Delhi District Court
State vs Shiv Kumar on 30 January, 2013
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE (NDPS) : DELHI
SC No.72/2009
FIR No.117/09
PS Anand Parbat
In the matter of:
State
Versus
1. Shiv Kumar
S/o Ram Chander
R/o H. No. 2087/5A, Gali No.21,
Prem Nagar, Baljeet Nagar,
Delhi.
2. Vijay Kumar
S/o Rajinder Yadav
R/o H. No. 2087/5A, Gali No.21,
Prem Nagar, Baljeet Nagar,
Delhi. .......Accused persons
Date of Institution : 04.12.2009
Date of Judgment : 30.01.2013
J U D G M E N T
Shiv Kumar and Vijay Kumar, accused have been facing trial for offences U/s 363 & 364A/511 IPC read with Sec.34 IPC on the accusation that on 03.08.09, both of them alongwith another (Juvenile), in furtherance of their common intention kidnapped Vansh, a three years old child, from in FIR No.117/09 1 front of H.No.T76, Punjabi Basti, Baljeet Nagar, New Delhi, with intent to cause death of the said child or to cause him hurt, in order to compel his parents to pay ransom.
2. It is case of prosecution that on 03.08.09, Vansh, the child aged 3 years was playing in front of H.No.T76, Punjabi Basti, Baljeet Nagar, Anand Parbat, New Delhi. At 8.15 p.m., Ms. Manju Sharma, mother of the child found that the child was not available. A girl child namely, Jyoti told her to have seen three boys taking Vansh along towards Patel Nagar. Vansh was carried by one of them in his lap. The mother searched for Vansh here and there, but in vain. Ultimately, she reported the matter to the police on the same night at about 10.30 p.m. It may be mentioned here that prior thereto at 9.45 p.m., information was received at PS Anand Parbat that the child had gone missing. ASI Taushif Ahmed was assigned copy of DD no.31A. The ASI reached house of the complainant where she made her statement. This led to registration of the case.
3. It is case of prosecution that police of PS Shakarpur received information on the same night at about 10.00 p.m. that on TSR no.DL 1RK 6044 had been intercepted at Shakarpur. This information was recorded vide DD no.42A. TSR was seen coming from the side of ITO while ASI Brahm Singh and his staff of PCR was present on duty, at Shakarpur Chungi, Octroi Post on Vikas Marg. The PCR staff observed the weeping child in the captivity of two persons. Vijay Kumar, Driver of the TSR told the police FIR No.117/09 2 that his TSR was hired by them for Anand Vihar Bus Terminal. Vijay Kumar, TSR driver got suspicious. On reaching Vikas Marg and having noticed the PCR staff, he brought the matter to notice of PCR. That is how, Shiv Kumar, accused and Juvenile were apprehended with the child.
The PCR staff made Shiv Kumar, Juvenile and the child to board the PCR van and then started towards PS Shakarpur. When PCR van reached near the police station, Shiv Kumar, accused managed to escape by jumping from the van.
On having come to know about interception of the TSR and on receipt of DD no.42A, ASI Jai Pal Sharma of PS Shakarpur came out of the police station and met the PCR staff. ASI Brahm Singh produced the Juvenile child, TSR and the TSR driver. ASI Jai Pal Sharma was also informed that Shiv Kumar accused had managed to escape. This information was communicated to PS Anand Parbat.
ASI Taushif Ahmed accompanied by Ct. Surender and Smt. Manju Sharma, mother of the child, reached PS Shakarpur, where the child was produced before him. He was identified by the complainant and his mother. Custody of the child was given to mother. ASI Taushif Ahmed collected documents from ASI Jai Pal Sharma and arrested the Juvenile. TSR was also seized.
4. It is also case of prosecution that on 05.08.09 SI Johri Lal and other staff left in connection with investigation of this case, taking the Juvenile along. When they reached Gurudwara Bangla Saheb, Shiv Kumar, accused FIR No.117/09 3 was found present in the nearby parking. He was arrested and from his possession one mobile phone make Nokia was recovered.
5. Further, it is case of prosecution that Shiv Kumar, accused made disclosure statement and offered to get Vijay Kumar, accused arrested. At his instance, Vijay Kumar, accused was apprehended on the same day i.e. 05.08.09 at 5.45 p.m. from Rama Road round about. One mobile phone made Nokia was recovered from Vijay Kumar also.
On 03.08.09, Vijay Kumar, accused alleged to have taken scooter no.DL8SX1297 make LML from Sh. Kapil Dev Sharma on the pretext that he was to go to hospital to meet his aunt, who was ill. 1015 minutes thereafter Vijay Kumar accused returned the scooter. During those days, Vijay Kumar was living as a tenant near the house of the complainant.
