Delhi District Court
State vs . 1. Ritu Kapoor on 13 April, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI.
Sessions Case No. 1205/2010
Unique Case ID: 02404R0067562010
State Vs. 1. Ritu Kapoor
W/o Shammi Kapoor
R/o J-37, Hari Nagar,
Delhi.
(Convicted)
2. Mohd. Jiyaul
S/o Mohd. Ayub
R/o Jhugg No. 142,
Rewari Railway Line,
Mayapuri, Phase-II
Delhi.
(Convicted)
FIR No.: 375/2009
Under Section: 363/364/317/34 Indian Penal Code.
Police Station: Mukherjee Nagar
Date of committal to Sessions Court : 5.4.2010
Judgment reserved on: 22.2.2011/22.3.2011
Judgment pronounced on: 24.3.2011
JUDGMENT:
1. As per the allegations on 13.11.2009 at about 2:00 PM at Jhuggi No. 571, Nand Lal Jhuggi, Mukherjee Nagar, the accused Ritu Kapoor and Mohd. Jiyaul had kidnapped and abducted the child namely Atul aged about one and a half month out of the lawful guardianship of his mother Anita, in order that he may be murdered State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 1 or may be so disposed off as to be put in danger of being murdered and in the alternative left the child in a place with the intention of wholly abandoning the child.
CASE OF THE PROSECUTION/ BRIEF FACTS:
2. The case of the prosecution is that on 13.9.2009 DD No.16A was received at Police Station Mukherjee Nagar after which HC Naresh Pal and Ct. Samay Singh reached Jhuggi No.571, Nand Lal Jhuggi Camp, Mukherjee Nagar where they met a lady Anita who was searching for her a one and half month old male child but the child could not be found. Thereafter, the statement of Smt. Anita was recorded wherein she informed the police that on 13.11.2009 at about 2:00 pm she was present in her house when a lady aged about 50 years came to her house introducing herself as an Anganwadi Worker and inquired about the health of her child. She further told the police that at that time her 8 years old daughter namely Seema was also present there and after leaving Seema at the room, she had gone to some distance for drying the clothes. After about three to four minutes when she returned back to the room she could not find her son Atul aged about one and a half month on which she asked her daughter Seema about the child who told her that the Aunty who had come to their house had taken the child Atul with her. Smt. Anita also gave the description of that lady in her statement.
3. On the basis of the statement of Smt. Anita the present FIR was got registered and investigations were kicked off. During investigations the sketch of the accused was also prepared. On 18.12.2009 information was received from Police Station Hari State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 2 Nagar regarding the arrest of accused Ritu Kapoor and Mohd. Jiyaul in case bearing FIR No.319/09 under Section 363/302 Indian Penal Code wherein they have disclosed about their involvement in the present case. Thereafter both the accused Ritu Kapoor and Mohd. Jiyaul were arrested in this case and charge sheeted.
CHARGE:
4. Charges were settled against the accused persons under Section 363/364/317 read with Section 34 of Indian Penal Code.
To which both the accused pleaded not guilty and claimed trial.
EVIDENCE:
5. In order to prove the onus, the prosecution has examined as many as thirteen witnesses as under.
Public witnesses/ victim:
6. PW2 Anita is the complainant/ victim in the present case who has deposed that she is residing with her family comprising of her husband and three children. According to her, in the month of November, 2009, date she does not remember, one lady came to her jhuggi and asked her for a glass of water on which she gave her water but the lady continued to sit outside her jhuggi. She has deposed that her son aged one and a half months who was wearing a red sweater and another orange color half sleeves sweater was lying on the bed had wetted the bed having urinated, on which she removed his clothes and washed them and after some time went to the near by grill to dry them being winter season. The witness has State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 3 further deposed that her child who was sleeping was left on the bed with her other three daughters i.e. the eldest Seema being 8 years of age, the second Arti being 3 years and the third Pooja being one year at that time and when she was leaving, she saw the accused Ritu Kapoor sitting outside the jhuggi but when she (witness) came back, she saw that a large crowd had gathered outside her jhuggi. When she went inside, she saw her daughter Seema crying and saying that Babu (son of the witness aged one and a half months) had been taken away by the Aunty sitting outside. She has also deposed that when she asked her what had happened, her daughter told her that the aunty who was sitting with her (witness) took Babu after pushing her saying that she is taking the child to play with her. According to the witness Anita, she immediately called the PCR and the police officials who came to the spot first tried to search for the child and when the child was not found her statement was taken which statement is Ex.PW2/A bearing her thumb impressions at point A. The witness has further deposed that she also showed the police the place from where the child was lifted and the police prepared the site plan which is Ex.PW2/B at her instance. She has proved having given the details of the child to the police and also provided them a detailed description of the accused Ritu Kapoor on the basis of which the police also prepared the sketch of the accused Ritu Kapoor, which sketch is Ex.PW2/C. The witness has further deposed that after five to six days the accused Ritu Kapoor was apprehended by the police and she was brought to her house when she (witness) identified her as the same State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 4 lady who had come to her house and had asked her for water and had taken away her child. The witness has further deposed that, the accused was interrogated in her presence and she admitted that she had lifted the child and disclosed that she had taken the child because she had taken fancy to him and wanted to bring him up and after about ten days the child had been taken ill and she therefore left the child on the patri near her (witness) house. She has also testified that the accused Ritu Kapoor also pointed out the place from where she had lifted the child and also pointed out the place where she had abandoned him and the pointing out memos in this regard were prepared which are Ex.PW2/D & Ex.PW2/E respectively. The witness PW2 has further deposed that the accused Mohd. Jiya-ul is the auto rickshaw driver and the accused Ritu Kapoor some times claimed that he was her brother and some times claimed that he was her husband. According to Anita, she (witness) had seen him for the first time in the court (before the Ld. MM when they were remanded to judicial custody in another case).
According to the witness, the accused Ritu Kapoor and Mohd. Jiya-ul had also pointed out the hospital where they had taken her son when he was taken ill and got him treated. She has proved that the register of the hospital was checked and the photocopy of the same was seized by the investigating officer vide memo Ex.PW2/F bearing her thumb impressions at point A.
7. Leading questions were put to the witness by the Ld. Addl. PP for the State wherein she has admitted that her child was lifted on 13.11.2009 and that she had seen the accused Jiyah-ul for the first State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 5 time when she had gone to dry the clothes of her child on the grill when Jiya-ul was standing next to an auto and the accused Ritu Kapoor was going and talking to him which conversation she did not hear. According to her, whenever the accused Ritu Kapoor came in the street the accused Jiya-ul was with her and she along with the investigating officer and the accused Ritu Kapoor reached at the clinic of Dr. Jagjeet. The witness has deposed that the accused Ritu Kapoor had disclosed in her presence that she had taken away her (Anita's) son but she does not remember by which name the accused Ritu Kapoor called her son. PW2 Anita has deposed that the accused Ritu Kapoor had disclosed that her son fell ill and therefore, she took him to the clinic of Dr. Jagjeet after which the investigating officer checked the record of Dr. Jagjeet and found the entries in the register which was got photocopied which is Ex.PW5/A after which which it was seized vide memo Ex.PW2/F. She has also deposed that she had identified the accused Ritu Kapoor and his associate Jiya-ul also when they were produced before the hon'ble court as the person who took her son and the accused Jia-ul as the person who was standing near the auto and left the spot with the accused Ritu Kapoor in the same auto along with her child.
8. In her cross-examination the witness has denied the suggestion that the accused Ritu Kapoor had come to her house alone and has deposed that she had seen the accused Jiya-ul with her as he had also come near her jhuggi four-five times and talk to accused Ritu Kapoor. According to the witness, she did not tell the State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 6 police that one male had also come with the accused Ritu Kapoor and states that at that time she was perplexed on account of the loss of her child and also did not suspect Jia-ul as he was simply roaming around the area. She has also denied the suggestion that Jia-ul has nothing to do with the accused Ritu Kapoor and she had deliberately named him to the investigating officer. The witness has denied the suggestion that Jia-ul never came to the spot and deposed that Jia-ul was present and she had seen him. She also denied the suggestion that she had seen the Jia-ul first time in the court and has deposed that she first saw Jia-ul around her jhuggi on the date of the incident and thereafter in the court complex when he was produced before another court where she identified him as the same person who were seen around her jhuggi. (It has been observed by this court that the accused Jia-ul was produced before the court of Ld. MM in another case before his arrest in the present case where the witness has identified him). The witness has denied the suggestion that she had identified Jia-ul on the pointing out and instance of the police officers or that accused Ritu Kapoor did not come to her jhuggi on the date of the incident or that accused Ritu Kapoor did not ask for water or that accused Ritu Kapoor was not even present in the area on the date of incident and she has identified her falsely at the instance of the investigating officer. She has also denied the suggestion that the sketch was got prepared by her later ante datedly only to falsely implicate the accused or that she was not even present at the time when her child was taken away and the accused has been identified only at the State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 7 instance of the police or that accused Ritu Kapoor was picked up from the Hari Nagar and shown to her by the police before she identified her in the court of Ld. MM. The witness has also denied the suggestions that being aggrieved by the kidnapping of her son, she had wrongly and falsely implicated the accused Ritu Kapoor or that she has never been found nor she had seen his body.
