Delhi District Court
State vs . Deepak Sonkar @ Julie on 18 July, 2012
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 44/10)
Unique ID case No. 02404R0661702007
State Vs. Deepak Sonkar @ Julie
FIR No. : 282/02
U/s : 302/201/363 IPC
P.S. : Punjabi Bagh
State Vs. Deepak Sonkar @ Julie
S/o Lt. Murari Lal
R/o C499, J.J. Colony,
Madipur, Delhi
Date of institution of case 13.03.2007
Date on which, judgment has been reserved13.07.2012
Date of pronouncement of judgment 18.07.2012
JUDGMENT:
1. The present case involves kidnapping and murder of a 12 years old child named Imran. The dead body of victim child has not been recovered. The prosecution case unfolds with receipt of Ex. PW28/A i.e. DD no. 33 dated 27.4.2002 recorded at 11.30 pm at PP Madipur, PS Punjabi Bagh on information given by one Raees Khan that his cousin brother (Mausera bhai) Imran Khan son of S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 1/77 2 Gyour Ahmed aged 12 years height about 3 feet, British complexion, thin, wearing school uniform of white shirt and saleti pant and sandals had been missing since 11.30 am. On 30.04.2002, PW1 Gyour Khanfather of victim Imran also filed a complaint Ex. PW1/A on the basis of which, case FIR no. 282/02, Ex. PW28/F, u/s 363 IPC was registered against unknown persons at 12.35 pm. On 30.04.2002, PW2 Khalid Khan @ Kaku, uncle (Mama) of victim Imran received a telephone call on his phone number 5101319. The first call took PW2 to Safed Mandir, but nothing was found there. Pursuant to second call received on 30.04.2002, Ex. PW15/B, a ransom note written in Hindi was found kept in pillar on the main gate of LIG Flats, wherein ransom demand of Rs. One lacs was made.
On 02.05.2002, one witness Raju was examined by the IO, who stated that a person by the name of Deepak @ Julie residing in C block, Madipur had come to their school on 27.4.2002 and asked Imran to accompany him for bathing in pond in Bhagwati Park.
On 08.05.2002, another call was received and Ex. P6, second ransom note was recovered from Peera Garhi, whereupon PW Atiq Khan, along with PW14 Ct. Ranbir Singh, PW18 Ct. Arvind Kumar and PW25 SI Devender Singh went to Madhuban Chowk, but none from kidnappers side came there Victim Imran was also not brought there, though it was so stated in Ex. P6.
The family of victim continued to receive ransom calls till 17.5.2002. On 17.5.2002, Sh. Atiq Khan, uncle (Mama) of victim child received a phone call from the kidnapper, who told him to throw the ransom money on the railway line S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 2/77 3 under Peeragarhi Pull. Thereafter, a raiding party constituting of Sh. Atiq Khan, PW14 Ranbir Singh, PW18 HC Ranvir and PW25 SI Devender Singh (IO) was made, which took the fake bundle of ransom money, wrapped in a black polythene, and the same was kept by Atiq Khan at informed place. At about 6.20 pm, two boys, one small and other tall, came near the polythene, took round of the place, where polythene was kept, three/four time, after which, the smaller boy picked up the said polythene. The smaller boy, whose name was later revealed to be Subir Kutty @ Ravi @ Kucha was apprehended at the spot while the taller boy, whose name was revealed as Deepak @ Julie (accused herein) managed to escape from there.
The smaller boy namely Subir Kutty @ Ravi made a disclosure statement Ex. PW14/B on 17.05.2002, wherein he disclosed how accused Deepak had kidnapped victim Imran with intention to demand ransom from his family and had associated juvenile Subir Kutty with him and later, when the victim Imran tried to escape, he was killed by accused Deepak by strangulation and his body was thrown in Najafgarh Drain, behind cremation ground, DDA Park and buried under mud of Nala.
On 18.05.2002, Juvenile Subir Kutty @ Ravi @ Kucha got recovered one pant of brown colour in torn condition on which the words "Children Happy"
was printed, one blue coloured TShirt, without left sleeve, on which label of "U.K. Garments were printed", one pair of sandel of matiyla (brown colour), 10 bones and one skull with some mud from nala. One blood stained handkerchief was also got recovered from nearby bushes in presence of Atiq Khan (since deceased) PW4 S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 3/77 4 Radhey Shyam, PW6 Rafaqat Ali, PW14 Ct. Ranbir Singh, PW18 HC Arvind Kumar and PW25 SI Devender Singh. These articles were seized vide memos Ex. PW6/A to Ex. PW6/C. On 19.05.2002, one witness Tarun, PW3, was examined by the IO, who stated that Juvenile Ravi @ Kucha and accused Deepak @ Julie had met him on 17.5.02 and had taken him with them on pretext of buying a video game and later, they took the said Tarun to a PCO booth and asked him to make a call and say, "Mamu mein Imran bol raha hoon, muje bacha lo". The witness Tarun got scared and refused to make the call, after which, accused Ravi @ Kucha uttered the said words on telephone and accused Deepak also directed the recipient of the call not to involve the police and to throw the ransom money on the railway track. Accused Deepak further threatened Tarun that they had already killed Imran and were interested in getting ransom money from his family members and in case, Tarun revealed about this incident to anyone, he too would meet same fate as Imran.
Efforts were made to search for accused Deepak, but he could not be traced in Delhi and Meerut, at places known to juvenile Subir Kutty @ Ravi and Ex. PW14/G, additional disclosure statement of accused Subir Kutty, was recorded in this regard on 22.5.2002. Since, accused Deepak could not be traced out at that time, charge sheet in respect of juvenile Subir Kutty @ Ravi was filed before Juvenile Justice Board. The prosecution witnesses duly supported the prosecution case during course of inquiry of juvenile Subir Kutty before Juvenile Justice Board. The juvenile Subir Kutty, in his statement u/s 313 Cr.P.C, stated that it was accused S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 4/77 5 Deepak, who had committed the offence of kidnapping and murder of child Imran and that he had been implicated in the case as he remained with accused Deepak @ Julie. Vide judgment dated 30.09.2005, he was held guilty of having committed offences u/s 364A/34 IPC, 302/34 IPC and 201/34 IPC.
On 16.11.2006, accused Deepak was apprehended by PW26 SI Khamender Pal Singh, PW19 Ct. Jai Parkash and PW23 Ct. Snej at 12.30 mid night from C block, JJ Colony, on secret information. The disclosure statement of accused was recorded vide Ex. PW19/D, wherein he disclosed about the manner, in which he had committed the offence along with juvenile Subir Kutty @ Ravi. He also revealed that the motive was to obtain ransom amount from Gyour Khan, who was to marry two of his daughters and had money at his disposal to pay the said amount. Accused Deepak pointed out the place, where they had killed victim Imran and disposed of his dead body, vide memo Ex. PW19/C. He also corroborated the version given by juvenile Subir Kutty that they had tried to take help of PW3 Tarun in making ransom call. During the course of investigation, handwriting of accused Deepak was taken and sent for comparison along with ransom note. Proceedings for judicial TIP of accused Deepak were initiated to have him identified through PW14 Ct. Ranbir and PW18 Ct. Arvind, however, accused refused to join the TIP proceedings on 28.11.2006 before ld. M.M. On 11.01.2007, PW14 Ct. Ranbir and PW18 Ct. Arvind saw accused Deepak in the court and identified him to be the same person, who was present on Railway track with juvenile Subir Kutty on 17.5.2002 to collect ransom money. After completion of the investigation, the S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 5/77 6 charge sheet was prepared against accused Deepak @ Julie and filed in the court for trial.
2. Upon committal of this case to the court of Sessions, charge for the offence under Sections 364/364A/302/201 IPC was framed on 05.07.2007 against the accused Deepak Sonkar @ Julie. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3. The prosecution has examined 30 witnesses in all, in order to prove its case and has relied upon the following incriminating circumstances :
(i) Victim Imran went to school on 27.04.2002 and did not return back home.
(ii) Child Raju, school mate of victim Imran, stated that a person by the name of Deepak residing in C block, Madipur had come to their school on 27.4.2002 and asked Imran to accompany him for bathing in pond in Bhagwati Park.
(iii) On 27.04.2012 and 30.04.2012, ransom calls were received on land line number 510319 installed at the house/shop of PW2 Khalid, pursuant to which, Khalid went to bushes of Safed Mandir, but did not find anything and after receiving second call, he went to main gate of LIG Flats, from where one letter was recovered.
(iv) On 08.04.2012, one call was received by Atiq Khanmaternal uncle of Imran, pursuant to which, he along with Ct. Ranbir, Ct. Arvind and SI Devender went to Peeragarhi Pul, from where, one note Ex. P6 was found, S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 6/77 7 whereafter they went to Madhuban Chowk, but neither kidnapper nor victim child came there.
(v) On 17.05.2002, another ransom call was received on the landline telephone number 510319 and same was heard by Atiq Khan and SI Devender, on which, voice of one child was heard, who told "Mamu mein Imran bol Rana hoon, muje bacha lo." and thereafter, kidnapper demanded ransom of Rs. One lac and asked Atiq Khan to bring said amount of Rs. One lac in a black coloured polythene and to throw it on the railway track, beneath the Peeragarhi pul.
(vi) Police team went to said place along with PW Atiq Khan and fake ransom money was thrown on the railway line. When accused came there, they were surrounded by police party and accused Subir Kutty @ Ravi was apprehended, while accused Deepak managed to escaped and could not be apprehended despite search made by the police party.
(vii) Accused Subir Kutty made disclosure statement regarding his involvement in the present case and murder of victim Imran and on 18.05.2002, he got recovered one pant of brown colour in torn condition on which the words "Children Happy" was printed, one blue coloured TShirt without left sleeve, on which label of "U.K. Garments were printed", one pair of sandel of matiyla (brown colour), 10 bones and one skull with some mud and one blood stained handkerchief, from nala in presence of PW4 Radhey Shyam and PW6 Rafaqat Ali.
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 7/77 8
(viii) Accused Deepak continued to abscond and to evade his arrest.
(ix) On 16.11.20006, accused Deepak was arrested on information given by secret informer and made disclosure statement Ex. PW19/D admitting his culpability.
(x) Accused Deepak was identified by PW14 Ct. Ranbir and PW18 Ct. Arvind as person accompanying juvenile Subir Kutti on 17.05.2002, to collect ransom money.
(xi) On 30.09.2005, juvenile Subir Kutti was held guilty of offences u/s u/s 364 A/34 IPC, 302/34 IPC and 201/34 IPC upon conclusion of inquiry by Juvenile Justice Board.
EVIDENCE LED BY PROSECUTION Family members :
4. PW1 Sh. Goyour Khanfather of kidnapped boy Imran deposed that his youngest son Imran used to study in 4th standard at Paschim Puri School and that on 27.04.2002, his son went to the school, but did not return back and he went to Police Station Punjabi Bagh and got recorded a DD entry regarding missing of his son, which was proved as markA. He further deposed that when his son did not return till 30.04.2002, he went to the Police Station again and lodged a report regarding kidnapping of his son. PW1 proved his statement, recorded on 30.04.2002, as Ex. PW1/A. He further deposed that he came to know that his son had gone to take bath in Shiv Mandir Pond, from where, he was kidnapped. He S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 8/77 9 further deposed that on receipt of a call, by his brother Khalid, that something is kept on the pillar of LIG Gate having pieces of glass, his brother and his brotherin law Atiq Khan went there and brought a slip from there, photocopy of which was shown to witness and was marked as MarkA. He further deposed that later on, police took him and his wife Amida Khanam to hospital at Majnu Ka Tila, where doctor took their blood sample.
During his crossexamination, PW1 stated that on 27.04.2002, he was in his village at Distt. Bijnor, UP and came to Delhi on 28.4.2002 after being informed that his son was missing and that on 28.4.2002, he had gone to Police Station, but his statement was not recorded and that on 30.04.2002, police had come to his house. PW1 could not give details of the time or period of the day, when police had visited him, but stated that they had remained at his house for about 10 minutes. When asked about contents of Ex. PW1/A, PW1 stated that he was not aware what was written therein, as he was illiterate. He also deposed that there was no telephone connection in his house. PW1 could not tell date and time, when his brother Khalid had received telephone call, but stated that Khalid had told him about it on 28.4.2002. He also stated that Khalid's house was at a distance of 200 yards from his house and that he had never gone to the house of his brother Khalid. PW1 then stated that Khalid and his brotherinlaw Atiq had gone to fetch the letter immediately on the same day i.e. 28.4.2002 and that they gave the letter to the police and that PW1 was not shown the same.
