Delhi District Court
Judgment Of Hon'Ble High Court In Case Of ... vs . Ajay on 31 January, 2009
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IN THE COURT OF SH. P.S.TEJI : ADDL. SESSIONS JUDGE :
NEW DELHI.
SC No. 58/06 FIR No. 146/06
PS: Badarpur.
U/S. 364-A/34 IPC.
State
Versus
1. Udhal Singh s/o Sh. Toonia
R/o Village Lal Gadhi
PS Sikandarao, District Hathrash,
UP.
2. Vinod @ Sahib Singh s/o
Sh. Banwari Lal R/o Gali No.8,
Dipawali Enclave, behind Molarband
School, Faridabad, Haryana.
JUDGMENT
The accused Udhal Singh and Vinod have been sent for trial in a case arising out of FIR No
146/2006 registered by PS Badarpur for offences under 2 Section 364-A/34 IPC.
2. I have heard Ld. APP for the State as well as Ld. Counsel for the accused persons and have carefully gone through the entire material available on record.
3. In brief the prosecution case is that on 27.2.2006, Urmila gave statement to HC Rohtash Singh that she resides at F 161, Pool Perhladpur, New Delhi and used to work as sweeper. She stated that on 25.2.2006, his son Ravi had left for duty at 7 AM for E 26 Pinakara RS Lab, Badarpur where he was working for the last about one and half month and from there his son was missing. She stated that on that day the husband of her daughter Rajinder Singh received a call on his mobile no. 9871127652 from 9837945176 that her son was with him and asked her to bring Rs. Three lacs and further he will tell the place by telephoning again at 8 O'clock and 3 not to disclose to any one; her son will be found. She stated that she telephoned at number 100. On the basis of this statement, case FIR for offence under Section 364- A IPC was registered and further investigation was conducted by SI Hansraj who arrested accused Vinod and at the instance of Vinod, accused Udhal Singh was also arrested. It is further case of prosecution that at the instance of Udhal Singh, victim Ravi was recovered from a ditch covered with wooden planks and at that time his hands were tied with rope. Accused Subash whose vehicle was used in committing the offence and one more person whose identify could not be established, could not be arrested. After completion of investigation challan was filed.
4. Charge for offence under Section 364-A/ 120-B IPC was framed against accused Udhal Singh and Vinod @ Sahib Singh on 23.9.2006 to which they pleaded not guilty and claimed trial.
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5. In order to prove its case, prosecution examined PW- 1 Smt. Urmila who has deposed that his son Ravi aged about 19 years was working in some company near Badarpur and about a year back it was 25th of the month of 2006, month she did not remember, when his son did not return from his job and was missing. She deposed that he sent his son in law Rajinder and Ram Babu in search of his son where it was told that his son has gone from his duty place and she made call to PCR by dialing 100 where police came. She deposed that on the third day the telephone was received by Rajinder on his mobile; the caller asked that her son Ravi is with them and can be rescued after payment of Rs. 3 lacs to save the life. She further deposed that the call had stated that he would phone again at 8 PM then he would tell the place; thereafter police was called. She proved her statement Ex. PW 1/A. She deposed that later on her son was recovered by police from Lal Garhi 5 near Sikandra Rao UP on the fourth day from 25th day of the incident.
In cross-examination she deposed that phone was received when they were in search of jungle towards Faridabad. She deposed that she could not read so can not say what was written in Ex. PW 1/A. She deposed that it was around 10 or 11 AM, date she did not remember. She deposed that she was not with police at the time of recovery of her child by police.
6. PW-2 Ravi has deposed that he was doing the work of cleaning in some office at Faridabad and earlier he was working in JKV Company at Badarpur. He deposed that on 25.2.2006 he had gone to attend his duty in JKV Company and finished his duty at about 4.30 PM and was coming to his house, when he reached near the corner of company, accused Vinod present in court met, who was working in the same company and told that he has to go to Ballabhgarh to see of his relatives 6 and asked him to accompany and he refused but accused Vinod insisted to accompany and thereafter they proceeded from there to forward and at some distance one Qualis car was lying parked; in the said car there were two persons already sitting, one aged about 40 years and other about 20 years and one of them was a lame person ( langda) whose name later on was revealed as Subash, who was not present in court. He further deposed that the said two persons were sitting on the front seat of the Qualis and he did not remember the number of the said Qualis and he sat on the rear seat. He deposed that car was being driven by other 4th person and they took the car towards Badarpur Border and accused Vinod went to purchase liquor bottle and money was given by the accused Subash. He deposed that they compelled him to consume liquor and he consumed the same; after some time he lost his consciousness and when got he found himself tied with the cot where three persons were present in the room 7 who searched his personal belongings and asked his phone number. He deposed that they obtained phone number of his Jija Rajinder and they asked what he was doing and how much money he was possessing. He deposed that he told them that his mother is widow, owned a 50 yards house and they are four brothers and one sister. He identified accused Udhal present in court, out of one of those three persons who were present in that room. He deposed that they asked cost of his house and he told them as 2.5 lacs to 3 lacs; thereafter the said three accused persons asked whether rupees can be given to them as ransom against his release. He deposed that the said three persons told him that if the money was not arranged they would not release him; accused persons told him that they would kill him if the ransom was not given and thereafter accused persons went out side the room and made a call to his Jija Rajinder. He deposed that in the day accused persons kept him in a gaddha (pit) which was 4/5 in depth and width; used to 8 keep some wooden plank on the pit and used to remove him in the night hours. He deposed that he was given food in the wee hours and they confined him for 3 days in the said pit. He deposed that on 28.2.2006, Delhi Police came at the said place and he was removed from the said pit at about 3.30 or 4 PM and at that time his hands and legs were tied. He identified accused Udhal present in court arrested at the spot while two accused persons ran away from the spot. He proved personal search of accused Uddal as Ex. PW 2/A. He also proved seizure of rope as Ex. PW 2/B. He deposed that accused Uddal Singh made confessional statement Ex. PW 2/C. He deposed that he was confined at Lal Garhi village in Sikandra Rao Tehshil, UP. He proved his recovery memo as Ex. PW 2/D. He deposed that accused Vinod Kumar was found arrested when he came to Delhi and he had shown the place of occurrence from where he was kidnapped. He identified the rope in court.