9. PW3 Bimla is a resident of the same area who has deposed that she is working in a factory and on 13.11.2009, she had returned from work at about 1:00 PM and saw the accused Ritu Kapoor sitting outside the jhuggi of Anita (whose child has been lifted) and after some time she (witness) came to know that the child of Anita had been lifted. The witness has been cross-examined by the Ld. Addl. PP for the State wherein the witness has denied that suggestion she had seen Ritu Kapoor running away with the child of Anita and going away in an auto or that she had seen another person standing near the auto or that the said persons is accused Jiya-ul. She has also denied that she has deliberately not identified the accused Jiya-ul. According to the her, she did not identify both the accused in the court nor any disclosure was made by them in her presence on 05.03.2010 regarding leaving the child on the patri after 10-12 days of the incident. The witness has been confronted with portion A to A of her statement which is Ex.PW3/A which she has denied.
10. In her cross examination, the witness PW3 has testified that she did not see Ritu Kapoor taking away the child of Anita. According to the witness, her working hours are from 9 AM to 9:30 State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 8 PM and on the date of incident, she was free as her factory had shifted to Traunica City, Loni. She has denied the suggestion that she was not present there and she had not seen accused Ritu Kapoor while sitting in front of jhuggi of Anita. According to the witness, she does not remember the colors of clothes which Ritu Kapoor was wearing but according to her it was Salwar Kameej. She has further deposed that the jhuggi of Anita is falling almost on the road whereas her own jhuggi is opposite to the jhuggi of Anita and that Ritu Kapoor was sitting on the patri and on the date of the incident there was a mela of Nirankari going on and many persons were passing there.
11. PW4 Umesh is also a resident of the same area who has deposed that he is having a rickshaw garage near the jhuggi of Anita. According to the witness, it was Friday and 12th or 13th of November 2009 and he saw the accused Ritu Kapoor (whom the witness has correctly identified in the court) roaming about in the area since 8:00 AM. According to him, one doctor who was residing in the same area pointed out the accused Ritu Kapoor to him and told that the lady was roaming around in the area since morning but he (witness) did not give any importance to what he stated as it was a moving road. He has further deposed that some children were playing on the road and he saw Ritu Kapoor having an argument with another lady and thereafter the accused Ritu Kapoor asked him for water and he gave her water after which she (accused Ritu) sat in front of Anita's house. PW4 Umesh has testified that he also observed a TSR parked on the road which State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 9 was adjoining the jhuggi of Anita where one boy was sitting (the witness has correctly identified the accused Jiya-ul as the said boy) who was not having any mustaches at the time of the incident. According to him, he suddenly heard the cries of the elder daughter of Anita who started shouting "mera babu ley gayi"
after which many persons who were sitting at that place ran after Ritu Kapoor and found that she immediately sat in the TSR and went away. The witness has further deposed that at that time Ritu Kapoor had a shawl wrapped around her and had probably hidden the child under the shawl. According to him, they immediately called the police who came to the spot and on the next date they went to the police station and got the sketch of the accused Ritu Kapoor prepared which sketch is Ex.PW2/C. He has deposed that the accused Ritu Kapoor had very prominent marks under her eyes due to which they could identified her and after some days the police brought Ritu Kapoor to their area and they all identified her as the same lady who was sitting outside the house of Anita and had taken away her child. He has further deposed that other accused Jiya-ul was also brought to the jhuggi but he had a cloth on his face and they identified him from his eyes. The witness has testified that both the accused persons also disclosed before them that they had left the child on the patri after ten days as the child had fallen ill and that Ritu Kapoor also pointed out the place from where she had lifted the child and also the place/ patri where she had left the child and the pointing out memo of the State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 10 place from where the child was lifted is Ex.PW2/D bearing his signatures at point B and the pointing out memo of the place where the child was left which is Ex.PW2/E were prepared.
12. In his cross examination the witness Umesh has testified that he had never seen the accused Ritu Kapoor prior to the date of the incident and according to him, he usually sits at his rickshaw garage which is near his jhuggi. According to the witness, the accused Ritu Kapoor had some conversation/ talks with a boy aged about 16-17 years and it appears that there was some hot talk between them. According to the witness, the accused Ritu Kapoor had not argued with any other person except the above boy. He is unable to say whether the accused Ritu Kapoor was selling any artificial jewelery in the locality as he had not properly seen her and he has not observed it. According to him, he had seen Anita present at her jhuggi when he was sitting at his rickshaw garage and the child which was lifted, was inside the jhuggi and Anita never used to bring him outside the jhuggi. The witness has deposed that the jhuggi of Anita is located on the running road and many persons passes near her jhuggi and the police had recorded the disclosure statements of both the accused in front of him on which he had signed. He is unable to tell what type of clothes accused Ritu Kapoor was wearing on that day and even the color of the clothes was not noticed by him. According to him, the police brought the accused persons that their jhuggi after a months time. He has deposed that Seema the daughter of Anita did not come to them and they heard the cry and ran after the accused but he is unable to tell State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 11 the name of the persons who ran with him for catching the accused Ritu Kapoor and states that they were those who were sitting with him at his garage. The witness is unable to tell who told the police about the accused Ritu Kapoor and states that the police recorded his statement four-five times and taken his signatures on those documents but he is unable to tell what was written on those documents and he presumed that whatever the witnesses had stated was recorded by the police. He is also unable to tell the exact time when they heard the cries of Seema but states that it must have been around 2-2:30 PM. The witness has testified that there were no loud speakers installed on the road on account of the Mela and had seen Ritu Kapoor entering the jhuggi of Anita and since she was continuously sitting outside her jhuggi, they thought she had come to meet Anita. According to the witness, he had also seen Ritu Kapoor coming out of the jhuggi with a shawl wrapped around her and at that time he did not know that she had a child under the shawl. He has admitted that he did not see the child in the hand of the accused as there was a shawl wrapped around her. He is unable to tell the colour of the shawl. According to the witness, the place where the accused Ritu Kapoor claims that she had left the child is a mobile road with lot of traffic and anybody could have noticed the child if she would have left it there. He has deposed that police persons had got them to the Rohini Court when the accused were being produced before the court and that he never visited the police station for getting prepared the sketch of accused Ritu Kapoor and the same was not prepared in his presence. The State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 12 witness has admitted that the place of incident is usually crowded with lot of people who sit around there and one can easily catch the person on shouting. He has also deposed that he had not read the documents before coming to the court and states that he had helped and accompanied Anita (complainant) as she was weeping alone and there was nobody to help her. According to him, he was standing on the ring road and the jhuggi of Anita was at a distance of 10-12 paces from the place where he was standing, but there is no traffic and the auto was parked at a distance of about two steps from the jhuggi of Anita. He has also deposed that he was standing on the other side of the road on which the auto was parked and he had not given the number of auto to the police. PW4 has testified that he had not given the description of Jiya-ul to the police and has denied the suggestion that he had not given the number of auto to the police and the description of accused Jiya-ul to the police as he was not present at the spot. According to him, in his statement dated 13.11.2009 he had not told the police that he also observed a TSR parked on the road which is adjoining the jhuggi of Anita. He has denied the suggestion that he had not stated to the police as he had not seen the auto parked in front of the house of Anita. He has testified that in his other two supplementary statements dated 06.03.2010 and 04.01.2010, he had not told the police about the fact that he had seen an auto parked near the house of Anita. He is unable to tell whether the accused Jiya-ul was muffled face or un- muffled face when he came to Rohini court. He has denied the suggestion that he had identified accused Jiya-ul as he was shown the accused earlier by the police.
State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 1313. PW5 Dr. Jagjeet Singh is a registered medical practitioner of Chand Medical Center, BE-277, Hari Nagar, New Delhi. According to him, on 19.11.09 the accused Ritu Kapoor had come to his clinic with small boy aged about two - three months who was suffering from URI (upper respiratory infection) and he examined the patient by medical sheet which is Ex.PW5/A . He has testified that Ritu Kapoor claimed the boy to be of her son. He has identified the accused Ritu Kapoor in the court as the same lady who had come to him previously and at every time she brought a different child for treatment claiming herself to be the mother and incidentally all such children were male child and she used to give their name as Ishant. According to the witness, he had informed the investigating officer of this fact and he had been called in another case of kidnapping at Tis Hazari Court. He has testified that on one occasion his Compounder Deepak Kumar Mahato had even told Ritu Kapoor that she did not appear to be the mother of the child she had brought but she told him to mind his own business. The witness has further deposed that the medical record dated 29.10.09, 31.10.09, 06.11.09 also mentioned the name of Ishant and on those dates the accused had brought different child and told their name Ishant, which photocopies of the record of the aforesaid date are Ex.PW5/B (collectively).
