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Delhi District Court

State vs Deen Dayal on 31 October, 2011

   IN THE COURT OF DR. SUDHIR KUMAR JAIN; ADDITIONAL 
         SESSIONS JUDGE­01 (OUTER), ROHINI,  DELHI


Sessions Case No:  44/2009
FIR No                 :  604/2004
Police Station      :  Mangolpuri
U/s                        :   363/364A/120­B/34 IPC   

State 
                                   Versus

    1. Deen Dayal,
       S/o Shri Mishan Lal,
       R/o P­7/20,  Mangolpuri,  Delhi.

    2. Subhash,
       S/o Shri Chander Pal,
       R/o L­1134, Mangolpuri,  Delhi.

    3. Virender,
       S/o Shri Hari Narain Sharma,
       R/o H.No.2482,   Gandhi Enclave, 
       Jain Nagar,   Karala,  Delhi.                                 ... Accused

Date of Institution :   29.1.2005
Date of Decision:       31.10.2011




State V Deen Dayal & Ors.
FIR No.  604/04
PS   Mangolpuri                                                                Page No.  1    of    37    
 JUDGMENT

1. Rajesh Singh ad Babita were residing at house bearing no.P­7/105, Mangolpuri in the year 2004. They were having two sons namely Akash and Aman. Rajesh Singh at that time was in the service of Jharkhand Police. Sanjeev @ Kalu was the paternal uncle (Chacha) of Akash. Akash on 2.10.2004 at about 11 am had gone to a park situated near to his house for playing. Sanjeev @ Kalu was also present at the park. Sanjeev @ Kalu asked Akash to take Monu (called as Prakash at that time) to the house of Ajay. Monu (called as Prakash at that time) made Akash to sit in a TSR being driven by Subhash. Thereafter Virender (called as Deepak at that time) and Monu (called as Prakash at that time) had taken Akash in a room and confined him in the said room.

2. Akash did not return back to home till 3 pm. Babita, mother of Akash made inquiries about Akash but Akash could not be traced. Babita at about 7.45 pm went to police station. SI Ram Singh recorded the statement of Babita. Rukka was prepared. FIR bearing no.604/04 u/s 363 IPC was registered. SI Ram Singh after registration of FIR was assigned with the investigation and visited the spot but Akash could not be traced.

State V Deen Dayal & Ors.

PS Mangolpuri Page No. 2 of 37

3. On 2.10.2004 at about 8.15 pm a telephonic call was received on the telephone bearing number 27910741 installed at the house bearing no.P7/104, Mangolpuri belonged to Parshuram which was attended by Dalip Kumar, relative of Rajesh Singh, father of Akash. The caller made ransom demand of Rs.6 lacs for the release of Akash. SI Ram Singh was informed. Telephone bearing no. 27910741 was put on surveillance. Dalip Singh and Ct. Pawan Kumar were deputed to attend the calls. On 3.10.2004 and 4.10.2004 various calls were made by the caller from different telephones which were attended by Dalip Singh and Ct. Pawan Kumar. Rs.6 lacs was demanded as ransom. The caller again made a telephonic call on 5.10.2004 from telephone bearing no. 25482522 and asked that ransom amount of Rs.6 lacs be sent at Kali Mata Mandir through Sanjeev @ Kalu. SI Ram Singh along with other police officials also reached at the said place but the caller did not come at Kali Mata Mandir. The caller on 6.10.2004 made various calls through mobile no.9811491708 on the telephone bearing no.33239487 of Sanjeev @ Kalu and asked to send the ransom amount through Sanjeev @ Kalu at given place but the caller did not turn up at said place.

State V Deen Dayal & Ors.

PS Mangolpuri Page No. 3 of 37

4. Rajesh Singh, father of the Akash also came to Delhi and could arranged Rs.1,98,000/­ to be given to the caller. The caller on 7.10.2004 at about 12.15 pm made another call from mobile no. 9811491708 to mobile bearing connection no.33139487 of Sanjeev @ Kalu which was attended by Dalip Singh. The caller asked Dalip Singh to send Sanjeev @ Kalu at Old Delhi Railway Station along with ransom amount on a motor cycle. The said information was given to SI Ram Singh and concerned SHO. SI Ram Singh collected Rs.1,98,000/­ from Rajesh Singh for delivering to the caller as ransom amount. SI Ram Singh along with concerned SHO Inspector K.G. Tyagi, SI R. Sriniwasan, SI Shiv Raj and other police officials proceeded to Old Delhi Railway Station. Sanjeev @ Kalu also proceeded to the said place on motor cycle bearing registration no.DL8SR 5037 owned by Ajay Kumar. The caller again asked Sanjeev @ Kalu to reach at Hans Cinema, Azadpur instead of Old Delhi Railway Station. The call was also intercepted on the parallel line of mobile of SI R. Srinivasan. The police party and Sanjeev @ Kalu at about 3.30 pm reached at Hans Cinema.

5. Virender came to Sanjeev @ Kalu at Hans Cinema and started to talk with Sanjeev @ Kalu. Sanjeev @ Kalu handed over the State V Deen Dayal & Ors.

PS Mangolpuri Page No. 4 of 37

ransom amount kept in a black bag. Virender was apprehended by the police party along with Rs.1,98,000/­ kept in a black bag. Virender was interrogated and made his disclosure statement. Virender disclosed about involvement of Sanjeev @ Kalu. Virender was arrested. Virender was found in possession of one mobile phone make Alcatel along with SIM Card of Hutch with connection bearing no.9811491708 which was stated to be used for making the ransom calls. Another SIM card of connection bearing no.981318700 was also recovered. Sanjeev @ Kalu was also apprehended and his disclosure statement was recorded.

