mobile number was in the name of Nagma, R/o Jagdamba Vihar, Delhi vide customer application form Ex.PW8/A.
120.The prosecution also examined Nagma as PW25. She deposed on oath that her passport size photograph, ATM card, ID proof were stolen from her house in August, 2010 for which she had got registered NCR no. 1194/10, PS Dabri.
121.Although she admitted that her photograph is there on the customer application form Ex.PW8/A but she denied of having signed the same or of having ever used mobile phone number 9560197271. Therefore, the evidence of PW25 Nagma proves that she had never applied for mobile phone no. 9560197271 and some person had obtained mobile phone number by using her stolen photograph and ID proof.
122.It was further the case of prosecution that PW Shivam had obtained the mobile phone no. 9560197271 by using stolen ID proof and photograph of Ms.Nagma and he had sold the mobile number to accused Usman and accused Rahul. Therefore, PW Shivam was the best witness who could prove that mobile phone no. 9560197271 was being used by Usman and Rahul.
FIR NO: 300/10 53/76FIR NO: 300/10 PS: Dabri However, PW Shivam was not examined in this case as despite search made for the said witness, he was not traceable and his whereabouts were not known to the IO and accordingly, he was dropped on the statement of IO dated 16.03.2013.
123.In the light of non examination of PW Shivam, there is no evidence on record to connect any of the accused with the ownership of mobile phone no. 9560197271.
124.Therefore, prosecution has failed to establish that ransom calls were made by any of the accused by using mobile no. 9560197271 for the period from 18.09.2010 till 24.09.2010 by any of the accused.
125.The other mobile number from which ransom calls were made is 8923174470 between the period from 25.09.2010 till 15.10.2010. The evidence of PW2 Sh.Hayad Singh Jethi, Nodal Officer of Unitech Wireless Pvt.Ltd, UP from where said mobile number was issued, has proved that from the aforesaid mobile number, calls were made to mobile phone no. 9873245888 from 25.09.2010 till 15.10.2010 from UP (West) vide call detail record Ex.PW2/A.
126.However, as per his testimony, said mobile number was FIR NO: 300/10 54/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri issued in the name of one Shamshad, S/o Sh.Mohd. Hanif, R/o Aligarh, Etah, UP as per customer application form Ex.PW2/B and C. Therefore, best evidence which could have proved that mobile phone no. 8923174470 was being used by any of the accused person to make ransom call was Shamshad. However, Shamshad has not been examined in this case despite being available. In the cross examination of PW27, SI Sukhbir Singh Malik, who is IO of this case, it has come on record that during investigation, he came to know that PW Shamshad was working in Gujarat but he could not be contacted. PW27 has not been able to explain as to why despite information regarding PW Shamshad that he was working in Gujarat, he could not be contacted. If PW27 could find out that PW Shamshad was working in Gujarat then PW27 could have very well traced his address in Gujarat also and examined him as a witness in this case.
127.The very fact that PW Shamshad despite being available was not examined in this case, makes this court raise an adverse inference against the prosecution u/s 114 (g) of the Indian Evidence Act, 1872 that in case PW Shamshad was examined in this case, his evidence would not have been favourable to the prosecution case. Therefore, ownership of any of the accused with regard to mobile phone no. 8923174470 has not FIR NO: 300/10 55/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri been proved by the prosecution.
128.Further, neither mobile phone no. 9560197271 or 8923174470 has been recovered from any of the accused persons in this case. Therefore, there is no evidence on record to show that any of the accused had called up the father of victim Yash/PW4 Pradeep Kumar demanding ransom by using mobile phone nos. 9560197271 and 8923174470.
129.It is also the case of prosecution as per charge sheet that mobile phone no. 9557524138 was recovered from accused Hari Singh and location of said mobile phone number and mobile phone no. 8923174470 was at the same place in UP which shows that accused Hari Singh was having the possession of mobile phone no. 8923174470.