14. In his cross-examination the witness has deposed that the medicines which were prescribed for the treatment of the child got by accused Ritu Kapoor was sometimes given by himself and sometimes it was prescribed to be purchased from the medical State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 14 stores. He is unable to tell whether the accused had brought any child to his clinic aged about two years and has admitted that accused would never object if the costly medicines were prescribed by him for the treatment. According to him, the accused told the name of the child Ishant when he asked her to tell the name of the child and has also admitted that the child brought by the accused was sufficient covered with clothes. He has deposed that the register of patient at his clinic remains with him at the time of examination and thereafter with his compounder when he is not available in the clinic. The witness has also testified that his compounder showed the register to the investigating officer and probably after investigation the relevant extracts of the concerned dates were taken by the investigating officer for the period October,2009 to December 2009. According to him, the investigating officer had never examined any entries prior to October, 2009 and the age of the patient was not recorded in the patient register and only the name was recorded.
15. PW6 Deepak is the Compounder/ Helper of Dr. Jagjeet Singh (PW5) who has deposed that on 19.11.2009 the accused Ritu Kapoor (whom the witness has correctly identified in the court) had come to their clinic with a boy aged about two months for his medical examination and after medical examination by Dr. Jagjeet, he had given the accused the medicine for the child. According to the witness, he asked the accused about the child as to who was the child to which she stated stated that he is her son. The witness has deposed that he asked this question to her because from State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 15 the appearance of the accused and age difference between the age of the accused and the child, he got suspicion but the accused had stated that "tumhe isse kya matlab". He has testified that the child was suffering from cold and the accused was addressing the child in the name of Ishant. He has proved that he handed over the copy of the patient register to the investigating officer which was seized vide memo Ex.PW2/F.
16. In his cross examination the witness has testified that he is working with Dr Jagjeet for last three years and without seeing the record he is unable to tell the dates of visit of the accused at their clinic. He is also unable to tell if the accused brought the child within the age group of one, two or three 3 months or whether on every date the child which was brought by the accused is the same child. According to the witness, the child used to be examined by the doctor and he only saw the child in her lap (meaning thereby that the child was infant). The witness has testified that the medicines which were normally prescribed for the child brought by the accused was for routine ailments and not for anything serious. He has deposed that he had never informed to the investigating officer of the present case regarding the visits of accused Ritu Kapoor at clinic except on 19.11.09.
17. PW7 Seema is the daughter of the complainant Anita and the eye witness who is aged about eight years. She has deposed that she has two other sisters who are younger to her and a younger brother who was lifted by a lady. The witness has specifically pointed out and identified the accused Ritu Kapoor as the lady State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 16 who had lifted her brother. She has testified that her brother was lying inside and she was sitting near him, when the accused Ritu Kapoor came inside and pushed her after which she picked up her brother and took him away by hiding him in the shawl and thereafter she raised an alarm.
18. In her cross-examination the witness has deposed that when the said lady came, she was inside her jhuggi and her mother had gone to wash clothes and her father had gone to pull rickshaw. According to the witness, her brother was sleeping at that time and she was alone along with her brother since her mother has asked her to do so. When asked if she had had been told by her mother to depose that the accused had lifted her brother, the witness has specifically deposed that it was she, who had seen the accused. The witness has further deposed that both her younger sisters were playing with each other and all persons came on hearing her cries but she is unable to tell the names of those persons. She has also deposed that the lady who had come to her jhuggi was wearing Salwar and Kameej but she does not remember the colour. She has denied that she was told by the police as to what had to be deposed in the court.
Police/ official witnesses:
19. PW1 Retd. HC Birender has been examined by way of affidavit which is Ex.PW1/A being formal witness. He has proved the copy of DD Entry No.16A which is Ex.PW1/B, copy of FIR which Ex.PW1/C and the endorsement made by him on the rukka State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 17 which is Ex.PW1/D. He has not been cross examined on behalf of the accused despite opportunity in this regard.
20. PW8 Ct. Devender has deposed that on 21.12.2009 he was posted as Constable at police station Mukherjee Nagar and on that day he joined the investigation with SI Pradeep and came to Rohini Court Complex with SI Pradeep where accused Ritu Kapoor and Jiyaul were produced before the Ld. MM from judicial custody in muffled face and after taking permission from Ld. MM, SI Pradeep Kumar interrogated the accused Ritu Kapoor and Jiaul, after which the accused Ritu Kapoor and Jiyaul were arrested vide memos Ex.PW8/A and Ex.PW8/B respectively and the disclosure statements of the accused Ritu Kapoor and accused Jiaul were recorded which are Ex.PW8/C and Ex.PW8/D respectively. According to the witness, thereafter both the accused produced before the Ld. MM in muffled face and they were sent to judicial custody by the Ld. MM. He has correctly identified the accused persons who are present in the court.
21. In his cross examination by Ld. defence counsel, the witness has testified that he along with SI Pradeep Kumar reached the court at about 2.00 PM and has deposed that accused persons were interrogated at about 2.30 PM and first of all accused Ritu Kapoor was arrested and her disclosure statement was recorded. According to the him it took about twenty minutes to record her disclosure statement and the investigating officer did not ask any person to join the investigation as a witness. He has denied the suggestion that he did not join the investigations of this case or that all paper work was State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 18 done while sitting in the police station.
22. PW9 Lady Ct. Sunita has deposed that on 05.01.2010 he was posted as Constable at police station Mukherjee Nagar and on that day he joined the investigations of the present case and on that day the accused Ritu Kapoor W/o Shammi Kapoor R/o J-37A Hari Nagar, Delhi who was already on police remand was in his custody, during the course of interrogation disclosed that on 13.11.2009 she had kidnapped a three month old male child from the jhuggi of Smt. Anita of Nand Lal Jhuggi Camp. She has deposed that on 19.11.2009 the child became sick and was taken to the clinic of Dr. Jagjeet at Hari Nagar, Delhi and an entry in this regard was made in the register of the clinic where the child's name was given as Ishant. She has also deposed that pursuant to the aforesaid disclosure they went to the clinic of Dr. Jagjeet and checked the register and found the entry in the name of Ishant which page of the register was got photocopied by the investigating officer which is Ex.PW5/A who thereafter seized the same vide seizure memo Ex.PW2/F.
23. In her cross examination by Ld. defence counsel, the witness PW9 has denied the suggestion that the accused Ritu Kapoor was not given in her custody during the police remand. She has also denied that the accused Ritu Kapoor did not give any disclosure statement or that the same was recorded while sitting in the police station by the investigating officer. She has also denied that the register and the relevant entry Ex.PW5/A were manipulated by the investigating officer in connivance with the doctor and are false.
State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 1924. PW10 Ct. Samay Singh has deposed that on 13.11.2009 he was posted as Constable at Police Station Mukherjee Nagar and on that day he was handed over the DD No.16 A which he gave to HC Naresh Pal at Permanand Chowk and joined the investigations of this case along with HC Naresh Pal and went to Jhuggi No.571, Nand Lal Jhuggi Camp, Mukherjee Nagar, where they met a lady Anita who was searching a one to one and a half months old male child. According to him, they joined her in search of the child but the child could not be found and thereafter HC Naresh recorded the statement of Anita and handed over the same to him which he took to the police station and handed over the same to Duty Officer. The witness has also deposed that the Duty Officer registered the FIR and handed over a computer copy of the same along with the original rukka which he brought back to the spot and handed over the same to HC Naresh Pal.
25. The witness has not been cross-examined by the counsel for the accused despite an opportunity in this regard.
26. PW11 HC Naresh Pal has deposed that on 13.11.2009 he was posted as Head Constable at Police Station Mukherjee Nagar and on that day he was on patrolling duty in the area when Ct. Samay Singh met him at Permanand Chowk and handed over to him the DD No.16 A which is Ex.PW1/B. According to the witness, on receipt of the same he along with Ct. Samay Singh went to Jhuggi No.571, Nand Lal Jhuggi Camp, Mukherjee Nagar, where they met a lady namely Anita W/o Pardesi who was searching a 1½ months old male child. He has deposed that both of them i.e. he himself State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 20 and Ct. Samay joined Anita in search of the child but the child could not be found. He has proved having recorded the statement of Anita which is Ex.PW2/A and handed over the same to Ct. Samay after making endorsement on the same which is Ex.PW11/A which he (Ct. Samay) took to the Police Station for registration of the case. The witness has also deposed that Ct. Samay returned after 45 minutes and handed over to him the copy of FIR and original tehrir after which he interrogated the witnesses Vimla W/o Late Sh. Bale Ram and Suresh S/o Lal Bahadur who had seen the accused taking away the child and also tried to search the child in the nearby areas but the child could not be found. He has deposed that the WT message Ex.PW11/B was also got issued through the DCP concerned and also got prepared the sketch of the suspect on the basis of descriptions given by the eye witnesses which sketch is Ex.PW2/C. The witness has testified that thereafter a Hue and Cry notice was issued against the suspect which were pasted in the area of the police station and it was also sent to other areas of Delhi and NCR region by post. According to him, on 26.11.2009 further investigation of this case was transferred to SI Pradeep Kumar and he handed over the entire file to him.