6. Vijay Kumar, accused made disclosure statement and got discovered a scooter, from in front of H.No.2094, 5/AC. From the dickey of the said scooter, strip containing Nitrozapam tablets was recovered. The scooter and the strip of tablets were seized.
7. During investigation, police obtained opinion of doctor of Maulana Azad Medical College & Hospital about Nitrozapam tablet.
8. On 06.08.09, Shiv Kumar, accused was produced for the purpose of Test Identification Proceedings, but he refused to participate in the proceedings.
9. On completion of investigation, challan was put in court, so far as Shiv Kumar and Vijay Kumar, accused are concerned. Proceedings were FIR No.117/09 4 separately got initiated against the Juvenile before Juvenile Justice Board.
After compliance with provisions of Sec.207 Cr.P.C., case came to be committed to the Hon'ble Court of Session.
Charge Prima facie case having been made out, charge for offences U/s U/s 363 & 364A/511 IPC read with Sec.34 IPC was framed against the accused persons on 15.12.2009, to which they pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
10. In order to prove its case prosecution examined, following 20 witnesses: PW1 Ms. Manju Sharma, Mother of the child.
Complainant
PW2 Ms. Jyoti Who is stated to have seen the child
with some persons present in the street.
PW3 Sh. Kapil Dev Sharma Owner of scooter no.DL 8SX 1297.
PW4 Ct. Surender To prove part of the investigation
conducted by ASI Taushif Ahmed and
got the case registered on the basis of
rukka.
PW5 HC Surender, Duty Officer To prove recording of DD no.42A.
PW6 Ct. Dharmender Member of PCR staff which intercepted
the TSR and recovered the child.
PW7 ASI Brahm Singh Incharge of PCR staff which intercepted
the TSR and recovered the child.
PW8 SI Sultan Singh, Duty To prove recording of DD no.31A, 39A Officer and copy of FIR Ex.PW8/B. FIR No.117/09 5 PW9 Sh. Radhey Shyam To prove tenancy of Vijay Kumar, accused in respect of one room of his house No.T69/5, Punjabi Basti, Baljeet Nagar, Anand Parbat, in the year 2008.
PW10 Ct. Sansbir Tomar To prove arrest of Shiv Kumar and Vijay Kumar, accused and recoveries from them.
PW11 Sh. Kapil Dev Sharma Owner of scooter examined once again. PW12 Sh. Ram Prakash Yadav To prove that Vijay Kumar, accused had taken his Sim no.9968897611 around 20.07.09, saying that his mobile had been lost.
PW13 HC Anoop Singh Witness to arrest of Shiv Kumar and Vijay Kumar and recoveries from them.
PW14 SI Zora Singh Witness to arrest of Shiv Kumar and Vijay Kumar and recoveries from them.
PW15 Dr. Harmeet Singh To prove his report Ex.PW15/B and opinion regarding medicine Nitrozapam.
PW16 Sh. Vijay Kumar Driver of the hired TSR, in which the child was being taken away.
PW17 Sh. Gaurav Rao, To prove refusal by Shiv Kumar, Metropolitan Magistrate accused to participate in TIP. PW18 Ct. Ram Mehar Member of PCR staff which intercepted the TSR.
PW19 ASI Jai Pal Sharma Who partly investigated the case. PW20 ASI Taushif Ahmed Who partly investigated the case. Statement of Accused
11. When examined U/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances regarding recovery, appearing in evidence against them and claimed false implication.
In defence, Shiv Kumar, accused has examined DW1 Suraj Raj and FIR No.117/09 6 DW2 Shyam Bali.
Accused Vijay Kumar has led no evidence in defence. Arguments heard.
Discussion
12. The child goes missing Occurrence is alleged to have taken place on 03.08.09, at about 8.15 p.m. According to PW2 Ms. Manju Sharma, mother of the child, on 03.0809 at 8.15 p.m., her child Vansh was playing outside H.No.T16, Punjabi Basti, Baljeet Nagar, New Delhi. After cooking meals, she came out of the house to bring her son inside, so as to feed him, but he was missing. She could not find him outside the house. She searched for him in the neighbourhood, but there also she could not find him. One girl namely, Jyoti from the neighbourhood told her that her son was being taken away by unknown three boys. Thereupon, she reported the matter to police by making statement Ex.PW1/A. PW8 SI Sultan Singh is concerned Duty Officer, who has proved DD no.31A Ex.PW8/A. It was recorded at about 9.45 p.m. on information received through PCR. The information was that a child aged 3 years was missing from Punjabi Basti, Baljeet Nagar, Delhi.
PW20 SI Tausif Ahmad has deposed that on receipt of DD no.31A Ex.PW8/A he accompanied by Ct. Surinder reached H.No.T67, Punjabi FIR No.117/09 7 Basti, Baljeet Nagar, New Delhi, where Ms. Manju Sharma met him and made statement Ex.PW1/A. PW20 has proved endorsement Ex.Pw20/A appended to statement Ex.PW1/A and that on its basis, case was got registered.