130.To prove the aforesaid allegation, prosecution was required to prove that mobile phone no. 9557524138 was recovered from the possession of accused Hari Singh. However, there is no seizure memo of recovery of mobile phone no. 9557524138 from the possession of accused Hari Singh and neither there is any deposition made by PW27 SI Sukhbir Singh Malik that any mobile phone no. 9557524138 was recovered from the possession of accused Hari Singh.
FIR NO: 300/10 56/76FIR NO: 300/10 PS: Dabri
131.Further, as per evidence of PW8 Sh.Vishal Gaurav , said mobile was issued in the name of Ms.Geeta Devi, R/o Pilibhit, UP as per customer application form Ex.PW8/E.
132.Even PW Geeta has not been examined to show that her phone was in the possession of accused Hari Singh. Therefore, there is no evidence on record to show either the ownership or possession of mobile phone no. 9557524138 as that of accused Hari Singh.
133.The prosecution has also proved on record in the light of evidence of PW1 Sh.Deepak Tomar from Vodafone Essar Ltd.that mobile no. 9873325619 was of accused Usman Khan and as per his call detail record Ex.PW1/A, his location was in UP West on 18.09.2010.
134.The said circumstance does not help the case of prosecution in any manner as it is admitted case of prosecution that no ransom calls were made from mobile phone no. 9873325619 by Usman to complainant Pradeep Kumar. Therefore, mere presence of accused Usman in UP where even his native place is also located, does not prove any kind of his involvement in making ransom call.
FIR NO: 300/10 57/76FIR NO: 300/10 PS: Dabri
135.It is also the case of prosecution that mobile phone no. 7503050520 was being used by accused Rahul Gupta and its location was also shown in the UP area where victim Yash was killed. As per evidence of PW7 Sh.Shishir Malhotra from Aircel, the ownership of said mobile phone number as per customer application form Ex.PW7/A was that of Indu Devi, W/o Raj Kumar, R/o Delhi. However, PW Indu Devi has not been examined in this case to prove that said mobile was in possession of accused Rahul Gupta. Therefore, possibility of Indu Devi being in UP on 11.09.2010 has not been ruled out.
136.Even assuming that said mobile phone was being used by accused Rahul Gupta then also no incriminating evidence has come on record against him as aforesaid mobile phone number was not used in making ransom calls to PW4 Pradeep Kumar, who happens to be the father of victim Yash.
137.Therefore, from the aforesaid discussion with regard to call detail records of mobile phones and their ownership brought on record by prosecution, no circumstances have been established on record to show that any of the accused had used mobile phone no. 9560197271 and 8923174470 to make ransom calls to PW4 Pradeep Kumar between the period from FIR NO: 300/10 58/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri 18.09.2010 till 15.10.2010.
VOICE RECORDING OF ACCUSED HARI SINGH
138. The other circumstance which was required to be proved by prosecution was that voice recorded by PW4 Pradeep Kumar on his mobile phone of the accused, who was demanding ransom for release of victim Yash was that of accused Hari Singh.
139.As per testimony of PW4 Pradeep Kumar, he had recorded voice of kidnapper on his mobile phone. In the present case, ransom calls were received from mobile phone nos. 9560197271 and 8923174470. However, deposition of PW4 Pradeep Kumar is not specific as to which call, from which mobile phone of kidnapper, was recorded by him and on which date.