27. In his cross-examination the witness has deposed that the sketch of only one suspect i.e. the lady was got prepared. He has admitted that there was no sketch of any other person prepared as the eye witnesses were not clear about the identity of the other male person and did not disclose to him the details of TSR driver or the number of the TSR in which the alleged kidnapper had taken away State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 21 the child. He has denied the suggestion that no such details were given since there were no such allegations of the child being taken away in the TSR by a male and these aspects have been added in the statements of the witnesses of his own. The witness has denied that the sketch Ex.PW2/C was got prepared ante datedly only after the arrest of the accused Ritu Kapoor to create evidence against her.
28. PW12 Vijay Kumar has brought the record from the office of Sub-Registrar, Birth and Death, Civil Line Zone, Delhi pertaining to the child of Anita W/o Pardesi, certified copy of which date of birth certificate is Ex.PW12/A bearing the seal and signature of Sub-Registrar. He has deposed that as per the record the date of birth of the male child of Anita W/o Pardesi is 20.09.2009 and the date of registration of the same is 03.10.2009. This witness was not cross examined on behalf of the accused despite opportunity in this regard.
29. PW13 SI Pradeep Kumar is the investigating officer who has deposed that on 27.11.2009 he was posted at police station Mukherjee Nagar and on that day further investigations of this case was handed over to him. According to him, he received the case file, perused the same and made efforts to trace the suspect and the missing child. He has deposed that on 18.12.2009 he received information from police station Hari Nagar that one lady namely Ritu Kapoor and a male person namely Mohd. Jiyaul have been arrested in case FIR No. 319/09 U/s 363/302 IPC police station Hari Nagar, who had disclosed their involvement in the present case. The witness has deposed that he went to police station Hari Nagar where State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 22 the investigating officer of case FIR No.319/09 and obtained the copy of disclosure statements which are Ex.PW13/A and Ex.PW13/B in respect of accused Ritu Kapoor and accused Mohd. Jiyaul. He has proved having moved an application before the concerned Ld. MM and got issued the production warrant on 21.12.2009 and in pursuance to the production warrants both the accused persons were produced before the Ld. MM in muffled face and after taking permission form Ld. MM they were interrogated and after being satisfied they were formally arrested in this case vide memos Ex.PW8/A and Ex.PW8/B. According to him, the disclosure statements of both the accused persons were recorded by him which are Ex.PW8/C and Ex.PW8/D respectively and the accused were sent to judicial custody with the direction to keep them in muffled face. He has proved having moved an application Ex.PW13/C for getting the Test Identification Parade of both the accused persons conducted which was fixed for 24.12.2009 thereafter on 24.12.2009 the Test Identification Parade of accused Ritu Kapoor was got conducted in which she had refused to participate and vide his application Ex.PW13/D he obtained the copy of Test Identification Parade proceeding Ex.PW13/E. Thereafter, he moved application Ex.PW13/F for fixing the date of Test Identification Parade of accused Mohd. Jiaul which was fixed for 07.01.2010 and according to the witness, on 03.01.2010, he took the police remand of both the accused persons and Mohd. Jiaul was kept in muffled face. The witness has testified that the accused Mohd. Jiaul and Ritu Kapoor led the police party to Nand Lal State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 23 Jhuggi Camp in the jhuggi of Anita W/o Pardesi and pointed out the place from where they lifted the child of Anita pursuant to which he prepared the memo of pointing out which is Ex.PW2/D. The witness has further deposed that both the accused also led the police at the place where the accused Ritu Kapoor left the child and he prepared the memo to this effect which is Ex.PW2/E. The witness has deposed that the complainant Anita had identified the accused Ritu Kapoor as the same lady who lifted her child. He has also deposed that on 05.01.2010 both the accused led the police party at the clinic of Dr. Jagjeet where the accused Ritu Kapoor got the child examined by the name of Ishant where he (witness) examined the register kept in the clinic of Dr. Jagjeet and found the entries of the child in the name of Ishant and seized the photocopy of the relevant entry in the register vide seizure memo Ex.PW2/F, which photocopies are Ex.PW5/A. He has proved having recorded the statement of Dr. Jagjeet and his compounder Deepak. According to the witness, on 07.01.2010, he got the Test Identification Parade of accused Mohd. Jiaul conducted who also refused to participate in the same and thereafter he moved an application for providing the copy of Test Identification Parade proceeding which was allowed, the copy of Test Identification Parade proceeding is Ex.PW13/G. The witness has further deposed that on 23.02.2010 both the accused persons had come form judicial custody in the concerned court when he along with the complainant Smt. Anita also attended the court and the complainant Anita had identified the accused Jiaul also as the same person who took Ritu Kapoor and the child in the State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 24 TSR. The investigating officer has proved having recorded the supplementary statement of Smt. Anita and also made efforts to trace the victim/ child but he could not be traced. According to the witness, he thereafter visited the orphan homes to trace the victim but he could not be found there also and after that both the accused persons were got medically examined time to time vide MLC Ex.PW13/H-1 to Ex.PW13/H-3 in respect of accused Ritu Kapoor and Ex.PW13/I-1 to Ex.PW13/I-3. The witness has further deposed that he obtained the permission from the concerned Ld. MM for getting the Narco Test of accused Ritu Kapoor conducted and the permission was granted but the Narco Test is still pending due to long list of pending cases. He has proved having collected the copy of birth certificate of the victim/ child which is Ex.PW13/J which is the copy of Ex.PW12/A and also collected the photocopy of discharge slip and the treatment card of the victim / child from the complainant which are Ex.PW13/K-1 and Ex.PW13/K-2. The witness has also proved having filled in the missing person/ UIDB form which is Ex.PW13/L, the request made to In-charge, Orphanage House are Ex.PW13/M-1 to Ex.PW13/M-5. He has also proved having prepared the charge sheet after necessary investigations and filed the same in the court. He has correctly identified both the accused in the court.
30. In his cross examination by Ld. defence counsels the witness has testified that he received the case file from HC Narsh who was the initial investigating officer of this case and the then SHO transferred the investigations to him (witness) by his verbal State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 25 order. The witness has further deposed that inspector Jai Singh informed the duty officer of police station Mukherjee Nagar regarding the accused persons in case FIR No.319/09 under Section 363/302 IPC, Police Station Hari Nagar at about 2.00PM. He has also deposed that he went to Police Station Hari Nagar alone at about 3.30 PM and also made departure entry when he left the police station Mukherjee Nagar for police station Hari Nagar and at that time both the accused were not present in Police Station Hari Nagar. According to him, the disclosure statement Ex.PW13/A and Ex.PW13/B were not recorded by the investigating officer in his presence and he moved the application for getting the production warrant issued on 18.12.2009 itself. He has denied the suggestion that he had not recorded any statement from 27.11.2009 to 18.12.2009. According to him, he also did not make any sketch of accused Jia-ul and reached at the Ld. MM court at about 1:30 PM and he had first recorded the disclosure statement of accused Ritu Kapoor. According to the witness, he does not request any public person or court staff to join the investigation as well as he did not give any kind of notice to them regarding aforesaid proceedings. He has testified that till 27.11.2009 there was no clue of involvement of second accused Jiyaul in the present case but the first investigating officer had orally informed him that there was one person along with one TSR was accompanying lady accused. According to the witness, the initial investigating officer had not told him about the name of the person or the source of the information that Ritu Kapoor was accompanied by one other person. He has further State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 26 deposed that he had not prepared any seizure memo regarding taking of copy of disclosure statement bearing to FIR No.319/09. The witness has further deposed that he had not placed the copy of case FIR No.319/09 along with the challan of the present case and according to him neither any record clerk nor the investigating officer inspector Jai Singh brought the original case file of FIR No.319/09 in his presence. He has denied the suggestion that Ex.PW13/A and Ex.PW13/B is a manipulated document and the thumb impressions of Jia-ul were obtained on the blank papers or that the accused Jia-ul had not made any disclosure statement Ex.PW8/B and Ex.PW8/D and his thumb impressions were obtained on the blank papers. According to the witness, he had not called any public witness to identify accused Jia-ul prior to Test Identification Parade. The witness has admitted that he had not collected any document regarding the residence of accused Jia-ul nor made any investigations regarding the residence of accused Jia- ul. He further deposed that he went to the house of Jia-ul on 05.01.2010, whose house was near Mayapuri (Rewari) Railway Line but he does not remember the number of the jhuggi and according to the witness, it was a kaccha jhuggi of bricks and there was nobody present in that jhuggi. The witness has deposed that Ritu Kapoor did not reside in the said jhuggi. According to the witness he had not seized any TSR in the present case as they did not know the number of the TSR involved in the present case. The witness has further deposed that he had not seized the license of Jia-ul during the whole investigations but he is unable to say if Jia-ul is a State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 27 TSR driver he also cannot say if Jia-ul cannot admit or deny that Jia-ul does not know to drive. The witness has denied that suggestion the thumb impressions of accused Jia-ul were obtained on blank papers and he has falsely implicate in the present case only to work out the present case. According to the witness, the accused Ritu Kapoor was shown to the witnesses while Police Custody remand was obtained. He further deposed that Ritu Kapoor was identified by witnesses and that the accused Ritu Kapoor and accused Jia-ul were taken to the house of Anita where Anita had identified the accused persons. The witness has admitted that Ex.PW2/D does not bears thumb impressions of accused Ritu Kapoor. According to the witness the thumb impressions of Ritu Kapoor has wrongly been shown to be that of Anita at point C. He has denied the suggestion that Ritu Kapoor has never pointed out the place of incident or that he has deposed falsely and entire documentation were done while sitting in the police station.
