Delhi District Court
State vs . on 21 November, 2008
1
IN THE COURT OF SH. RAJNISH BHATNAGAR
ADDL. SESSIONS JUDGE 01 NORTH WEST :
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 54/2007
FIR No. :12/2002
P.S. : Shalimar Bagh
U/s : 120-B IPC, 364A/302/201 R/w
Section 120-B IPC
Date of registration : 2-5-2002
Reserved for Judgment on : 3-9-2008
Judgment Announced on : 21-11-2008
State
Vs.
1. Ritesh Mittal @ Shahi
S/o Mahabir Mittal
R/o UP-57, Pitam Putra, Delhi.
2. Narender Chauhan S/o Ramji Chauhan
R/o KP-367, Pitam Pura, Delhi.
3. Zaffar Abbas S/o Rehman Khan
R/o B-11/87, Pitampura,
Police Line, Delhi.
JUDGMENT
1. Briefly stated, on 4-1-2002 at about 3:30 p.m. Milan Mittal aged about 9 years wearing blue jean, blue T-shirt and brown shoes had gone for taking his tuitions at DP Block Contd....
2Pitam Pura carrying his school bag. The child at about 5:00 p.m had started for his home after his tuition but he did not reach home. The complainant searched for his son but he could not be found. So a case U/s 363 IPC vide FIR No. 12/2002 was registered.
2. On 5-1-2002 at about 4:35 p.m an information was received regarding the dead body of a boy aged around 9-10 years lying at Khera Kalan Road near Western Yamuna canal. A shoe was also found there. The complainant reached at the spot and identified the dead body as that of his son Milan Mittal. According to the prosecution Milan Mittal was kidnapped by the accused persons and a ransom of Rs. 20 Lakh was demanded for his release. Thereafter Accused persons were arrested. They confessed to the crime and their disclosure statements were recorded which are Ex. PW 20/G, PW 20/H and PW 20/S respectively. Accused Narender Chauhan got recovered one mobile phone with Contd....
3IMEI No. 445199456405630 and one slip of Bank of Baroda in the name of accused Ritesh Mittal and on the back side of the slip telephone Nos. 7220285 and 9811587365 were written besides other telephone nos. Accused Narender Chauhan also got recovered one bag from behind the bushes in a park in Vaishali Pitam Pura. Accused Zaffar Abbas got recovered broken number plate bearing No. 1172 of car. Accused Ritesh Mittal got recovered one copy and one book of Milan Mittal.
3. After completion of investigation final report U/s 173 Cr.P.C was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
4. On 8-7-2002, charge U/s 120B IPC and U/s 302/364- A/201 R/w Section 120-B IPC was framed against the accused persons to which they pleaded not guilty and claimed Contd....
4trial.
5. In order to prove the guilt of the accused, prosecution examined as many as 25 witnesses.
6. PW 1 is the father of the deceased boy Milan Mittal.
He deposed that his son Milan Mittal aged around 9 years was a student of IIIrd standard, Ravindra Public School Pitam Pura. He further deposed that the school of his son used to finish at about 12:30 p.m and he used to pick him from the school. Thereafter at about 3:30 p.m. his son used to go for tuition in R.P. Block and used to return home at about 5:00 p.m. He further deposed that his son used to carry his school bag containing note books wherein his name and telephone numbers were mentioned.
7. He further deposed that on 4-1-2002 his son had gone to tuition as usual but did not return home. He received a call from his wife at about 5:30/5:35 p.m when he was present at his factory, informing that Milan had not reached Contd....
5home.
8. He further deposed that on that day his son was wearing brown shoes, blue jeans and blue T-shirt. After coming from his factory he searched for his son in the adjoining places and also made inquiries from other children who used to accompany his son for tuition. He further deposed that a child had told him that his son Milan had accompanied him up to the park situated near the place of the tutor.