In cross-examination he deposed that 9 what was the number given at that time, it was written on the paper kept in his purse which was taken by accused Subash. He deposed that his mother was also having the said number with her. He stated that he can read and write the number and can give only two first digit as 98; others are not known to him. He deposed that he did not remember the number of Qualis car. He deposed that he himself consumed the liquor and before that he never consumed liquor. He deposed that he told police phone numbers by giving the slip on which phone number was written. He deposed that factory was shown to police on 28.2.2006 at 10 PM. He deposed that each hand was tied in two different knots. (Pursuant to questions put by Ld. APP, he deposed that his hands were tied towards back). He deposed that three police officials came to rescue him and remained there for about one hour where police did some proceedings, obtained his signatures on 4-5 places. He deposed that statement of Udhal was also recorded in his presence. 10 He denied that Subash was known to him prior to one or two years and further that he was knowing both the accused having bad relation with Subash. He deposed that he can not say if Subash is involved in so many cases in Uttar Pradesh. He deposed that Vinod @ Sahib Singh is known to him being his colleague of the same company where they were working.
7. PW-3 Rajender Singh has deposed that he was married to Madhu, daughter of Smt. Urmila. He deposed that eldest brother in law (sala) Ravi used to work at JKV Company at Badarpur and he was also working in a company Panacia Bio-Tech which is situated near the company of Ravi. He deposed that on 25.2.2006, he went to his company and Ravi also went to company and he was relieved from his duty at 5.30 PM; he came back to his home and his mother in law Urmila told him that Ravi had not returned form the company. He deposed that her mother in law sent him to company 11 of Ravi and he inquired there and found that Ravi had left the company at about 4.30 PM; he asked the guard whether Ravi was doing overtime duty but he told that he is not on overtime duty and further that Ravi, Manoj and his brother Vinod were talking to play a CD picture so he took the address of Manoj and Vinod from the Guard and went to the house of Manoj and Vinod, where they met him but Ravi was not present with them nor they played CD picture. He deposed that on 27.2.2006, he was going to meet astrologer for having indication about Ravi and while he was on the way, he received telephone at about 11.30 AM and the caller was saying "Jiski Talash Hai Wooh Mere Pass Hai." and demanded Rs. Three lacs ransom for releasing Ravi and further threatened that if matter go to police it will not good for Ravi Kumar. He deposed that he was having mobile no. 9871127652 at that time and immediately returned to his house and that time his mother in law and his brother in law (saddu) Ram Babu were with him. He 12 deposed that matter was reported to police; police recorded his statement and also inquired from his mother in law and brother in law (sadhu) Ram Babu. He deposed that he gave telephone number to police which was received on his telephone number regarding ransom call and later on 28.2.2006 Ravi was recovered from UP by police.
In cross-examination he stated that his statement was recorded on 27.2.2006. He deposed that he saw accused Vinod @ Sahib Singh in Delhi only and not anywhere in India. He further deposed that Ravi used to go to office at 8 AM and return at 4.30 PM. He also deposed that he did not know who called him on his mobile phone when he was searching Ravi along with his mother in law and brother in law (sadhu) Ram Babu. He inquired/searched Ravi only in Delhi. He deposed that he did not know who is Uddal and who made the call so he can not say whether he was Uddal or not. He deposed that he saw the accused Uddal first time in 13 court in the custody of police. He deposed that he had lost his said phone and its chip about 6-7 months back.
8. PW-4 Ram Babu has deposed that he was working in Panacia Biotech Company at Mohan Cooperative Badarpur, his brother in law Ravi was working in JKV Company and on 25.2.2006, Ravi went to his company but he did not come back in the evening. He deposed that his mother in law Urmila asked him to go to the office of Ravi and he went to the company of Ravi at Badarpur. The guard told him that Ravi Kumar left the company at about 4.30 PM and he came back to his house and told his mother in law that Ravi was not in the company. He further deposed that on the next day on 26.2.2006, he again went to the company of Ravi and guard told him that Ravi Kumar, Manoj Kumar and Vinod Kumar were talking about playing of CD picture and he took their addresses where Vinod and Manoj met but they told him that Ravi did not come to their house for 14 playing the picture CD. He deposed that some body advised him to go to astrologer and asked about Ravi; thereafter, he along with his mother in law Urmila and Rajender were going to astrologer for prediction about Ravi and while they were on the way, his brother in law (Sadhu) Rajinder received a call that "Jiski Tume Talash Kar Rahey Ho Who Mere Pass Hai, Ghar Wapis lot Jayo". He deposed that caller demanded Rs. Three lacs as ransom for releasing his brother in law (sala) Ravi Kumar and further threatened if the matter is reported to the police, it would not be good for Ravi Kumar and the caller further told Rajinder that he would make the call at about 8 PM for further course of action. He deposed that the said call was received by him at about 11 or 11.30 AM. He deposed that ransom call was also heard by Rajinder and he also heard the same as the phone was delivered to him by Rajinder, thereafter they came back to their house. He deposed that he along with Rajinder and his mother in law went to police station and lodged 15 the complaint. He deposed that initially they made a call at no.100 and they advised to go to police. He deposed that on 28.2.2006 Ravi was recovered by police from Sikandra Rao (UP).