6. SI Ram Singh called Rajesh Singh at Ganda Nala, Budh Vihar, Mangolpuri. SI Ram Singh and other police officials along with Virender and Sanjeev @ Kalu also reached at said place. Thereafter all of them went to Rajiv Nagar where Virender and Sanjeev @ Kalu pointed towards a room forming part of plot bearing no.149A situated in Khasra no.100/1 village Karala also known as Rajiv Nagar. Deen Dayal was found present outside the room. Deen Dayal was also interrogated and handed over keys of the room in which the Akash was stated to be confined. Akash was found in the custody of Monu in the room pointed out by Deen Dayal. Akash was recovered. State V Deen Dayal & Ors.

PS Mangolpuri Page No. 5 of 37

Deen Dayal and Monu were also arrested and their respective disclosure statements were recorded. The pointing out memos of the place of kidnapping were also prepared at the instance of Virender, Sanjeev @ Kalu, Deen Dayal and Monu. Voice sample of Virender was also collected for comparison with the voice of caller received and intercepted on the mobile of SI R. Sriniwasan. Subhash who was stated to be driving the TSR was also arrested. During investigation, his disclosure statement was also recorded. Statement u/s 164 Cr.P.C of Akash was also got recorded. The accused after completion of investigation were charge sheeted for the offences punishable u/s 363/364A/120B/34 IPC. The charge sheet was submitted before the court of concerned Metropolitan Magistrate. The accused were put to trial.

7. The accused were supplied with the copies of charge sheet along with annexed documents in compliance of Section 207 Cr.P.C. The case was committed to the court of Sessions vide committal order dated 20.1.2005 passed by the concerned Metropolitan Magistrate.

8. During the trial Sanjeev @ Kalu and Monu filed applications for sending them to Juvenile Justice Board for trial as they claimed to be State V Deen Dayal & Ors.

PS Mangolpuri Page No. 6 of 37

the juveniles at the time of commission of offence. The said applications were allowed vide order dated 26.5.2005. The accused Sanjeev @ Kalu and Monu were ordered to be sent to Juvenile Justice Board for making inquiry on their plea of juvenality. The Principal Magistrate, Juvenile Justice Board vide order dated 5.9.2005 held that the accused Sanjeev @ Kalu and Monu were juvenile for the purpose of Juvenile Justice Act on the date of crime. Accordingly vide order dated 13.9.2005 the accused Sanjeev @ Kalu and Monu were sent to Juvenile Justice Board to face trial.

9. The charge for the offences punishable u/s 120B IPC, 363/120B IPC, 364A/120B IPC and u/s 342/120B IPC was framed against the accused Deen Dayal, Virender and Subhash to which they pleaded not guilty and claimed trial

10. The prosecution examined HC Krishan Kumar as PW­1; Akash as PW­2; Babita as PW­3; Ct. Shri Om as PW­4; Vijay Kumar as PW­5; Parshu Ram as PW­6; Mukesh Kumar as PW­7; Ct. Baljit as PW­8; SI R. Sriniwasan as PW­9; Ajay Kumar as PW10; Shri Sanjay Aggarwal, ASJ, Rohini as PW­10; ASI Hari Singh as PW­11; Rajesh Singh as PW­12; Dilip Kumar Singh as PW­13; SI Shiv Raj as PW­14; Ct. Pawan Kumar as PW­15; SI Ram Singh as PW­16; and State V Deen Dayal & Ors.

PS Mangolpuri Page No. 7 of 37

Dr. C.P. Singh as PW­17.

PW­1 HC Krishan Kumar being the duty officer recorded the FIR bearing no.604/043 u/s 363 IPC and made endorsement on rukka. PW2 Akash is the kidnapped child. PW­3 Babita is the mother of child Akash and made complaint regarding the missing of PW­2 Akash. PW­4 Ct. Shri Om participated in the investigation at the time of arrest of accused Subhash and seizure of TSR bearing registration no.DL1RE 8554. PW­5 Vijay Kumar was the owner of the TSR bearing registration no. DL1RE 8554. PW­6 Parshu Ram was residing at house no.P­7/104 Mangolpuri on whose telephone, the caller has made telephonic calls which were attended by Dalip Singh and Ct. Pawan Kumar. PW­7 Mukesh Kumar was the owner of the property/plot bearing no. 149A falling in khasra no.100/16 village Karala and the said room was let out to the accused Virender on 30.9.2004. PW­8 Ct. Baljit deposited one parcel at CFSL, Chandigarh. PW­9 SI R. Sriniwasan and PW­14 SI Shiv Raj participated in the investigation on 7.10.2004 at the time of arrest of the accused and the recovery of child Akash. PW­10 Ajay Kumar was the owner of motor cycle bearing registration no.DL 8SR 5037. PW­10 Shri Sanjay Aggarwal, then Metropolitan Magistrate State V Deen Dayal & Ors.

PS Mangolpuri Page No. 8 of 37

recorded the statement u/s 164 Cr.P.C. of the Akash on 13.10.2004. PW­11 HC Hari Om being the MHC (M) was entrusted with the case property/exhibits collected during investigation. PW­12 Rajesh Singh is the father of the Akash. PW­13 Dilip Kumar Singh attended the calls of the caller along with Ct. Pawan Kumar on telephone installed in the house of Parshu Ram bearing no.P­7/104, Mangolpuri. PW­15 Ct. Pawan Kumar was entrusted with the duty to hear the conversation of the caller with Dilip Kumar Singh. PW­16 SI Ram Singh being the Investigating Officer conducted the investigation. PW­17 Dr. C.P. Singh, Assistant Director (Physics) examined the recorded conversation of the caller recorded on mobile of PW­9 SI R. Sriniwasan and the sample voice of the accused Virender.