Statement of Accused & Defence Evidence:
31. After completion of prosecution evidence statements of both the accused were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to them which they have denied. The accused Ritu Kapoor has stated that she has been falsely implicated to solve the case of kidnapping. She has admitted having refused to participate in the Test Identification Parade since she was already shown to the witness by the investigating officer. However, she has denied having made any disclosure statements in case FIR No. 319/09, under Section State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 28 363/302 Indian Penal Code. According to her, she has been shown to the witness and her sketch was prepared in her presence after her apprehension.
32. The accused Mohd. Jiyaul has stated that he has been falsely implicated and he never made any disclosure statements in case FIR No.319/09 under Section 363/302 Indian Penal Code, Police Station Hari Nagar. He has further stated that he has been shown to the witness before conducting the Test Identification Parade due to which he refused to participate. According to him, he is a rickshaw puller for which he is having a license and he did not possess any TSR. He has also stated that th TSR in question has been planted upon him.
FINDINGS:
33. I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Amicus curiae appearing on behalf of the accused. I have also gone through the evidence on record.
Identity of the accused:
34. In so far as the identity of the accused Ritu Kapoor and Mohd. Jiyaul are concerned, the complainant Anita who has been examined as PW2, has duly identified the accused Ritu Kapoor as the lady who was sitting outside her Jhuggi and the accused Mohd.
Jiyaul as the person who was standing near the auto and was the driver of the three wheeler and had left along with Ritu Kapoor with the child. She has also identified both the accused before the Ld. State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 29 Metropolitan Magistrate. The accused Ritu Kapoor has also been identified by Bimla (PW3) who is a resident of the same area and working in a factory and when she was returning from the work at about 1:00 pm on 13.11.2009 i.e. the date of the incident she saw the accused Ritu Kapoor sitting outside the Jhuggi of Anita and after sometime she came to know that the child had been lifted. PW4 Umesh another resident of the same area has also identified the accused Ritu Kapoor roaming in the area since morning a fact which was even observed by a doctor in the area. According to Umesh (PW4) the accused Ritu Kapoor had asked him for water which he gave her, after which she sat in front of Anita's house. He has also identified the accused Jiyaul as the person who was sitting in the TSR parked on the road and has also told the court that at the time of the incident the accused Jiyaul was not having mustaches. Further, according to Umesh, he heard the cries of the elder daughter of Anita who started shouting that the child had been lifted and raised an alarm by saying "Mera babu ley gayi" when many persons including himself ran after the accused Ritu Kapoor and saw that she immediately sat in the TSR and drove away. According to the witness Umesh, the accused Ritu Kapoor had a shawl wrapped around her and probably she had hidden the child under the shawl. Both the witnesses i.e. Anita (PW2) and Umesh (PW4) have proved the sketch of the accused Ritu Kapoor which was prepared at their instance which is Ex.PW2/C. According to them, the accused Ritu Kapoor had very prominent marks under her eyes due to which reason they could identified her a fact which has been State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 30 observed by this court to be correct. The daughter of the victim Anita namely Seema who was taking care of the child at the time of the incident and in whose presence the child was left, has been examined as PW7. She in her examination in chief has pointed out and identified the accused Ritu Kapoor as the lady who had picked up the child and ran away by hiding him in the shawl. I may further observe that Ritu Kapoor has also been identified by Dr. Jagjit Singh (PW5) and his assistant Deepak (PW6) who have stated that she was the lady who had brought a child aged about two - three months to their clinic on 19.11.2009 (i.e. after about six days of the kidnapping) who was suffering from URI (upper respiratory infection) which child she claimed her son. In fact Dr. Jagjit Singh has identified the accused Ritu Kapoor as same lady who had even come to him previously and at every time she brought a different child for treatment claiming herself to be the mother and all such children were male and she used to give their name as Ishant. He has produced the medical report of the child examined by him which is Ex.PW5/A. Similarly the assistant of Dr. Jagjit Singh namely Deepak (PW6) has also identified the accused Ritu Kapoor who had come to their clinic on 19.11.2009 with a boy aged about two months for his medical examination and when he asked her as to who was the child because of the appearance of the accused and age difference between the accused and child, on which the accused told him "tumhe isse kya matlab".
35. It therefore, stands established that all these witnesses have specifically identified the accused Ritu Kapoor as the lady who had State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 31 lifted the child of the complainant Anita aged about one and a half months in the presence of her daughter Seema. They have also identified the accused Jiyaul as the person who had come with Ritu Kapoor and after the child had been lifted and wrapped in the shawl, he drove the TSR along with the co-accused Ritu Kapoor. Further, both the accused have refused to participate in the Judicial Test Identification Parade and the only justification offered by them is that they had already been shown to the witnesses. I am not convinced by the ground so raised by the accused in view of the fact that the sketch of the accused Ritu Kapoor was prepared immediately after the incident at the instance of complainant Anita and Umesh since she had been seen by the various persons of the area on which aspect there is no rebuttal. The sketch of the accused Ritu Kapoor Ex.PW2/C tallies with her appearance as observed by this court and therefore, an adverse inference is being drawn against both the accused for their refusal in participating the Judicial Test Identification Parade. I hereby hold that the prosecution has been able to prove and establish the identity of both the accused Ritu Kapoor and Mohd. Jiyaul.
Allegations against the accused Ritu Kapoor and Mohd. Jiyaul/ Common Intention:
36. The allegations against the accused Ritu Kapoor and Mophd. Jiyaul are that on 13.11.2009 they in furtherance of their common intention kidnapped the child of Anita namely Atual aged about one and a half months in order that he may be murdered or may be so disposed off as to be put in danger of being murdered.
State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 3237. First now coming to the aspect of common intention shared by both the accused. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 33 jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
38. Applying these settled principles of law to the facts of the present case, it is evident that the accused Jiyaul has been identified by both Anita (PW2) and Umesh (PW4) as the person who was seen in the area along with the accused Ritu Kapoor and also standing State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 34 near the TSR on the date of incident in which TSR Ritu Kapoor had gone after lifting the child. Umesh had even observed that Jiyaul was roaming around in the area and at that time he (accused) was not having any mustaches and after he heard the cries of the elder daughter of Anita namely Seema who had raised an alarm that the child had been lifted, they ran after the accused Ritu Kapoor and found that she immediately sat in the TSR parked on the road and went away. The complainant Anita (PW2) has also identified the accused Mohd. Jiyaul who had come near her Jhuggi and was talking with the accused Ritu Kapoor who was roaming around in the area and was standing near the TSR. When this aspect was put to the accused Jiyaul in his statement under Section 313 Code of Criminal Procedure, he has simply stated that he has been falsely implicated in the case and according to him, he is a rickshaw puller by profession and had a license for the same but does not possess any TSR which according to him has been planted upon him. He has simply denied the other allegations/ incriminating evidence against him and has offered no explanation as to how he is known to the accused Ritu Kapoor. I hereby hold that the material on record proves the common intention shared by the accused. The eye witnesses i.e. the complainant Anita (PW2) whose child had been lifted; her daughter Seema (PW7) an eye witness to the incident, Bimla (PW3) and Umesh (PW4) other eye witnesses to the incident who was sitting outside the Jhuggi of Anita have all corroborated each other on material particulars. They have all identified the accused Ritu Kapoor and Jiyaul as the persons who were seen State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 35 roaming around in the area. They have further established that it was the accused Ritu Kapoor who had come to the house of the complainant Anita and asked her for a glass of water. According to Anita (PW2), the accused Ritu Kapoor introduced herself as a representative of the Government and an Anganwadi Worker in Ladli Scheme and that she was filling up the forms for the girl child on which she did not suspect her at all rather so much so when accused Ritu Kapoor asked for a glass of water she gave her the water. Further, it is evident that the accused Ritu Kapoor had even asked for a glass of water from Umesh. This testimony of Smt. Anita (PW2) also finds a corroboration from the testimony of Smt. Bimla (PW3) who has identified the accused Ritu Kapoor as the lady who was sitting outside the house of Anita wearing salwar and kameej. Ms. Seema the daughter of the complainant Anita, aged about 8 years who has been examined as PW7 is a witness to the accused Ritu Kapoor actually picking up the child, hiding the child in her shawl and taking him away when the child was sleeping on which she (Seema) raised an alarm. The prosecution has, therefore, been able to conclusively prove that both the accused Ritu Kapoor and Jiyaul had come to the spot and in furtherance of their common intention and kidnapped the child of Anita which they had taken away in a TSR driven by Jiyaul.