PW8 SI Sultan has proved recording of FIR Ex.PW8/B at 10.45 p.m. Rukka was dispatched at 10.30 p.m. Therefore, this is a case of prompt lodging of missing report and registration of case.
13. Child is seen being taken away In this regard, prosecution has examined PW2 Jyoti, a child aged 9 years, resident of same locality i.e. Baljit Nagar. According to PW2, she was playing in the street, where she saw Vansh standing and then going away with some people.
The witness then stated that there was one person with Vansh. She also stated to have told about this to the mother of Vansh.
It is pertinent to mention that my learned Predecessor, while recording statement of PW2 Jyoti made preliminary inquiries, in order to made assessment about her capacity to understand the questions and give answers. The witness answered and understood all questions confidently. Thereupon, my learned Predecessor found that the witness was having the capacity to understand the questions and give answers, and accordingly found that she was a competent witness.
Statement of PW2 finds support from statement of PW1 Ms. Manju Sharma. It is in her statement that girl Jyoti, from her neighbourhood, told FIR No.117/09 8 her that Vansh had been taken away by three boys, whom she did not know.
Learned counsel for accused has contended that the statement made by PW1 is not in consonance with version narrated by PW1 Jyoti as the later did not state about presence of 'three boys'.
It is true that according to PW1, Jyoti stated that three boys were seen by her taking Vansh away, but PW2 has not specified the number of persons, who were taking Vansh away. But, this does not create any doubt in the version of the two witnesses, the reason being that PW2 answered in reply to a question that Vansh had gone with some people and when she stated in reply to another question that there was one person with Vansh, she meant to say that Vansh was with one of them.
14. The child is detected It is case of prosecution that child was detected with the juvenile and Shiv Kumar accused herein, on the same night at 9.59 pm, by PCR staff present on duty at Vikas Marg and on recovery, his custody was given to his mother after Police of PS Shakarpur and then police of PS Ananad Parbat were informed.
The PCR party, which detected the child with the juvenile and Shiv Kumar accused, consisted of PW18 Ct. Ram Mehar, PW6 Ct. Dharmender and PW7 ASI Bharam Singh.
Learned defence counsel appearing for Vijay Kumar and learned Amicus Curiae appearing for accused Shiv Kumar have submitted that the case against these two accused is based only on disclosure statement of Juvenile and that this disclosure statement cannot be made the basis for FIR No.117/09 9 holding them guilty for commission of any crime.
PW6 While appearing in Court as PW6 Ct. Dharmender has deposed regarding his presence, while on duty at Shakarpur chungi, Vikas Marg. According to this witness, on 03.08.2009, at about 9 pm, one TSR driver informed them that TSR No.DL 1 RK 6044 was coming from the side of ITO, in which a child was in the captivity of two persons and weeping. ASI Bharam Singh, Inchage of the PCR van stopped the TSR in which the two persons were present alongwith a child. The two persons, the driver of the TSR and the child were made to proceed towards PS Shakapur. When they reached near PS Shakarpur, he (witness) stopped the PCR van on seeing a vehicle ahead. At that time, one boy managed to escape after jumping from the PCR van. According to the witness, name of the child was Vansh, Vipin was the juvenile and Vijay Kumar was the TSR driver, who were produced before ASI Jaipal alongwith TSR.
It may be mentioned here that statement of PW6 Ct. Dharmender has gone unchallenged for want of any cross examination.
PW7 PW7 ASI Bharam Singh Incharge of PCR has deposed in line with statement of PW6 Ct. Dharmender, about recovery of the child Vansh from the TSR DL 1RK 6044 which were being driven by Vijay Kumar driver. He has also deposed as to the manner in which one of the boys managed to escape and he further deposed about production of child, the juvenile, TSR driver before ASI Jai Pal Singh. Statement of ASI Bharam Singh also gone unchallenged for want of any cross examination.
PW18 FIR No.117/09 10 PW18 Ct. Ram Mehra, is third member of the PCR staff which recovered the child on 03.08.2009. According to PW18, on 03.08.2009, in between 9/10 pm, one TSR came from the side of ITO. TSR driver hinted that they should see the matter as child in the TSR was crying. Thereupon he and ASI Bharam Singh reached near TSR and found that one person, namely Vipin was carrying the child. As regards, over person, travelling in TSR, Ct. Ram Mehra named him as Shiv Kumar.
Further according to the witness, they made inquiries from the juvenile and Shiv Kumar accused but the could not give any satisfactory reply. Then, they took the child to the PCR van and all of them set out for PS Shakarpur. Witness has also narrated the manner in which other accused Shiv Kumar managed to escape. He also deposed about production of juvenile before ASI Jaipal Singh. In his cross examination, witness categorically denied that Shiv Kumar accused was neither in the TSR nor he was made to sit in PCR or he was deposing falsely in this regard.