11. The prosecution proved the copy of FIR bearing no.604/04 u/s 363 IPC as ExPW1/A; endorsement on rukka made by PW­1 HC Krishan Kumar as ExPW1/B; statement of PW­3 Babita recorded by PW­16 SI Ram Singh regarding the missing of child Akash as ExPW3/A; arrest and personal search memos of accused Subhash as ExPW4/A and ExPW4/B (ExPW16/E and ExPW16/F); seizure memo of TSR bearing no.DL1RE 8554 as ExPW4/C; pointing out State V Deen Dayal & Ors.

PS Mangolpuri Page No. 9 of 37

memo of place of occurrence prepared at the instance of accused Subhash as ExPW4/D; superdginama for the release of TSR bearing no.DL1RE 8554 executed by PW­5 Vijay Kumar as ExPW5/A; seizure memo of currency notes of Rs.1,98,000/­ given by PW­12 Rajesh Singh, father of child Akash to PW­16 SI Ram Singh as ExPW9/A; seizure memo of Rs.1,98,000/­ kept in a black bag recovered from the accused Virender as ExPW9/B; disclosure statement of the accused Virender as ExPW9/C; disclosure statement of accused Sanjeev @ Kalu as ExPW9/3; disclosure statement of the accused Deen Dayal as ExPW9/2; arrest memos of accused Virender and Deen Dayal as ExPW9/D and ExPW9/R and their personal search memos as ExPW9/E and ExPW9/S; seizure memo of SIM Card of connection no.9891318700 recorded from the accused Virender as ExPW9/G; rukka as ExPW16/A; seizure memo of cassette of voice sample of accused Virender recorded as ExPW16/B; seizure memo of voice of caller intercepted and recorded on the mobile of SI R. Sriniwasan as ExPW9/U; seizure memo of motor cycle bearing no.DL8SR 5037 as ExPW9/K; seizure memo of keys and locks of the room in which the child Akash was confined as ExPW9/O; mobile phone make Alcatel and Sim card State V Deen Dayal & Ors.

PS Mangolpuri Page No. 10 of 37

bearing no.9811491708 used by the accused Virender for making the ransom calls as ExPW9/F; seizure memo of clothes stated to be worn by child Akash at the time of recovery as ExPW9/W; site plan of the place from where the child Akash was kidnapped as ExPW19/C; site plan of the room from where the child Akash was recovered as ExPW16/D; pointing out memos of the place where the child Akash was confined prepared at the instance of accused Virender and Sanjeev @ Kalu as ExPW9/L and ExPW9/M; disclosure statement of accused Subhash as ExPW16/G; pointing out memo of the place from where the child Akash was kidnapped prepared at the instance of the accused Subhash as ExPW16/H; pointing out memos of the place from where the child Akash was kidnapped prepared at the instance of accused Virender, Subhash, Sanjeev @ Kalu and Monu as ExPW9/T1 to ExPW9/T4; identification memo of child Akash prepared at the instance of the accused Sanjeev @ Kalu as ExPW9/N; photocopy of the registration certificate of motor cycle DL 8SR 5037 as ExPW10/A; proceedings pertaining to the statement u/s 164 Cr.P.C. of the child Akash recorded by PW­10 Shri Sanjay Aggarwal, then Metropolitan Magistrate as ExPW10/A and ExPW10/B; relevant entries made in State V Deen Dayal & Ors.

PS Mangolpuri Page No. 11 of 37

Register no.19 as ExPW11/A and ExPW11/B; CFSL report prepared by PW­17 Dr. C.P. Singh as ExPW17/A. PWs also identified the photographs of the child Akash as mark PX; clothes stated to be worn by child Akash at the time of recovery as ExP8 and ExP9; two keys and two locks recovered at the instance of the accused Deen Dayal as ExP1 to ExP4; cassette containing recording of ransom calls handed over by PW­9 SI R. Sriniwasan to PW­16 SI Ram Singh as ExP10; SIM Card of connection bearing no.9891318700 as ExP5. The identify of TSR bearing registration no.DL1RE8554 was not disputed by the defence counsels. The prosecution evidence was closed vide order dated 28.3.2011.

12. The respective statements of the accused Virender, Deen Dayal and Subhash were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and denied the incriminating evidence. The accused Deen Dayal stated that he was not present outside the place of recovery of child Akash and was present at the house along with his family; he was lifted from his house by two constables namely Khem Chand and Manoj in presence of his family members and neighbours under the pretext of investigation as Sanjeev @ Kalu who was his friend was arrested by the police. The accused Virender stated that State V Deen Dayal & Ors.

PS Mangolpuri Page No. 12 of 37

he did not kidnap any child; mobile phone and SIM were planted on him; voice recorded in the cassette is not his voice; and nothing was recovered at his instance. The accused Subhash stated that he was falsely implicated in this case and was lifted by the police from his house. The accused Deen Dayal led defence evidence. The accused Virender and Subhash did not lead defence evidence. The accused Deen Dayal examined Lekhraj as DW1 and Chiranji Lal as DW2. The defence evidence was closed vide order dated 30.4.2011.

13. Shri R.A. Yadav, APP for the State, Shri H.K. Nahata, advocate for accused Deen Dayal, Ms. Sadhna Bhatia, advocate/amicus curie for accused Virender and Shri Ram Niwas, advocate for accused Subhash heard. Record perused.

