Delhi District Court
State vs Jitender @ Chorba & Anr. Page 1 Of 19 on 25 February, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS): NORTH DISTRICT
ROHINI COURTS: DELHI
SC No.74/2013/2009
FIR No.284/09
PS Samai Pur Badli
U/S 363/367/369/34 IPC
State
Vs.
1. Jitender @ Chorba,
S/o Ram Sewak Ram,
R/o Mamu ki Jhuggi,
J.J. Camp, Suraj Park,
Badli, Delhi.
2. Sumitra,
W/o Ram Niwas,
R/o H.No.B878,
J.J. Camp, Suraj Park,
Badli, Delhi.
Date of Institution:26.02.2010
Date of conclusion of Arguments:24.02.2014
Date of pronouncement of Judgment: 25.02.2014
Appearance: Mr. Ashok Kumar, APP for the State.
Mr. Munesh Chauhan, Counsel for accused
Jitender @ Chorba.
Mr. Anil Kumar Singh, Counsel for accused
Sumitra.
State Vs.Jitender @ Chorba & Anr. page 1 of 19
JUDGMENT
1. Both accused have been forwarded by the police to face trial u/s 363/367/369/34 IPC.
2. FIR was registered on the statement of one Ram Mahesh to the effect that his son Anand Mohan @ Tau of four years, 2½ ft. height, round face, medium built, wearing half sleeves red Tshirt and blue half jeans pant and slippers, was playing outside his jhuggi No.B878, Suraj Park, Badli at 11.00 A.M. and was not traceable. The father expressed apprehension that his son had been kidnapped. Case FIR was registered and investigation was assigned to SI Satish Kumar. During investigation, IO came to know that kidnapped boy was last seen in the company of her aunt(chachi) accused Sumitra and that custody of the boy was later on handed over to accused Jitender @ Chorba by Sumitra.
3. Charge u/s 363/367/34 IPC was framed against both accused on 12.04.2010 to which they claimed trial.
4. In order to establish the charge, prosecution examined thirteen witnesses. The accused examined Mr. Sant Kumar Dubey as DW1 in defence.
5. PW2 Ram Mahesh and PW7 Rams Kali are the parents of kidnapped boy Anand Mohan. PW2 deposed that he was running a grocery shop at jhuggi No.B878, Suraj Park, J.J. Camp, Badli, Delhi. His son of five years was playing in the street in front State Vs.Jitender @ Chorba & Anr. page 2 of 19 of his jhuggi on 17.10.2009 at 11.00 A.M. It was Diwali that day. After some time, his son went missing and so, he made statement Ex.PW2/A to the police. He further deposed that his elder brother Ram Niwas was residing in adjacent house with accused Sumitra as husband and wife. The first wife and children of Ram Niwas were residing in Bihar. Sumitra had also left her first husband and children. Said Sumitra used to threaten him that she would kidnap his son in order to grab his agricultural land in Bihar and other property in Delhi. She was of the view that after the kidnapping of Anand Mohan, there would be no legal heir to PW2 and hence, his entire property shall go to her sons. On 20.10.2009, there was quarrel between Sumitra and Ram Niwas and he overheard them talking about Anand Mohan. On repeated asking, accused Sumitra disclosed that she had kidnapped the child and handed over to accused Jitender @ Chorba who had left the boy near Bawana canal. PW2 further deposed that on that very day, he came to know that the public had apprehended accused Jitender @ Chorba near Bawana canal and so, he went there and recovered his child who was kept there by a Muslim lady in the jhuggies. PW2 further stated on oath that his son Anand Mohan told him that accused Sumitra had kidnapped him and hand handed over to Jitender who took him to Bawana canal. Both accused were arrested in the presence of PW2 vide arrest memos Ex.PW2/B and Ex.PW2/C and personal search memos Ex.PW2/D and Ex.PW2/E State Vs.Jitender @ Chorba & Anr. page 3 of 19 respectively. Their disclosure statements Ex.PW2/F and Ex.PW2/G were also recorded.