PW19 PW19 ASI Jaipal Sharma of PS Shakarpur was assigned investigation on the basis of DD no.42A Ex.PW5/A. A perusal of Ex.PW5/A would reveal that PCR informed police of PS Shakarpur at 9.55 p.m. that as informed by one TSR, a child, who was weeping, was recovered from other TSR No.DL 1RK 6044. It also finds mention in DD entry that ASI Jaipal Sharma was informed to do the needful.
According to PW19 ASI Jaipal Sharma, DD no.42A Ex.PW5/A was assigned to him. Thereupon, he accompanied by Ct. Jai Kumar came out of PS Shakarpur to leave for the disclosed place, but in the meanwhile PCR FIR No.117/09 11 R25 came and met them at the gate of police station. ASI Brahm Singh, Incharge of PCR produced one child, one Vipin Sharma and Vijay Kumar, driver of TSR, while informing that one associate of Vipin had escaped from PCR van. Upon verification from PCR, it was found that child was reportedly missing and DD no.31A had already been recorded at PS Anand Parbat. Accordingly, information was communicated to PS Anand Parbat. Thereupon ASI Taushif Ahmad accompanied by mother of the ch ild reached PS Shakarpur and that is how the child was rescued.
From the aforesaid testimony of ASI Jaipal Sharma prosecution version regarding interception of TSR with child, Juvenile and fleeing away of Shiv Kumar accused stands corroborated.
PW20 PW20 ASI Taushif Ahmed has also supported the case of prosecution by stating that on 03.08.09, at about 9.45 p.m., vide DD no.42A Ex.PW5/A received from PS Shakarpur it transpired that the child had been recovered and brought to PS Shakarpur with the kidnappers.
PW5 HC Surinder has proved recording of DD no.42A Ex.PW5/A and that the same was conveyed to ASI Jaipal Sharma. Statement of PW5 HC Surinder has gone unchallenged for want of any cross examination.
According to PW20, ASI Tausif Ahmad, he accompanied by Ct. Surinder and complainant Manju Sharma reached PS Shakarpur, where ASI of PS Shakarpur produced the child before him. The child was identified by the complainant. Memo Ex.PW1/B proved by this witness is in consonance FIR No.117/09 12 with the statement by PW19 ASI Jaipal Sharma.
PW1 Smt.Manju Sharma - complainant has also deposed in line with the version of prosecution that on the same night she was informed that her son had been recovered by the police of PS Shakarpur. She reached PS Anand Parbat and from there she accompanied police of PS Anand Parbat to PS Shakarpur . At police station Shakarpur, her son was with one Vipin. In this regard, she has proved memo Ex.PW1/B. It is also in her statement that she took over custody of the child vide memo Ex.PW1/C. PW4 Ct. Surender accompanied ASI Tausif from PS Anand Parbat to PS Shakarpur. According to PW4, 2 or 2 ½ hours after receipt of information from PS Shakarpur, he accompanied ASI Tausif and reached PS Shakarpur where SI Jaipal produced a child and Vipin before them. The child was identified there by his mother, who was accompanying them (police). Further according to witness, the custody of the child was given to the mother. He then deposed as to the manner in which the Vipin was arrested. In this regard, he has proved handing over memo Ex.PW1/C. Statement of PW4 has gone unchallenged for want of any cross examination.
From the statements of PW1 Manju Sharma, PW4 Ct. Surinder, PW19 ASI Jaipal and PW20 ASI Tausif Ahmad, the prosecution case regarding recovery of the child from Vipin (Juvenile) on 03.08.09 and handing over of custody of the child to his mother stands duly proved. FIR No.117/09 13
14. Role of accused persons It is case of prosecution that the Juvenile was interrogated by ASI Tausif Ahmad and he disclosed about involvement of Vijay Kumar and Shiv Kumar as well, in kidnapping the child and the manner in which they were apprehended. He also disclosed that he could get Shiv Kumar and Vijay Kumar arrested.
PW20 ASI Taushif Ahmad has proved disclosure statement Ex.PW20/D made by the Juvenile. In his cross examination PW20 denied to have not visited PS Shakarpur or to have not conducted any investigation.
Ex PW19/A is DD No. 8A recorded by ASI Jaipal at PS Shakarpu on the night intervening 3/4.08.2009. In this document, ASI Jaipal recorded as to how he left the police station Shakarpur and met ASI Bhram Singh of PCR R25 at the gate of police station, where three years old child was produced before him. It also finds mention in this document that Vipin Sharma (juvenile) was also produced before him by the ASI while stating that his companion had run away after jumping from the van. Production of Vijay Kumar, TSR Driver also finds mention in this entry.