14. The case of the prosecution is that the accused Deen Dayal, Virender, Subhash along with Monu and Sanjeev @ Kalu (facing trial before Juvenile Justice Board) on 2.10.2004 kidnapped PW­2 Akash out of the lawful guardianship of his parents i.e PW­3 Babita and PW­12 Rajesh Singh after hatching a conspiracy with each other and confined him in a room situated at Rajiv Nagar for the purpose of ransom. The prosecution to prove its case against the accused State V Deen Dayal & Ors.

PS Mangolpuri Page No. 13 of 37

Virender, Deen Dayal and Subhash, facing trial in this court examined 17 witnesses including child Akash, PW­16 SI Ram Singh who conducted the investigation.

15. PW­2 Akash on 2.10.2004 had gone to a park situated near to his house to play but did not return back to home. PW­3 Babita searched for PW­2 Akash but he could not be traced. PW­3 Babita went to the police station and made a statement ExPW3/A regarding the missing of PW­2 Akash. The prosecution to prove that on 2.10.2004 PW­2 Akash had gone to park examined PW­2 Akash and PW­3 Babita. The testimony of PW­2 Akash is very important to prove his kidnapping on 2.10.2004. PW­2 Akash was a child of tender age. The deposition of PW­2 Akash was recorded as he was able to understand the questions and to answer the questions properly and rationally. PW­2 Akash deposed that on 2.10.2004 he had gone to play in the park where Monu (called as Prakash) met him; the accused Sanjeev @ Kalu who was his paternal uncle was also present in the park; Sanjeev @ Kalu asked him to take Monu (called as Prakash) to the house of Ajay. As per the testimony of PW­2 Akash, he had gone with Monu (called as Prakash) towards the house of Ajay and was made to sit in a TSR which was being State V Deen Dayal & Ors.

PS Mangolpuri Page No. 14 of 37

driven by the accused Subhash. PW­2 Akash further deposed that the accused Virender (called as Deepak) was also present there. PW­2 Akash also deposed that the accused Virender (called as Deepak) and Monu (called as Prakash) confined him in a room and also demanded Rs.6 lacs from his parents. PW­2 Akash also deposed that the accused Deen Dayal also used to visit in the room where he was confined by the accused Virender and Monu. PW­3 Babita deposed that on 2.10.2004 his sons Aman and PW­2 Akash had gone to play in a park situated near the house at about 11 am and at about 3 pm her elder son Aman returned back but PW­2 Akash did not return back. As per the testimony of PW­3 Babita, she waited for the return of PW­2 Akash but when PW­2 Akash did not return back then she searched for him in the neighbourhood but PW­2 Akash could not be traced. Thereafter PW­3 Babita had gone to police station and vide statement ExPW3/A made the report regarding the missing of PW­2 Akash. The respective testimonies of PW­2 Akash and PW­3 Babita proved following facts :­­ i. PW­3 Babita is the mother of two sons namely Aman and PW­2 Akash.

ii. PW­2 Akash on 2.10.2004 at about 11 am had gone to play in a park situated near his house but did not return back to the house.

State V Deen Dayal & Ors.

PS Mangolpuri Page No. 15 of 37

iii. In the park Sanjeev @ Kalu who is the paternal uncle (chacha) of PW­2 Akash told him to take Monu (called as Prakash) to the house of Ajay and thereafter PW­2 Akash was made to sit in a TSR being driven by the accused Subhash.

iv. PW­2 Akash was taken in a room by the accused Virender (being called as Deepak) and Monu (being called as Prakash) where he was confined.

16. PW­2 Akash and PW­3 Babita were cross examined at length by defence counsels but there is nothing in their respective cross examination which can shake the credibility of their respective testimonies. The testimonies of PW­2 Akash and PW­3 Babita inspire the confidence and can be relied upon safely.

17. PW­6 Parshu Ram who was residing at house no.P­7/104, Mangolpuri received a call on his telephone bearing connection no. 27910741 and the caller asked him to call Virender Singh, one of the relative of PW­12 Rajesh Singh, father of PW­2 Akash. PW­13 Dilip Singh who accompanied Virender Singh attended the call and after attending the call informed PW­6 Parshu Ram that the caller was demanding ransom of Rs.6 lacs for the released of PW­2 Akash.

18. PW­3 Babita informed PW­16 SI Ram Singh that on 2.10.2004 a call was received regarding the kidnapping of PW­2 Akash. PW­16 State V Deen Dayal & Ors.

PS Mangolpuri Page No. 16 of 37

SI Ram Singh put the telephone bearing connection no.2791074 on surveillance. PW­13 Dilip Singh was requested to attend the call along with PW­15 Ct. Pawan Kumar. The caller has made the calls from different telephones on 3.10.2004, 4.10.2004 and 5.10.2004 which were attended by PW­13 Dilip Kumar Singh and PW­15 Ct. Pawan Kumar. The caller has demanded ransom of Rs.6 lacs for release of PW­2 Akash.

19. PW­12 Rajesh Singh, father of PW­2 Akash came back to Delhi. PW­12 Rajesh Singh deposed that after reaching Delhi on 6.10.2004 he could arrange Rs.1,98,000/­ to be delivered to the caller. The caller on 6.10.2004 made calls at about 9.30 am and 1.30 pm on mobile no.33139487 of Sanjeev @ Kalu from mobile no. 9811491708 which were attended by PW­13 Dalip Singh. PW­13 Dilip Singh deposed that he informed the caller that PW­12 Rajesh Singh could arrange Rs.198000/­ which can be given to him. The caller has agreed to receive said amount. PW­13 Dilip Singh further deposed that thereafter the caller asked him to send said amount through Sanjeev @ Kalu at Kali Mata Mandir, Rohini on a motor cycle bearing no.DL8SR 5037 ExPW10/1 belonged to PW­10 Ajay Kumar. As per the testimony of PW­15 Ct. Pawan Kumar, Sanjeev State V Deen Dayal & Ors.