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 9/77 10
5. PW2 Sh. Khalid is the uncle of victim child. He deposed that his nephew (Bhanja) Imran Khan went missing on 27.4.2002 and that he had tried to search out for the missing boy, but could not trace him and that on the next day, he had received the telephone call on his land line phone bearing no. 5101319 and was informed by caller that there was something for them in bushes of Safed Mandir and that after the said call, PW2 and his relatives went there, but did not find anything. PW2 again received a call and was informed by the caller that a letter was kept on the pillar on the main gate of LIG Flat in middle of pieces of glass affixed on it and that he had gone with his relatives to collect the letter Ex. PW15/B, which was handed over, by him, to the police and was seized vide seizure memo Ex. PW2/A and that in the said letter, a demand of Rs. 1,00,000/ was made and threat was also extended not to disclose about it to the police and that thereafter, PW2 continued to receive calls on his land line no. 5101319 regarding ransom and threat and that the said phone was thereafter, kept on surveillance.
PW2 further deposed that on 17.5.2002, again a telephone call was received, which was attended to by his brother Atiq Khan in presence of police officials. The caller demanded Rs. One lac as ransom for release of child Imran and directed them to come under Peera Garhi Flyover with the ransom money and that police left the office for Peera Garhi, along with Atiq Khan elder brother of PW2, after preparing bundles of papers. Later, PW2 came to know that the person, who had called them there, had run away.
During his crossexamination, PW2 stated that he had made S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 10/77 11 telephonic call to police at about 11.00 am/12.00 noon on 27.04.2002 and that police came to his office after some time and that Sh. Gyour Ahmed, Atiq Khan and other relatives accompanied the police in search of the missing child, while PW2 remained at his office and that they had returned back at about 5.00/6.00 pm and that Gyour Ahmed had come to his office 30/35 minutes prior to arrival of the police. PW2 could not give the name of the school, in which Imran was studying, but stated that he was studying in a Corporation School, in plot no. 2, Janta Flats, Madipur. PW2 also deposed that he had received first telephone call at about 10.00/11.00 am on 27.4.2002 that something was lying in bushes of Safed Mandir. Immediately thereafter, he stated that the date might have been 30.4.2002 and that at the time of the said call, police was sitting in his office. He again improved upon his statement to state that police was called by him after receiving the call and police reached his office after about 15/20 minutes.
During his further crossexamination, PW2 stated that second telephone call was received on the same date in the evening at about 4.00/5.00 pm, but could not state, if police was present in his office at that time or not. He deposed further that police had met him on the next date in the morning at his office after receipt of the call and that he had informed the police about the said call and also showed them the letter that he had collected from the pillar at about 5.00 pm. PW2 was asked to give particulars of the pillar, from where, he had collected the letter and stated that height of the said pillar, which was on the left side S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 11/77 12 of the gate, was about 6/6.5 feet. PW2 also stated that the said letter was read by his brother Atiq Khan and brother in law Gyour Ahmed, who might have been present at his office at that time. During his further crossexamination, PW2 stated that he was not asked nor had he handed over any document regarding installment of telephone no. 5101319 at his office and that IO, Incharge PP Madipur and other police officials remained in his office, near telephone, for about 8 to 10 days from 30.04.2002, but they did not sit there continuously and left his office at night. PW2 denied that the telephone no. 5103119 was neither registered in his name nor it was installed in his office.
From further crossexamination of PW2, it is brought out that he had improved upon Ex. PW2/DA i.e. his statement u/s 161 Cr.P.C to the police, wherein he had not mentioned that phone calls came continuously on land line phone no. 5101319 regarding ransom and threat or that on 17.5.2002 ransom call made at said telephone number was received by his brother Atiq Khan in presence of police officials or that the caller had made a demand of ransom of Rs. One lac and asked them to come to Peera Garhi Flyover or that police had left for Peera Garhi after preparing bundle of papers or that he had not accompanied the police or that his brother Atiq Khan had gone with the police.
When questioned about telephone call received on 17.5.02, PW2 stated that the call had been received at about 4.30/5.00 pm and that at that time, the telephone was on speaker mode and every one heard the said call. PW2 could not state, if the bundle of papers was made of plain paper or newspaper. He S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 12/77 13 also stated that police had returned back to his office after one and half/two hours. PW2 denied that no such telephone call was received by him.
6. PW7 Mohd. Noor Mohd.elder brother of Imran Khan deposed that on 27.04.2002, his younger brother Imran Khan had gone to his school situated at Madipur, JJ Colony, but he did not return from school till evening and that despite efforts made by him, he could not trace his brother. He further deposed that thereafter, he went to the Imran's school, from where, he came to know that his brother Imran had not come to the School on that day and that a friend of his brother told him that he had gone to the pond behind Shiv Temple and he went to the pond, but his brother was not there and his father lodged a missing report. He further deposed that thereafter, he along with police officials had gone to the house of friend of his brother and police made inquiries from them.
During crossexamination, PW7 admitted it to be correct that in his statement dated 19.12.2002, recorded before Juvenile Court, he had stated that his brother was taking bath in the pond behind Shiv Mandir at about 2.00 pm. He further deposed that he did not know the house number and gali number of the house of the friend of his brother and that his house was situated in Madi Pur, JJ Colony and that he could not tell the name of the police officer with whom, he had gone there and that he also could not tell the name of the friend of his brother, but he was present in his house and was interrogated by the police. S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 13/77 14
7. PW8 Smt. Fameeda Khanammother of victim Imran deposed that her son Imran Khan, aged about 10 years was kidnapped on 27.04.2002 and murdered and that on 21.06.2006, police took her blood sample in Tis Hazari Courts compound on the direction of the court.
Last seen witness/witness to kidnapping :
8. Witness Raju, who had lastly seen Imran could not be examined before this court as he had already expired on 13.09.2008, much before, the present case came for trial. This witness was however, examined before Juvenile Justice Board during inquiry proceedings in respect of juvenile accomplice Subir Kutty, where he gave the following statement : " Main panchvi class me Paschim Puri me padhta tha.
Aajkal, main 6 class me padhta hoon. Jab main Paschim Puri me padhta tha, usi school me ek Imran naam ka ladka 4 class me padhta tha. Main kisi Deepak naam ke ladke ko nahi janta hoon. Jab main panchvi me padhta tha, to din me 12.30 baje, ek kala so ladka school me gaya tha, va Imran se kahne laga ki bhagwati me nahane chal, muje bhi bhagwati me chalne ke liye kaha, lekin main nahi gaya, va Imran, us kale se ladke ke saath school se chale gaye. Muje us kale se ladke ka naam nahi maloom. Vah kala sa ladka lagbhag 1819 saal ka hooga. Maine us ladke ko pahle nahi dekha S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 14/77 15 tha."
He was crossexamined by ld. APP and during his crossexamination, he denied that he was knowing the name of that boy as Deepak. However, he stated that Imran told him that said black boy used to quarrel and fight and was a bad element.
Witnesses to Ransom Calls :
9. PW3 Sh. Tarun has been put forth as witness to ransom call dated 17.05.2002. He deposed that on a day in May 2002, he was waiting for his friends to play cricket near park at B block. At about 4.00 pm, Ravi @ Kucha, residing in B block, and Deepak (accused), residing in C block came and took PW3 with them to Peera Garhi and asked him to make a call to some one by saying "Mamu mein Imran bol raha hoon, muje bacha lo" PW3 further deposed that he refused to make the said call as he was afraid and that thereafter accused Ravi @ Kucha made a call to family of his friend Imran and he threatened that if their demand was not fulfilled and money was not delivered in Peera Garhi, they would kill Imran. PW3 requested Ravi and Deepak to leave him, which they did, but threatened him that in case, he disclosed anything to any one, he would be killed and that they also told him that they had already murdered Imran.
During his crossexamination, PW3 stated that in May 2002, he was studying in 8th class in a school in after noon shift from 12.00 pm to 6.30 pm. He however, stated that on that day, he had not gone to school as he was going to S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 15/77 16 play cricket. It is also brought out that no leave application was sent by PW3 for his absence from school on that day and that accused Ravi and Deepak were not studying in school of PW3 and accused Deepak was not even residing in his block and resided in C block at a distance of about 100 meters. During his further crossexamination, PW3 stated that he had reached the park at about 12.00 pm and was present there alone and that accused Deepak and Ravi came there after about 10/15 minutes and immediately took PW3 in a bus to Peera Garhi, which is at a distance of 1/11/2 kilometer from B Block Park. PW3 further stated that telephone booth was situated across the bus stand on the main road and that the owner of the PCO was present there, but PW2 could not tell the age of the owner. PW3 also stated that they had remained at PCO booth for about 10/15 minutes and that there were four/five connections at the said PCO booth and that other persons were also coming and going from that place during his stay of about 10/15 minutes. When asked about the telephone booth, PW3 stated that there was a box type booth with one connection and outside the booth, there was a table with 2/3 telephones and that accused Ravi went inside the telephone booth to make a call, while PW3 remained standing outside and that Ravi came out of the booth after about five minutes and that accused Ravi and Deepak made telephone call only once in his presence, after which they left the said booth. PW3 also stated that accused Deepak had extended threat to him after about 4/5 minutes of leaving the telephone booth, when they had crossed the road. PW3 could not state, if owner of the telephone booth had issued any payment slip to the accused persons or not. S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 16/77 17 It is also brought out from crossexamination of PW3 that the accused were talking on telephone very slowly. He could not state, if the owner had heard them or not, but stated that he was not able to hear their conversation. PW3 also stated that accused had told him in the bus to say, "Mamu mein Imran bol raha hoon, muje bacha lo" and that PW3 had refused to make the said call since the start and that after making the call, all three of them had returned back to B block park and PW3 returned to his home at about 4.00/4.30 pm. He could not state where both the accused had gone from there. When asked about his meeting with the police, PW3 stated that he had been called to police station and it might have been on 19.5.2002. He admitted that till that day, he had not disclosed these facts to any person. PW3 denied that on 17.5.2002, he was arrested by the police in a theft case at the instance of Girdhari Lalshopkeeper at Kishan Ganj Railway Station.
10. The other witnesses to ransom call were PW2 Khalid, maternal uncle of victim Imran, whose testimony has already been discussed hereinabove and PW Atiq Khan, another uncle of victim Imran, who expired prior to arrest of accused Deepak @ Julie. The police witnesses to ransom call are limited to calls dated 08/05/2011 and 17.05.2002.
Witnesses to arrest of juvenile Subir Kutty @ Ravi @ Kucha and absconding of accused Deepak and witnesses to recovery effected from Nala at the instance of Subir Kutty @ Ravi @ Kucha
11. Public witness to arrest of juvenile Subir Kutti include PW Atiq Khan, S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 17/77 18 who as already observed hereinabove had expired before trial of accused Deepak commenced PW Atiq Khan was examined as PW8 during inquiry of juvenile Subir Kutti before Juvenile Justice Board and he deposed that : "...... Imran s/o Chhuten Khan was my Bhanja in relation. He was missing from his house from 27.4.02 and in this regard, we have lodged missing report in Police Station, Punjabi Bagh and thereafter on 30.04.2002 we lodged FIR for kidnapping my Bhanja, Imran. On 8.5.2002, I along with IO SI Davinder Singh and one more police official were sitting at our shop Electro Properties and waiting for the phone of kidnapper. In the evening at about 4.00 pm, one telephone call came at our home, I picked up the phone and the phone was double connection and SI Davinder Singh also heard the telephonic call from other telephone. The kidnapper told on the telephone that something will be found at at Old Piragarhi Pitch, where one Sattuwala sits. Thereafter, I along with police reached at Piragarhi Pitch in a Maruti Van. There we found one slip which was lying below the brick on the Bridge and on the slip, it was written that throw the Thaili (bag) of money from there and reached at Madhuban Chowk, where one person who is in yellow clothes will met you and Imran will also found with that person. If you will inform the police then you will have to face the consequences. I handed over that note to the IO and the S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 18/77 19 same was seized vide seizure memo Ex. PW8/A bears my signatures at point 'A' and the note is Ex. PX1. Thereafter we reached at Madhuban Chowk, but none was found there. IO recorded my statement.