PW7 Smt. Ram Kali deposed that she has five daughters and only one son, namely, Anand Mohan. Her husband has agricultural land in Bihar and other properties in Bihar. Ram Niwas is her brotherinlaw(jeth) who was residing in the same colony. His first wife and five children were residing in Bihar. She further deposed that Ram Niwas was residing with Sumitra as husband and wife for last 1012 years. Sumitra had five children from her first husband but all were left in lurch. She further deposed that on the day of Diwali, her son Anand Mohan was kidnapped by accused Jitender at the instance of Sumitra as she had bad eye on her husband's property. Earlier also, Sumitra used to threaten to kidnap her son so that property of her husband may devolve upon her sons.
PW1 HC Chander Mohan registered FIR Ex.PW1/A on 18.10.2009 at 11.55 P.M. on receipt of rukka brought by Ct. Naveen sent by SI Satish Kumar and made endorsement Ex.PW1/B on the rukka and handed over copy of FIR and original rukka to Ct. Naveen.
PW10 HC Chand Singh was posted as HC in PS Narela on 19.10.2009. DD No.50 Ex.PW10/A regarding an abandoned child was entrusted to him for inquiry. In pursuance, he reached at E618, J.J. Colony, Bawana where he found crowd encircling a 34 State Vs.Jitender @ Chorba & Anr. page 4 of 19 years old boy who was in the custody of a lady Sakina who was running an NGO. He came to know at the spot that announcements regarding the said child were made in the colony but nobody was coming forward to claim the custody. PW10 further deposed that he received a phone call from Sakina on 20.10.2009 that father of the child along with some persons had come to take back the child and so, he reached there. Sakina told him that initially accused Jitender had come to her to take custody of the child but was caught by her, and thereafter, child's father had come to her. PW10 informed PS S.P. Badli where the missing report of the child was already in existence. SI Satish Kumar PW13 along with staff reached there and child was handed over to him and PW10 returned to PS and registered DD No.51B Ex.PW10/B. PW3 lady HC Sunaina and PW9 Ct. Nehru Lal are witnesses to the arrest of both accused on 21.10.2009 vide arrest memos Ex.PW2/B and Ex.PW2/C and personal search memos Ex.PW2/D and Ex.PW2/E. Disclosure statements are Ex.PW2/F and Ex.PW2/G respectively.
PW13 SI Satish Kumar is the IO to whom DD No.14A(not on the file) dated 18.10.2009 was entrusted for inquiry. He deposed that in pursuance to the inquiry of that DD, he recorded statement Ex.PW2/A of Ram Mahesh, made rukka Ex.PW13/A and handed over the same to DO consequent to which FIR Ex.PW1/A was registered. During investigation, PW13 State Vs.Jitender @ Chorba & Anr. page 5 of 19 deposed, he came to know that kidnapped boy Anand Mohan was last seen in the company of accused Jitender and Sumitra and in this respect, he recorded the statements of Phekan Sharma and Smt. Mahmoon Khatoon. On 20.10.2009, he came to know that boy Anand Mohan had been recovered by his father from accused Jitender from J.J. Colony, Bawana. He further came to know that accused Jitender had left the boy at J.J. Colony, Bawana after kidnapping and when he went again there to bring him, he was caught by Sakina Begum and other locals. He further came to know that Sakina and others had intimated the father of the kidnapped boy who came there and took him from there and in this regard he recorded statements of witnesses Sakina Begum, Mohd. Suleman and Baby, all residents of J.J. Colony, Bawana. Next, he deposed about arrest proceedings etc. dated 21.10.2009 of both accused.
PW8 Phekan Sharma was running a small grocery shop at B461, Suraj Park, Delhi on 17.10.2009 when accused Sumitra came to his shop at 11.00 11.30 A.M. with boy Anand Mohan of threefour years for purchasing a toy pistol for him. He did not have the said pistol and so, accused Sumitra left his shop with the little boy.