In cross-examination he stated that he was not having mobile phone. He further deposed that his statement was recorded only once. He deposed that Vinod was available in Delhi from 25th to 27th Feb. 2006 in Delhi. He deposed that he did not see Rajinder daily and did not know mobile number of Rajinder. He deposed that he heard the talks regarding the ransom call from the mobile phone of Rajinder Singh. He deposed that he did not know Uddal Singh till date.
9. PW-5 Madan Gopal Jindal has deposed that he was running his shop of selling mobile phones and other items at Badarpur and as per his record he had sold one mobile phone on 18.2.2006 to one Anurag vide bill no. 2953 and proved copy of the bill as 16 Ex. PW 5/A. He further deposed that he sold one chip of Airtel on 22.2.2006 having no 9871127652 to one Urmila and proved copy of register as Ex. PW 5/B. In cross-examination he deposed that Ex. PW 5/B did not bear the signature of customer as it was a cash memo. He deposed that they did not obtain signature of the chip buyer on the register but sent the form to concerned Airtel office. He deposed that he can not identify Urmila as many customers come to shop. He deposed photo must have been taken and sent with the form.
10. PW-6 Vinod Chaudhary has deposed that he was working as guard on 25.2.2006 at JKVB -I, Mohan Cooperative Badarpur, Delhi where Ravi was working as Safai Karamchari. He deposed that on 25.2.2006, Ravi came to his duty at 7.40 or 7.45 PM and he left the company at about 4.30 PM. He deposed that when Ravi came out from the company and reached at 17 the gate of the company, he saw another employee of their company Vinod Kumar who was also a safai karamchari accompanying Ravi Kumar at the gate and after 25.2.2006 Vinod did not turn up to his duty and identified Vinod in court. He proved copy of duty register as Ex. PW 6/A. In cross-examination he stated that he worked in the company since October 2005 till 2nd June 2006 and there is no provision of leave to security guard in the company. He deposed that his duty remains 8 AM to 8 PM. He deposed that he filled the departure of Ravi on 25.2.2006 as he was on duty and on 25.2.2006, accused Vinod was not on duty but absent. He deposed that entry dated 26.2.2006 was not written by him but by another guard in his presence. He deposed that on 27.2.2006, IO came and he identified Ravi and Vinod in his office.
11. PW-7 Nem Singh has deposed that he 18 purchased a PCO machine from Durga Communication Aita on 9.11.2005 and STD no. was 9837945176 and kept one Rajbir Singh at PCO Shop and throw the said sim in April 2006 when its incoming was over. He deposed that since it was a PCO sim he could not tell who telephoned from the said SIM from 25.2.2006 to 28.2.2006. He deposed that he knows one of the two accused present in court Udhal Singh as he is from village Lal Garhi and he did not know when he saw lastly accused Udhal Singh in village.
12. PW-8 Ct. Ashok Kumar has deposed that on 28.2.2006 he was posted in PS Badarpur and on that day he along with Ct. Bhagirath and SI Hansraj went to village Lal Gari; 3-4 houses were separately built at the western side of village; accused Vinod was with them in police custody. He deposed that accused pointed out towards one person present near the said houses that it was Udhal Singh and his uncle in law and further that he 19 was involved in kidnapping the child. He further deposed that at that time Udhal Singh after seeing police party tried to enter his house but was apprehended and arrested vide memo Ex. PW 8/A and his personal search Ex. P W 2/A was also prepared. He proved disclosure of accused Udhal Singh as Ex. PW 2/C and thereafter accused Udhal Singh led police party towards a gadha (pit) behind the house and there was some "sarso ki lakadiya"( mustard wood) and on removing the same, there was a pit about 5 feet in depth and inside that one boy Ravi tied behind with a rassi ( rope) was found. He proved seizure of rope as Ex. PW 2/B. He deposed that rope was made of cloth. He also proved seizure of Ravi vide memo Ex. PW 2/D. He deposed that accused pointed out the place of incident vide memo Ex. PW 8/A and 8/B. He deposed that on 27.2.2006, he joined investigation and photo copy of attendance sheet was seized vide memo Ex. PW 8/C and accused Vinod was arrested vide personal search memo Ex. PW 8/D and his 20 disclosure Ex. PW 8/E was also recorded. He identified the rope as Ex. P-1 in the court.
In cross-examination it was suggested that the accused was not arrested from Lal Garhi and did not get recovered Ravi from the said place or the rope was not recovered from the said place.
13. PW-9 HC Rohtash has deposed that on 27.2.2006 he was posted at PS Sangam Vihar, PP Pulpehladpur and on receipt of DD no.16, he reached at the spot where he recorded statement of Urmila Ex. PW 1/A, on the basis of which he prepared rukka Ex. PW 9/A and sent to PS Badarpur where the offence was committed.
In cross-examination he deposed that he reached at the spot at 2.30 PM. He deposed that as the complainant called from her house which is within the jurisdiction of PS Sangam Vihar he went and recorded her statement but his son got missing from the area of PS Badarpur, therefore, he sent the rukka to concerned 21 police station.