On 17.05.02, police came to our shop at Electro Property and waiting for the phone of the kidnapper. At about 4.30 pm, a telephone call came there. I heard the telephone call and on the telephone, I heard that 'Mammu I am Imran speaking, save me, the voice appears to be the voice of Imran and suddenly I heard the other voice of other person, who said that you reach at Peeragarhi Pul (Bridge) and at about 6.00 PM you throw one lac rupees from the Piraharhi Bridge on the railway line after putting the money into a black polythene and Imran will reach safely and if you inform to the police, you will have to face the consequences. IO heard the telephonic call from other instruments. IO prepared a raiding party. IO prepared 10 bundles of newspapers and the same was handed over to me vide memo Ex. PW8/B bears my sign., at point 'A'. IO informed me to throw these bundles from the Piragarhi Bridge. Thereafter, I along with the police reached near Piragarhi Bridge in a private van. We separated from each other at Piragarhi Bridge and at about 6.00 PM, I thrown the bundals from the Bridge and we hidden ourselves and after about 10 S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 19/77 20 minutes, 2 boys came there and they surrounded near the bundal. One of the boy picked the polythine and he was apprehended by the police with the bundal. The other boy ran away from the spot. The name of the boy who was apprehended at the spot came to know after enquiry as Sabir Kutti. The bundle was seized vide seizure meme Ex. PW8/C bears my signatures at point 'A'. The boy was interrogated and he was arrested and his personal search was conducted his personal search is Ex. PW8/D bears my sign., at point 'A'. He told that on 27.4.02, his friend Deepak have brought one boy Imran aged about 12 years in Bhagwati Park and introduced to him and Deepak told me that we will demand money from the parents of Imran and we will distribute the money. We took the Imran near Shamshan Ghat, DDA Park and in the evening Imran knew their intentions and he wanted to escape from them and he raise alarm and then we killed him by strangulating him and thrown his dead body in the Nala. Disclosure of Subir Kutti was recorded which is marked 'A' which bears my signatures at point 'A'. He disclosed that he can got recovered the dead body of the Imran from Nala and got arrested Deepak.
On 18.05.02, I again joined the investigation with the police and del., pointed out the place of occurrence i.e. DDA Park where they had killed the Imran vide pointing out memo Ex. S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 20/77 21 PW8/E bears my signatures at point 'A'. Then we reached at Najafgarh Drain where IO called one diver Raju and he taken out one pant of brown colour, whose chain was broken which was stained with mud belonging to Imran and one Tshirt of blue colour belonging to Imran and I identified the same. One pair of sandle which was also belongs to Imran I identify the same. Diver Raju search for the dead body but the dead body was not found and on further search, one skull and 11 bones with were put up in a wooden box and the same was seized and after sealing the same and seized vide seizure memo Ex. PW4/A bears my sign., at point 'B'. The other clothes extra were put up in a pullanda and sealed and were seized vide memo Ex. PW4/B bears my sign at point 'B'. One handkerchief was recovered from the bushes near a Nala which was blood stained at the instance of Sabir Kutti was also seized which was also put up into a pullanda and seized. The earth control from the Nala were also seized by putting into pullandas vide seizure memo Ex. PW4/C bear my sign., at point 'B'. One Pradhanji from the jhuggi was also present at the spot and one SPO Rifaqat Ali was also present there. Photographer was also called who took the photos of the spot. Delinquent Sabit Kutti is present before the Board today. "
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 21/77 22 PW Atik Khan also identified one pant of brown colour, one shirt of blue colour, one pair of chappal belonging to Imran as Ex. P1 to P3, one handkerchief as Ex. P4, one plastic thaili of black colour which contains 10 bundles of newspapers Ex. P5 and black coloured polythene as Ex. P6.
Other witnesses to arrest of juvenile Subir Kutti and absconding of accused Deepak @ Julie include PW14 Ct. Ranbir Singh, PW18 Ct. Arvind and PW25 SI Devender.
12. PW4 Sh. Radhey Shyam, PW6 Rafaqat Ali are public witnesses to investigations carried out by the police after arrest of accused Ravi @ Kucha, during which clothes, bones and other articles were recovered from the nala at the instance of Subir Kutty @ Ravi @ Kucha.
13. PW4 Radhey Shyam deposed about 6/7 years ago, he was called by the police at Ganda Nala, near his jhuggie, behind Shamshan Ghat, where one driver Raju was also called and one pant of brown colour, one Tshirt of blue colour and one pair of slipper, which were mud stained were taken out from the ganda Nala/drain and he was later on, called to Police Station to sign various documents. PW4 could not tell as to who had identified the clothes, recovered from nala and stated that many public persons were present there, besides the divers and the police. PW4 identified his signatures on Ex. PW6/A i.e. handing over cum S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 22/77 23 seizure memo of bones, Ex. PW6/B handing over cum identification cum seizure memo of clothes, sandals and hanky and Ex. PW6/C i.e. Seizure memo of earth control sample. The case property was also shown to the witness, who identified sandals as Ex. P1, pant as Ex. P2, Tshirt as Ex. P3, bones as Ex. P5 colly and skull as Ex. P6.
This witness was declared hostile by ld. Addl. PP to elicit details of investigations carried out in his presence. During his crossexamination on behalf of State, PW4 termed it correct that in this presence one while handkerchief having blood stains was recovered at the instance of accused Subir Kutty @ Ravi and was seized vide seizure memo Ex. PW4/B. He also admitted that earth control sample was taken by the police in his presence and that same was kept in a plastic box and was sealed with the seal of DS. He further termed it correct that PW Atiq Khan had identified the clothes and sandals of his deceased nephew Imran Khan and that parcels of all the recovered articles were prepared, which were sealed with the seal of DS and seized by the police. PW4 further admitted that he was Pradhan of the area during those days and that the photographer had taken the photographs of the scene of crime in his presence and that name of the diver was Raju and that the said diver recovered the articles from the nala at the pointing out of accused Subir Kutty and that due to lapse of eight years since the said proceedings, he could not recollect these facts.
During his crossexamination by learned counsel for the accused, PW4 reiterated that he had signed the documents in the Police Station. He S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 23/77 24 further stated that he had gone to the police station himself during the noon time and that at that time, he had not seen any of the articles identified by him in the court at Police Station and that the said articles were recovered from nala prior to going to the PS. PW4 also stated that he had remained at Nala for about 15 minutes and that when divers had taken out the articles from mud in the nala, the recovered articles were covered with the mud of the nala, but same was cleaned by the police officials. PW4 could not tell the directions in which the water was flowing in the nala. When asked to give the details of recovered clothes, PW4 stated that there was one brown colour pant and a Tshirt of blue colour having strip of white colour in the collar, without right sleeve. PW4 termed it correct that he was doing work of Kabari. He denied that no recovery had been effected in his presence by the Police.
14. PW6 Sh. Rafaqat Ali deposed that in the month of April 2002, he was called by police to Paschim Puri near drain, DDA Park, behind cremation ground. The PW6 accompanied Atiq Khan and Mehmood to said place, where many public persons and police personnel were present. One child residing in Madipur Colony, was also present, who disclosed that he had killed a child and thrown his dead body in the nala. PW6 could not remember the name of the deceased child, but stated that he was the son of Gyour Khan. PW6 further deposed that police called the diver, who took out 10/12 bones, a shirt of blue colour, a pair of chappals with green straps, a bag and a white cloth. The bones were kept by the police in a white S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 24/77 25 cloth and seized vide memo Ex. PW6/A and that clothes, chappal and bag were identified by Atiq Khan to be that of his maternal nephew vide memos Ex. PW6/B. Photographs of the spot were also taken. This witness was put leading question regarding the recovered articles and on being so questioned, PW6 termed it correct that a mud coloured pant, a blue Tshirt, a pair of sandals and a hanky were taken out from Nala. PW6 stated that he could not state, if one of the arms of the Tshirt was there or not. He denied that these articles were sealed in his presence. PW6, however admitted that earth control sample was taken from the spot and seized vide memo Ex. PW6/C. PW6 identified the case property i.e. Sandals as Ex. P1, Pant as Ex. P2, Tshirt as Ex. P3, Handkerchief as Ex. P4 and pieces of bones as Ex. P5 (colly).
During his crossexamination by ld. Defence counsel, PW6 stated that he had reached nala at about 2.30 pm and that he had been called by maternal uncle of the child from his house. He also deposed that two divers came at about 4.35 pm and that within 5/10 minutes of reaching the spot, the child had disclosed about the incident. PW6 could not state, if the statement of child was recorded by the police, though, he volunteered to state that some writing work was done by the police. From the further crossexamination of PW6, it is brought that he had made improvement over Ex. PW6/DA i.e his statement to the police, wherein he had not stated that the child had told about the murder of Imran or that the child was living in Madipur. PW6 also stated that nala was more than 200 feet wide and that bones and other articles were taken out from a distance of 5 to 7 feet from bank S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 25/77 26 of the nala and that diver had taken 2/3 hours to recover the articles from different places in nala and that pant and shirt were lying at a distance of 4/5 feet in the nala, when recovered. PW6 could not state the exact distance from where, the bones were recovered. He deposed that bones and other articles were taken away by the police after about one and half hours of their recovery from nala and he had signed some papers on the spot and some others were signed by him in PS after two/three days. PW6 could not remember the place, where he had signed on Ex. PW6/A to Ex. PW6/C. He stated that nobody else had signed the said documents in his presence.
15. Police witnesses to arrest of juvenile and recovery effected at his instance on 18.05.2012 include PW25 SI Devender Singh, who had headed the investigations of the case after the registration of the FIR in the case and he deposed that on 27.04.2002, he was posted as Incharge, Police Post Madipur, PS Punjabi Bagh and that on that day, a missing report was got recorded by one Rias Khan regarding missing of his nephew Imran son of Gayur Ahmed and said missing report was reduced into writing vide DD no. 33 and said DD was marked to ASI Gian Singh, who got recorded the present FIR on the basis of statement of Gyur Khan. He further deposed that on 02.05.2002, the investigation of the present case was assigned to him and on the same day, he went to the Govt. School situated at Pkt. 1, Paschimpuri, where Imran was studying and on inquiry from the classmates of Imran, one student of 5th class, namely Raju, disclosed that he had seen Imran S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 26/77 27 going with one Deepak @ Julie towards Bhagwati Park and he recorded the statement of Raju u/s 161 Cr.P.C. He further deposed that Raju had disclosed that Deepak was from Madipur Colony, but he was not aware of the address of Deepak. He deposed that as the ransom calls were being received continuously from PCO booths situated at different locations, Section 364A was also added.
The PW25 then deposed that on 08.05.2002, maternal uncle of Imran namely Atiq Khan informed him that one call was received by him on the same landline number and that the caller called him at Peeragarhi Pul, where satu vendors used to sit for selling satu and the caller told him that something would be found under the brick there. He further deposed that after receiving this information, he along with PW14 Ct. Ranbir Singh, PW18 Ct. Arvind and Atiq Khan went to the said place i.e. Peeragarhi pul and that the police officials kept themselves at some distance from Atiq Khan and that Atiq Khan went there and found one paper note Ex. P6, which was handed over to PW25 by Atiq Khan and the same was taken into possession vide memo Ex. PW8/A. PW25 further deposed that as per the directions written in Ex. P6, police team along with Atiq Khan went to Madhuban Chowk and waited for a long time for the person in yellow dress, who was to meet Atiq Khan there, but no such person came there and they returned back.
The PW25 then deposed that in the meantime, the ransom calls were being made by the caller from different location and that on 15.05.2002, he came to know from his sources about the address of the Deepak @ Julie as C499, JJ Colony, Madipur, Delhi and that thereafter, a raid was conducted at the above said S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 27/77 28 house, but Deepak @ Julie could not be arrested and that they came to know that Deepak was working with his mama namely Sohan Lal at Lajwanti Garden near Delhi Cantt. Railway Station and accordingly, the police team went to the shop of Sohan Lal at Lajwanti Garden, where Sohan Lal met them and on inquiry, he disclosed that Deepak @ Julie had been working with him earlier and that one month prior he had left Sohan Lal and he did not know about whereabouts of accused Deepak.