9. He further deposed that he looked for the child for about one and a half hour and thereafter somebody informed the police. Police officials from Pitam Pura came and recorded his statement Ex. PW 1/A. He further deposed that at about 9:25 p.m a telephone call was received at his telephone number 7220285 which was answered by Gaurav son of his brother-in-law. The caller told Gaurav that Milan was in his captivity and demanded a sum of Rs. 20 Lacs for Contd....
6his return. As Gaurav was about to come down stairs in order to inform him, he received another call and the caller again confirmed that Milan was in his captivity. The caller threatened that the police should not be informed. He further deposed that they had another telephone connection bearing No. 7417368 on which caller ID was installed but no call was received on this line.
10. He further deposed that on the next day police of PS Shalimar Bagh took him to Kankal Khera Road, Khera Kalan, near Bawana Kalan where he identified the dead body of his son. One shoe of his son was also lying there which was taken into possession by the police vide memo Ex. PW 1/B.
11. He further deposed that on 4-1-2002, at about 10:00 p.m police had installed a caller ID on his telephone No. 7220285 but he did not receive any telephone call after the installation of the caller ID, as the persons who had Contd....
7kidnapped the child came to know that caller ID was installed on both the telephone lines. He identified the shoe of his son, school bag and his clothes and note book.
12. PW 2 is Naresh Kumar. He deposed that on 4-1- 2002 at about 5:00 p.m he had gone to a barber shop for a shave. He came out of the shop to relive himself and noticed a Santro car parked at a plot at a distance of about 60 /70 yards from him.
13. He noticed his nephew Milan Mittal alongwith his friend crossing the park and friend of Millan Mittal went towards the gali leading to his house. He further deposed that he noticed Milan standing near the parked Santro car and talking to somebody inside the car. After few moments Milan sat in the car on the seat besides the driver. The car then reversed and sped passed him at a great speed. He could not notice who was driving the car and when he tried to note down the number of the car, he found that the rear number Contd....
8plate of car was broken into half and only No. 1172 was readable. Thereafter he went to the barber shop and after the shave he went to his village Haryana and returned to Delhi on the next day at about 11 / 12 noon.
14. He further deposed that when he returned to his house, he did not find anybody there so he went to the house of his brother-in-law Prem Mittal thinking that the keys of the house might be there and then he learnt that Milan Mittal was missing from the last day. He further deposed that he told his brother-in-law Prem Mittal and others including the police that he had seen Milan being taken away in a Santro Car with a broken number plate bearing No. 1172.
15. He further deposed that he had told the police that the car in which Milan had been taken had a scenery affixed on the bottom side of the door on the left side of the car. He could not see the driver side of the car but the car had coloured glasses. He further deposed that he could not see Contd....
9how many persons were sitting inside the car. He identified the car as Ex. PW 10.
16. PW 3 is H.C Sooraj Bhan. He recorded the FIR.
17. PW 4 is Ashok Kumar Jain. He had identified the dead body.
18. PW 5 is Manpreet Singh. He deposed that he is running a shop under the name and style of M/s Tele World at PD-29A Pitam Pura, Delhi and a distributor of Essar cell phone. He purchased cash card bearing No. 9811587365 from M/s Essar Cellphone and sold to a customer on 4-1- 2002. He deposed that previously particulars of the purchaser were not taken by them.
19. PW 6 is constable Pankaj. He had taken the dead body for postmortem to BJRM Hospital. He handed over to the IO 4 sealed parcels given to him by autopsy surgeon.
20. PW 7 Jitender is another important witness. He deposed that on 4-1-2002, he had taken the Santro Car Contd....
10bearing No. DL4CM 1172 of his brother and had gone to the Dhaba of Narender Chauhan @ Guddu. He further deposed that his friend accused Ritesh Mittal met him and requested him to lend the car to him for about 2 hours. So he handed over the car to accused Ritesh Mittal at the Dhaba of Narender Chauhan at about 12:00 noon and then accused Ritesh Mittal, Narender Chauhan and Jaffar Abbas went away in the Santro Car. He further deposed that accused Ritesh had given him his own Matiz car bearing No. 8825 and he came back to his house in the said car.