140.It has also come in the evidence of PW4 Pradeep Kumar that he handed over the CD of voice recorded to IO on 17.01.2011. Although the voice sample taken of accused Hari Singh has been found to be identical with the voice recorded in CD,handed over by PW4 Pradeep Kumar to the IO on 17.01.2011, as per FSL report Ex.PW28/A and as per evidence FIR NO: 300/10 59/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri of PW28 and PW29 but the question is whether the CD prepared by PW4 Pradeep Kumar can be relied upon to conclusively hold that it contains the voice recorded of accused Hari Singh when he had made a ransom call to PW4 Pradeep Kumar. As per testimony of PW4 Pradeep Kumar, he received the ransom calls for the period from 18.09.2010 till 15.10.2010 and during the aforementioned period, he had recorded the voice of the kidnapper and the fact regarding receiving of ransom call was also told to SHO, PS Dabri. Accused Hari Singh was arrested in the case pertaining to FIR No. 256/10, PS Vikaspuri on 24.10.2010 and in this case on 03.11.2010. However, till the arrest of accused Hari Singh, no CD containing alleged recording of voice of kidnapper was handed over to the IO nor it was stated to IO on 03.11.2010 when PW4 Pradeep Kumar was summoned in the police station that PW4 Pradeep Kumar was having in his possession voice recorded on his mobile phone of the kidnapper. The CD of voice recorded of the kidnapper was handed over to IO on 17.01.2011 i.e.after the arrest of accused Hari Singh on 03.11.2010. However, mobile phone on which the voice recording was done by PW4 Pradeep Kumar was never handed over to IO nor produced before this court or before the FSL to lend credence to the recording of voice of kidnapper on phone. Even during the course of final arguments, I had FIR NO: 300/10 60/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri enquired from the Ld.Addl.PP for state as to whether they can produce the mobile phone pertaining the alleged recording of voice of kidnapper but Ld.Addl.PP and the complainant submitted that they cannot do so. The mobile phone was the primary evidence which could have proved recording of voice over the mobile phone of the kidnapper and it could have also proved the date and time of recording of voice conversation and the mobile phone number from which call was received as the evidence of PW4 Pradeep Kumar is silent as to on which date and from which mobile phone number he had received the ransom call which he had recorded.
141.The non-production of mobile phone by PW4 Pradeep Kumar makes this court raise an adverse inference u/s 114 (g) of the Indian Evidence Act, 1872 that in case mobile phone was produced, the same would not have supported the prosecution case regarding accused Hari Singh demanding ransom from PW4 Pradeep Kumar between the period from 18.09.2010 till 15.10.2010.
142.The very fact that mobile phone was not produced and CD of voice recording was handed over on 17.01.2011 after the arrest of accused Hari Singh, raises possibility of CD being prepared containing the voice of accused Hari Singh at the instance of FIR NO: 300/10 61/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri police to falsely implicate him. Therefore, great deal of doubt has been created regarding the authenticity of CD allegedly containing the voice of accused Hari Singh.
143.Further, even the CD prepared by PW4 Pradeep Kumar of the voice recorded in his mobile phone is not admissible in evidence as it is an electronic evidence and since the mobile phone from which it was copied was not produced, it could have been admissible only and only if a certificate u/s 65B of the Indian Evidence Act, 1872 was produced in support of genuineness of the CD. The non-production of Section 65B certificate by the prosecution makes the CD inadmissible in evidence and no reliance can be placed upon its contents or on the FSL report Ex.PW28/A.
144.In the light of above discussion, prosecution has miserably failed to prove beyond reasonable doubt that CD of voice recording of accused Hari Singh was prepared during the period from 24.09.2010 till 15.10.2010 and the same is not a manipulated or doctored CD prepared at the instance of police after his arrest on 03.11.2010. Hence, evidence of voice recording of accused Hari Singh in the CD and FSL report Ex.PW28/A is discarded being not believable.
FIR NO: 300/10 62/76FIR NO: 300/10 PS: Dabri RECOVERY OF VARIOUS ARTICLES OF VICTIM YASH AT THE INSTANCE OF ACCUSED.
145. In the present case, prosecution was also required to prove that clothes and another articles belonging to victim Yash were recovered from accused Hari Singh, Usman, Dinesh, Partap Bhan and Rajinder at their instance and said recoveries established the circumstance of accused persons having committed kidnapping and murder of deceased Yash.