Statement of Vijay Kumar, TSR driver was recorded during investigation. Vijay Kumar, TSR driver, has stepped into the witness box as PW16 and deposed the manner in which the TSR was hired and the child was recovered from his TSR with two persons and the manner in which one of them made good his escape from the PCR van when being taken to PS Shakarpur.
According to PW16 that on 03.09.2009 at about 8.30 pm, while driving his TSR DL 1RK 6044 he was going from Anand Parbat to Karol Bagh. When he FIR No.117/09 14 reached PS Karol Bagh, two persons, who were having a child with them signaled him to stop. Both of them then boarded his TSR with the child and as directed he started for Anand Vihar Bus Terminal.
Further according PW16, when he reached traffic light of the Jhandewalan, the child started crying. When he inquired about it, he was told that child was crying as his mother was not with them. The witness went on to state that the child used to cry whenever TSR was stopped due to traffic light. The child would scuffle to ran away. He became suspicious. When TSR reached Vikas Marg, he saw a PCR and called the PCR Staff. PCR staff apprehended both the boys and made them to sit in the PCR van. Child was also taken to PCR van.
Further according to PW16, when PCR van reached near police station and stopped due to interception by some vehicle, one boy jumped form the PCR and ran away. The other boy, namely Vipin (juvenile) and the child were then taken to the police station.
As further stated by PW16 Vijay Kumar, Vipin disclosed the name of the other boy, who had jumped from the PCR van, as Shiv Kumar. It is significant to note that Vijay Kumar identified Shiv Kumar present in Court as the boy who had boarded the TSR with Vipin and run away from the PCR van.
Prosecution has also examined PW17 Sh. Gaurav Rao, Metropolitan Magistrate to prove refusal of Shiv Kumar to participate in Test Identification Proceedings. Application Ex PW17/A was dealt by PW17 on 06.08.2009. As per proceedings Ex PW17/B, Shiv Kumar was produced before PW17 with muffled face taking all precaution to conceal his identity. When Shiv Kumar was asked whether he wanted to participate in Test Identification Proceedings, Shiv Kumar accused refused to do so. Despite warning that refusal might go against him, Shiv FIR No.117/09 15 Kumar insisted on his refusal.
Learned Amicus Curiae appearing for Shiv Kumar accused has submitted that accused was justified in refusal to participate in Test Identification Proceedings as his photographs had been taken and shown to the witness.
The submission put forth by Learned Amicus Curiae is of no advantage to Shiv Kumar accused, firstly, because PW16 Vijay Kumar has correctly identified Shiv Kumar as the boy who boarded the TSR with his companion Vipin and the child and hired his TSR for Anand Vihar Bus Terminal and as the boy who ran away from the PCR on that night. There is nothing in the statement of PW16 that he was inimical towards Shiv Kumar accused or interested in prosecution on any account.
Learned defence counsel has submitted that it is difficult for a TSR driver to remember identity of every passenger by face, and as such no reliance should be placed on his testimony so far identification of Shiv Kumar accused is concerned.
This is not a case where the passenger hired a TSR and dropped at a short distance. TSR was hired in the area of Karol Bagh for Anand Vihar Bus Terminus. Shiv Kumar and his companion Vipin travelled in the TSR with the child up to Vikas Marg in the area of Shakarpur where they were intercepted by the PCR staff. So, Vijay Kumar had sufficient time and opportunity to see Shiv Kumar by face before he managed to escape.
As noticed above, PW18 Ct. Ram Mehar, one of the member of the PCR staff who was taking Shiv Kumar accused, juvenile and the child to police station Shakarpur has specifically named Shiv Kumar and identified him as the person who managed to escape. There is nothing in the statement of PW18 to disbelieve his testimony.
FIR No.117/09 16
It may be mentioned here that soon after the arrival of ASI Tausif Ahmed, disclosure statement of the juvenile was recorded by him in presence of Ct. Surinder. The disclosure statement is Ex PW20/D. In this disclosure statement name of Shiv Kumar finds specifically mentioned as the person who managed to escape from PCR van after they had been intercepted in the PCR and child was recovered from them.
In view of the above evidence available on record, this Court finds that prosecution has fully established that juvenile and Shiv Kumar were taking the kidnapped child away in the hired TSR, travelled in it with child and when they were apprehended at Vikas Marg, Shiv Kumar managed to escape, whereas juvenile was apprehended and the child was recovered.
15. Arrest of Shiv Kumar It is case of prosecution that Shiv Kumar was apprehended on the basis of disclosure statement made by Vipin (juvenile) and at the pointing out of said juvenile. In this regard, prosecution has examined PW14 SI Zora Singh , PW13 HC Anoop Singh, and PW10 Ct. Sansbir Singh.