21. He further deposed that at about 8:00 p.m he received a telephone call from accused Ritesh Mittal who said he was present near Oisis Hotel and he should come and take his car. So he went to Oisis Hotel in the car of Ritesh Mittal and found all the three accused persons present there alongwith the car of his brother. He further deposed that there was mud on the sides of the car and the number plate on the rear Contd....
11was in the broken condition. He asked accused Ritesh Mittal as to how number plate had broken who replied that the same might have been broken by some children while the car was parked.
22. He further deposed that stepney of the car was also changed. He identified the broken number plate bearing No. 1172 which according to him was affixed on the rear of the car and said the other portion of the plate was not there at the time it was delivered to him at Oisis Hotel. The number plate is Ex. P-11.
23. PW 8 is Hardeep Singh. He deposed that he works as a electrician in Tri Nagar and had a mobile phone make Seimens in the year 2001 having telephone number 9811485780. He further deposed that he does not remember the number of the instrument as he had sold the said mobile instrument through Shanty of Jeet Tent House, JP Market Pitam Pura. He further deposed that the instrument was sold Contd....
12in his presence and he had only seen the glimpse of the purchaser. He identified accused Narender Chauhan as the person to whom the instrument was sold. He further deposed that IMEI No. of the instrument may be 44519945640563.
24. PW 9 is SI Umed Singh. He deposed that on 5-1- 2002 he was posted at PP Shahbad dairy and at about 4:35 p.m he received DD No. 15. So he alongwith constable Pankaj went to a place on the bank of Western Yaumuna Canal at Kankal Khera Kalan Road where a dead body of a child aged about 10 years was lying in a small ditch. A Muffler was tied around the neck of the dead body and a shoe was lying at some distance from the dead body. He flashed messages for identification of the dead body and came to know that a child was missing from the area of P.S. Shalimar Bagh. SHO P.S Shalimar Bagh alongwith other staff reached there alongwith the relatives of the deceased boy. The father Contd....
13of the child identified the dead body.
25. He further deposed that he conducted the inquest proceedings and prepared form 25.35, memo of brief facts and identification statements and autopsy form. He summoned the crime team and the dog squad and seized the shoe lying near the spot. Shoe was identified by the father of the deceased. The dead body was sent for postmortem and thereafter handed over to the relatives of the deceased. Constable Pankaj handed over to him the exhibits which were taken into possession by him and deposited in the Malkhana.
26. PW 10 is ASI U.R. Khan. He had filled the PCR form on the receipt of information from Sh. Prem Mittal and forwarded it for onward transmission to missing person squad.
27. PW 11 is Ashu. He deposed that his brother is having a shop in the name and style of Naushad Auto Center, Rohini and he used to take lunch for his brother. He Contd....
14did not support the case of the prosecution and was declared hostile.
28. He denied that he had told to the police that the accused persons had come to him at the shop on 4-1-2002 in a Santro alongwith one child and had got the stepny of the car replaced. He denied that in his presence the child accompanying the accused addressed accused Ritesh Mittal as Kalu Bhai and addressed accused Narender Chauhan as Guddu Bhaiya. He denied that he had told to the police that the rear number plate of the santro car was broken.
29. PW 12 is Manohar Lal. He had prepared the scaled site plan.
30. PW 13 is Satbir Singh. According to him on 5-1- 2002 he had noticed a school bag lying at the Khera Road which contained books as well as the note books. He found the name of Milan Mittal scribed on the books with telephone number. He rang up the said telephone number. Police Contd....
15came and he handed over the school bag to them.
31. PW 14 is ASI Ved Prakash. He is the MHC(M) of PS Shalimar Bagh and deposed about deposit of various articles, recovered and seized in the case. He proved the copy of the relevant entries as well as RC as Ex. PW 14/A.