146.It has come in the evidence of PW20 SI P.C.Yadav and PW24 SI Rajender that pursuant to the confession made by accused Hari Singh u/s 27 of the Indian Evidence Act, 1872, he had got pant and shirt of victim Yash got recovered from railway quarters near Pilibhit, Railway Station, UP from an iron almirah vide Ex.PW20/I. It has also come in the cross examination of PW24 SI Rajender that SI P.C.Yadav had made inquiries from neighbours but no neighbour was joined in the recovery proceedings.
147.With regard to accused Usman, it has come in the evidence of PW20 SI P.C.Yadav that on 28.10.2010 pursuant to his confession, he led police to his house in Kheriya Patikara, PS Jasrana, District Farukhabad, UP from where he got recovered school tie and belt of victim Yash.
FIR NO: 300/10 63/76FIR NO: 300/10 PS: Dabri
148.In his cross examination, PW24 SI Rajender admitted that Pradhan of his village was summoned and he reached at the house of accused Usman. However, recovery memo of school tie and belt of victim Yash Ex.PW20/K do not show that Pradhan of village Kheriya Patikara, UP was made witness to recovery proceedings.
149.With regard to accused Dinesh, it has come in the evidence that on 27.10.2010, he led PW20 SI P.C.Yadav and PW24 SI Rajender to his house in village Soran, District Kashiram Nagar, UP and got recovered a school bag of victim Yash vide Ex.PW20/J. It has also come in the cross examination of PW24 SI Rajender that in the presence of 12-15 villagers, 3-4 ladies and two male persons present at his house, search was made. However, none of the villagers or the persons found available in the house were made recovery witnesses.
150.Similarly, with regard to accused Partap Bhan, it has come in the evidence of PW19 Ct.Vikal Singh and PW27 SI Sukhbir Malik that on 14.01.2011, he got recovered a spectacle and monitor badge of victim Yash vide memo Ex.PW19/B from his house in village Khuduya, District Kanshiram Nagar, UP.
FIR NO: 300/10 64/76FIR NO: 300/10 PS: Dabri
151.It has come in the cross examination of PW27 SI Sukhbir Malik that he had taken accused Partap first to PS Sikanderpur Vaish, District Kashiram Nagar, UP from where he took the local police and raided the house of accused Partap Bhan in village Kaduiya on 14.01.2011 from where recovery was effected. He also made an admission that he had made arrival entry at PS Sikanderpura Vaish. However, in the recovery memo Ex.PW19/B, no police official of PS Sikanderpur Vaish, District Kashiram Nagar, UP was made a witness.
152.With regard to accused Rajinder, it has come in the evidence of PW3 HC Rajender Hooda (whose evidence has been recorded separately in supplementary charge sheet of accused Rajinder) and PW27 SI Sukhbir Malik that pursuant to confession made to the police, he led the police to village Laha, District Pilibhit, UP and got recovered a school badge and steel tiffin box of victim Yash vide Ex.PW3/C.
153.In the cross examination of PW3 HC Rajender Hooda, it has come on record that many villagers had gathered at the time of recovery and even his wife, two children and two brothers were also present there. However, recovery memo Ex.PW3/C do not reflect that any of these persons were made public witness to recovery.
FIR NO: 300/10 65/76FIR NO: 300/10 PS: Dabri
154.Although all the aforesaid recoveries made at the instance of accused Hari Singh, Usman, Dinesh, Partap and Rajinder have been duly identified in the judicial test identification parade by PW4 Pradeep Kumar but the question arises is whether these recoveries made at the instance of accused persons have to be believed or not?
155.The first circumstance which makes the recoveries at the instance of five accused persons, namely, Hari Singh, Usman Khan, Dinesh, Partap Bhan and Rajinder doubtful and unbelievable is the non-compliance of Section 166 (3)(4) of Cr.P.C.