14. PW-10 Ct. Bhagirath has deposed that on 28.2.2006 he was posted at PS Badrpur and joined investigation with IO. He deposed that accused Vinod @ Sahab Singh, present in court, was also joined and made disclosure statement Ex. PW 8/E and on the pointing out of Vinod, co-accused Udhal Singh was arrested from Lal Garhi, District Hathras. He deposed that Udhal Singh was interrogated and told that victim Ravi was kept in a ditch behind the house and ditch was covered with the help of plank ( takhta) and on the takhta a heap of wood was also kept; then accused led them to that ditch and on their pointing out, Ravi Kumar was recovered from that ditch and at that time both the hands of Ravi Kumar were tied by keeping the hands back side. He proved recovery memo of Ravi as Ex. PW 2/D; seizure of rope as Ex. PW 2/B and disclosure of accused Udhal as Ex. PW 2/C. He also proved personal search of Udhal and arrest 22 memo as Ex. PW 2/A and 8/A respectively. He also proved personal search and arrest memo of accused Vinod as Ex. PW 8/B and 10/A. He also proved pointing out memo of the place of incident as Ex. PW 8/A and seizure of photo copy of attendance register as Ex. PW 6/A. He identified the rope as Ex. P-1.
In cross-examination he stated that they had reached the village Lalgarhi in between 4-5 PM and 2-3 persons were requested to join but they left the spot showing their helplessness. He deposed that the pit was on the back side of residential house. He deposed that police party was consisting of three persons. He further deposed that when they reached near the home, accused Udhal Singh was found strolling near the house and on seeing police party, ran towards the jungle. He deposed that kidnapped child was recovered from the pit near the house which was 7-8 feet deep. He deposed that accused was chased and arrested, then he disclosed that kidnapped child was kept in the 23 khadha ( pit) where from the child was got recovered by accused Udhal Singh and at that time a lady, two small kids were present in the house. He deposed that apart from personal search, no recovery except kidnapped child and rope was recovered from accused. He deposed that he can not say if IO had made site plan of khadha. He deposed that they reached at village at about 2 PM and left after the recovery at about 5.30 PM. He deposed that disclosure statement of accused Vinod was recorded in Hindi in village on 28.2.2006 at about 5/5.30 PM and he was arrested on the same day and disclosure of Udhal was also recorded at the same time.
15. PW 11 ASI Joginder has deposed that on 27.2.2006 he was posted as duty officer from 4 PM to 12 night and on that day at about 8.10 PM, Ct. Ramdev brought a rukka sent by HC Rohtash Singh and he registered FIR no.146/06 under Section 364-A, Ex. PW 11/A. 24 In cross-examination he stated that Ct. Ramdev left the duty officer room with original rukka and copy of FIR at about 8.50 PM.
16. PW-12 Ct. Hemender Kumar has deposed that on 27.2.2006 he was working as DD writer from 8 AM to 8 PM and on that day at about 2.20 PM a call was received though Control Room and he recorded DD no.16-B. He proved copy of DD by producing original as Ex. PW 12/A. In cross-examination he stated that he had handed over copy of DD after about 5 minutes to Ct. Ram Dev who left police post immediately.
17. PW-13 Ct. Sir Mohar has deposed that on 27.2.2006 he was posted at PCR Control room at Head Quarter and on that day, at about 2 pm, one Smt. Urmila w/o Om Prakash, r/o F-161 Gali No. 17, Pul Prahladpur informed at 100 No. through mobile phone 25 no. 9871127652 that her son Ravi aged about 19 yrs has not returned back from the company, where he was employed; meanwhile, one another person in relation of Smt. Urmila informed that he has received a phone call from mobile phone no. 9837945176 that the boy is with the persons and they had demanded Rs. 3 lacs. He deposed that PCR form was completed and the concerned PS was also informed for necessary action. He proved photocopy of the same as Ex. PW13/A. In cross-examination he stated that he was on duty from 8 AM to 2 PM on 27.2.2006.
18. PW-14 SI H.R. Bainsla has deposed that he was posted at PS Badarpur and was handed over copy of rukka along with copy of FIR for investigation and he reached at the house of complainant Smt. Urmila Devi w/o Sh. Om Prakash and recorded statement of witnesses. He further deposed that on 28.2.2006, the complainant showed her suspicion on Vinod who had 26 been working with Ravi in the company and he with his staff reached at the house of accused at Dipawali Enclave behind Molar Band school where accused Vinod met them and he interrogated him, who firstly evaded and thereafter disclosed that he along with Udal, Subash and with another person had taken Ravi to Lal Garhi, UP and he can get them arrested. He recorded his disclosure Ex. PW 8/E and joined him in the investigation who took them to Lal Garhi where there were 4-5 houses situated separately from the village Lal Garhi, where Vinod pointed out Udhal Singh who was wandering in front of his house and on seeing police party started entering into his house, he conducted raid and apprehended him in his house and interrogated him. He proved disclosure statement as Ex. PW 2/C and recovered the boy vide recovery memo of boy Ex. PW 2/D and also took the rope after untying the same from the hands of Ravi into police possession vide memo Ex. PW 2/B. He deposed that he arrested accused Vinod 27 and Udhal vide memo Ex. PW 10/A and 8/A and personal search vide memos Ex. PW 2/A and 8/D. He deposed that he prepared site plan of the spot where the kidnapped boy Ravi was concealed after covering the same with wooden stick which is Ex. PW 14/A and thereafter brought the accused Vinod and Udhal along with recovered boy Ravi to Delhi. He also deposed that he prepared pointing out memos of the spot Ex. PW 8/A and 8/B. He prepared site plan Ex. PW 14/B at the instance of Ravi and recorded statement of the witnesses and deposited the case property in malkhana. He deposed that he seized photo copy of the attendance sheet of Ravi and Vinod from their company vide memo Ex. PW 6/A and also copies of DD entries Ex. PW 12/A and Ex. PW 14/C, copy of PCR form and call details of the mobile phone on which demand of ransom was made. He deposed that as per call detail, the ransom demand was made from PCO booth Lal Garhi. He deposed that the mobile phone on 28 which ransom demand was received was in the name of Urmila Devi. He further deposed that he verified the details of telephone and collected call details of mobile phone no.9871127652 belongs to Urmila, mother of kidnapped boy Ravi on which ransom call was made and the mobile phone from which ransom demand was made was 9837945176 which was of Nain Singh r/o Lal Garhi, Hathras from which the accused persons made the call who was interrogated and gave statement that the accused have made call from his phone. He proved the call details of both the mobile phones collectively as Ex.PW 14/D and of mobile phone no.9891712717 and 9312074334 as Ex.PW 14/E. He identified the rope as Ex. P-1.