Subsequent conduct of the accused/ custody of child with Ritu Kapoor on 19.11.2009:
39. Dr. Jagjeet Singh from Chan Medical Center who has been examined as PW5 has proved the medical sheet of the male child of State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 36 two to three months age which is Ex.PW5/A showing that the child was suffering from URI (Upper Respiratory Infection) and has identified the accused Ritu Kapoor as the lady who had brought the child to his clinic claiming that he was her son. Dr. Jagjeet Singh (PW5) has specifically deposed that the accused Ritu Kapoor had even previously brought the children to him for treatment and every time she brought a different child claiming herself to be the mother and incidentally all such children were male child and she used to give their name as Ishant. According to Dr. Jagjeet, he had passed on this information to the investigating officer regarding this fact and he had also been called for in another case of kidnapping at Tis Hazari Courts. According to him, on one occasion his compounder Deepak (PW6) had even told the accused that she did not appear to be the mother of the child she had brought but she told him to mind his own business an aspect which finds due corroboration from the testimony of his assistant Deepak (PW6). He has placed on record the medical record dated 29.10.2009, 31.10.2009 and 6.11.2009 showing the name of Ishant and every time the accused had brought a different child and told their names as Ishant, photocopies of which record is Ex.PW5/B collectively. He is unable to tell if Ritu Kapoor had brought any child to his clinic aged about two years and has admitted that every time the child was brought by the accused, he was sufficiently covered with clothes and she never objected even if costly medicines were prescribed by him. He has deposed that his compounder showed the register to the investigating officer and after investigations the said State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 37 register was taken by the investigating officer only for the relevant dates. The testimony of Dr. Jagjeet Singh (PW5) finds a due corroboration from the testimony of Deepak (PW6) who is the compounder of Dr. Jagjeet Singh and has corroborated his version that the accused Ritu Kapoor had come to their clinic on 19.11.2009 along with a boy aged about two months and since the description of the child was different he got suspicion and had asked the accused about it on which he was rebuked by the accused. He has further corroborated the testimony of Dr. Jagjeet Singh to the extent that the child who was brought by the accused was suffering from cold and the accused was calling him by the name of Ishant. He is unable to tell the age group of the child but according to him, the child used to be examined by Dr. Jagjeet Singh and he only saw the child in the lap of the accused (meaning that the child was infant). According to him, the medicines which were normally prescribed for the child brought by the accused was for routine ailments and not for anything serious.
Non tracing of the child/ Presumption under Section 106 Evidence Act:
40. It is reflected from the record that after kidnapping the child, the accused did take good care of the child but what happened to the child thereafter is still a mystery. Except for the disclosure statement of both the accused Ritu Kapoor and Mohd. Jiyaul that after the child fell ill they had left the child at a footpath near the house from where they had lifted him, there is no explanation forthcoming.State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 38
41. The last custody of the kidnapped child with the accused Ritu Kapoor stands established and hence, it is the accused who would have the knowledge as to what happened to the child thereafter, which explanation is not forthcoming. The accused are the best persons who could have offered an explanation with regard to the whereabouts of the child without any difficulty and the onus under these circumstances would not shift upon the prosecution.
Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The accused in the present case Ritu Kapoor who was last seen having possession and custody of the child, has miserably failed to explain what happened to the child thereafter. The only explanation forthcoming is from her own disclosure and also from the disclosure of the co-accused Mohd. Jiyaul which disclosures they have denied before the court. In this regard, I may mention that both the accused pursuant to their disclosure statements had lead the investigating officers to the clinic of Dr. Jagjeet Singh (PW5) where they had taken the child when it was unwell pursuant to which Dr. Jagjeet Singh identified the accused Ritu Kapoor who had come to his clinic with a child aged two months whose name she gave as Ishant and the register in State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 39 which the entry with regard to the treatment given to the child at the said clinic was also recovered, duly establishing this fact. Both Dr. Jagjeet Singh (PW5) and his assistant Deepak (PW6) have in the court identified the accused Ritu Kapoor as the woman who had brought the child aged about two months to their clinic for treatment whose name she had given as Ishant. Hence, this disclosure of the accused leading to the discovery of the place of treatment and the records regarding the medical treatment being administered to the child at the clinic of Dr. Jagjeet Singh stand established and is admissible in evidence. Therefore, in view of the only explanation forthcoming in the said disclosure of the accused and also keeping in view the proximity of time within which the act of kidnapping was done and the child had been taken ill and thereafter taken to the clinic of Dr. Jagjeet (PW5) and her consequent arrest in other case of Police Station Hari Nagar bearing FIR No.319/09, under Section 363/302/34 Indian Penal Code; there is a valid presumption against both the accused.
42. In terms of the provisions of Section 27 of the Evidence Act the disclosure of the accused to the extent of recovery is admissible in evidence. It is further evident from the disclosure of the accused that after the accused tried to get treated the child from the clinic of Dr. Jagjeet Singh (a fact which stands independently established) since even according to the accused the child was sick and therefore they abandoned him on the footpath near the house of the complainant. Both the witnesses i.e. the complainant Anita (PW2) and Umesh (PW4) have proved this fact about both the accused Ritu State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 40 Kapoor and Mohd. Jiyaul leading the police party to the footpath adjoining their Jhuggi cluster and pointed out the place where they had abandoned the child. They have proved the pointing out memo prepared at the instance of the accused Ritu Kapoor and Mohd. Jiyaul. In their testimonies they have specifically deposed that the police had brought both the accused to their Jhuggi clusters where the accused had pointed out the place where they had abandoned the child when he was sick. In fact PW4 Umesh has also testified that had the child been abandoned it would have been found, which has not happened. So the question which now arises is what happened to the child. Was it abandoned as claimed by the accused; was it killed; was it sold? Only the accused could have explained the same and hence on the basis of the explanation forthcoming from the accused, it is evident that the child was abandoned on a footpath adjoining a motorable road with heavy traffic in an ailing condition.
43. It is apparent from the evidence on record that the accused Ritu Kapoor is a habitual child lifter and had been indulging in to kidnapping of infant child. Whether the child involved in the present case belonging to Anita survived or not is unknown. According to the investigating officer, SI Pradeep Kumar he made sufficient efforts to trace out the child and even visited orphan homes bu the child could not be found. Further, after the accused Ritu Kapoor pointed out the place where she had left the child, attempts were made to trace out the child but till date the whereabouts of the child are unknown.
State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 41FINAL FINDINGS:
44. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
45. Applying the settled principles of law to the facts of the present case it is evident that the identity of both the accused Ritu State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 42 Kapoor and Jiyaul stand established. It has also been proved that on 13.11.2009 the accused Ritu Kapoor and Mohd. Jiyaul went to Nand Lal Jhuggi Camp, Mukherjee Nagar and both of them were seen roaming around in the area. It is further proved that the accused Mohd. Jiyaul stood near the TS parked on the road adjoining the Jhuggi while the accused Ritu Kapoor entered the cluster and sat outside the Jhuggi of complainant Anita. It is proved that the accused Ritu Kapoor introduced herself as an Anganwadi Worker and inquired about the health of her children. It is further proved that thereafter the accused Ritu Kapoor asked Anita for a glass of water and after drinking water she sat outside the Jhuggi cluster while Anita went to the railing adjoining her Jhuggi for drying the clothes of her children. It has also been established that during this time the infant of Anita namely Atul aged about one and a half month was under the care of his sister Seema aged eight years while the accused Ritu Kapoor was sitting outside the Jhuggi of Anita and taking advantage of the situation she lifted the child and ran away by hiding the infant in her shawl on which Seema raised an alarm shouting "Mera Babu Le Gayi". It is also established that on hearing the cries of the child the complainant Anita and a large number of persons who were sitting outside the Jhuggi including Umesh ran after the accused Ritu Kapoor but before they could apprehend her she sat in the TSR of Mohd. Jiyaul who drove her away.