PS Mangolpuri Page No. 17 of 37

@ Kalu was sent to Kali Mata Mandir along with money but he came back at about 5/5.30 pm as none came there to receive the money. The mobile of PW­9 SI R. Sriniwasan was put as parallel line to hear and record the conversation of the caller from mobile connection no.9811491708.

20. PW­2 Akash was recovered on 7.12.2004. The prosecution has led evidence with regard to what happened on 7.10.2004 leading to the recovery of PW­2 Akash. PW­15 Ct. Pawan Kumar deposed that on 7.10.2004 at about 9.30 am, a call was received from mobile no.9811491708 on the mobile no.33139487 of Sanjeev @ kalu whereby the caller has extended the threat to the family members of PW­2 Akash; the caller again made a call at 12.15 pm received by PW­13 Dilip Singh and the caller asked PW­13 Dilip Singh to send Sanjeev @ Kalu with Rs.1,98,000/­ to be delivered at the main gate of Old Delhi Railway Station. As per testimony of PW­15 Ct. Pawan Kumar, the caller also directed that Sanjeev @ Kalu should come on a motor cycle and must carry a mobile phone of Reliance company. PW­16 SI Ram Singh after being informed about call immediately passed this information to the concerned SHO. PW­16 SI Ram Singh, concerned SHO and other police officials came at house of State V Deen Dayal & Ors.

PS Mangolpuri Page No. 18 of 37

PW­12 Rajesh Singh and collected Rs.1,98,000/­ from him vide memo ExPW9/A. A police party was also prepared and proceeded towards Old Delhi Railway Station. Sanjeev @ Kalu also accompanied the police party on motor cycle bearing no.DL8SL5037 ExP10. PW­16 SI Ram Singh deposed that a call was intercepted by PW­9 SI R. Sriniwasan whereby the caller asked Sanjeev @ Kalu to reach at Hans Cinema instead of Old Delhi Railway Station. As per the testimony of PW­16 SI Ram Singh, at about 3/3.30 pm they reached at Hans Cineme, Azadpur where Sanjeev @ Kalu handed over the ransom amount of Rs.1,98,000/­ to the accused Virender. The prosecution proved the following facts :­­ i. on 7.10.2004, the caller has asked PW­13 Dilip Singh to deliver Rs.1,98,000/­ to him at Old Delhi Railway Station through Sanjeev @ Kalu.

ii. PW­16 SI Ram Singh thereafter prepared a police party and proceeded to Old Delhi Railway Station with Rs.1,98,000/­ collected vide seizure memo ExPW9/A. Another call was received at the mobile of Sanjeev @ Kalu which was intercepted on the mobile of PW­9 SI R. Sriniwasan for delivering the money to the caller at Hans Cinema, Lal Bagh, Azadpur.

iii. The police party including PW­16 SI Ram Singh, PW­9 SI R. Sriniwasan and other police officials and Sanjeev @ kalu at about 3/3.30 pm reached at State V Deen Dayal & Ors.

PS Mangolpuri Page No. 19 of 37

Hans Cinema, Lal Bagh, Azadpur where the Sanjeev @ Kalu handed over Rs.1,98,000/­ to the accused Virender.

21. PW­16 SI Ram Singh deposed that the accused Virender was apprehended along with currency notes of Rs.1,98,000/­ kept in a black bag and were handed over to the accused Virender by Sanjeev @ Kalu. The said currency notes were seized vide seizure memo ExPW9/B. The accused Virender was interrogated and made disclosure statement ExPW9/C. PW­16 SI Ram Singh deposed that on the basis of disclosure statement of the accused Virender, Sanjeev @ Kalu was also apprehended and interrogated who made disclosure statement ExPW9/3. As per the testimony of PW­16 SI Ram Singh, PW­12 Rajesh Singh was also called and the accused Virender and Sanjeev @ kalu led the police party towards a room forming part of plot no.149A. PW­16 SI Ram Singh further deposed that accused Deen Dayal was found present outside the room who was apprehened on the pointing out of the accused Virender and Sanjeev @ Kalu. The accused Deen Dayal was interrogated and made disclosure statement ExPW9/2. PW­16 SI Ram Singh deposed that accused Deen Dayal pointed towards the room and handed over the keys of the room in which PW­2 Akash was State V Deen Dayal & Ors.

PS Mangolpuri Page No. 20 of 37

confined. PW­2 Akash was recovered from said room.

22. APP argued that the accused along with Sanjeev @ Kalu and Monu conspired together to kidnap PW­2 Akash for ransom and after kidnapping PW­2 Akash on 2.10.2004, they confined PW­2 in a room which was under the tenancy of the accused Virender. The defence counsels argued that there is no evidence to prove that there was an agreement between the accused and Sanjeev @ Kalu and Monu relating to illegal act of kidnapping PW­2 Akash and was done by illegal means.

23. The ingredients of the criminal conspiracy are :

i. an agreement between two or more persons;

ii. an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. Condition precedent for holding a accused to be guilty of criminal conspiracy the prosecution should establish meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. A conspiracy is hatched in secrecy and it is difficult to obtain direct evidence to establish conspiracy. The manner and circumstances in which the offences is committed and the participation of the accused are relevant. The State V Deen Dayal & Ors.