PW25 SI Devender further deposed that on 17.05.2002, he along with PW14 Ct. Ranbir Singh, PW18 Ct. Arvind and Ct. Virender went to the shop of Khalid Khan, where Atiq Khan and Khalid Khan were present and police party started waiting for the ransom call and at 4.35 p.m., a call came on the landline telephone from landline no. 5258208 and that the said call was received by Atiq Khan and on the parallel line, PW25 also heard the conversation of Atiq Khan and the caller and that first of all, voice of a child was heard, who said "Mamu Mai Imran Bol Raha Hu, Mujhe Bachacho Lo" and thereafter, the kidnapper/caller told that, "Kali polyethene Mai Ek Lakh Rupaya Leke Aao Aur Piragarhi Pull Se Niche Ja rahe railway track Par Shaam Ko 6 baje Faink Do" and thereafter caller disconnected the phone.
The PW25 further deposed that he narrated all the facts to SHO through telephone and thereafter, a raiding party consisting of PW25, PW14 Ct. Ranbir and PW18 Ct. Arvind apart from Atiq Khan was constituted and they left the shop at about 5.00 pm after leaving Ct. Virender and Khalid Khan and that prior S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 28/77 29 to leaving the shop, 10 bundle of papers were prepared and said bundles were put in a black coloured polythene bag and the said bag was handed over to Atiq Khan vide handing over memo Ex. PW8/B and that thereafter, they all reached at Peeragarhi Flyover. He further deposed that on reaching there, they sent Atiq Khan on the Flyover and while the police team took its position near the railway track at different places. PW25 further deposed that on reaching Flyover, Atiq Khan threw the said polythene bag on the railway track and after about 15 minutes of throwing the polythene bag, two boys i.e. one tall with black complexion and another of short height, who was also Sawala, came there and that on reaching there, the boy with short height lifted the polythene from there. PW25 further deposed that in the meantime, police officials rushed towards them and on seeing the police, accused persons started running from there and in that process, boy with short height was overpowered, but the taller boy managed to escape from there and that on inquiry, that boy with short height disclosed his name as Subir Kutti @ Ravi @ Kuccha and he also disclosed the name of the taller boy as Deepak @ Julie r/o C499, Madipur Colony. The PW25 further stated that the polythene bag, which accused Subir Kutti was having at that time, was taken into possession vide seizure memo Ex. PW14/C and that accused Subir Kutti was interrogated and during that course he made disclosure statement Ex. PW14/B and thereafter, accused Subir Kutti was arrested vide arrest memo Ex. PW25/A and his personal search was also conducted vide personal search memo Ex. PW8/B. The PW25 then deposed that on 18.05.2002 accused Subir Kutti led the S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 29/77 30 police party to DDA Park Pkt. 1, Paschim puri, near Najafargarh drain and that he pointed out the place in nala (drain) while disclosing that they had thrown the dead body of Imran there after committing his murder. He further deposed that thereafter, Atiq Khan, Pradhan of the jhuggies namely Radhey Shyam and one SPO namely Riyaqat Ali were called and that Ct. Arvind was sent to call diver (gotakhor), who accordingly returned with one diver namely Raju, who went inside the nala and took out one pant of brown colour in torn condition on which the words "Children Happy" was printed, one blue colour TShirt without having left sleeve, on which label of "U.K. Garments were printed", one pair of sandles of matiyla (brown colour), 10 bones and one skull and some mud and that one blood stained handkerchief was also got recovered by Subir Kutti from near by the bushes, who told that they had placed the said hanky in the mouth of Imran Khan, so that he may not raise alarm.
The PW25 further deposed that said clothes were identified by Atiq Khan to be belonging to his nephew Imran Khan and that thereafter, the spot and the above said articles were got photographed by a private photographer Khem Chand after which, bones and skull were put in a wooden box and sealed with the seal of DS and remaining articles i.e. clothes were also sealed in a parcel with the seal of DS.
The PW25 further deposed that the handkerchief which was got recovered by accused Subir was put in a plastic dibbi and was sealed with the seal of DS and that the mud from Nala and Earth control (soil near the Nala) were also S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 30/77 31 lifted and kept two separate dibbis and were sealed with the seal of DS and thereafter all the parcels were taken into possession vide seizure memos Ex. PW25/A, Ex. PW14/F. The PW25 also deposed that he had prepared rough site plan of place of recovery, copy of which was proved as Ex. PW25/C and after recording the statements of the witnesses, they went in search of other coaccused Deepak Sonkar but all in vain and that on return, he deposited the case property with MHCM and that after adding the Section 302 IPC, the investigation was transferred to Insp. R.K. Ojha.
The witness further deposed that on 20.5.2002, on the directions of the IOInsp. R.K. Ojha, he took the wooden box (containing skull and bones) sealed with the seal of DS to Sanjay Gandhi Memorial hospital, Mangol Puri, Delhi for conducting the postmortem/examination of the same and handed over the same to Dr. Komal Singh alongwith his application Ex. PW9/A and brief facts Ex. PW25/D for postmortem and that after handing over the same to Dr. Komal, he returned to PS Punjabi Bagh.
PW25 further deposed that on 22.5.2002, on the directions of IO, he went to JJB alongwith case file for seeking PC remand of accused Subir and after taking PC of accused Subir, he was got medically examined at Sanjay Gandhi Memorial hospital, Mangol Puri, Delhi and that his ossification test was also got conducted and that thereafter, accused Deepak was searched for but all in vain. He further deposed that on 14.6.2002, draftsman was called by the IO and he inspected the spot at his instance and took rough notes and measurements. S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 31/77 32 The PW25 then deposed that on 20.6.2002, he moved an application Ex. PW25/E, for taking blood samples of parents of deceased for DNA test, on the directions of the IO before the JJB and after the said application was allowed, the blood samples of parents of deceased were taken for DNA test in the Begger's Court by Lab. Technician Sh. Ganga Sagar of Sanjay Gandhi Memorial hospital, Mangol Puri, Delhi on 21.6.2002 and that the said blood samples were sealed with the seal of court (SB) and the same were taken into possession by him vide seizure memo Ex. PW11/A and thereafter, he also recorded the statement of Ganga Sagar and parents of deceased in this regard and returned to PS and deposited the blood samples with MHCM and narrated the facts to the IO.
From the crossexamination of PW25, it is brought out that he had told the IO verbally that he could identify the other boy, who had come with juvenile Subir at the railway track, with his physical description, but had never joined TIP to identify accused Deepak in the court and that he had seen accused Deepak again only at the time of his deposition in the court, after having seen him at the railway track. PW25 denied that he had identified accused Deepak in the court at the instance of the IO.
During his further crossexamination, PW25 admitted that clothes recovered from nala i.e. Pant, Tshirt and Sandles were not the school dress of the school, in which deceased Imran was studying. He further deposed that as per investigation conducted by him, Imran was murdered on the same day of his kidnapping i.e. 27.4.2002. He admitted that as per DD entry no. 33 dated S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 32/77 33 27.04.2002 at PP Madipur, Raees Khan mentioned that the deceased Imran is missing from 11.30 am in school dress of while shirt and slati pant.
When questioned about the date on which, PW25 came to know that accused Deepak @ Julie was one of the suspect in the case, PW25 stated that it was on 2.5.2002. PW25 denied that the application Ex. PW9/A and brief facts Ex. PW25/D, submitted by him to Dr. Komal for the postmortem did not find mention of accused Deepak @ Julie as juvenile Subir Kutty had not named Deepak @ Julie as his coassociate.
From further crossexamination of PW25, it is brought out that he had not placed any documentary proof regarding call details received or send from telephone no. 5101319, between 27.04.2002 to 17.05.2002, nor had he collected any documentary evidence to show that the said telephone was in working condition during this period. He denied that the telephone no. 5101319 was not in working condition since April 2002. PW25 could not tell the name of the person, in whose name the said telephone was installed. It is also brought out from the crossexamination of PW25 that he did not collect and place on record any document to show that PW Raju son of Bahu Prasad was studying in 5th class in the school, in which deceased was studying. PW25 could not tell the Section, in which deceased was studying, nor could he remember the names of the other students of his class or the Principal of the School or whether the school was a primary, middle or secondary school.
PW25 was crossexamined regarding the ransom call received by S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 33/77 34 Atiq Khan on 08.05.2002. He could not tell the time, when the said ransom call was received. He also stated that on that day, no Satu vendors were sitting on the Peeragarhi bridge. PW25 could not tell how many ransom calls were received during the period, investigations of this case remained with him. He also could not remember the telephone numbers,from which the ransom calls were received, except one number, from which the call was received on 17.05.2002 i.e. 5258208. He stated that said telephone number was of a PCO booth installed near Peeragarhi. He however, admitted that he had not seized any telephone bill or any other documents to show that the said phone was installed there. When questioned further regarding the ransom call, PW25 stated that the ransom call were received at the telephone installed at the office of Khalid Khan and were received either by Khalid Khan or Atiq khan and that one parallel line was also installed on the said telephone number and that the telephone number, from which the calls were received were conveyed to the police officials by Khalid Khan and Atiq Khan. It is also brought out from cross examination of PW25 that the said parallel line was got installed by Khalid Khan himself, in his office, for his use.
As regards the ransom call dated 17.5.02, PW25 stated that the said calls were received by Atiq Khan and he told PW25 that one boy told himself as Imran is calling from the other side, while saying Mamu me Imran Bol Raha Hoon, muje bacha lo" PW25 could not remember, if he had made any inquiry from Atiq Khan regarding the voice of the boy in the telephonic call to be S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 34/77 35 actually of Imran. He also stated that ransom call was received at 4.35 pm and that 10 bundles of waste paper of size of Rs. 100/ denomination were prepared, which were taken to Peeragarhi Flyover at about 5.20/5.25 pm and were dropped by Atiq Khan from flyover at about 6.00 pm. PW25 could not remember, on which of the two railway tracks i.e. One going from Delhi to Rohtak Side and other from Rohtak to Delhi, the said polythene was dropped. PW25 could also not remember the distance of their positions from the railway track or if it was to be East, West, North, South from the railway track. PW25 could further not remember as to which side, juvenile Subir Kutty and his associate had run in i.e whether he ran towards Udyog Nagar side or Mangol Puri side or Rohtak side or Delhi side.
As regards, the recovery proceedings conducted at Najafgarh drain on 18.05.2002, PW25 stated that they had reached the Najafgarh drain at about 9.30 am and that one SPO Riaquat Ali and Radhey Shyam Pradhan were called at the spot to join investigation, but could not state, who had called the said persons. He further stated that driver Raju reached at Najafgarh drain at about 11.00/11.15 am and recovered clothes, bones and skull after going 5 to 7 paces inside the circumference of the nala. He also stated that photographer was brought there by Ct. Arvind by 11.45 am or 12.00 noon or that they remained at the said place till 1.30 pm and that all the public persons including Atiq Khan signed the memos there itself. PW25 could not remember, who had brought the wooden box, in which the recovered articles were kept and who made payment for the same. He also could S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 35/77 36 not remember, whether the handkerchief was recovered prior to recovery of clothes from nala or afterwards. PW25 could not give details of the places at which, he had made search for accused Deepak Sonkar. PW25 denied that accused had been falsely implicated in this case.
16. The PW14 Ct. Ranbir Singh was with the PW25 SI Devender Singh and had joined investigations with him on 08.05.2002, 17.05.2002, 18.05.2002 and 22.05.2002 and he deposed on the same lines as of PW25. PW14 further deposed that on 22.5.02, accused Subir Kutti made further disclosure statement Ex. PW14/G and led the police party to the house of chacha of accused Deepak at Meerut, but Deepak was not found there.
During his crossexamination, PW14 was questioned about the events that had taken place on 08.05.2002 and 17.5.2002, when he claims to have joined the investigation with the IO after receipt of ransom calls. PW14 deposed that Atiq Khan had dropped the black polythene on the railway track, which goes from Delhi to Rohtak and had come down after dropping the said bag, but was not standing with the police party. PW14 denied that no letter was recovered under the bridge of Peeragarhi Flyover on 08.05.2002 or that juvenile Subir Kutty was not apprehended on 17.05.2002 in the matter as stated by him.
17. PW18 HC Avind Kumar was also with the PW25 SI Devender Singh on 08.05.2002, 17.05.2002 and 21.06.2002 in the investigation and he too deposed S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 36/77 37 on the same lines as of PW25. PW18 further deposed that on 11.01.2007, he was called by IO SI K.P. Singh to the court of Sh. Digvinay Singh, ld. M.M., where he identified the accused Deepak as the same person, who had run away from the railway line, Peera Garhi, when other coaccused was apprehended by them.