While appearing in the Court, all these witnesses have deposed about arrest of Shiv Kumar accused on 05.08.2009, at about 4pm, from park near Gurudwara Bangla Saheb at the pointing out of Vipin (juvenile) and recovery of one mobile phone from his possession. Arrest Memo is Ex.PW10/A and Seizure Memo is Ex.PW10/B. It may be mentioned herewith that statement of PW13 HC Anoop Singh has not been subjected to any cross examination on behalf of Shiv Kumar accused despite opportunity. This goes to show that version narrated by HC Anoop Singh on the aforesaid FIR No.117/09 17 aspect of arrest of Shiv Kumar on 05.08.2009 at about 4pm from park near Gurudwara Bangla Saheb and recovery of one mobile phone from his possession, has been accepted.
PW10 Ct. Sansbir and PW14 SI Zora Singh have made statements inconsonance with each other of their having left PS Anand Parbat at 12 noon to have reached in the area of Patel Nagar at 1:30pm and thereafter, having reached the area of Shadipur Depot. From Shadipur Depot, they reached Gurudwara Bangla Saheb and ultimately, apprehended Shiv Kumar accused from the park near Gurudwara Bangla Saheb at the pointing out of juvenile. Witnesses denied the suggestion putforth by Learned Counsel that Shiv Kumar was not arrested at the instance of Vipin (juvenile).
It is true that no person from the public was associated at the time of arrest of Shiv Kumar, but when statement of PW13 HC Anoop Singh has not been subjected to any cross examination despite opportunity, non joining of witness from the public does not adversely affect the testimony of police officials when the same finds corroboration from the documentry evidence and role of Shiv Kumar, as discussed above, in kidnapping of child and taking him away in TSR along with juvenile, stands duly established in the statements of PCR staff, disclosure statement made by Vipin (juvenile) and in the statement of TSR Driver Vijay Kumar.
Shiv Kumar accused has examined in defence evidence DW1 Suraj Raj and DW2 Shyam Bali to prove that he was picked up by the police from the place where he was having his rehri in the year 2009. FIR No.117/09 18
Learned defence counsel has submitted that in view of statements of DW1 and DW2, it has been established that Shiv Kumar was not arrested from the park near Gurudwara Bangla Saheb and rather he was picked up by the police from the place where he was having his rehri and then falsely implicated in this case.
DW1 Suraj Raj has deposed that Shiv Kumar used to park his rehri for sale of vegetable near his rehri, in the area of Nehru Nagar but in the year 2009 at about 4.30pm, he was picked up by the police and was falsely implicated. Almost to same affect, the statement of DW2 Shyam Bali.
It may be mentioned here that neither DW1 nor DW2 has given any date when Shiv Kumar was so picked up from the place where he was having his rehri, in the area of Nehru Nagar. At no point of time, anyone of them admittedly, lodged any complaint or report with any senior police officer in this regard. There is nothing on record to suggest that any of the two DWs ever accompanied parents of Shiv Kumar to any senior police officer to lodge protest or to tell that he had been falsely implicated. Parents of Shiv Kumar also did not file any complaint to any senior police officer or in any Court regarding false implication. Therefore, it is difficult to believe that Shiv Kumar was taken away by police from near his rehri, in the area of Nehru Nagar.
16. Role of Vijay Kumar, accused Role of Vijay Kumar, accused came to light for the first time from the disclosure statement Ex.PW20/D made by Vipin (Juvenile). This disclosure FIR No.117/09 19 statement was made by the Juvenile before ASI Tausif in presence of Ct. Surinder. In his disclosure statement, Vipin (Juvenile) disclosed that Vijay Kumar, accused was the master mind for kidnapping of the child.
In Ex.PW20/D, the Juvenile narrated the manner in which Vijay Kumar accused pointed out towards the child who was playing in the street in the area of Baljit Nagar and that it is Shiv Kumar accused who picked up the boy from the street and then all of them brought scooter brought by Vijay Kumar. He further disclosed that Vijay Kumar brought them to Karol Bagh and directed that he (Juvenile) and Shiv Kumar should take the child to Anand Vihar bus stand and he would be reaching there and then they would take the child to Haridwar. The child is alleged to have been so kidnapped as accused Vijay told that father of the child was in Canada and had enough money. Vipin also disclosed that Vijay Kumar accused had proposed that demand for ransom of Rs.4 lacs would be raised.
As per prosecution version Vijay Kumar, accused used to live as a tenant at the house of PW9 Radhey Shyam, in the neighbourhood of complainant Ms. Manju Sharma. In this regard, prosecution has examined PW12 Ram Parkash Yadav, uncle of Vijay Kumar, accused in proof of the fact that he (Vijay Kumar, accused) was residing at the house of Radhey Shyam as a tenant. Statement of PW12 Ram Parkash Yadav has gone unchallenged.