PW12 Mehmoon Khatoon could not remember the date, month or year of the incident. She recollected that one day she had gone to purchase kerosene oil from the shop of one "Ganja"
State Vs.Jitender @ Chorba & Anr. page 6 of 19 situated at Shani Bazar Road, near Shiv Temple, Suraj Park, Badli, Delhi at 10.00 A.M. At that time, she saw kidnapped boy, namely, Tau with the person. Due to blurred eyesight, she could not identify the person even in the Court. She even could not identify the accused.
PW6 Baby is resident of J.J. Colony, Bawana. She deposed that it was the seventeenth day of the month of one year prior to last Deepawali festival when she saw a little boy of four years in the way at 11.00 - 11.30 A.M. The boy was standing on the bank of the canal and was weeping. A crowd gathered there but no one was claiming the child. President of the locality came there and asked her(PW6) to leave the child at the shop of Sakina Begum as her shop was located on the main road of the colony and was accessible to everybody. She handed over the custody of the child to Sakina Begum. She further deposed that announcement about the abandoned child was also made in the mosque at the instance of Pradhan of the locality.
PW11 Mohd. Suleman is the Branch Secretary of CPI and Pradhan of J.J. Colony, Bawana. He deposed that he was present at home on 17.10.2009 when Sakina came to him with a child and told that the child was found abandoned and that nobody was claiming him. So, he asked her to keep the child with her and made announcement from mosque about the child but none came forward. He further deposed that he called 100 number on State Vs.Jitender @ Chorba & Anr. page 7 of 19 19.10.2009 to tell about the child. Police came to the spot in pursuance and asked Sakina Begum to keep the child with her till morning. He came to know on 20.10.2009 at 11.00 - 12.00 noon, that a person had approached Sakina Begum to claim the custody of the child. He also went to the shop of Sakina Begum and asked the said person about his relations with the child and the person claimed himself to be the maternal uncle of the child. He told his name as Jitender @ Chorba. When he asked about the parents of the child from Jitender, he gave the telephone number of the father of the boy and so, he made call to his father who came to the shop of Sakina Begum with 23 persons and child was handed over to him after the intervention of the police. He further deposed that accused Jitender was not behaving normally and was upset.
PW5 Sakina Begum deposed that on the 17th day of the month of the Diwali, she was present at her betel stall when a lady Baby came to her with a male child of 45 years at 1.00 P.M. and told that the child was found weeping. She left the child with her saying that in case the mother of the child would come while searching him, he should be handed over to her. The child was wearing blue Tshirt, blue jeans nicker and had long hairs. She waited for claimant till the evening but none came. Thereafter, she informed the Pradhan Mohd. Salman of the locality who requested her to keep the child assuring that in case of any action by the State Vs.Jitender @ Chorba & Anr. page 8 of 19 police, he would manage the affair. She further deposed that Pradhan made announcement on the mosque loudspeaker about unclaimed child. The police was informed next day which came to her shop and asked her to keep the child in her custody till the whereabouts of his parents were known. Four days passed but parents of the child could not be traced. Child told her that his chacha had him dropped there. She further deposed that accused Jitender claiming himself to be the uncle of the child, came to her house and asked for custody which she refused saying that he should bring his parents first. She further deposed that accused took the child out of her house on the pretext of getting biscuit for him. She got suspicious and asked her husband and son to chase the accused and bring back the child. They brought the child back. After her insistence, accused Jitender rang up child's father but was talking in suspicious manner. She snatched phone from him and told the talker about the child. Child's father along with 1516 persons came to her house. She called the police and Pradhan of the locality and in the present of so many persons, the child was handed over to PW2.
6. PW4 is the kidnapped child Anand Mohan. He came for deposition in the company of his mother. At that time, he was of five years and was studying in nursery. He deposed that he was knowing accused Chorba. It was Chorba who had stolen him and took to village Bawana. He further deposed that he was knowing State Vs.Jitender @ Chorba & Anr. page 9 of 19 the other accused whom he called as chachi. He next explained that first he was stolen by chachi, and thereafter, accused Chorba had stolen and took him to Bawana. He does not know with whom he remained at Bawana but he was brought home back by the police.