During his crossexamination, PW18 denied that juvenile Subir Kutty was already in the custody of police on 17.5.02 or that he was taken for medical examination by Ct. Ranbir no. 1269/W at 12.45 pm on 17.05.2002 vide MLC no. C29376. It is brought out from the crossexamination of PW18 that he did not mention the description, physic etc. of accused Deepak in his statement recorded by the IO, though, he claims to have seen accused Deepak from the front side while, he was running away from the railway track. PW18 denied that nothing has been recovered from Najafgarh drain on 18.05.2002. According to PW18 also, the recovery proceedings started at 9.30 am and were completed by 1.00 pm on said date.
Witnesses to arrest of accused Deepak :
18. The PW26 SI Khemender Pal Singh had arrested accused Deepak and carried out investigations after his arrest. He deposed that on 16.11.2006, he along with PW19 Ct. Jai Parkash and PW23 Ct. Sanej were on patrolling duty in the area in Govt. vehicle and at about 12.05 am, when they reached at crossing of road no. 29, one secret informer came to PW26 and informed him that the person, who committed murder after kidnapping a child in the year 2002, was present at his S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 37/77 38 house no. C499, JJ Colony, Madipur and he could be arrested, if the raid is conducted. The PW26 then deposed that he immediately passed on this information to the SHO and on the directions of the SHO, they went near to the house of accused and parked their vehicle there and when they reached near the house of the accused, one lady and a male member were seen coming out from the above said house and on the pointing out of the secret informer towards male member, he was apprehended. On inquiry, he disclosed his name as Deepak Sonkar @ Julie and that thereafter, accused Deepak was arrested vide memo Ex. PW19/A, information of which was given to his wife and his personal search was conducted vide memo Ex. PW19/B and his Inspection Memo Ex. PW26/A was prepared. He further deposed that after getting the medical examination of accused conducted, he was brought to PP Madipur, where he was interrogated at length and during that course, he made a disclosure statement Ex. PW19/D. He further deposed that thereafter, accused Deepak Sonkar led the police party to the spot i.e. Nala behind Shamshat Ghat, Paschim Puri, Pocket1, where he pointed out the place in nala vide pointing out memo Ex. PW19/C while saying that they had buried the dead body after committed the murder.
He further deposed that accused was got muffled face after his arrest and also confined in lock up in the same position and on the same day, accused was produced before the court in muffled face and sent to J.C and this fact was also mentioned by ld. M.M on the application and carbon copy of same was proved as Ex. PW26/B. He further deposed that on his application, TIP of the accused was S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 38/77 39 conducted on 28.11.2006, during which accused refused to participate in the TIP proceeding. He further deposed that on 21.12.2006, he got collected ransom letter from judicial file at JJB and that after his application, moved on 09.01.2007 was allowed on 10.01.2007, he went to Rohini Jail and obtained the specimen signatures of accused on six pages proved as Ex. PW21/A to Ex. PW21/D and that he also directed the accused to give specimen handwriting as per version of the ransom letter, but he refused. He further deposed that on 11.01.2007, he came to the court for obtaining the JC remand of the accused and that at that time, PW14 Ct. Ranbir and PW18 Ct. Arvind, also came there for their work and identified the accused on seeing him and that he recorded their statements in this respect. He then deposed that on 06.02.2007, specimen writing and the ransom letter were sent along with forwarding letter to CFSL, Chandigarh through Ct. Ashok Kumar. This witness identified accused Deepak in the court.
19. PW19 Ct. Jai Parkash and PW23 Ct. Sanej were with the PW26 SI Khemender Pal Singh on 16.11.2006 in the investigation at the time of apprehension of accused Deepak, his arrest and his personal search. They were also witness to his disclosure statement and were present at the time of pointing out of place, where victim child had been buried by accused Deepak and his juvenile accomplice and they deposed on the same lines as PW26.
Formal witnesses :
20. PW5 ASI Seema deposed that on 30.04.2002, she was working as S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 39/77 40 duty officer at PS Punjabi Bagh and on that day, on receipt of rukka through ASI Gian Singh, she recorded the FIR No.282/2002 of this case and she has proved the carbon copy of the FIR as Ex. PW5/A and endorsement made by her on rukka as is Ex.PW5/B. She further deposed that after recording the FIR, she handed over the original rukka and carbon copy of FIR to ASI Gian Singh.
21. PW15 ASI Mohd. Islam deposed on 30.04.2002, Khalid Khan brought a letter, proved as Ex. PW15/B, relating to the kidnapped Imran Khan and delivered it to ASI Gian Singh in his presence, who seized the same vide seizure memo Ex. PW15/A. He further deposed on 01.05.2002, he along with ASI Gian Singh went to Rajouri Garden in the Telephone Exchange, where ASI Gian Singh moved an application regarding preservation of the call records of telephone number 510319.
22. PW16 HC Rajguru was posted as MHCM of PS Punjabi Bagh at the relevant time. He deposed about deposit of pullandas and exhibits in the malkhana on different dates i.e. on 17.5.2002, 18.05.2002, 21.06.2002, 17.06.2002 by police officials and that he had made relevant entries in register no. 19. He proved the copies of different entries made by him in register no. 19 as Ex. PW16/A, Ex. PW16/B and Ex. PW16/C. He further deposed that on 22.06.2002 and 04.07.2002, exhibits of the present case were sent to CFSL, Hyderabad and FSL, Malviya Nagar through Ct. Gulshan vide RC no. 106/21 and 394/21 respectively. S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 40/77 41 He also deposed that as per record, on 12.4.09, HC Ramesh Chander deposited one sealed parcel containing the result.
23. PW17 Ct. Gulshan Kumar deposed that on 04.07.2002, on the instructions of IO, he took the exhibits of the present case, in sealed condition, to FSL, Malviya Nagar vide RC no. 394/21/02 and deposited the same there and on return, he handed over the receipt to MHCM. He further deposed that on 01.07.2002, on the instructions of IO, he took the exhibits of the present case in sealed condition to CFSL, Hyderabad, vide RC no. 106/21/02 and deposited the same there and on return, he handed over the receipt to MHCM. He further stated that so long as the exhibits remained in his custody, he did not tamper with the same.
24. PW24 HC Ashok Kumar deposed that on 06.02.2002, he took one sealed envelop to CFSL, Chandigarh vide RC no. 64/21/07 and deposited the same there and on return, he handed over the acknowledgement receipt to MHCM. He further stated that till the time, envelop remained in his custody, it was not tampered with.
25. PW21 Sh. Subhash Sharma, Dy. Superintendent, Jail deposed that on 10.01.2007, he was posted as Dy. Superintendent, Distt. Jail Rohini and on that day, SI Khemender Pal of PS Punjabi Bagh produced a court order before him to get the S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 41/77 42 specimen handwriting of accused Deepak Sonkar @ Julie and accordingly, said accused was called in his room, where specimen signatures of accused Deepak Sonkar were taken on six papers Ex. PW21/A to Ex. PW21/F, in his presence, on which he also made endorsement as 'before me'. He further deposed that accused Deepak Sonkar @ Julie was asked to write down the contents of the letter Ex. P6 and Ex. PW15/B, but accused Deepak Sonkar @ Julie refused for the same.
26. PW22 Sh. Khem Chandprivate photographer deposed that on 18.05.2002, he was running a Photo studio at B161 Madipur and that he was called by the police at the spot i.e. nala behind Samshan Ghat, Paschim Puri and on reaching there, he took the photographs Ex. PW22/A1 to Ex. PW22/A6 of bones and clothes at the instance of police. He further deposed that negatives of the said photographs were got misplaced during shifting his photo studio from one place to another.
During his crossexamination, PW22 was asked about the time, when photographs were taken by him, but could not tell the exact or even approximate time thereof.
27. PW29 Retired Ins. Devender Singh deposed that on 14.06.2002, on the request of IO SI Devender Singh, he along with IO reached the spot i.e. DDA Park, Pkt. 1, Paschim Puri, New Delhi, where he inspected the spot at the instance of IO SI Devender Singh and took rough notes and measurements of the spot, on S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 42/77 43 the basis of which, he prepared scaled site plan Ex. PW29/A on 23.06.2002 and handed over the same to IO.
28. PW30 SI Ram Kishan deposed that on 17.06.2002, on the directions of Ins. R.K. OjhaSHO, he collected one wooden box sealed with the seal of DKS and same was deposited with MHCM by him on the said day and that till the said wooden box remained in his custody, same was not tempered with in any manner.
29. PW27 Sh. Suraj Bhan deposed that on 21.6.2002, he was posted at Metropolitan Magistrate at Poor House Court and on that day an application, proved as Ex. PW27/A, for taking blood sample was moved in the court of Ms. Barkha Gupta, Ld. M.M and Ms. Archana Sinha, Ld. M.M, Juvenile Justice Board and same was marked to him and was allowed vide endorsement Ex. PW27/B and that after identification by the IO, the blood sample of Gayur Ahmed and Famida Khanam parents of deceased, was taken by the Lab Technician and after sealing, the sealed blood samples were was handed over to IO.
Medical witnesses :
30. PW10 Dr. Manoj Dhingra proved the MLC no. 1274 of Dubir (Subir) @ Ravi dated 22.05.2004 as Ex. PW10/A and deposed that patient was examined by Dr. Shantanu Sinha for bonyage determination and thereafter, he was referred for Xray.
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 43/77 44
31. PW11 Sh. Ganga SagarLab Assistant, SGM Hospital, Mangol Puri, Delhi deposed that in June 2002, he went to the Children Court and met the IO and after obtaining permission from the concerned Magistrate in Juvenile Court, he took the blood sample of one Gayur Khan and his wife Famida Kanam, in separate plastic jars, which were then sealed with the seal of SB and were taken into possession by the IO vide memo, photocopy of which is Ex. PW11/A (Original memo already exhibited as Ex. PW1/B before JJB during trial of accused Sudhir Kutty)
32. PW13 Dr. Komal SinghHead of the Department, Forensic Medicine, DDU Hospital deposed that on 20.05.2002, at about 4.00 pm, a bundle of bones, in a wooden box sealed with the seal of DS, were brought for examination with alleged history that a boy namely Imran was kidnapped on 30.04.2002 and that one accused Ravi was apprehended and it was alleged that he along with his associates murdered the boy and dumped its body in the Najafgarh drain and from that site, after 19 days of dumping a few loose bones numbering 11 were extracted out. He further deposed that after examination of the said bones, he opined vide his report Ex. PW7/A (photocopy of which is proved as Ex. PW13/A) that as the material was insufficient to conclude in their setup, it was advised that the further opinion from the Anatomist, Veteran Doctor and Serologist may be sought.
FSL experts : S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 44/77 45
33. PW12 Sh. S.P.R Parsad, Senior Technical Examiner, Laboratory of DNA Finger Printing Services, CDFD, Hyderabad, deposed that on 24.06.2002, he had received the exhibits as mentioned in Column no. 'X' of his report Ex. PW12/A, in sealed condition in the laboratory and that he had examined the exhibits and gave a result that sources of Ex. A and E i.e. the blood samples of Smt. Famida Kanam and Kayur Ahmed Khan were suitable for analysis, however, sources of Ex. B, C and D i.e. the skull of deceased, bones of deceased and blood stained handkerchief did not yield DNA suitable for analysis, therefore, no opinion could be given. He proved his report Ex. PW12/A along with two enclosures i.e. figure 1 Ex. PW12/A1 and identification forms of Famida Kanam and Kayur Ahmed Khan as Ex. PW12/A2 and Ex. PW12/A3.
Other witnesses :
34. PW20 ASI Surender Singh deposed that on 22.05.2002, he joined the investigation of the present case with the IO and on the day, accused Subbir Kutti @ Ravi was brought from Bal Sudhar Grah and search of other accused was made but all in vain and thereafter, bone age Xray of accused Subbir was got conducted at Sanjay Gandhi Memorial Hospital, Mangol Puri. He further deposed that accused Subbir Kutti @ Ravi disclosed that he knew the address of accused Deepak @ Julie and thereafter, he led the police party to Meerut, where on Puranmashi Thekedar met them, who told that accused Deepak had not come to him since last one month and thereafter, they came back to Delhi.