PS Mangolpuri Page No. 21 of 37

conspiracy between the accused and Sanjeev @ Kalu and Monu has to be appreciated in the manner in which each of them has participated and agreed to hatch and execute the conspiracy.

24. As per the prosecution the only incriminating evidence against the accused Subhash is that the accused Subhash was driving a TSR in which the PW­2 Akash was kidnapped on 2.10.2004 from the park and later on confined in a room. PW­2 Akash deposed that the accused Monu (called as Prakash) made him to sit in a TSR which was being driven by the accused Subhash. PW­16 SI Ram Singh during the investigation seized the TSR bearing no.DL1RE8554 Ex5/A owned by PW­5 Vijay Kumar. PW­5 Vijay Kumar deposed that he owned a TSR bearing no.DL 1RE 8554 and he never gave said TSR to anyone. PW­5 Vijay Kumar as such did not support the case of the prosecution to prove that TSR bearing no.DL1RE8554 Ex5/A was given by PW­5 Vijay Kumar to the accused Subhash in which PW­2 Akash was kidnapped. PW­5 Vijay Kumar was cross examined by the APP. PW­5 Vijay Kumar denied the suggestion that in the year 2004 he had given a TSR bearing no.DL1RE8554 to the accused Subash on hire basis. PW­5 Vijay Kumar deposed that he did not know the accused Subhash. Another incriminating State V Deen Dayal & Ors.

PS Mangolpuri Page No. 22 of 37

evidence against the accused Subhash is that the pointing out memo ExPW4/C depicting the place from where PW­2 Akash was kidnapped was prepared at the instance of the accused Subhash. The incriminating evidences against the accused Subhash are that he was driving a TSR in which PW­2 Akash was kidnapped on 2.10.2004 from a park and the pointing out memo ExPW4/C was prepared at his instance. The said evidences are not sufficient to prove that the accused Subhash has conspired with remaining accused or any of the accused to kidnap PW­2 Akash on 2.10.2004 and he was actually a party in the kidnapping of PW­2 Akash.

25. The accused Virender appears to be the active participant in the entire episode of the kidnapping of PW­2 Akash. PW­2 Akash deposed about the presence of the accused Virender (called as Deepak) in the park at the time when PW­2 Akash was taken away in TSR bearing no.DL1RE8554 on 2.10.2004. The mobile phone of PW­9 SI R.Srinivasan was also put on parallel line with mobile phone of Sanjeev @ Kalu to intercept calls given by the caller on mobile phone of Sanjeev @ Kalu. The caller on 6.10.2004 made calls at mobile no.33139487 of the Sanjeev @ Kalu from mobile no. 9811491708 which were intercepted on the mobile phone of PW­9 SI State V Deen Dayal & Ors.

PS Mangolpuri Page No. 23 of 37

R. Sriniwasan. PW­9 SI R. Sriniwasan deposed that on 6.10.2004 3­4 ransom calls were intercepted on his mobile phone. PW­9 SI R. Sriniwasan subsequently also intercepted calls of the caller on his mobile made to the mobile of Sanjeev @ Kalu. PW­9 SI R. Sriniwasan handed over the cassette in which ransom call intercepted and recorded to PW­16 SI Ram Singh which was seized vide seizure memo ExPW9/U. PW­16 SI Ram Singh also deposed that the voice sample of the accused Virender was recorded and voice recorded cassette was seized vide seizure memo ExPW16/B. During the investigation, the voice sample recording of the accused Virender and the conversation intercepted and recorded on the mobile of PW­9 SI R. Sriniwasan were sent to CFSL, Chandigarh. PW­17 Dr. C.P. Singh, Junior Scientist Officer (Physics), CFSL, Chandigarh examined both exhibits. PW­17 Dr. C.P. Singh examined the auditory and subsequent acoustic analysis of speech samples by using Computerized Speech Lab (CSL) which revealed that the voice exhibits of speakers Ex.Q were similar to the voice of speaker mark Ex.S in respect of their acoustic cues and other linguistic and phonetic features. PW­17 Dr. C.P. Singh opined that the voice exhibits of speakers marked Ex.Q and Ex.S were the State V Deen Dayal & Ors.

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voices of same persons i.e the accused Virender with high probability. PW­17 Dr. C.P. Singh also proved the report ExPW17/A. The prosecution as such has proved that the ransom calls made on 6.10.2004 and 7.10.2004 and intercepted and recorded on the mobile phone of PW­9 SI R. Sriniwasan were made by the accused Virender. It proved that PW­2 Akash was kidnapped for ransom and ransom demands were also communicated to parents of PW­2 Akash.

26. The prosecution also proved other incriminating evidences against the accused Virender. PW­16 SI Ram Singh deposed that on 7.10.2004 he was informed by PW­15 Ct. Pawan Kumar and PW­13 Dilip Kumar that the caller has directed to send Sanjeev @ Kalu along with ransom amount at Old Delhi Railway Station. PW­16 SI Ram Singh collected Rs.1,98,000/­ from PW­12 Rajesh Singh vide memo ExPW9/A. Thereafter the police party was proceeded towards Old Delhi Railway Station and Sanjeev @ Kalu was also asked to proceed to the said place on motor cycle bearing no.DL8SR5037 owned by PW­10 Ajay Kumar. PW­16 SI Ram Singh further deposed that on the way another call was intercepted by the PW­9 SI R. Sriniwasan on his mobile and the caller asked Sanjeev State V Deen Dayal & Ors.