PW9 Radhey Shyam has deposed that in the year 2008, Vijay Kumar accused, present in court, was his tenant in one of the rooms of his house FIR No.117/09 20 no.T69/5, Punjabi Basti, Baljit Nagar, Delhi. He further deposed that house of Ram Parkash Yadav, uncle of Vijay Kumar, accused adjoins his house whereas house of the complainant is situated in front of his house.
In his statement U/s 313 Cr.P.C. Vijay Kumar accused has admitted that Ram Parkash Yadav is his uncle and that house of complainant Ms. Manju Sharma was situated in front of the house of Ram Parkash Yadav. Accused has also admitted that in the year 2008, he was tenant in one of the rooms of H.No.T69/5, Punjabi Basti, Baljit Nagar i.e. of PW9 Radhey Shyam and that he lived there as a tenant for about 89 months. He also admitted that he used to visit the house of his uncle Ram Parkash Yadav.
Although in his cross examination PW9 admitted that neither rent deed was executed regarding tenancy nor any rent receipt was issued in respect of the tenancy, the same does not demolish the case of prosecution in view of admission made by the accused that he lived as a tenant in the neighbourhood of the complainant in the year 2008, for about 89 months.
As regards use of scooter by Vijay Kumar, accused on 03.08.09 in kidnapping the child, prosecution has examined PW11 Kapil Dev Sharma, its registered owner. According to PW11 Kapil Dev Sharma, on 03.08.09, Vijay Kumar, accused came to him in the morning hours and took away his LML scooter no.DL 8X 1297 on the pretext that he was to go to hospital with his aunt. At 9.30 p.m., when he returned home from his office his sister told that Vijay Kumar, accused had come and parked the scooter only 10 minutes prior thereto.
FIR No.117/09 21
Statement PW11 has not been subjected to any cross examination. This goes to show that Vijay Kumar, accused has not challenged the prosecution version that on 03.08.09 he took the above mentioned scooter from Sh. Kapil Dev Sharma in the morning and returned the same after 9.00 p.m. Learned defence counsel appearing for Vijay Kumar, accused has submitted that no reliance could be placed on the disclosure statement of the Vipin (Juvenile) as the same does not bear attestation of the complainant. Disclosure statement Ex.PW20/B bears attestation of Ct. Surinder. It was recorded by ASI Tausif Ahmed. According to PW 20 ASI Tausif Ahmed, when he interrogated Vipin (Juvenile), he disclosed as to how plan to kidnap the child was made by his associate Vijay Kumar, accused and as to how this plan to kidnap the child was executed and as to how the child was recovered from them when he and Shiv Kumar were taking the child in a TSR but were stopped by PCR.
Although the prosecution has led evidence that on 03.08.2009, Vijay Kumar accused took away scooter of PW3 Kapil Dev Sharma on the pretext that he was to take his aunt to hospital who was ill, there is no cogent and convincing evidence to suggest that Vijay Kumar accused took scooter firstly, to Call Centre of Vipin (juvenile) and after having picked up the juvenile from there, reached the vegetable shop of Shiv Kumar or then used the scooter in taking away the kidnapped child upto Karol Bagh.
Prosecution has examined PW12 Ram Prakash Yadav to prove that FIR No.117/09 22 around 12.07.2009, Vijay Kumar accused had come to his house and taken away his Sim Card No.9968897611 saying that he had lost his mobile phone. Vijay Kumar is nephew of PW12 Ram Prakash Yadav. Although the statement of PW12 has gone unchallenged for want of cross examination, there is no evidence on record to suggest that aforesaid Sim Card was with Vijay Kumar accused on 03.08.2009 and 04.08.2009. In this regard, in order to lend corroboration of the Disclosure statement made by Vipin (juvenile) and that of Vijay Kumar accused himself, the Investigating Officer should have collected the call details record in respect of mobile phone said to have been recovered from Vijay Kumar. In the absence of call details record or location chart, it is difficult to say that Vijay Kumar accused was with Vipin (juvenile) or Shiv Kumar in the evening of 03.08.2009.
During investigation, no evidence was collected by the Investigating Officer from the Call Centre where juvenile used to serve or from nearby place to prove that Vijay Kumar took Vipin (juvenile) along in the evening of 03.08.2009. There is nothing in the statement of PW2 Ms. Jyoti, child to suggest that she had seen Vansh, kidnapped child, being taken away on any scooter. There is also nothing in the statement of PW16 Vijay Kumar, TSR Driver that he had seen Vijay Kumar accused with or without scooter in the company of Vipin (juvenile) and Shiv Kumar at the time when his TSR was hired.