156.In the matter of Ramesh Vs. State of NCT of Delhi, 2013 (1) JCC 50, the Hon'ble High Court of Delhi did not believe recovery of a body in well from a place in Pattan ( Rajasthan) at the instance of accused as mandatory provision of Section 166(3)(4) Cr.P.C. was not complied with. It was held in paras 18 and 19 as under:--
18. PW-12 (ASI Mohd.Yasin Khan) deposed that after the recovery of the body, he with Const.Satyawan, Const.Jafar and HC Suresh went in the said Canter to PS Pattan and informed the police about the recovery of the dead body. He however, did not reveal the FIR NO: 300/10 66/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri name of the police Officer to whom the information about the recovery of body was given. He did not allege if any Daily Diary entry was recorded in the police station. No such DD entry was proved on record. The Investigating Officer did not cite any such police official from PS Pattan as a witness in the charge-sheet. No request was made to the Trial Court to summon and prove the DD entry recorded at PS Pattan regarding the recovery of the body at the instance of the accused. We notice that in the lower Court record an attested copy of DD No.962 dated 28.08.2005 PS Pattan is on record. No witness from PS Pattan was summoned with the original record to prove this DD No.962. Contents of DD No.962 reveal that the entry was recorded by ASI M.Y.Khan himself at 08.00 P.M. at PS Pattan himself. It was not recorded by any police official of PS Pattan. The accused were not taken to the police station. The body of the deceased was also not shown to the police Officers at PS Pattan. None of the police Officers from PS Pattan was taken to the spot to confirm that there was recovery of the body from the well. No permission from the competent authority was taken to bring the dead body from Rajasthan State to Delhi DD No.962, the carbon copy of which is on record cannot be looked into and has no legal sanctity and does not at all establish that the police of PS Pattan was associated at the time of recovery of the body.
19.The prosecution did not comply with the provisions contained in Section 166 (3) (4) FIR NO: 300/10 67/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Cr.P.C. and its non-compliance, raises doubt to the prosecution story regarding recovery of the body in the well at Pattan. Section 166 Cr.P.C. lays down the procedure to be followed by an officer In-charge of the police station where searches are made outside the limits of the police station concerned. Sub- section (1) requires an officer incharge of a Police Station or a Police Officer not being below the rank of Sub Inspector making an investigation may require an officer incharge of another Police Station, to cause to a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station. It is optional for the former officer to do so. Sub- Section (2) enjoys a duty upon such officer, so required to proceed according to provision of Section 165 Cr.P.C. and forward the things found, if any, to the officer at whose request the search was made. From reading of the said sub-sections 166 (3) and (4) Cr.P.C., it is clear that Investigating Officer belonging to one Police Station is permitted to search any place falling within the limits of another police station in certain exigencies without making any requirement to the police officer of the police station where the search is to be conducted in certain exigencies. One such exigency can be when there is possibility of delay in requisitioning the services of a police officer of another police station and such delay could defeat the very purpose of the search. In such circumstances, when search is conducted by the Investigating Officer without requisitioning the services of the officer FIR NO: 300/10 68/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri incharge of the another police station within whose jurisdiction the search was conducted, under Sub-Section (4) he is required to forthwith send notice of the search to the officer incharge of the police station within the limits of which such place is situated, and is also required to send along with such notice a copy of the list, if any, prepared under Section 100 Cr.P.C. He is also required to send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records prepared by him under Sub -Section 1 and 3 of Section 166 Cr.P.C. In this case admittedly the Investigating Officer did not give any intimation to the police of PS Patan within whose restriction the search in the well was conducted before conducting the search. The failure to comply with the directions regulating searches casts doubt upon bona fides of the alleged recovery on the basis of the disclosure, though its failure to comply with the directions of Section 166 Cr.P.C. does not vitiate the trial.