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@ kalu to reach at Hans Cinema instead of Old Delhi Railway Station. PW­16 SI Ram Singh further deposed that thereafter they reached at Hans Cinema, Lal Bagh, Azadpur where Sanjeev @ Kalu handed over ransom amount of Rs.1,98,000/­ to the accused Virender. The accused Virender was apprehended by the police party headed by PW­16 SI Ram Singh. The prosecution also proved that the said currency notes of Rs.1,98,000/­ were seized from the accused Virender after being handed over to him by Sanjeev @ kalu vide seizure memo ExPW9/B.

27. The ransom calls were made by the caller by using mobile connection no.9811491708. The accused Virender was also found in possession of mobile phone make Alcatel along with SIM card of Hutch with connection 9811491708 ExP6 and ExP7 which were seized vide seizure memo ExxPW9/F. It proved that the accused Virender made ransom calls by using mobile connection no. 9811491708.

28. As per the prosecution, on the disclosure of the accused Virender, Sanjeev @ Kalu was also apprehended. The accused Virender and Sanjeev @ Kalu led the police party to Rajiv Nagar where the accused Virender and Sanjeev @ kalu pointed towards a State V Deen Dayal & Ors.

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room forming part of plot no.149A situated in khasra no.100/16, Village Karala also known as Rajiv Nagar. The prosecution examined PW­7 Mukesh Kumar who was owner of the said property. PW­7 Mukesh Kumar deposed that he was owner of the said property and constructed one room over the plot surrounded by boundary wall which he let out to the accused Virender on 30.9.2004. PW­7 Mukesh Kumar also identified the accused Virender as the person to whom he let out the room on 30.9.2004. The testimony of PW­7 Mukesh Kumar proved that the room from which the PW­2 Akash was recovered was under the tenancy of the accused Virender let out by PW­7 Mukesh Kumar.

29. The prosecution, as such, has proved the following incriminating evidences against the accused Virender :­­ i. On 2.10.2004 the day on which the PW­2 Akash was kidnapped from the park, the accused Virender was present over there and at that time he was being called as Deepak.

ii. The accused Virender has made ransom calls particularly on 6.10.2004 and 7.10.2004 and the said calls were intercepted and recovered on the mobile of PW­9 SI R. Sriniwasan. This fact was also proved by PW­17 Dr. C.P. Singh.

iii. Sanjeev @ Kalu delivered Rs.1,98,000/­ to the accused Virender on 7.10.2004 at Hans Cinema, State V Deen Dayal & Ors.

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Azadpur.

iv. When the accused Virender was apprehended, Rs.

1,98,000/­ kept in a black bag were recovered from him and seized vide seizure memo ExPW9/B. v. The accused Virender was found in possession of one mobile phone make Alcatel along with SIM card of Hutch with connection no.9811491708 ExP6 and ExP7 and said SIM Card was used for making ransom calls on 6.10.2004 and 7.10.2004. vi. The accused Virender has led the police party headed by PW­16 SI Ram Singh to Rajiv Nagar from where PW2 Akash was recovered from one room forming part of plot no.149A situated in khasra no.100/16 village Karala and said room was under the tenancy of the accused Virender. vii. The pointing out memo ExPW9/T1 of the place of kidnapping of PW­2 Akash was also prepared at the instance of accused Virender.

30. The quality and quantity of evidence led by the prosecution to prove above facts is inspiring confidence and can be safely relied upon.

31. As per the prosecution, the main incriminating evidence against the accused Deen Dayal is that when the accused Virender and Sanjeev @ Kalu led the police party to the room forming part of plot no.149A situated in khasra no.100/16 village Karala also known as Rajiv Nagar at that time the accused Deen Dayal was found present State V Deen Dayal & Ors.

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outside the said room. The accused Deen Dayal was also arrested and made disclosure statement ExPW9/2. As per the testimony of PW­16 SI Ram Singh the accused Deen Dayal handed over two keys of the room in which PW­2 Akash was confined and when the room was opened then PW­2 Akash was found in the custody of Monu. The keys ExP3 and ExP4 were seized vide seizure memo ExPW9/O along with two locks. PW­2 Akash also deposed that the accused Deen Dayal also used to visit in the room in which he was confined after kidnapping. The said evidences are not sufficient to prove that the accused Deen Dayal was a party in conspiracy hatched to kidnap PW­2 Akash or he has conspired with other co­ accused or any of the accused.

32. The prosecution could not proved beyond reasonable doubt that the accused Virender, Deen Dayal and Subhash have conspired with each other along with Sanjeev @ Kalu and Monu (facing trial before Juvenile Justice Board) to kidnap PW­2 Akash and there was unity of object or purpose. It is also not established that there was an agreement between the accused Virender, Deen Dayal and Subhash along with Sanjeev @ Kalu and Monu (facing trail before Juvenile Justice Board) to commit an illegal act by illegal means. The State V Deen Dayal & Ors.

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prosecution could prove its case only against the accused Virender for the offences punishable u/s 363/364A/342 IPC. The prosecution could not prove its case beyond reasonable doubt against the accused Deen Dayal and Subhash. The criminality of Sanjeev @ Kalu and Monu cannot be adjudicated as they are stated to be facing trial before Juvenile Justice Board.

33. In view of above discussion, the accused Virender is convicted for offences u/s 342/364A/363 IPC.

The accused Deen Dayal and Subhash are acquitted for the offences for which they are charged after giving benefit of doubt. The accused Deen Dayal and Subhash are in JC and be released forthwith, if not required in any other case. Announced in open court (Dr. Sudhir Kumar Jain) Dated 31.10.2011. ASJ­01, Outer, Rohini, Delhi. State V Deen Dayal & Ors.