In cross-examination he stated that Qualis car was not seized as the same could not be traced and he did not seize the mobile phones from which ransom demands were made. He deposed that he recorded disclosure statement of accused Vinod on 29 28.2.2006 at about 5/5.15 PM and of accused Udhal Singh on the same day but before recording the disclosure statement of accused Vinod. He further deposed that as Qualis vehicle could not be seized, therefore, the liquor bottle was also not seized. He deposed that accused Vinod was arrested from Lal Garhi on 28.2.2006 at about 5 PM and they returned from Lal Garhi along with both the accused, recovered boy Ravi and two constables in private vehicle along with its driver. He deposed that only the hands of victim Ravi were found to be tied with rope Ex.P1. He deposed that they were four persons including accused Vinod and two constables went to Lal Garhi in private vehicle. He deposed that rope was seized at about 4.30/4.50 PM when the boy Ravi was recovered and they remained at village Lal Garhi from 4 PM to 5.45 PM. He deposed that Ravi had signed six papers consisting of his recovery memo, seizing of rope, two arrest memos and two personal search memos on the same day at Lal Garhi. 30 He deposed that he had examined Madan Gopal as a witness. He further deposed that there was no residential house near the ditch where victim Ravi was recovered except the house of accused persons and the residential houses of other villagers were at the distance of 400-500 yards. He deposed that Ravi was taken out from ditch where he was kept at about 4.45/5.00 PM. He deposed that the ditch was about 5 feet deep and the depth of ditch has been shown in the site plan and that no photographs of the said ditch were taken.
19. Separate statement of accused persons under Section 313 Cr.P.C. were recorded wherein they stated that they are innocent and falsely implicated in this case.
20. To establish its case, the prosecution has proved three set of circumstances, i.e., first that the victim was taken away by the accused, secondly the 31 call of ransom and thirdly the recovery of the victim from the custody of the accused persons.
21. To establish that the accused was taken away, the back bone of the prosecution case is victim Ravi ( PW-2), who himself deposed that he had been working with Vinod and at the instance of Vinod, Ravi agreed to accompany Vinod to Ballabhgarh and then they proceeded; at some distance one Qualis was found parked and two persons were already sitting, one aged of 40 years and other aged of 20 years, who was a lame man( Langda), whose name later on was found as Subhash and both those persons were sitting on the front seat of Qualis. The vehicle proceeded towards Badarpur Border. After covering some distance the vehicle was stopped and Vinod brought a bottle of liquor and Ravi Kumar was compelled to take a peg which Ravi Kumar refused but on their insisting after having the peg of liquor, Ravi became unconscious and when he 32 regained conscious, he found himself tied with a cot in a room, then the three persons took the phone number of Rajinder, the brother in law (jija) of victim Ravi and made a call for a ransom of Rs. Three lacs. The version of PW-2 Ravi was further supported by the testimony of PW- 6 Vinod Chaudhary, who had been working as guard in a factory where the victim used to work. He deposed that Ravi attended the duty at 7.45 AM and left the office at about 4.30 PM and he was seen with the other employee of the company accused Vinod Kumar on 25th of February, 2006, the alleged date of kidnapping. Both the witnesses were cross-examined at length but nothing contrary to their version could be brought out. Rather, in the cross-examination of PW-6 Vinod Chaudhary it has come on record that accused Vinod was absent from duty on that day. The witness identified the PW -2 Ravi Kumar Victim as well as accused Vinod.
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22. The second circumstance claimed by the prosecution is that the ransom call for demanding the sum of Rs. Three lacs was made by the accused persons. Again the case of the prosecution starts with the testimony of PW-2 Ravi Kumar who deposed that when he regained consciousness he found himself tied with cot and all the three accused asked him the phone number of his brother in law( Jija) Sh. Rajinder ( PW-3) and thereafter calling on that phone, the ransom call was made. The demand was further established by PW-3 Rajinder Singh while making deposition that he had been married with the sister of victim and the daughter of Smt. Urmila ( PW-1). He made the statement that his brother in law Ravi ( PW-2) used to work at JKV company at Badarpur whereas he was working in the company of Panicia Bio Tech. situated near the company of Ravi (PW-2). He further stated that on 25th of Feb. he and victim Ravi (PW-2) went for work and thereafter he came back from duty at 5.30 PM and her mother in law Urmila 34 Devi ( PW-1) came to him informing that Ravi (PW-2) had not returned from the company and on the instructions of mother in law Urmila( PW-1), he went to the company of victim Ravi (PW-2) and from there he came to know that Ravi left the company at 4.30 PM. He was informed by the Guard that victim Ravi (PW-2) is not on overtime duty and that Ravi was seen with both the brothers namely Manoj and Vinod and was talking to play a CD picture and obtained the address of Manoj and Vinod. He further stated that on 27th of Feb. 2006 he was going to a astrologer to find out any clue with regard to Ravi and received a telephone on his mobile no. 9871127652 at about 11.30 AM and the caller was saying " Jiski Talash Hai woh Hamare Pass Hai" and at that time he was also accompanied by his mother in law Urmila (PW-