157.In the present case also, although prosecution claims to have recovered various articles belonging to victim Yash from the possession of accused namely Hari Singh, Usman Khan, Dinesh, Partap Bhan and Rajinder from their respective houses in UP but there is no DD entry proved on record to show that such places in UP were visited by the IO and his team nor any police official of UP was made a witness in the recovery proceedings with regard to accused Hari Singh, FIR NO: 300/10 69/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri Usman Khan, Rajinder and Dinesh and specifically in the case of accused Partap Bhan even when police officials of PS Sikanderpur Vaish, District Kashi Ram Nagar were accompanying IO Sukhbir Malik while making recovery from the house of accused Partap.
158.Further, IO of this case did not comply with the provision of Section 166(3)(4) Cr.P.C. while making of recoveries from the possession of accused from their respective houses in UP. Therefore, recoveries made at the instance of accused Hari Singh, Usman Khan, Dinesh, Rajinder and Partap Bhan appear to be doubtful and same cannot be believed in the light of judgment of Ramesh's case (Supra).
159.The second ground for disbelieving the recoveries made at the instance of accused Hari Singh, Usman Khan, Dinesh, Rajinder and Partap Bhan, is the fact that despite availability of neighbours in case of accused Hari Singh, village Pradhan in case of accused Usman, 12-15 villagers and family members in case of accused Dinesh, local police of PS Sikanderpur Vaish, Distt.Kashiram Nagar in case of accused Partap Bhan and villagers and family members in case of accused Rajinder, they were not joined in the recovery proceedings.
FIR NO: 300/10 70/76FIR NO: 300/10 PS: Dabri
160.It is a settled principle of law that if witnesses are available and are not joined in the recovery proceedings then recovery proceedings itself become doubtful. I am fortified in my reasoning by the judgment of Hon'ble Delhi High Court reported as Ravi Kumar @ Sonu and Ors. Vs. State delivered in Crl.Appeal NO. 444/2010 on 15.05.2013 wherein it was held in paras 24 and 25 that non-joining of shopkeepers though available in the recovery proceedings does not lend credibility to the prosecution story.
161.The last ground which makes recoveries from accused Hari Singh, Dinesh, Usman Khan, Partap Bhan and Rajinder appear doubtful is the fact that it is not believable that accused Hari Singh, Usman Khan, Dinesh, Rajinder and Partap Bhan after murdering victim Yash will keep belongings of victim Yash, which were of no monetary value only, to get them recovered later on to incriminate themselves.
162.The prosecution case is that articles of victim Yash were kept by accused persons after murdering him just to show the same to PW4 Pradeep Kumar for the purpose of taking ransom money. This prosecution version of accused persons keeping with them articles of victim Yash to claim ransom falls flat in the light of evidence of PW4 Pradeep Kumar. It has come in the FIR NO: 300/10 71/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri examination in chief of PW4 that every time ransom call was made to him, he insisted on talking to his son first before making the payment. Therefore, from the testimony of PW4 Pradeep Kumar, it is clear that condition precedent for paying ransom money was having a talk with his son. Therefore, in these circumstances, when kidnapper knew that without making victim Yash talk to his father PW4 Pradeep Kumar, ransom money would not be paid, it is not believable that accused persons could have got ransom money only on showing clothes and articles of victim Yash.
163.It is also not believable that accused persons will first kill victim Yash and thereafter remove his belongings and equally distribute amongst themselves articles of victim Yash i.e.school bag, tiffin, tie etc. as if they were some valuable articles and keep the same with them to have the same recovered at later stage just to incriminate themselves. Therefore, on this ground also, it appears to be doubtful that articles of victim Yash were recovered in the manner as put forward by prosecution from various places in UP. This also makes recovery of articles of victim Yash doubtful.