46. The prosecution has proved that the police was called immediately and on the basis of the description given by the eye State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 43 witnesses the sketch of Ritu Kapoor was prepared who could easily be identified on account of prominent marks under her eyes (observed by the court to be correct). The prosecution has successfully proved that after about eight to nine days of the kidnapping, the kidnapped child who was in possession of Ritu Kapoor felt sick with Upper Respiratory Infection and the accused Ritu Kapoor took her to the clinic of Dr. Jagjeet Singh where she gave the name of child as Ishant and claimed herself to be its mother. It is proved that Deepak, Assistant of Dr. Jagjeet Singh, got suspicion as the child did not resemble her on which he questioned her on this aspect but the accused Ritu Kapoor snubbed him by asking him to mind his own business. The whereabout of the child was not known and the prosecution has duly proved that the only explanation given by the accused was that since the child was very sick, therefore the child was abandoned on the footpath adjoining the Nand Lal Jhuggi cluster from where the child had been kidnapped but the whereabouts of the child still remains a mystery since its dead body was not found nor the child is traceable.
47. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative.
State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 44The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
48. The object of Section 361 Indian Penal Code seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravemen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful guardian of such minor"
in Section 361, are significant. The use of word "keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement of the minor, the guardian's protection and control of the minor being available, whenever necessity arises.
49. The prosecution has successfully established that the accused Ritu Kapoor and Mohd. Jiyaul in furtherance of their common intention kidnapped the child of Anita namely Atul aged one and a half month on 13.11.2009. It further stand established that after about eight to nine days of the kidnapping the child felt seriously ill with Upper Respiratory Infection and was under the treatment of Dr. Jagjeet Singh but keeping in view the serious condition of the child it was abandoned on the pavement adjoining the motorable road with heavy traffic in an ailing condition. This State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 45 act of abandoning/ disposing off a two months old child on the footpath adjoining a road with heavy motorable traffic is so eminently dangerous that it has been done with the knowledge that it would put the child in danger of being murdered or with the knowledge that it must in all probability, cause death or such bodily injuries as is likely to cause death and this act has been done by the accused without any excuse for incurring the risk thereof.
50. Ld. counsel appearing on behalf of the accused has vehemently argued that the provisions of Section 364 Indian Penal Code cannot be attracted because there is nothing on record to prove the death of the child. In this regard, I may observe that Section 364 Indian Penal Code is a lesser offence and comes into operation when the body of the child is not found, as has happened in the present case. Had the body of the child been found, the provisions of Section 302 Indian Penal Code would have been attracted. I may further add that Section 364 Indian Penal Code not only talks about murder of a child but also disposing of or putting the child in danger of being murdered and this act of the accused in abandoning/ disposing off a two months sick child on the footpath adjoining the road having heavy motorable traffic is so eminently dangerous so as to be put in danger of being murdered with the knowledge that it must in all probability, cause death or such bodily injuries as is likely to cause death which act has been done by the accused without any excuse for incurring the risk thereof.
51. In view of my aforesaid discussion, I hereby hold both the accused Ritu Kapoor and Mohd. Jiyaul guilty of the offence under State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 46 Section 363 and 364 read with Section 34 Indian Penal Code and accordingly convicted. However, the prosecution has not been able to satisfy the ingredients of Section 317 Indian Penal Code for which both the accused are hereby acquitted.
52. Case be listed for arguments on sentence on 31.3.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 24.3.2011 ASJ (NW)-II: ROHINI State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 47 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI. Sessions Case No. 1205/2010 Unique Case ID: 02404R0067562010 State Vs. 1. Ritu Kapoor W/o Shammi Kapoor R/o J-37, Hari Nagar, Delhi. 2. Mohd. Jiyaul S/o Mohd. Ayub R/o Jhugg No. 142, Rewari Railway Line, Mayapuri, Phase-II Delhi. FIR No.: 375/2009 Under Section: 363/364/317/34 IPC Police Station: Mukherjee Nagar Date of Conviction: 24.3.2011 Arguments heard on: 31.3.2011/ 8.4.2011 Date of Sentence: 13.4.2011 APPEARANCE: Present: Ld. Addl. Public Prosecutor for the State.
Both the convicts Ritu Kapoor and Mohd. Jiyaul are in judicial custody with Ms. Sindu Sakarwal, Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment dated 24.3.2011, both the accused Ritu Kapoor and Mohd. Jiyaul have been held guilty of the State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 48 offence under Sections 363 and 364 read with Section 34 Indian Penal Code and accordingly convicted.
The facts of the case are very peculiar. The convict Ritu Kapoor kidnapped a male child hardly a month and a half old belonging to the complainant Anita which she did with the help of co-accused/ convict Mohd. Jiyaul. As per the allegations on 13.11.2008 at about 2:00 pm the accused Ritu Kapoor and Mohd.
Jiyaul were seen roaming in the area of Mukherjee Nagar Jhuggies. While the accused Ritu Kappor went to the Jhuggi of complainant Anita and introduced herself as a representative of Government under the Ladli scheme and asked her the details of the female child. The accused Mohd. Jiyaul stood near a TSR parked on the main road adjoining the Jhuggi. Ritu Kapoor thereafter sat outside the jhuggi of the Anita and asked her for a glass of water which the she gave to the accused Ritu Kapoor. The child of the complainant namely Atul (aged about one and a half month at the time of the incident), was sleeping inside the Jhuggi under the care of his elder sister Seema aged about eight years while Anita went to some distance in order to dry the clothes of the child on a railing. Taking advantage of this situation Ritu Kapoor went inside the Jhuggi and picked up the child Atul whom she hid under the shawl and ran away. On seeing Ritu Kapoor pick-up the child, Seema raised an alarm shouting "Mera Babu Le Gayi" on which a large number of persons sitting outside including Umesh ran after the accused Ritu Kapoor but she managed to flee by jumping into the TSR of Mohd. Jiyaul who immediately drove away with Ritu Kapoor and the child.
State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 49Immediately, a call was made to the PCR and the present case was registered. The sketch of the accused Ritu Kapoor was prepared by the police on the basis of the description given by the eye witnesses Anita and Umesh and a hue and cry notice was issued all over India but the child could not be traced. After about seven days on 19.11.2009 the infant who had been kidnapped by Ritu Kapoor and Mohd. Jiyaul felt ill with an Upper Respiratory Infection and had to be taken to the clinic of Dr. Jagjeet at Chand Medical Center, BE- 277, Hari Nagar, Delhi where the accused Ritu Kapoor gave the name of the infant made child aged two months as Ishant and claimed herself to be his mother.
After a dew days the accused Ritu Kapoor was apprehended in case FIR No. 384/09 under Sections 363/120-B/34 IPC, Police Station Rajouri Garden. During the investigations in the said case she disclosed her involvement in other cases including FIR No. 319/09, under Sections 363/302 Indian Penal Code, Police Station Hari Nagar and the present case. Thereafter both Ritu Kapoor and Mohd. Jiyaul were arrested in the present case and during investigations in the above case of Police Station Hari Nagar they made a disclosure regarding their involvement in the present case and thereafter led the investigating officer to the clinic to Dr. Jagjeet where the ailing child had been got treated. The investigations revealed that the name of the child had been given as Ishant and on inquiry from the Assistant of Dr. Jagjeet namely Deepak it was revealed that Ritu Kapoor had even previously on many occasions brought a male infant to them for treatment and State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 50 every time the child was different though the name given by the accused Ritu Kapoor was the same i.e. Ishant. In fact Deepak had even remarked to her that the child did not bear any resemblance to her to which she objected and asked him to mind his own business. Both the accused Ritu Kapoor and Mohd. Jiyaul then led the investigating officer to the footpath adjoining the jhuggi cluster from where the child had been lifted and pointed out the place where the child aged about two months had been abandoned by them on the late evening hours after ten days of kidnapping since the child was very sick. What happened to the child thereafter is still a mystery. On the basis of the testimonies of the eye witnesses Anita, Seema, Bimla and Umesh and the corroborative evidence in the form of the testimony of Dr. Jagjeet and his Assistant Deepak, the accused Ritu Kapoor and Mohd. Jiyaul have been held guilty of the offence under Sections 363 and 364 read with Section 34 Indian Penal Code and accordingly convicted. However, since the prosecution has not been able to satisfy the ingredients of Section 317 Indian Penal Code, the accused were accordingly acquitted for the same.