1) and Ram Babu brother in law (sadhu) (PW-4); thereafter they reported the matter to the police. The telephone number from which call of the ransom was received was given to the police. He was cross- 35 examined at length but no dent could be put on his testimony. The fact was further corroborated by PW-1 Smt. Urmila who happened to be the mother of victim Ravi (PW-2) and deposed that her son had been working in a company near Badarpur and on 25th of 2006 his son did not return from his job and she sent her son in laws Rajinder and Ram Babu ( PW-3 and PW-4) in search of him and the call was made at no.100 and on third day telephone was received by Rajinder (PW- 3) on his Mobile informing that Ravi (PW-2) is with the kidnapper and some of Rs. Three lac was called for rescue of victim Ravi (PW-2). She further deposed that the callers informed that they would make call again at 8 O'Clock and the place for delivering the amount would be informed. On the basis of her statement, FIR Ex. PW 11/A was recorded and she proved her statement Ex. PW 1/A. She was also cross-examined but her testimony could not be affected by the same. The fact of ransom call was further proved by PW-4 Ram Babu who also 36 happened to be brother in law of victim Ravi (PW-2). He deposed that he had been working in Panicia Bio- tech company at Mohan Co-operative Badarpur along with his brother in law (sadhu) Rajinder (PW-3) and on 25th of Feb. 2006 the victim Ravi (PW-2) did not turn back, thereafter, they went to the company of victim Ravi (PW-2) in his search and were informed that victim Ravi (PW-2) left the company at about 4.30 PM. They came back and told his mother in law Urmila ( PW-1) and next day again on 26th of February, they went to the company of Ravi and the guard told that Manoj Kumar and Vinod both the brothers had been talking with Ravi Kumar about playing of CD player and took the address of Vinod and Manoj, then they had been going to astrologer to know about the prediction about victim Ravi (PW-2) and in the way a call was received on the telephone number of Rajinder (PW-3) stating that "Jiski Tumeh Talas Hai Voj Hamare Pass Hai and Ghar Wapas Lot Ja." He further deposed that the caller demanded 37 Rs. Three lacs as ransom and further threatened that if matter was reported to police it would not be good for victim Ravi Kumar (PW-2) and further that caller would again call at 8 PM. He deposed that the call was received at about 11.30 AM. He further deposed that they were advised to go to police, however, initially they had made the call at no.100. He was cross-examined in which he stated that he heard the talk of ransom from the mobile of Sh. Rajinder Singh (PW-3). The fact of call of ransom was further corroborated by PW-5 Sh. Madan Gopal Jindal who deposed that he had been running his shop for selling mobile phone and he sold one mobile phone and then he further sold one chip of airtel on 22.2.2006 having no. 9871127652. He was also subject to the cross-examination. The next witness who corroborated the fact is PW-7 Nem Singh who has PCO machine from Durga Communication on 9th of Nov. 2005 and the STD number was 9837945176 and one boy namely Rajbir was kept at the PCO shop. He deposed 38 that accused Udhal Singh is from the same village Lal Garhi ( where from the victim Ravi (PW-2) was recovered) and he lastly saw accused Udhal Singh in the village. The inference which can be drawn from the statement that the call for ransom was made from his PCO shop situated in Lal Garhi itself.
23. The third circumstance establish by the prosecution is with regard to recovery of victim Ravi. This fact has been established by victim Ravi Kumar (PW-2) who deposed that he was taken by the accused persons and when he gained consciousness he saw himself tied on a cot and the mobile number of his brother in law was taken and thereafter he had been recovered by the police from a pit at Lal Garhi village. He further proved the personal search of the accused Udhal Singh as Ex. PW 2/A and the rope with which his hands were tied as Ex. PW 2/B, the confessional statement of Udhal Singh as Ex. PW 2/C and recovery 39 memo as Ex. PW 2/D. The fact of recovery was further corroborated by PW 8 Ct. Ashok Kumar who deposed that in furtherance of investigation he along with police party reached in village Lal Garhi where he saw Udhal Singh ( involved in the kidnapping of victim) roaming out side and Udhal Singh tried to enter in his house and was apprehended and arrested vide memo Ex. PW 8/A, thereafter his personal search memo Ex. PW 2/A was prepared and disclosure statement Ex. PW 2/C was also recorded. He stated that accused Udhal Singh led the police party towards gadha ( pit) where the accused had been kept tied his both the hands with rope which was seized by Ex. PW 2/B and the victim Ravi was seized vide Ex. PW 2/D. This fact was further disclosed by PW- 10 Ct. Bhagirath who deposed that he joined investigation with the IO and accused Vinod @ Sahib Singh, correctly identified in court, joined proceedings and made disclosure statement Ex. PW 8/A and on his pointing out, co-accused Udhal Singh was arrested from 40 Lal Garhi, District Hathrash where further on the disclosure of Udhal Singh, the victim Ravi (PW-2) was recovered from the ditch/pit behind the backside of house of accused Udhal Singh. He also proved the document recovery memo of rope as Ex. PW 2/B and recovery memo of victim as Ex. PW 2/D. This fact is also proved by the IO with regard to the recovery of the victim from the pit at village Lal Garhi.
24. The case of the prosecution is further proved by PW-11 ASI Joginder Singh who recorded the formal FIR Ex. PW 11/A pursuant to the rukka and PW- 13 Ct. Sir Mohar who recorded information at PCR at no.100 on receipt of call through mobile no. 9871127652.
25. By producing the above mentioned evidence, the prosecution concluded its case whereas the defence counsel has vehemently argued that the prosecution has miserably failed to prove the case as no 41 kidnapping has been established and in the absence of the kidnapping, there can not be any question of kidnapping for the ransom and the commission of offence under Section 364-A IPC. He further argued that there are discrepancies in the statement of witnesses which are fatal to the case of prosecution. The next argument advanced is that all the witnesses are the interested witnesses of the victim and they have just deposed to corroborate the version of victim. The further argument advanced by the Ld. Defence counsel is that the witnesses happened to be relatives of the victim, so they can not be relied upon and lastly that the prosecution has failed to prove its case beyond reasonable doubts.