164.Even assuming that recoveries made from accused Usman, Hari Singh, Dinesh, Partap Bhan and Rajinder to be believable FIR NO: 300/10 72/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri then also it is a settled principle of law that on the basis of recovery itself which has been effected after 45-50 days of alleged murder and without there being any corroborative evidence, accused cannot be convicted for the offence of kidnapping and murder. I am fortified in my reasoning by the judgments of the Hon'ble Supreme Court of India delivered in Union Territory of Goa Vs. Beaventura D'souza, 1993(2) RCR (Crl) 702 (SC), Surjit Singh Vs. State of Punjab, AIR 1994 SC 110, Sanwat Khan Vs. State of Rajasthan, AIR 1956 SC 54 and lastly, Limbaji Vs. State of Maharashtra, AIR 2002 (SC) 491 and of Delhi High Court reported as Laxman @ Janga vs. State, Crl.Appeal no. 144/2010 delivered on 04.01.2013. (Para 39 ).
CONCLUSION
165.From all the aforementioned reasons, I am of the view that prosecution has not been able to establish any of the circumstance conclusively and there is no clinching evidence on record pointing unerringly towards guilt of accused persons. The chain of circumstances has not been firmly and cogently established and no circumstance unerringly points towards the guilt of accused in kidnapping and murder of victim Yash pursuant to their criminal conspiracy. Accordingly, accused Hari Singh, Usman Khan, Dinesh, Partap Bhan and Rajinder are FIR NO: 300/10 73/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri acquitted for the offence u/s 363/364A/302/201/120B IPC.
166.In the present case, accused Rajinder was charged additionally for the offence u/s 174A IPC for having evaded his arrest which ultimately culminated in him being declared a proclaimed offender on 15.04.2011 by Ld.ACMM, Dwarka. To prove the said offence u/s 174A IPC, prosecution has examined PW1 ASI Ragender, who has deposed on oath that he had affixed process u/s 82 Cr.P.C.at the house of accused Rajinder on 06.12.2010 and the next date of hearing on the process was 01.02.2011. He had proved his proceedings vide Ex.PW1/A.
167.The prosecution has also proved on record the order dated 15.04.2011 passed by Sh.Sanjay Jindal, Ld.ACMM declaring accused Rajinder as proclaimed offender. PW27 SI Sukhbir Malik has proved on record that he had obtained non-bailable warrant of accused Rajinder as he was evading arrest in this case.
168.From the evidence led on record, it is evident that process u/s 82 Cr.P.C.was duly affixed on 06.12.2010 at accused Rajinder's house in village Laha, District Pilibhit, UP and 30 days clear time was given to accused Rajinder to appear in the court but despite that he did not apper and accordingly, he was FIR NO: 300/10 74/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri declared proclaimed offender vide order dated 15.04.2011.
169.It was contended by the counsel for accused Rajinder that accused Rajinder was never aware about issuance of coercive process against him and if he would have known, he would have surrendered before the IO on an earlier date. It was also submitted that there is no evidence of any police official visiting the house of accused in District Pilibhit, UP. Accordingly, it was prayed that accused be acquitted for the offence u/s 174A IPC.
170.The said contention of counsel for accused Rajinder is not acceptable as in the statement of PW4 HC Bachhu Singh ( his evidence recorded separately in supplementary charge sheet of accused Rajinder) while executing the process u/s 83 Cr.P.C. Ex.PW4/A, he also recorded the statement of two neighbours of accused Rajinder namely Jagan Nath and Mukesh vide Ex.PW4/E and Ex.PW4/C and also the statement of village Pradhan i.e.Satyapal of village Laha, District Pilibhit Ex.PW4/B which shows that police official visited the house of accused and accused Rajinder was not found available at his house and he was very much aware about the proceedings against him and despite that, he did not appear before the court of law. Accordingly, it is proved by prosecution beyond reasonable doubt that accused Rajinder had committed offence u/s 174A FIR NO: 300/10 75/76 State Vs. Hari Singh and Ors.
FIR NO: 300/10 PS: Dabri IPC for having been declared proclaimed offender in a kidnapping and murder case. Accordingly, accused Rajinder stands convicted for the offence u/s 174A IPC.
Announced in open court ( Vikas Dhull)
Dated: 29.04.2014 Additional Sessions Judge-01
Dwarka Courts/ N. Delhi
FIR NO: 300/10 76/76