As per disclosure statements of all accused persons, Vijay Kumar accused had conversation with Shiv Kumar after juvenile and Shiv Kumar FIR No.117/09 23 left the child in the hired Autorickshaw. However, this fact could also be proved by placing on record call details record in respect of mobile phones of Shiv Kumar and Vijay Kumar (who was allegedly using the Sim Card of his uncle PW12). No such call details record have been got proved. In the absence thereof, it cannot be said that Vijay Kumar had any conversation in connection with kidnapping of child.
It is the case of prosecution that Vijay Kumar accused was apprehended on the pointing out of Shiv Kumar from roundabout of Rama Road and that prior thereto, Vijay Kumar and Shiv Kumar were having conversation with each other on their mobile phones. However, as noticed above, prosecution has not placed any evidence to suggest that there was any such conversation between Vijay Kumar and Shiv Kumar on the night intervening 3/4.08.2009. Even no location chart of two mobile phones has been placed on record. In the absence thereof, it cannot be said that Vijay Kumar and Shiv Kumar were in contact with each other or that both of them stayed together at the house of some friend near Nepali Temple during that night.
It is the case of the prosecution that Vijay Kumar was apprehended by the police party headed by Inspector Dinesh Kumar. Police party consisted of SI Zora Singh, HC Anoop Singh, Ct. Sansbir, Ct. Satish and Vipin (juvenile) was with them. While appearing in Court as PW14 SI Zora Singh has narrated the manner in which Shiv Kumar was arrested and thereafter, Vijay Kumar was arrested. HC Anoop Singh, other member of the police party has been examined as PW13. Ct. Sansbir Singh, one of the members of FIR No.117/09 24 police party has appeared as PW10. They have also deposed about arrest of Shiv Kumar and Vijay Kumar. But Inspector Dinesh Kumar has not been examined. He was also not cited as one of the prosecution witnesses for the reason best known to prosecution.
It is case of the prosecution that after his arrest, Vijay Kumar made disclosure statement and got recovered scooter from in front of house of PW11 Kapil Dev. As per versions of SI Zora Singh, HC Anoop Singh and Ct Sansbir, the scooter was recovered when it was lying in front of house of PW11 Kapil Dev and not from inside the house. It is significant to note that as per Recovery Memo Ex.PW10/I, the scooter was lying inside the house No.2094/5AC, Street No. 15, Prem Nagar, Baljit Nagar.
Surprisingly, no person from public was associated at the time of this recovery, what to say joining any inmate of the house. So this is a case of noncompliance with the provisions of Section 100(4) Cr.P.C. In absence of corroboration from independent source, it is difficult to believe the prosecution version that Vijay Kumar accused got recovered the scooter from in front of house of PW11 Kapil Dev, what to say about recovery of any strip containing Nitrozapam tablets. Prosecution witnesses want the Court to believe that Vijay Kumar had opened the dickey of the scooter and got recovered a strip containing Nitrozapam tablets. According to them, the key of the dickey was taken by Vijay Kumar from under the rubber mat of the scooter. This version narrated by the prosecution is not at all believable in view of the version of the prosecution that Vijay Kumar returned the FIR No.117/09 25 scooter to the sister of Kapil Dev in the evening of 03.08.2009. It is not believable that he had not returned the key of the scooter to the sister of Kapil Dev at the time he returned the scooter. This fact also creates doubt in the version of prosecution regarding involvement of Vijay Kumar accused.
As regards recovery of tablets, it is significant to note that the child is not alleged to have been administered any such tablet. The child was not found unconscious or semiconscious at the time he was being taken away in the TSR or at he time of recovery by the PCR staff. Therefore, the factum of recovery of these tablets also does not fit in prosecution version so as to establish involvement of Vijay Kumar accused.
Conclusion
17. In view of above discussion, this Court comes to the conclusion that prosecution has established that Vansh, 3 years old child, was kidnapped from the lawful guardian by Shiv Kumar accused and juvenile in furtherance of common intention on 03.08.2009 at about 8.15pm from the area of Baljeet Nagar and thereafter, he and the juvenile were intercepted along with child at Vikas Marg in the area of Shakarpur from where Shiv Kumar accused managed to escape but was ultimately, arrested at the pointing out of juvenile.
18. In view of above findings, this Court holds Shiv Kumar accused guilty of the offence u/s. 363 r/w. Sec. 34 IPC. Since no demand for ransom was made at any point of time, as per prosecution version, no charge of offence u/s. 364A r/w. Sec. 511 IPC stands established. Shiv Kumar accused is FIR No.117/09 26 acquitted of the said charge.
I thus hold Shiv Kumar accused guilty of offence u/s. 363 read with Sec. 34 IPC.
Let convict Shiv Kumar be heard on the point of sentence.
Announced in Open Court
on 30.01.2013 (Narinder Kumar )
Special Judge(NDPS)Delhi
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