7. DW1 Sant Kumar Dubey deposed that he was knowing Ram Mahesh, accused Sumitra and Jitender as they were his neighbourers. There are 1012 jhuggies between his and jhuggi of Ram Mahesh. There are 15 jhuggies between his and jhuggi of accused Jitender @ Chorba. He further deposed that Anand Mohan son of Ram Mahesh went missing one day prior to the Diwali of 2009 and all mohalla persons started searching him. He was told by Ram Mahesh on 20.10.2009 that he had heard the rumour that his son was in Bawana. He along with Ram Mahesh, Jitender @ Chorba and 4050 persons reached to a place near PP Bawana. From PP, they took the Incharge and reached to the house of a muslim lady which was in a narrow street. That lady used to sell betel at a khokha placed in the main wide street. Muslim lady brought the child on the khokha and handed over to Ram Niwas who is the elder brother of Ram Mahesh.
8. Both accused admitted that they were the neighbourers of Ram Mahesh. Accused Sumitra admitted u/s 313 Cr.PC that she was residing as wife with Ram Niwas who is the elder brother of Ram Mahesh. His first wife along with five children is residing in a State Vs.Jitender @ Chorba & Anr. page 10 of 19 village in Bihar. In answer to question No.5, she replied that PW4 Anand Mohan was emotionally attached to her and so, he insisted her on 17.10.2009 to purchase a toy pistol for him. At that time, his father PW2 Ram Mahesh was not at home as he had gone to bring gas cylinder. She took him to the shop of PW8 Phekan Sharma but there was no toy pistol at his shop and so, she left the child with her husband Ram Niwas and went upstairs. He further claimed that she had married with Ram Niwas. PW7 Ramkali was not happy with the marriage and so, she was pressurizing her to leave her brotherinlaw(jeth) but she was refusing saying that she had married him and also had children from him. She admitted that Anand Mohan PW4 went missing in the evening of 17.10.2009 and returned home after 34 days.
ARGUMENTS
9. Ld. APP argued that child Anand Mohan was last seen in the company of accused Sumitra as deposed by PW7 Phekan Sharma. Also, she confessed the crime before PW2 and PW3. Earlier, she used to threaten the couple that she would kidnap the child, and thereafter, his(PW2) property in Bihar and Delhi would devolve upon her sons. APP further contended that kidnapped child PW4 Anand Mohan has also deposed that he was kidnapped by Sumitra and later on, handed over to accused Jitender @ Chorba who took him to Bawana near a canal and deserted him.
State Vs.Jitender @ Chorba & Anr. page 11 of 19 He lastly contended that conduct of accused Jitender @ Chorba was highly doubtful when he went to PW5 Sakina Begum with whom the child was after desertion. He was hesitating while demanding custody from her and when he was asked to call the parents of the child on phone, he talked to them in suspicious manner.
On the other hand, Ld. Defence counsels argued that testimony of PW4 is not believable because he seems apparently a tutored witness and also he is giving contradictory evidence. Regarding circumstantial evidence, they contended that prosecution has failed to prove even a single circumstance against their clients.
PREVIOUS THREATS
10. PW2 Ram Mahesh and PW7 Ramkali are the parents of the kidnapped child Anand Mohan PW4. They deposed that before the incident of kidnapping, accused Sumitra used to threaten them that she would kidnap their sole son so that PW2's property may devolve upon her sons.
Both these witnesses admitted that they did not lodge complaint against accused Sumitra for those threats. The boy went missing on 17.10.2009 and the FIR Ex.PW1/A was registered on 18.10.2009 on the statement of PW2. Had there been any previous threats, he would have expressed suspicion on Sumitra in his State Vs.Jitender @ Chorba & Anr. page 12 of 19 statement Ex.PW2/A recorded on 18.10.2008 but her name is missing in entire statement. So, prosecution has failed to prove any previous threat.