26. So far as the first argument advanced by the defence counsel is concerned that there is no kidnapping in the present case so the question of kidnapping for ransom does not arrive, is not being 42 supported by evidence led by the prosecution. The arguments of the defence counsel can not be established as for the purpose of offence of kidnapping for ransom, the essential ingredient is kidnapped/ abducted for the purpose of ransom. In the present case no doubt the victim Ravi Kumar willingly accompanied accused Vinod Kumar but subsequently the act of offering the liquor and then insisting for the same and making him unconscious and then to take village Lal Garhi and tied with cot is clear cut act of abduction done with the conspiracy to take away accused Ravi to village Lal Garhi and then to make demand of ransom. The prosecution has established the facts which lead to the inference that the accused persons were having the criminal conspiracy to take away the victim Ravi and then to make the demand for ransom which has been proved from the conduct of the accused persons taking him to the vehicle; offering liquor; making him unconscious, tied him with cot; asking for mobile number 43 and then making call for ransom is the series of circumstances which established that the accused persons were having the conspiracy for committing the offence of kidnapping/abduction for the ransom and bring their action in the purview of Section 364-A read with Section 120-B IPC. So, there can not be any substance in the arguments advanced by the counsel for the accused.
27. The next argument advanced is that there are certain discrepancies about the size of pit, about the version of PW-1 Urmila, PW- 2 Ravi Kumar, PW- 3 Rajinder and PW-4 Ram Babu. I have gone through the discrepancies mentioned and also through the judgment of Hon'ble High Court in case of State Vs. Ajay Kumar Singh reported as 1998 I AD (Delhi) 639 in which Hon'ble High Court held that predicament is that if witnesses give exact similar account of the incident they are accused of being tutored. If they speak naturally and 44 give eye witness account in their own words, there are bound to be slight variations. Hence, the discrepancies mentioned by the defence counsel are very minor and does not affect the testimony or put any dent to the testimony of the witnesses. So the argument advanced does not render any help.
28. The third argument advanced is that all the witnesses are interested witness. To appreciate the arguments advanced by the Ld. Counsel for the defence, I have gone through the judgment of Hon'ble Supreme Court in case of State of UP Vs. Kishanpal & ors. Reported as 2008 X AD (SC) 137 para 9 of which reads as under:-
"9. From the above it is clear that "related" is not equivalent to "interested". The witness may be called " interested" only when he or she has derived some benefit from the result of a litigation in the 45 decree in a civil case, or in seeing an accused person punished. A witness, who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested".
In the present case the Ld. defence counsel has failed to establish what is the interest of witness whether they have any financial benefit out of the case or they had any enmity with the accused person and wanted to see them punished. Ld. Defence counsel failed to brought forward any reason for which witness could be called interested witness and wanted to have the punishment of the accused persons. The present case is the clear cut case of ransom without having any enmity for the purpose of getting the accused punished.
The next argument advanced by the Ld. 46 defence counsel that the witnesses PW-1 Urmila, PW- 2 Ravi Kumar, PW-3 Rajinder and PW-4 Ram Babu happened to be relation and therefore there testimony could not be relied upon. To appreciate this aspect, I have gone through the judgment of Hon'ble Supreme Court in case of State of UP Vs. Kishan Pal & ors ( supra) wherein para 10 it was held as under:-
" 10. The plea of defence that it would not be safe to accept the evidence of the eye witness who are the close relatives of the deceased, has not been accepted by this Court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties to either side. In such cases, if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding 47 circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relative too, the Court has a duty to scrutinize their evidence with great care, caution and circumspection and be very careful too in weighing such evidence. The testimony of related witnesses, if after deep scrutiny, found to be credible cannot be discarded. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness, if otherwise the same is found credible. The witness could be a relative but that does not mean his statement should be rejected. In such a case, it is duty of the Court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such 48 scrutiny it is found that the evidence on record of such interested witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested witness. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance.
Relationship is not a facto to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implicate is 49 made. In such cases, the Court has to adopt a careful approach and analyst the evidence to find out whether it is cogent and credible. Vide State of A.P.Vs. Veddula Veera Reddy & ors. (1998) 4 SCC 145, Ram Anup Singh & ors. Vs State of Bihar (2002) 6 SCC 686, Harijana Narayana & ors Vs. State of A.P. (2003) 11 SCC 681, Anil Sharma & ors Vs. State of Jharkhand (2004) 5 SCC 679, Seeman @ Veeranam Vs. State by Inspector of Police (2005) 11 SCC 142, Salim Sahab Vs. State of M.P. (2007) 1 SCC 699, Kapildeo Mandal and Ors. Vs. State of Bihar, AIR 2008 SC 533, D. Sailu Vs State of A.P., AIR 2008 SC 505.
I have further gone through the judgment of Hon'ble Supreme Court in the case of Daulatram s/o Sadram Teli Vs. State of Chhattisgarh 50 reported as 2008 X AD (SC) 475 where the Hon'ble Supreme Court has categorically held in para 7 as under:-
"7. Merely because the eye-
witnesses are family members their evidence can not be per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused can not be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is 51 made. In such cases, the court has to adopt a careful approach and analyst evidence to find out whether it is cogent and credible. "
In the present case just because the witness happened to be relations can not be discarded.
PW-1 Urmila Devi happened to be the mother of victim PW-2 Ravi Kumar and PW-3 Rajinder and PW-4 Ram Babu happened to be brother in laws ( Jija) of the victim. Their testimony is very natural, cogent and credible. Definitely, the mother would be the person who will search his missing son and similarly the brother in laws (jija) would have tried to find out the missing brother in law ( sala).