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 45/77 46
35. PW28 SI Gyan Singh is the first IO of the case. He deposed that on 27.04.2002, he was posted at Police Post Madipur, PS Punjabi Bagh and on that day, on receipt of DD no. 33 Ex. PW28/A regarding missing of Imran Khan aged about 12 years, he got flashed a wireless message, copy of which was proved as Ex. PW28/C and after filling the Missing Person Squad Form Ex. PW28/B, it was sent to Missing Person Squad, Darya Ganj. He further deposed that on 30.04.2002, Sh. Gayur Khan, father of Imran came to Police Post Madipur and he got recorded his statement Ex. PW1/A (also exhibited as Ex. PW28/D) and on the basis of his above statement, he prepared rukka Ex. PW6/A (also exhibited as Ex. PW28/E) and the said rukka was presented before duly officer of PS Punjabi Bagh for registration of the case and after registration of the case, investigation of this case was assigned to him and duty officer handed over copy of FIR (Ex. PW28/F) to him and that he again got flashed WT message, copy of which was proved as Ex. PW28/G. He further deposed that on that day, at around 3.00/3.30 pm, the maternal uncle of Imran came to Police Post Madi pur and disclosed that he had received a phone call and caller told him "Madi Pur mei ek Safed Mandir hai or usaki jhadiyon mei kuchh cheej milegi" and that on receiving the said information, he along with HC Mohd. Islam and two constables went to Safed Madir along with maternal uncle of Imran and searched the mandir area, but no incriminating article/thing could be recovered from there and thereafter, they returned to PP Madi Pur and maternal uncle of Imran also left for his house. He further deposed that at S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 46/77 47 about 5.30 pm, maternal uncle of Imran again reached at Police Post Madi Pur and produced one hand written paper Ex. PW15/B while saying that it was found on the top of the boundary wall near the gate and said paper was taken into possession by him vide seizure memo Ex. PW2/A. He further deposed that Khalid Khanmaternal uncle of Imran disclosed that ransom calls were being continuously received by him on his land line phone and on 01.05.2002, he moved an application to the Manager, MTNL Rajouri Garden for keeping the land line phone no. 5101419 on surveillance line and carbon copy of the said application is proved as MarkX and accordingly, the said phone was kept on surveillance and ID caller was installed on the above said land line and that thereafter, further investigation of this case was assigned to SI Devender Singh, Incharge of PP Madi Pur and he handed over the case file to him.
36. PW9 Ins. R.K. Ojha was handed over investigation of the case after Section 302 IPC was added. He deposed that on 19.05.2002, he had taken over the investigation of the present case and during the course of the investigation, he sent the recovered bones, already sealed, to Autopsy Surgeon at Sanjay Gandhi Memorial Hospital and obtained the report. He further deposed that he had also sent exhibits for DNA examination to Hyderabad CFSL and other exhibits to FSL, Malviya Nagar, New Delhi. He proved his application for postmortem as Ex. PW9/A. He lastly deposed that he had filed the charge sheet against Subir Kutti @ Ravi @ Kucha in Juvenile Justice Board and that in the said chargesheet, name S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 47/77 48 of accused Deepak @ Juli was written in column no. 4, since he was not arrested in this case till that time.
37. After closing of prosecution evidence, statement of accused Deepak Sonkar was recorded u/s 313 CrPC. The accused stated that he is innocent and had been falsely implicated in the case. Accused denied the entire evidence led by the prosecution and stated that he does not know any persons by the name of Imran or Raju and that he had not taken Imran anywhere with him. He further stated that police officials did not visit his house on 15.5.2002 and he did not have any mama by the name of Sohan Lal and had never worked with any such person. He further stated that he did not know any Tarun or Ravi @ Kucha or Subir Kutti and that at the time of alleged overpowering of Subir Kutti, said Subir Kutti was already in custody of the police and his medical examination was got conducted on 17.5.2002 at 2.45 pm by Ct. Ranbir no. 1269/W at Sanjay Gandhi Memorial Hospital. He further stated that on 22.05.2002, he was at his house, but no police officials visited his house. He also stated that he was having dispute regarding some land and that 20 days prior to his arrest, he was detained at Meerut by some persons, who also poisoned him, but he managed to escape and return back home and that on the day of his arrest, said persons again came to his house and that he gave a call to PCR at 100 number and police came to his house and he was thereafter arrested in a false case. He further stated that he was not in a position to walk at that time and was taken on stretcher to that place i.e. nala behind samshat ghat, Paschim Puri, S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 48/77 49 Pocket1, on the pretext that he was to identity his assailant. He further stated that he refused to participate in TIP, because his photographs were taken by using mobile phone and were shown to the witnesses. He further stated that no ransom note was written by him. The accused refused to lead any evidence in his defence in the first instance, but later on, he filed an application seeking permission to lead defence evidence, which was allowed vide order dated 25.05.2012. The accused examined DW1 ASI Mayadevi, DW2 Ms. Babita and DW3 Sh. Om Parkash, in order to prove the defence taken by him.
38. DW1 ASI Mayadevi deposed that she was posted as duty officer in PP Madipur of PS Punjabi Bagh on 15.11.2006. She brought the summoned record i.e. DD no. 30 dated 15.11.06 and DD no. 38 dated 15.11.06, copy of which were proved as Ex. DW1/A and Ex. DW1/B. During her crossexamination, DW1 stated that DD no. 38 Ex. PW1/B was not in her handwriting and she admitted it to be correct that the name of accused Deepak Sonkar was not found mentioned either in Ex. DW1/A and Ex. DW1/B.
39. DW2 Ms. Babita is the sister of accused Deepak Sonkar and she deposed that Deepak was married to Smt. Sunita a resident of Meerut and that her brother had visited Meerut two days before the Diwali in the year 2006, where he was given poison by some person. She further deposed that on 15.11.2006, some S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 49/77 50 persons from Meerut came to their house and started quarreling with Deepak, on which she gave a call to PCR and that police came and took Deepak as well as two persons to PS and there, he was implicated in a murder case by the police.
During crossexamination by Ld. Addl. PP, PW2 showed her unawareness about whereabouts of Deepak on 17.5.2002 and about knowing any Ravinder son of Murari Lal.
40. DW3 Sh. Om Parkash, LDC Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, brought the summoned record and as per record, patient Subse Kutze @ Ravi @ Kucha was brought in the hospital on 17.5.2002 at 2.45 am by Ct. Ranbir and said patient was treated in the hospital vide record Ex. DW3/A. During his crossexamination, DW3 admitted that Ex. DW3/A was not in his handwriting and he also admitted it to be correct that date and time was not mentioned on the top or at the end of the said entry. He volunteered to state that the same was mentioned at point 'X' in Ex. DW3/A.
41. Arguments have been addressed by learned defence counsel for the accused persons as well as learned Additional PP for the State. Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused beyond reasonable doubt. He has relied upon judgement in case of Suman Sood @ Kamaljeet Kaur vs. State of Rajasthan (2007) 5 SCC 634. On the other hand, learned counsel for accused has contended that the present case is based on S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 50/77 51 circumstantial evidence, but chain of circumstances is not complete and that there is missing of link evidence. He further submitted that none of the public witness examined by the prosecution have proved the factum of deceased being lastly seen in the company of deceased. He also submitted that there are material discrepancies in the testimonies of prosecution witnesses which go to the root of the case. It is contended that in these facts and circumstances prosecution has completely failed to prove its case against the accused and it is prayed that accused be acquitted of charge u/s. 302/201/364A. He has also relied upon judgment in case of D.K. Basu v. State of West Bengal, AIR 1997 SC 610 to state that investigating agency has violated the guidelines laid down therein at the time of arrest of accused.
42. I have heard the learned Additional PP as well as learned counsel for accused and also perused the record carefully.
43. In order to bring home charge u/s 302 IPC, prosecution is required to proved as under :
(i) that accused committed the act by which, the death is caused with the intention of causing death, or ;
(ii) that accused committed the act with the intention of causing such bodily injury, which he knew is likely to cause the death of the person to whom the harm is caused, or ;
(iii) that the person committed the act with the intention of causing S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 51/77 52 bodily injury to any person and the said bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or ;
(iv) that the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as it likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
44. Further, in order to prove charge u/s 201 IPC, the prosecution is required to prove as under :
(a) that an offence has been committed ;
(b) that the accused knew or had reason to believe the commission of such offence ;
(c) that with such knowledge or belief he
(i) caused any evidence of the commission of that offence to disappear or
(ii) gave any information respecting that offence which he then knew or believed to be false, and ;
(d) that he did so as aforesaid with the intention of screening the offender from legal punishment ; and
(e) If the charge be of an aggravated form, it must be proved further that the offence, in respect of which the accused did, as in (iii) and (iv) was punishable with death, or with imprisonment for life or imprisonment extending to ten years. S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 52/77 53
45. Further, in order to prove charge u/s 364 IPC, the prosecution is required to prove as under :
(a) the accused kidnapped or abducted a person, and ;
(b) he did so in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered.
46. Lastly, in order to prove charge u/s 364A IPC, the prosecution is required to prove as under :
(a) the accused kidnapped or abducted any person ; or
(b) the accused kept the person in detention after such kidnapping or abduction ; and
(c) the accused threatened to cause death or hurt to that person ; or
(d) the accused actually caused hurt or death that person in order to compel the government or any foreign state or international intergovernmental organization ;
(e) such kidnapping or abduction was for ransom.
Discussion based on evidence led by prosecution
47. Perusal of the record shows that there is no direct evidence against the accused in the present case and the case of the prosecution is based solely on the circumstantial evidence.
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 53/77 54
48. The Hon'ble Supreme Court in case Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622, while dealing with circumstantial evidence, held that onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. In this judgment, it has been laid down that :
Before conviction could be based on circumstantial evidence, it must be fully established that :
1. the circumstances from which the conclusion of guilt is to drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established ;
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is so easy, they should not be explainable on any other hypothesis except that the accused is guilty ;
3. the circumstances should be of a conclusive nature and tendency ;
4. they should exclude every possible hypothesis except the one to be proved ; and
5. there must be a chain of evidence so complete as not to leave any reasonable ground that the conclusion consistent with the innocence of the accused and must show that in all S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 54/77 55 human probability the act must have been done by the accused.
49. It has been further held by the Hon'ble Supreme Court in a case titled as C. Chenga Reddy and Ors. vs. State of A.P. (1996) 10 SCC 193, that :
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence...."
50. In case of Padala Veera Reddy vs. State of A.P and Ors. (AIR 1990 SC 79), Hon'ble Apex Court again reiterated that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;
2. those circumstance 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 conclusion that within all human probability the crime was committed by the accused and none else ; and S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 55/77 56
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.
51. Further, in State of U.P. vs. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonable capable of two inferences, the one in favour of the accused must be accepted. It was also held that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
52. It has also been held in the case of Naveen Chauhan @ Chussi v. State (Delhi) 2010 [3] JCC 2361, that in a case based purely on circumstantial evidence, the prosecution needs to establish all the circumstances cogently and firmly to the full satisfaction of the court, before they can be acted upon and the circumstances proved by the prosecution ought to be wholly incompatible with the innocence of the accused and must necessarily and unerringly point towards him as perpetrator of the crime and the courts need to be satisfied that in all probability it was the accused and no one else who had committed the crime for which he was charged. S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 56/77 57
53. In a recent case, titled as Naval Kishore vs. State, 2012 [2] JCC 881, Hon'ble Delhi High Court while dealing with a case of circumstantial evidence, held that : "The standard of proof required for convicting a person on circumstantial evidence is now well established by a series of decisions of Supreme Court. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt are to be drawn not only have to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime."
54. The incriminating circumstances relied upon by the prosecution in the present case against the accused have already been detailed in foregoing para no. 3. It would be relevant to evaluate the circumstances relied upon by prosecution with S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 57/77 58 the material placed on record by prosecution and the evidence, it has led in light of guidelines emanating from abovementioned judgment.
55. In the present case, the time gap between the incident and arrest of accused Deepak has played a significant role, since two material witnesses namely PW Raju, School mate of victim Imran and PW Atiq Khan, uncle (Mama) of victim Imran had already expired by the time case reached the stage of trial after arrest of accused Deepak in the year 2006. Giving prosecution benefit of the fact that these two material witnesses were examined before the Juvenile Justice Board, where inquiry in respect of Juvenile Subir Kutty @ Ravi was conducted, the question which arises for consideration is whether prosecution has succeeded in establishing the circumstances against accused Deepak, to such an extent, for the court to draw a conclusion that none other than accused Deepak was responsible for the commission of the offence in the present case.