EXTRA JUDICIAL CONFESSION
11. PW2 Ram Mahesh deposed that he heard a loud quarrel between Sumitra and her husband Ram Niwas on 20.10.2009 and due to that quarrel, he went to their house abutting to his house. They were found talking about their son Anand Mohan but on seeing them, they kept quiet. On repeated asking, accused Sumitra stated that she had kidnapped the child and handed him over to accused Jitender @ Chorba who left him near Bawana canal. PW7 Ramkali deposed nothing in examinationinchief about the extra judicial confession by accused Sumitra. In crossexamination, she deposed that she came to know of kidnapping of the child when she heard the mobile phone conversation between accused Sumitra and Jitender @ Chorba. It is pertinent to mention that in their statements u/s 161 Cr.PC, they had claimed that they had heard the loud quarrel between accused Sumitra and her husband Ram Niwas and on their repeated askings, accused Sumitra had disclosed about the kidnapping. So, stand of PW2 is that accused Sumitra made extra judicial confession to him in the presence of his wife but version of his wife is that she overheard the conversation between both accused and then came to know that State Vs.Jitender @ Chorba & Anr. page 13 of 19 her son was kidnapped by them. She claimed in the next line that at that time, her husband PW2 was not present at home as he was present at his shop about 23 jhuggies away from her house. PW2 and PW3 have two different stories about extra judicial confession. Had accused Sumitra made extra judicial confession to PW2 on 20.10.2009, she would have been arrested on the same day as the child was also recovered on that day but she was arrested on 21.10.2009.
CONDUCT OF ACCUSED JITENDER @ CHORBA
12. PW5 Smt. Sakina deposed that accused Jitender claiming himself to be the uncle of said child came to her house and asked to hand over the custody which she refused. Instead, she asked him to bring the parents of the child. On the pretext of getting biscuit for the child, accused Jitender took Anand Mohan with him on which she became suspicious and asked her husband and son to chase the child. They chased him and brought him and accused back. Then, she asked Jitender @ Chorba to call his brother i.e. father of the child. He was talking with child's father in suspicious manner and so, she snatched phone from him and asked his father to come to her house to take back the child. Thereafter, the father along with 1516 persons came to her and custody of the child was handed over to him. On this point, she is fully corroborated by PW11 Mohd. Suleman, who is the Pradhan of J.J. State Vs.Jitender @ Chorba & Anr. page 14 of 19 Colony, Bawana.
Claim of PW5 and PW11 is that when the child was handed over to PW2, local police was also present there. PW10 HC Chand Singh had visited Sakina's house on 20.10.2009 as he had received a phone call from her. In his presence, the child was handed over to PW2 and PW10 recorded DD No.51B dated 20.10.2009 timed at 5.50 P.M. Ex.PW10/B. In that DD, it is mentioned that when he reached the house of Sakina in pursuance to DD No.18A and 19A, he found a boy Anand Mohan sitting there. After some time, his father Ram Mahesh came there and the child was handed over to him. U/s 313 Cr.PC, accused Jitender @ Chorba stated that three days after the missing of Anand Mohan, he had gone to purchase sugarcane in the area of Bawana as there was Chhath Pooja after three days. A TSR driver told him there that a child was found in the area of J.J. Colony, Bawana and that nobody was claiming his custody. As a child was missing from his colony, he went to the house of Sakina but she did not allow him to take the child and asked to call his parents. Thereafter, he made call to Ram Mahesh. Statement u/s 313 of Cr.PC is evoking more confidence than the testimony of PW5 and PW11. Whenever an inhabitant of a colony comes to know about the missing child of his colony, he would definitely be attracted to that house where the child is supposed to be. If accused Jitender @ Chorba was of guilty mind, he would not have called PW2 Ram Mahesh. If his conduct State Vs.Jitender @ Chorba & Anr. page 15 of 19 was unnatural one, he would have been arrested by PW10 at the spot but he was arrested only on 21.10.2009.