PS Mangolpuri Page No. 30 of 37 IN THE COURT OF DR. SUDHIR KUMAR JAIN; ADDITIONAL SESSIONS JUDGE­01 (OUTER), ROHINI, DELHI Sessions Case No: 44/2009 FIR No : 604/2004 Police Station : Mangolpuri U/s : 363/364A/120­B/34 IPC State Versus Virender, S/o Shri Hari Narain Sharma, R/o H.No.2482, Gandhi Enclave, Jain Nagar, Karala, Delhi. ... Convict ORDER ON SENTENCE Shri R.A. Yadav, APP for the State and Ms. Sadhna Bhatia, Advocate/ Amicus Curie for the convict Virender heard on quantum of sentence. Record perused.

2. The convict Virender is stated to be aged about 28 years; the antecedents of the convict Virender are stated to be clear as he was not previously involved in other case nor any criminal case is pending against him; the convict Virender is stated to be belonged to lower strata of State V Deen Dayal & Ors.

PS Mangolpuri Page No. 31 of 37 society; the convict Virender is not a previous convict; the convict is stated to be in JC since 2004. Under these circumstances, the convict Virender and his counsel prayed for lenient view.

APP stated that the convict Virender has kidnapped PW­2 Akash aged below six years at the time of commission of offence from a park on 2.10.2004 for ransom and also made ransom calls for demanding money for the release of PW­2 Akash. The APP argued that considering the gravity of offence, the convit Virender deserves no leniency.

3. The nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts for awarding sentence. It is the duty of the court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.

4. In case State of Punjab V Prem Sagar and Ors., (2008) 7 SCC 550 it was observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing. It was further observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while State V Deen Dayal & Ors.

PS Mangolpuri Page No. 32 of 37 doing so nature of offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also relevant.

5. India is a globlisation success but cannot look after its children. As per the study, on an average over 40,000 children in India are reported missing every year out of which 11,000 children remained untraced. Over the last few decades, the incidents of kidnapping particularly of minor children have increased. The children are kidnapped for variety of reasons such as domestic labour, marriage, begging and prostitution etc. There is need to understand the magnitude of kidnapping of children for variety of reasons. Even in some cases, the children have been killed when the parents are not able to pay ransom amount. The poor prosecution of offenders in India has put India in Tier 2 in the Trafficking in Persons Report of 2005 released by the US State Department, Office of Monitor and Combat Trafficking in Persons on 3 June, 2005. It is the duty of every person connect with the administration of justice to enforce the law in respect of the children kidnapping when the case is brought before the court for prosecution in accordance with law. State V Deen Dayal & Ors.

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6. In the instant case, the convict Virender kidnapped the PW­2 Akash from a park on 2.10.2004. PW­2 Akash was confined in a room . The ransom of Rs.6,00,000/­ was demanded from the parents of PW­2 Akash for his release. PW­12 Rajesh Kumar, father of PW­2 Akash could only arranged Rs.1,98,000/­ as he was a constable in Jharkhand Police. The kidnapping of PW­2 Akash must have put lot of mental trauma on the family members of PW­2 Akash. PW­2 Akash was one of the fortunate child who could be released from the cruel clutches of the kidnappers by the police and could be re­united with his family. PW­2 Akash would face this trauma throughout his life. In these circumstances, the convict Virender does not deserve any leniency from this court.

7. After considering all facts, the convict Virender is sentenced to undergo RI for one year along with fine of Rs.500/­ in default 15 days SI for offence u/s 342 IPC; Life Imprisonment along with fine of Rs.10,000/­ in deafult six months SI for offence u/s 364A IPC; and RI for five years along with fine of Rs.5000/­ in default three months SI for offence u/s 363 IPC. The benefit of Section 428 IPC be given to the convict. All the sentences shall run concurrently. Case property, if any, confiscated to the State. A copy of this judgment along with order on sentence be supplied to the convict free of cost. Committal warrant be issued. File be State V Deen Dayal & Ors.

PS Mangolpuri Page No. 34 of 37 consigned to the record room.

Announced in open court (Dr.Sudhir Kumar Jain) on 31.10.2011 ASJ­01 (Outer) Rohini, Delhi. State V Deen Dayal & Ors.

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State V Deen Dayal & Ors.

PS Mangolpuri 31.10.2011 Present : Shri R.A. Yadav, APP for the State.

Accused Deen Dayal, Virender and Subhash in JC. Ms. Sadhna Bhatia, Amicus Curie for accused Virender. Shri R.K. Gautam, advocate for accused Subhash.

Vide separate judgment the accused Virender is convicted for offence u/s 342/364A/363 IPC. The accused Deen Dayal and Subhash are acquitted for the offences for which they are charged after giving benefit of doubt.

Arguments heard on sentence.

Vide separate order on sentence, convict Virender is sentenced to undergo RI for one year along with fine of Rs.500/­ in default 15 days SI for offence u/s 342 IPC; Life Imprisonment along with fine of Rs.10,000/­ in deafult six months SI for offence u/s 364A IPC; and RI for five years along with fine of Rs.5000/­ in default three months SI for offence u/s 363 IPC. The benefit of Section 428 IPC be given to the convict. All the sentences shall run concurrently. Case property, if any, confiscated to the State V Deen Dayal & Ors.

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State. A copy of this ­2­ judgment along with order on sentence be supplied to the convict free of cost. Committal warrant be issued. Accused Deen Dayal and Subhash are in JC and be released forthwith, if not required in any other case. Fine not paid. The original documents, if any, on record be returned back and cancellation of endorsement.

The fees of Amicus curie is fixed at Rs.7500/­. File be consigned to the record room.

(Dr. Sudhir Kumar Jain) ASJ­01, Outer, Rohini, Delhi.

State V Deen Dayal & Ors.

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