56. The first information regarding missing of Victim Imran came in form of DD no. 33 MarkA, vide which information was given by Raees Khan, cousin brother of Imran that Imran had gone to the school on 27.4.2002 and had been missing since 11.30 am and that he was wearing school uniform comprising of white shirt, slati pant and sandals. There is contradiction in prosecution case as to who had given this information to the police since PW1 Gayour Khan claims that he had filed the said missing report with the police while PW2 Khalid Khan also S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 58/77 59 claims to have filed the said missing report at about 11.00 am/12.00 noon on 27.04.2002 in presence of Gyour Ahmed.
57. From the crossexamination of PW1 Gayour Khan, it is brought out that he was not present at Delhi on 27.4.2002, but was in his village at Distt. Bijnor, UP and came back to Delhi only on 28.4.2002 and thereafter, reported the matter to the police. He then met police on 30.04.2002, when police came to his house to record his statement. As regards the ransom calls, PW1 stated that he was told about the same by Khalid on 28.4.2002 and that Khalid and PW1's brotherinlaw Atiq had gone to fetch the letter immediately on the same day i.e. 28.4.2002 and that he never went to house of his brother Khalid, which was at a distance of 200 yards from the house of PW1, nor was the letter mark A shown to him.
58. PW2 Khalid, uncle of the victim child and brotherinlaw of PW1 Gyour Ahmed is a material witness as ransom calls are stated to have been received at the landline telephone number installed in his office. He deposed that his nephew Imran Khan went missing on 27.4.2002 and that on the next day, he received telephonic call on his landline number bearing 5101319 and was informed by caller that there was something for them in the bushes of Safed Mandir. Nothing was found, there by the relatives of PW2 who went there. PW2 again received a call and was told by the caller that one letter was kept on the glass of the pillar of main gate of LIG Flats and that he along with his relatives went there and found letter Ex. S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 59/77 60 PW15/B, wherein demand of Rs. One lac as ransom was made. There was also threat not to disclose about the same to the Police. According to PW2, he continued to receive ransom calls and threats on the said land line number 5101319 and the same was kept on surveillance. On 17.5.2002, again a ransom call came, which was attended by Atiq Khan, brother of PW2. The kidnapper asked for a ransom of Rs. One lac and also specified the place, where the ransom money was to be delivered. PW2 did not accompany police at the designated place. Instead his brother Atiq Khan accompanied the police.
59. The crossexamination of PW2 brings out the considerable contradiction. Firstly, he states that he had made telephone call to the police at about 11.00 am/12.00 noon on 27.4.2002, after which the police came to his office and went in search of Imran with Gyour Ahmed, Atiq Khan and other relatives and they kept searching for the child, till 5.00/6.00 pm. He also stated that he had received information that something was lying in bushes of Safed Mandir on 27.4.2002 at about 10/11 am. He then improved upon his reply to state that he did not remember the exact date and it might be on 30.4.2002. He further deposed that the second call was also received on the same date at about 4/5 pm and that he had collected the letter from pillar at about 5.00 pm. Surprisingly, he states that he informed the police about the said call on next day morning, when police came to his office. PW2 was confronted with his statement Ex. PW2/DA made to the police on 30.04.2002 and it is brought out that nothing has been mentioned in the said S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 60/77 61 statement that the telephone number of PW2 was under surveillance, rather he has stated that efforts were made to have his telephone number 5101319 kept under surveillance, but due to paucity of time, it was not possible. Further, it is seen that no other statement of PW2, except Ex. PW2/DA was recorded by the police and whatever he has stated about ransom call of 17.5.2002 is an improvement and apparent extension over and above his role put forth by the prosecution.
60. It is noteworthy that according to PW1 Gyour Ahmed, he was not present in Delhi on 27.04.2002. Further, as per DD no. 33 dated 27.4.2002 Ex. PW28/A, the first missing report qua child Imran was received on 11.30 night on 27.04.02. Thus, the fact that PW2 knew about kidnapping of Imran by 11.00 am/12.00 noon on 27.4.2002 and as per his version, had also informed the police does not stand explained.
61. The contradiction in the statements of PW1, who stated that he had never visited Khalid, and that given by PW2, who stated that PW1 was present on 27.4.2002 as well as subsequent date(s) when calls to collect ransom notes were received, also does not stand explained. This brings us to another aspect of unnatural conduct of the family members of the victim. It appears from statement of PW7 Noor Mohd., brother of Victim recorded u/s 161 Cr.P.C on 30.4.2002 that he had gone to school of his brother on 27.4.2002 and came to know from his friend that he had gone to pond behind Shiv Mandir at 2.00 pm. He also stated that he did S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 61/77 62 not know name of his brother's friend, but had taken IO to the flats, where said friends were residing. It is surprising that a 10/11 year old child was missing and yet none of his family members showed any urgency to trace him out. If Imran had gone to school in routine and had gone missing from the school, then in fact, he was kidnapped from the temporary guardianship of his school/Principal. It is a matter of common knowledge, if a child goes missing from school then, it creates ripples of anxiety, not only with the school authorities, but also with the class mates and other friends of the missing child and generally, they come forward to furnish whatever information they have to the family members of such a child and it appears that in present case also, information was divulged to PW7 on 27.4.2002 itself by friends of victim Imran. Despite this, PW7 made no efforts to find out the names of friends of his brother or their residence. No effort was made by any of the family members of victim Imran to get more information from the school authorities and to get their complaint registered regarding missing of their child from the school during school hours. It is also noteworthy that there is no mention of Imran being taken away by a black coloured boy i.e. the accused Deepak @ Julie in the statement of PW7. In these circumstances, a doubt is created regarding child witness Raju, whose statement was recorded by the IO on 2.05.2002, wherein for the first time, name of accused Deepak @ Julie appears. As already observed hereinabove, witness Raju had also expired on 13.09.2008, much before, the present case came for trial. This witness was, however, examined before Juvenile Justice Board during inquiry proceedings in respect of juvenile accomplice Subir S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 62/77 63 Kutty, where he gave the following statement : " Main panchvi class me Paschim Puri me padhta tha.
Aajkal, main 6 class me padhta hoon. Jab main Paschim Puri me padhta tha, usi school me ek Imran naam ka ladka 4 class me padhta tha. Main kisi Deepak naam ke ladke ko nahi janta hoon. Jab main panchvi me padhta tha, to din me 12.30 baje, ek kala so ladka school me gaya tha, va Imran se kahne laga ki bhagwati me nahane chal, muje bhi bhagwati me chalne ke liye kaha, lekin main nahi gaya, va Imran, us kale se ladke ke saath school se chale gaye. Muje us kale se ladke ka naam nahi maloom. Vah kala sa ladka lagbhag 1819 saal ka hooga. Maine us ladke ko pahle nahi dekha tha."
He was crossexamined by ld. APP and during crossexamination, he denied that he was knowing the name of that boy as Deepak. However, he stated that Imran told him that said black boy used to quarrel and fight and is a bad element.
62. From the perusal of above said statement made by PW Raju, it is clear that though witness stated that victim Imran had gone away with a black coloured boy during school hours, PW Raju did not know his name, nor had he seen the said boy before and his age was about 18/19 years. A specific question was put to the witness during his crossexamination by the State counsel regarding the name of said black boy as Deepak and previous acquaintance of the witness with him, S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 63/77 64 which were denied by the witness. Thus, even if, prosecution was to be given benefit of the statement of PW Raju recorded before the Juvenile Justice Board, it is not of any aid to the prosecution case, rather it demolishes prosecution's version of last seen evidence/identification of the kidnapper. It is also noteworthy that though, accused Deepak was arrested on 16.11.2006, PW Raju (who expired only on 13.09.08) was not joined in any investigation after the arrest of accused Deepak in as much as, no efforts was made to get the identity of accused Deepak established from PW Raju, which is a serious lapse in the prosecution case.
63. Another suspicious circumstance in the instant case is that PW2 Khalid, who received the ransom calls from time to time, did not join the investigations with the police at material points. The parents of deceased also were surprisingly detached with the investigations and did not make any efforts to respond to any of the ransom calls themselves by going to places at which, the kidnapper had asked them to come for delivery of money or to accompany the IO in investigations of the case, save and except to give their blood samples for DNA profiling after recovery of alleged incriminating materials i.e. Bones, skull and blood stained hanky from nala on 18.5.2002. Even the clothes of the victim child were not got identified by either of his parents. The parents of the victim Imran were the best persons to identify his personal clothing and belonging. Even assuming father of victim Imran was not in Delhi on 27.4.2002, mother of victim would have seen victim getting dressed for school and considering his tender age, probably helped him to get ready for school S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 64/77 65 and thus, in position to state what clothes he was wearing on the day, when he went missing. There is no explanation for omission of joining these material witnesses in crucial investigation by the IO. This omission has apparently resulted in major discrepancy in the prosecution case, since as per DD no. 33A, victim Imran was wearing school uniform i.e. White shirt and slati pant, when he went missing. On the other hand, the clothes recovered from nala comprised of one brown colour pant, in torn condition, on which, words "Children Happy" were printed and one blue colour Tshirt with left sleeve missing, on which label of "UK Garments" was printed and one pair of brown colour sandals. It is not the case of the prosecution that victim had changed his school clothes, while he was in custody of his kidnappers, and thus it was imperative to explain this contradiction especially, when PW Atiq Khan (deceased uncle of victim) identified the clothes recovered from nala to be that of victim child, vide memo Ex. PW25/A, however, prosecution has failed to do so.
64. Another material issue, which arises for consideration is that as per the prosecution case, all the ransom calls were received on the landline telephone no. 5101319 installed in the office of PW Khalid. Yet, it appears that one ransom call receiving on 08.5.2002 is stated to have been received at house of Atiq Khan by Atiq Khan. Though, as per statement of PW Atiq Khan u/s 161 Cr.P.C. recorded on 08.05.2002, Atiq Khan received a call on the landline number installed at their shop "Electro Properties", when PW Atiq Khan was examined as PW8, during S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 65/77 66 inquiry of Juvenile Subir Kutty conducted before JJB, he stated that on 08.05.2002, telephone call was received at their home at about 4 PM and on the parallel connection, SI Devender Singh also heard the call. No other public witness i.e. PW1 Gyour Khan and PW2 Khalid have mentioned about the ransom call of 08.05.2002. It is surprising that though, child from the family had been kidnapped and there were threats to the life of the child to extract ransom money, the family members including father and other uncles of the victim did not know about the ransom call received by PW Atiq Khan on 08.05.2002. This conduct of PW Atiq Khan in not sharing vital information about the missing child from other family member and the indifference of the parents of the victim child to keep track of the ransom calls, investigation etc. is unnatural and against the normal course of human nature.
65. Another noteworthy aspect pertains to fact put forth by prosecution that PW Atiq Khan had carried the fake ransom amount to Peera Garhi Pul along with the police party on 17.5.2002. As per the case of the prosecution, on that day, juvenile Subir Kutty was apprehended on the spot, while accused Deepak managed to escape, however in his statement u/s 161 Cr.P.C recored on 17.5.02, PW Atiq does not give any description of the accused/kidnapper, who managed to escape from the spot. In these circumstances, the disclosure statement of juvenile Subhir Kutty, which has been relied by the prosecution becomes very material. As per the said disclosure statement, other accomplice namely accused Deepak was supposed S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 66/77 67 to be waiting "On the Pul" to keep an eye, while juvenile Subhir Kutty was assigned to task of collecting the bag containing ransom money from the railway line. If accused Deepak was on the pul, then there is no explanation how two persons were seen by PW Atiq Khan and the police party on the railway track, out of whom, juvenile Subir Kutty was apprehended while lifting polythene bag and other accused escaped.