LAST SEEN
13. PW8 Phekan Sharma is running a grocery shop at jhuggi No.B461, J.J. Colony, Suraj Park, Delhi. Ram Mahesh is resident of jhuggi No.B878. Jhuggi of accused Sumitra is abutting the jhuggi of PW2 where she is residing with his elder brother as wife. Accused Jitender @ Chorba is also residing in the nearby vicinity. PW8 further deposed that accused Sumitra came to his shop with child Anand Mohan on 17.10.2009 at 11.00 - 11.30 A.M. for purchasing a toy pistol for him. The toy was not available and so, Sumitra took the child back. Accused Sumitra admitted u/s 313 Cr.PC that she had taken PW4 Anand Mohan to the shop of Phekan Sharma on 17.10.2009 for purchasing a toy pistol for him. The toy pistol was not available with PW8, and hence, brought the child back and handed over to her husband Ram Niwas. She further claimed that she had gone to the shop on the insistence of child himself as he was emotionally attached with him and his father was not at home. Accused Jitender @ Chorba also admitted that custody of the child was handed over to him by accused Sumitra when toy pistol was not found in shop of PW8. Then, he took the child to some other shop where also the toy was not available. Thereafter, he was left on the shop of his father. So, State Vs.Jitender @ Chorba & Anr. page 16 of 19 testimony of PW8 had been admitted by both accused also. They have explained their positions saying that when the toy pistol was not found at the respective shops, the child was left at his house.
EVIDENCE OF PW4
14. PW4 Anand Mohan is the kidnapped child. At the time of his deposition, he was of so much tender age that oath was not administered to him. Some preliminary questions were put to him by the Court and it came to the conclusion that it was not ascertainable upto that stage whether child would be in a position to give rational answers to all questions and that is why, oath was not administered to him. He deposed that he was knowing accused Chorba and it was he who had stolen him and took to village Bawana. He further deposed that he was knowing the other accused Sumitra also as she was his Chachi. It was his chachi who had first stolen him, and thereafter, Chorba had took him to Bawana. When he was stolen, he was all alone in the street. He wept and somebody had come to save him but he could not recollect who that person was.
It is the case of the prosecution that PW4 was kidnapped when he was playing in front of his jhuggi. His family members are residing on the first floor and his father is running a grocery shop on the ground floor. These were very small jhuggies. It was festival season. Had PW4 kidnapped at that time, his father State Vs.Jitender @ Chorba & Anr. page 17 of 19 PW2 would also have seen the kidnapper. The people of jhuggies live like a close knit family. They very well know the child of each other. As per PW4, he was weeping at the time of kidnapping. If that was the state of affair, everybody would have come to his rescue. He is naming two persons as kidnappers. First, he named accused Jitender @ Chorba and then, named his chachi accused Sumitra. In crossexamination, he deposed that it was accused Jitender @ Chorba who had taken him to the house from where he was got recovered. Case of the prosecution is that he was left unattended near Bawana canal and when PW6 Smt. Baby saw him weeping, she took him to the house of PW5 Smt. Sakina Begum. As per testimony of DW1, the custody of the child was handed over by Sakina to Ram Niwas in the presence of 4050 persons. It is pertinent to mention that Ram Niwas is the husband of accused Sumitra. If Sumitra was one of the kidnappers, the custody of the child would not have been handed over to her husband. So, testimony of the child witness is not being relied upon.
CONCLUSION
15. Prosecution has failed to prove previous threats, extra judicial confession and unnatural conduct of accused Jitender. Testimony of child witness has already been disbelieved. Prosecution did not lead any evidence or place on record any document of the property of PW2. Motive stated in the charge State Vs.Jitender @ Chorba & Anr. page 18 of 19 sheet was that after the kidnap of PW4, the property of PW2 was to devolve upon the sons of accused Sumitra. So, prosecution has failed to prove motive also. PW2 and PW7 have admitted in so many words that accused Sumitra was residing with Ram Niwas as wife. The first wife of Ram Niwas and five children are residing in a village in Bihar. Accused Sumitra has also deserted her previous husband and children. PW7 was insisting Sumitra to leave her jeth but she was refusing saying that she had got children from his loins. False implication of Sumitra due to that grudge cannot be ruled out. So, both accused are acquitted of the charges levelled against them. Their bail bonds stand cancelled. Sureties discharged. Endorsement, if any, be cancelled.
Announced in the open Court On this 25th day of February, 2014.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North:Rohini Courts:Delhi
State Vs.Jitender @ Chorba & Anr. page 19 of 19