The call of ransom has definitely to the relation of victim and in the present case its very natural that the call was made on the mobile phone of the victim after receiving the number from him. From no stretch of imagination, it can be presumed that there can be any other person than the family members from which the call of ransom 52 could have been made. As a result, the testimony of the relative witness is rather made the prosecution case more authentic because in the case of ransom the relations of the victim are the person to prove the ransom and recovery of his relative. The evidence brought on record is cogent and credible. So in view of the judgments of Hon'ble Supreme Court in cases of State of U.P. Vs. Kishan Pal & ors and Daulatram s/o Sadram Telli Vs. State of Chhatisgarh ( supra) , I do not find any substance in the arguments.
I do not find any force in the last arguments advanced by the Ld. Defence counsel that the prosecution has failed to prove its case beyond reasonable doubt. To appreciate his arguments, I have gone through the judgment of Hon'ble Supreme Court in case of Murugan and anr. Vs. State Rep. By Public prosecutor Madras, Tamil Nadu reported as 2008 X AD 53 (SC) 720 wherein para 48 it was held as under:-
" 48. Doubts would be called reasonable if they are free from a zest of abstract speculation. Law can not afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overmotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
29. In the present case the prosecution has successfully proved its case, i.e., taking away of the victim Ravi by accused from the testimony of witness 54 victim PW-2 Ravi and PW- 6 Vinod Chaudhary, security guard; the demand of the ransom has been proved from the testimony of witness PW-1 Urmila, mother of the victim, PW-2 Ravi Kumar victim himself, PW-3 Rajidner, brother in law (Jija) of victim, PW-4 Ram Babu, another brother in law (Jija) of victim and also by PW- 5 Madan Gopal Jindal who sold the phone on which call was received and PW- 7 Nem Singh owner of PCO at village Lal Garhi from victim was recovered and the recovery of the kidnapped boy Ravi has been proved by the testimony of witness PW-8 Ct. Ashok Kumar, PW-10 Ct. Bhagirath supported by PW-14, SI Hans Raj, IO of the case. Apart from the above mentioned facts, the prosecution has also completed the chain of circumstances from the testimony of remaining witnesses PW-9 HC Rohtash Singh who recorded rukka Ex. PW 9/A, PW-11 Joginder Singh duty officer who recorded FIR Ex. PW 11/A, PW- 12 Ct. Hemender Kumar who recorded DD Ex. PW 12/A pursuant to information received from 55 Control Room and PW-13 Ct. Sir Mohar who received information at PCR Control Room and filled form Ex. PW 13/A regarding the information.
30. Keeping in view the judgments of Hon'ble Supreme in cases of State of U.P. Vs. Kishan Pal & ors ; Daulatram s/o Sadram Telli Vs. State of Chhatisgarh and Murugan and anr. Vs. State Rep. By Public prosecutor Madras, Tamil Nadu as mentioned above, the prosecution has proved its case beyond doubts what to say reasonable doubts and bring within the ambit of commission of offence under Section 364-A read with Section 120-B IPC.
31. Consequently from the totality of the cogent and credible evidence ( both qualitatively and quantitatively) led by the prosecution, in the facts and circumstance of the case and the judgments of Hon'ble 56 Supreme Court in cases of State of U.P. Vs. Kishan Pal & ors ; Daulatram s/o Sadram Telli Vs. State of Chhatisgarh and Murugan and anr. Vs. State Rep. By Public prosecutor Madras, Tamil Nadu, it is hereby held that the prosecution has successfully brought home the guilty of the accused within the four corner of offence punishable under Section 364-A read with Section 120-B IPC. Both the accused are convicted accordingly.
Announced in open court. ( P.S.TEJI) Today:- 30th January, 2009. Addl. Sessions Judge, New Delhi.
57IN THE COURT OF SH. P.S.TEJI : ADDL. SESSIONS JUDGE :
NEW DELHI.SC No. 58/06 FIR No. 146/06
PS: Badarpur.
U/S. 364-A/34 IPC.
State Versus
1. Udhal Singh s/o Sh. Toonia R/o Village Lal Gadhi PS Sikandarao, District Hathrash, UP.
2. Vinod @ Sahib Singh s/o Sh. Banwari Lal R/o Gali No.8, Dipawali Enclave, behind Molarband School, Faridabad, Haryana.
ORDER ON SENTENCE The accused Udhal Singh and Vinod @ Sahib Singh have been convicted for offence under Section 364-A read with Section120-B IPC vide judgment dated 30.1.2009.
2. I have heard the Ld. APP for the stte as 58 well as Ld. Counsel for the convicts on the quantum of sentence.
3. Ld. Counsel for the convicts has argued that the convict Vinod is a young boy of about 20 years of age. It is further argued that convict Udhal Singh is having his family who is solely dependent upon him. It is further argued that keeping in view the age of the convict Vinod and family circumstances of convict Udhal Singh, minimum sentence be awarded to them or they be released on probation.
4. Keeping in view the facts and circumstances of the present case and in view of the seriousness of commission of offence by the convicts, I do not find any ground for leniency. The ld. Counsel for the convicts has failed to show the applicability of Probation of Offenders Act.
59
5. The minimum sentence prescribed for offence under Section 364-A IPC is the imprisonment of life and fine. Considering the facts and circumstances of the case, both the convicts are awarded imprisonment of life and also to pay fine Rs.5,000/- each, in default of payment of fine SI for 2 months each.
6. A copy of the judgment be given free of cost to both the convicts.
7. File be consigned to record room.
Announced in open court. ( P.S.TEJI) Today:- 31st January, 2009. Addl. Sessions Judge, New Delhi.