I have heard arguments on the point of sentence. Ld. Amicus Curiae appearing on behalf of the convict submits that the convict Ritu Kapoor is aged about 41 years and she could not bear a child for which reason she has been abandoned by her husband. It is also submitted that the convict Ritu Kapoor who is totally illiterate and is mentally disturbed and needs treatment, love and sympathy rather than punishment. Ld. counsel appearing on behalf State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 51 of the convict Mohd. Jiyaul has vehemently argued that the convict Mohd. Jiyaul is a young boy of 26 years having a family comprising of his parents, three brothers and one sister. It is submitted that the convict is totally illiterate and is a rickshaw puller by profession.
Ld. Addl. PP for the State has argued that both the convicts Ritu Kapoor and Mohd. Jiyaul are habitual child lifters. It is submitted that both the convicts are involved in number of cases of similar nature including FIR No.384/09, Police Station Rajouri Garden, under Sections 363/120-B/34 IPC; FIR No.319/09, Police Station Hari Nagar, under Sections 363/302/34 IPC; FIR No.136/08, Police Station Pandav Nagar, under Sections 363/365/34 IPC; FIR No.311/09, Police Station Vikas Puri, under Sections 363/34 IPC and FIR No.307/09, Police Station Binda Pur, under Sections 363/365/34 IPC. He has further submitted that the convict Mohd. Jiyaul is also involved in five other cases i.e. FIR No.384/09, Police Station Rajouri Garden, under Sections 363/120-B/34 IPC; FIR No.319/09, Police Station Hari Nagar, under Sections 363/302/34 IPC; FIR No.136/08, Police Station Pandav Nagar, under Sections 363/365/34 IPC; FIR No.270/09, Police Station Hari Nagar, under Sections 363 IPC and FIR No.307/09, Police Station Binda Pur, under Sections 363/365/34 IPC. He has submitted that in two of the above cases the kidnapped children (both infants) had been recovered from the Jhuggies of the convict Ritu Kapoor whereas the whereabouts of the child involved in the present case are still unknown and therefore, under these State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 52 circumstances, they are not required to be shown any leniency.
I have considered the rival contentions. This defence of insanity for the first time has now been taken at the stage of sentence. M' Nagthan Rule provides that there is a presumption of sanity and the burden of proof is on the person who claims insanity. Sanity is a rebuttable presumption and the burden of proof is on the party relying upon it. Whether a particular condition amounts to a decease of the mind within the rules, is not a medical but legal question to be decided in accordance with the ordinary rules of interpretation. There is a clear distinct between the internal and external factors affecting the mind of the accused which would depend largely upon the elements of voluntariness and awareness of the circumstances surrounding the action of the accused. In order to satisfy this requirement, the wrong committed must be a legal wrong and the accused be functionally unaware that his actions are legally wrong at the time of offence. A practical issue is whether the fact that an accused is labouring under a "mental disability"
should be a necessary but not sufficient condition for negating responsibility i.e. whether the test should also require an incapacity to understand what is being done, to know that what one is doing is wrong, or to control an impulse to do something and so demonstrate a causal link between the disability and the potentially criminal acts and omissions.
Applying this test to the facts of the present case, the medical reports of the convict Ritu Kapoor have neither been placed on record nor relied upon. Legal insanity is different from medical State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 53 insanity. Merely to state that the background of the convict Ritu Kapoor is responsible for her present criminal act would not be sufficient. While interacting with the convict Ritu Kapoor during trial this court has observed that she is totally aware and conscious of her surroundings, the nature of allegations against her and the consequences thereof. In fact, after the judgment when the case was listed for arguments on sentence, she at her own level, engaged a new counsel to defend her. Apparently, the convict has raised this plea at this stage as a last defence only to wriggle out and escape the penal consequences of her illegal acts by taking the ruse insanity. The victim who was an infant of two months, is not traceable till date after he was allegedly abandoned by the convict. Whether the victim (infant) has died or was sold or has been subjected to trafficking still remains a mystery. Therefore, the convicts being habitual child lifters, any leniency shown is likely to be misplaced under the given circumstances when the child itself is not traceable.
The Hon'ble Apex Court has in the case of Rajiv Vs. State of Rajasthan [1996 A.I.R. (SC) 787]: [1995(4) Crimes 695]:
[1996(2) S.C.C. 175]: [1995(8) J.T. 520] observed that:
"...... Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 54 proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
The Hon'ble Court has further observed that:
After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha Vs. State of Callifornia, (402 US 183 : 28 L.D. 2d 711) that no formula of a foolproof State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 55 nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In Dhananjoy Chatterjee Vs. State of W.B., 1994(3) RCR (Crl.) 359 (SC): 1994 (2) SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminal and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 56 considering the imposition of appropriate punishment.
As on date kidnapping has become a major problem facing our society. It is a profitable business specifically, if the victim is an infant belonging to a poor family. Physical appearance of the child aged a few months frequently changes making it difficult for even the family members to identify the child if much time has elapse. So far as the child is concerned, it is too small to identify anybody. The situation becomes all the more difficult when the victim belong to a very poor family and the family of the child is unable to provide any identification proof in the form of photograph etc. In the recent past Delhi has experienced a spurt and rise in the incidents of kidnapping and exploitation of small children and infants belonging to poor families for trafficking, beggary and human organs trade. Kidnapping is an offence against the society and the courts cannot shut their eyes to permit the guilty to get away with lighter punishments just because the existing statutory laws do not sufficiently cover various situations. Under these circumstances the courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges.
India's capital Delhi has one of the highest numbers of missing children and the country has no central data on the number of children who go missing or what has happened to them. As State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 57 many as 60,000 young child below the age of 18 years were reported missing in the year 2009 (all India figure) as compared to 44,000 in 2004 and 40% of them were traced through the individual efforts by parents. The data further reveals that seven children, mostly from extremely poor families, go missing every hour with a count of 165 a day and about 10% or 6,000 children who went missing were infants less than a year old. Recently in an answer to a right to information question by an NGO Alliance for Peoples' Rights, the Delhi Police revealed that 2,161 children had been registered as missing in New Delhi in a span of 270 days in 2010 i.e. an average of eight children going missing every day of which 603 are yet to be traced. Outer Delhi topped the list with 1,090 followed by North- East Delhi with 1,031. The Right to Information filed in January to ascertain the number of children gone missing from the capital places reveals Outer Delhi at the highest pedestal with an average of two children missing per day followed by Jahangir Puri, Aman Vihar, Sultanpuri areas. According to the National Human Rights Commission over 44,000 children go missing every year. The National Centre for Missing Children says there are 10 lacs runaways in India every year, that is, a child runs away from home every 30 seconds.
Serious is the problem and hence stringent should be the punishment. In the words of Mr. Justice A. Pasayat in the case of Siddarama and Ors. Vs. State of Karnataka [2006 IV AD (Crl.) SC 78] it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 58 while achieving the avowed object of law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be.
The convict Ritu Kapoor is a habitual child lifter and is involved in five other cases of similar nature. Two children have been recovered from her Jhuggies after her arrest and the modus operandi adopted is virtually the same. In fact in FIR No. 319/09, under Sections 363/302/34 IPC, Police Station Hari Nagar a dead body of a kidnapped child was recovered from the footpath and later, on the arrest of the present convict Ritu Kapoor she disclosed about her involvement in the said case and also pointed out the place where she had left the dead body of the child. A similar modus has been adopted in the present case, when Ritu Kapoor claimed that she abandoned the child. Neither the child has been recovered nor his body and hence no leniency can be shown to both the convicts. I hereby award the following sentences to the convicts:
The convict Ritu Kapoor is sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.2,000/- for the offence under Section 363 Indian Penal Code. In default of payment of fine, the convict shall undergo Simple Imprisonment for a period of one week.
Further, she is sentenced to Rigorous Imprisonment for a period of Ten years and fine to the tune of Rs.5,000/- for the offence under Section 364 Indian Penal Code. In default of payment of fine, the convict shall undergo Simple Imprisonment State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 59 for a period of one month.
Both the sentences shall run concurrently.
In so far as the convict Mohd. Jiyaul is concerned, he is sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs. 2,000/- for the offence under Section 363 Indian Penal Code. In default of payment of fine, the convict shall undergo Simple Imprisonment for a period of one week.
Further, he is sentenced to Rigorous Imprisonment for a period of ten years and fine to the tune of Rs. 5,000/- for the offence under Section 364 Indian Penal Code. In default of payment of fine, the convict shall undergo Simple Imprisonment for a period of one month.
Both the sentences shall run concurrently.
Benefit of Section 428 Code of Criminal Procedure shall be given to both the convicts for the period already undergone by them during the trial, as per rules. It is clarified that the aforesaid sentences shall not run concurrently to any other sentence so imposed upon the convicts by any other court.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 60
Copy of the judgment and order on sentence be given to both the convict free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 13.4.2011 ASJ (NW)-II: Rohini
State Vs. Ritu Kapoor Etc., FIR No.375/09, PS Mukherjee Nagar Page No. 61