66. In this light, when we examine the testimony of police witnesses namely PW14 Ct. Ranbir Singh, PW18 HC Arvind Kumar and PW25 SI Devender, further discrepancies emerge. In his statement recorded on 03.02.2010, Ct. Ranbir Singh does not identify accused Deepak at all. Although, as per the case of the prosecution, accused had refused to join TIP (Test Identification Parade) proceedings on 28.11.2006, wherein he was to appear before PW14 Ct. Ranbir Singh and PW18 HC Arvind Kumar and subsequently, both these witnesses identified the accused, while he was being taken to the court, PW14 Ct. Ranbir Singh does not state anything about having joined investigations of the case after 22.05.2002 especially after arrest of accused Deepak. The initial IO SI Devender was never joined in investigations after arrest of accused Deepak and considering that PW Atiq does not give any description of the other accused, who escaped from the spot on 17.5.02 and PW Raju also resiled from the fact that he knew the name of accused Deepak or was acquainted with him, testimony of PW18 itself is not sufficient to establish the identity of accused especially when, the disclosure S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 67/77 68 statement of juvenile Subir Kutty @ Ravi and that of accused Deepak reflect that accused Deepak, if at all, he was involved in the offence, was not seen running away from the place at which, he was supposed to be present i.e. on the pul. Since PW Atiq Khan had dropped ransom money from pul, he ought to have seen accused Deepak @ Julie, who too as per disclosure statement Ex. PW19/D had taken position on the pul, however, PW Atiq Khan does not state anything about it.
67. Now coming to testimony of PW3 Tarun, who as per prosecution case not only knew accused Deepak, but also deposed how accused Deepak and his juvenile accomplice had asked him to accompany them in May 2002 to a PCO and to make a call to some one by saying, "Mamu mein Imran bol Rana hoon, muje bacha lo." He also deposed that upon his refusal, juvenile Subir Kutty @ Ravi @ Kucha made call to the family of victim and later, PW3 too was threatened by accused Deepak and juvenile Subir Kutty that in case, he disclosed about it to any one, then he would be killed as Imran had already been murdered by them.
68. From the crossexamination of PW3, it is brought out that accused Deepak was neither studying in school of PW3, nor did he reside in the block, where PW3 resided. Further, it is surprising that at no point of time, PW3 raised alarm, while being take to PCO, even though, he, accused Deepak and juvenile Subir Kutty had gone to the PCO in a bus and PW3 had been told in the bus itself to utter these words. Though, PW3 claims to have heard juvenile Ravi saying these words to S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 68/77 69 the family of the victim Imran and later, accused Deepak extending threats to them, during his crossexamination, he admitted that both the accused (accused Deepak and Juvenile Subir Kutty) were talking very slowly on telephone and PW3 was not able to hear their conversation. Moreover, no document has been placed on record by the prosecution to show that a call had been made from a particular PCO to the house of the victim on 17.05.2002. As per case of the prosecution, specially testimony of PW28 SI Gyan Singh and PW15 ASI Mohd. Islam, the telephone line on which the ransom calls were being received, was under surveillance, yet no call details have been placed on record by the IO. It is surprising that as per PW28 and PW15, call records were persevered, but no call records were produced and this lacuna on the part of prosecution creates a doubt about the story of the prosecution. The PW3 Tarun had already been traced out by 19.5.2002, when his statement u/s 161 Cr.P.C was recorded by the IO, yet no efforts were made to trace out the particulars of PCO from which, the call had been made or to join the owner/employee of the said PCO in the investigations or to establish that such a visit had been made to the PCO by PW3 along with accused Deepak and juvenile Subir Kutty or to collect any document i.e. Telephone bill/receipt to show that a ransom call had been made in the manner stated by PW3. Even when, accused Deepal was arrested in 2006, PW3 was not joined in investigations to establish his identity as the person, who had forced PW3 to utter words "Mamu mein Imran bol Rana hoon, muje bacha lo." on telephone to the family of victim. In these circumstances, possibility of PW3 being a planted witness cannot ruled out S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 69/77 70 altogether.
69. Coming to issue of admissibility of disclosure statement of accused Deepak in the case of Madhu v. State of Kerala 2012 (1) JCC 620 JC while discussing scope and ambit of confessional statement made by the accused in police custody, before a police officer, it has been held that :
As an exception to the rule provided for under Sections 25 and 26 of the Evidence Act, Section 27 of the Act provides that a confessional statement made to a police officer of which the accused is in a police custody can be proved against him, if the same leads to the discovery of an unknown new fact. Relevance under the exception postulated under Section 27 of Indian Evidence Act is limited, as it relates distinctly to the fact thereby discovered". Rationale behind Section 27 of Indian Evidence Act is, that the facts in question would have remained unknown but for the of the same by the accused.
In the present case, no new unknown fact was discovered persuant to disclosure statement Ex. PW19/D made by accused Deepak @ Julie to make it admissible in evidence against the accused by relying upon provisions of Section 27 of the Act.
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 70/77 71
70. Ld. Addl. PP contended that the fact that the accused ran away from spot where ransom money was kept is a very strong circumstance against the innocence of the accused. This contention cannot be accepted because even assuming that accused was present at railway line on 17.05.2002, the mere fact that he ran away from spot cannot be taken to be a conclusion proof of his being kidnapper and murderer of the victim child. I am fortified in my view by judgment in Naval Kishore (supra), wherein, it has been held that : "........ It is a settled legal preposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment S.K. Yusuf vs. State of West Bengal 2011 (6) LRC 85 (SC). Therefore, mere abscondence of the appellant could not be taken as a circumstance which given rise to draw an adverse inferences against him. .."
Other circumstances which raise doubt about the prosecution case :
71. PW13 Dr. Komal SinghHead of the Department, Forensic Medicine, DDU Hospital, who examined the bundle of bones recovered by the PW25 SI Devender Singh from nala vide memo Ex. PW14/F, deposed that after S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 71/77 72 examination that the material was insufficient to conclude in their setup and he advised that further opinion from the Anatomist, Veteran Doctor and Serologist be sought. He proved his report as Ex. PW7/A (photocopy of which is proved as Ex. PW13/A). Apparently, no further opinion, from the Anatomist, Veteran Doctor or Serologist qua the bones was taken by the Investigating Officer.
72. Further PW12 Sh. S.P.R Parsad, Senior Technical Examiner, Laboratory of DNA Finger Printing Services, CDFD, Hyderabad, who examined the the exhibits i.e. sources of Ex. A and E i.e. the blood samples of Smt. Famida Kanam and Kayur Ahmed Khan opined that same were suitable for analysis, however, sources i.e. Ex. B, C and D i.e. the skull of deceased, bones of deceased and blood stained handkerchief did not yield DNA suitable for analysis, therefore, no opinion could be given. He proved his report Ex. PW12/A. Thus, the DNA analysis report is also of no aid to the prosecution in proving that the bones recovered from nala vide Ex. PW14/F were of victim Imran.
73. Further, it appears from record that report (now marked as mark P for easy reference) of Govt. Examiner qua the questioned documents i.e. Ransom note and the handwriting of accused Deepak also does not establish that the ransom notes Ex. PW15/B were written by accused Deepak.
74. Further, it also appears that alleged clothes of the deceased alleged to S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 72/77 73 have been recovered from Nala were sent to FSL for analysis and were examined by Dr. Swaroop Vedanand, Senior Scientific Office (Physics) and his report is now marked as Mark P1 for easy reference. This report only proves that said clothes were recovered from Nala and it does not connect accused Deepak with the offence in any manner.
75. Further, there is also discrepancy in the testimonies of PW4 Radhey Shyam and PW6 Rafaqat Ali regarding recovery of articles effected from nala at behest of accused Subir @ Kutty @ Ravi on 18.5.2002. PW4 Radhey Shyam could only depose having witnessed recovery of four/five pieces of bones, one pant with mud on it, one Tshirt of blue colour and a pair of chapple from drain in the year 2002, when he was called by the police. He could not state as to who had identified the clothes. Though, he identified his signatures on the memo Ex. PW6/A to Ex. PW6/C, he stated that his signatures were taken by the police thereupon at police Station. It was only during his crossexamination by learned Addl. PP that PW4 recalled that one white handkerchief having blood stained was recovered by the police at the instance of accused Subir Kutti @ Ravi and was seized vide memo Ex. PW4/B. He could also remember that clothes had been identified by PW Atiq Khan and that a photographer had taken photographs of the scene of the crime. Though, specific date of recovery i.e. 18.5.2002 was put to the witness, he stated that he did not remember the same.
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 73/77 74
76. During his crossexamination, PW4 reiterated that he had signed all the documents at the Police Station in the noon time. As regards the recovery itself, he stated that articles had been recovered at nala prior to his going to PS and that he had remained at nala for about 15 minutes. He also stated that the recovered articles were covered with nala mud and that the same was cleaned by the police officials. He could not state who else had signed on the documents in the police station. When questioned at length about the recovered articles, PW4 stated that the Tshirt was of blue colour having strip of white collar and its right sleeve was not there. It is a matter of record that the Tshirt Ex. P3 had its left sleeve amiss.
77. To the contrary, PW6 Rafaqat Ali improved upon his statement under Section 161 Cr.P.C to state that the child i.e. Juvenile Subir Kutty disclosed in his presence that he had killed a child, who was son of Gyour Khan. PW6 also stated that 10/12 bones, a shirt of blue colour, a pair of chapple with green straps, a bag and a white cloth were taken out by the divers from the nala. PW6 also could not remember, if one of the arm of the Tshirt was there or not, despite being put a leading question in this regard by ld. Addl. PP. He also stated that articles were not sealed in his presence. It is, however surprising that except for PW6 no other witness to recovery proceedings mentions about recovery of chappals and bag, from Nala, on 18.05.2012.
78. During his crossexamination, PW6 stated that he had reached nala S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 74/77 75 on Friday at about 2.30 pm and divers had come at around 4.35 pm. He could not state where he had signed memos Ex. PW6/A to Ex. PW6/C, but stated that no one else had signed these documents in his presence. The IO PW25 SI Devender, on the other hand states that they had reached Nala at about 11.00/11.15 am and remained there upto 1.30 pm.
79. It appears from the testimony of PW4 and PW6 that they were not present together at one time since, neither PW4 nor PW6 mentioned about presence of the other, in their testimony. This is coupled with the discrepancy of the time, when the recovery from nala is alleged to have been effected and also discrepancy in the description of the recovered articles i.e. Clothes and footwear of the deceased in testimony of PW4 and PW6 also creates doubt about the recovery proceedings.
80. Considering the discrepancies in the statements of PW4, PW6 and PW25, regarding recovery of bones, clothes, handkerchief etc. from nala on 18.5.2002, the testimony of DW3 becomes very material. The DW3 Sh. Om Parkash has produced record from Sanjay Gandhi Memorial Hospital in respect of patient Subiz Kutti @ Ravi @ Kucha, which shows that the said patient was taken to hospital for treatment on 17.5.2002 at 2.45 am by Ct. Ranbir no. 1269/W. The relevant entry Ex. DW3/A reflects that juvenile Subir Kutty was already in custody of the police much prior to the time, when he and accused S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 75/77 76 Deepak are stated to have gone to railway line to collect the ransom money on 17.05.2002 at about 6.20 pm. Though, ld. Addl. PP contends that reliance cannot be placed on Ex. DW3/A as DW3 is not the author of the said entry, the same cannot be brushed aside summarily as no adverse motive can be attributed to the hospital authorities or the concerned hospital staff for manipulating such entry. In all the recovery proceedings conducted on 18.05.02 in the present case do not inspire much confidence. The said proceedings do not help the prosecution in proving the case against the accused.
81. Another fact established from the testimony of PW6 is that nala in question is a public place, accessible to the public at large. Thus not much reliance can be placed on alleged recovery effected from Nalal on 18.05.02 at instance of Juvenile Subir Kutti to draw any adverse inferences against accused Deepak Sonkar @ Julie. I am supported in my view by judgment in case of Kanji vs. State of Rajasthan 1995 Crl.L.J 3860, wherein recovery of ornaments of deceased and weapon of offence was effected from an open place. In said case, it was held that recovery of said articles from open place accessible to all and their identification did not inspire confidence.
82. In the light of the above discussion, I am of the considered view that the circumstances relied upon by the prosecution are not sufficient to convict the accused. In the case of Jaharlal Das v. State of Orissa, 1991 (3) SCC 27, the S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 76/77 77 Supreme Court observed as under : ".......... the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions."
83. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused Deepak Sonkar @ Julie on record, beyond the reasonable doubts by linking the chain of evidence to prove the circumstances as detailed in para 3 of the judgement. Accordingly, I acquit accused Deepak Sonkar @ Julie of the charged offence, giving him the benefit of doubt.
The judgment in Suman Sood @ Kamaljeet Kaur (supra) relied by Ld. Addl. PP and judgment in D.K. Basu (supra) relied by learned defence counsel are not applicable to the facts of the present case.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 18.07.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 44/10 State vs. Deepak Sonkar @ Julie Page Nos. 77/77