32. PW 15 is constable Megh Raj He had taken the sealed parcel to CFSL Hyderabad.
33. PW 16 is Deepak Gupta. He deposed that Major Gurpreet Singh was working under him and he left his organization on 13-11-2003. He produced the details pertaining to phone No. 9811488780 for the month of November 2001 and also 9811587365 for the month of January 2002.
34. PW 17 is Inspector Sukhvinder Singh. He collected the information regarding mobile numbers 919811485780 and 919811587365 from the office of ESSAR Ltd.
35. PW 18 is Dr. D.N. Acharya. He conducted the Contd....
16postmortem of the dead body.
36. PW 19 is Gaurav. He deposed that on 4-1-2002, at about 8:15 p.m he returned to his house and came to know that his mother, grand mother and uncle had gone to the house of his bua Anju Mittal. He inquired from his aunt and came to know that his cousin brother Milan Mittal was missing. He then rushed to the house of his bua at UT 78 Pitam Pura and tried to trace Milan but he could not be found so he returned to the house of his bua at 9:15 p.m. At about 9:20 p.m he received a call on phone No. 7220285 which was installed on the first floor. He attended the phone and the caller asked him, if he was speaking from the house of Millan. Caller told him that the child was all right and they should arrange a sum of Rs. 20 Lakh. He gave this information to his uncle Prem Mittal who was present on the ground floor. After about 2-3 minutes telephone rang again. He picked up the telephone and the caller again repeated that Contd....
17they should arrange a sum of Rs. 20 Lakh and he would again ring a day after.
37. PW 20 is SI Praveen Kumar. According to him on 4- 1-2008, he had received a message about the missing of a child Milan Mittal. He went to the house of the child and met Sh. Prem Mittal, father of the child and recorded his statement and after making the endorsement sent the same for the registration of the case U/s 363 IPC. At about 9:25 p.m Gaurav told him that he had received a ransom call of Rs. 20 lakh for the release of the child. After about 2 / 3 minutes another call was received by Gaurav on the said telephone. He recorded the statement of Gaurav and got the case converted to U/s 364 IPC. He tired to trace Milan but he could not be traced.
38. On 5-1-2002, he recorded the statement of PW Naresh. In the evening at about 5:00 a.m he received an information that a dead body of a boy is found near Village Contd....
18Khera Kalan. He reached the spot with the complainant and identified the dead body.
39. On 6-1-2002, after the postmortem the dead body was handed over to Prem Mittal and section 302 IPC was added and thereafter the investigation was transferred to Inspector B.R. Man and he joined the investigation alongwith him. He reached Giri Raj Dharam Kata at Khera Kalan Village alongwith Inspector B.R Man where they met one person named Satbir who produced the bag of the victim which was seized by the IO. He identified the bag and its contents i.e 6 copies, 5 books and one geometry box.
40. On 9-1-2002 a Santro Car was recovered from front of house No. KP 188 Pitam Pura which was seized vide Ex. PW 20/F. The number of the Santro Car was DL 4C M 1172 and there were paintings on both side of the car. Accused Narender and Ritesh were apprehended from JP Market Pitam Pura where they made disclosure statement. They were Contd....
19arrested and their personal search was conducted. Accused Narender Chauhan got recovered a mobile phone EMI No.449199456405630 make Seimens S-4 and a bank slip of Bank of Baroda in the name of accused Ritesh Mittal on which telephone No. 7220285 and telephone No. 9811587365 were written.
41. He deposed that thereafter accused Jaffar Abbas was arrested from House No. B-11/87 Pitam Pura Police Line. His personal search was conducted. He pointed out the place from where Milan Mittal was kidnapped. He got recovered broken Number Plate bearing No. 1172. He also made a disclosure statement. This witness identified the broken number plate.
42. He further deposed that thereafter all the accused persons pointed towards the place where the dead body was thrown. Accused Ritesh led the police party to Khera Kalan and got recovered from behind the bushes one copy and one Contd....
20book of Milan Mittal. He further deposed that on 11-2-2002 accused Narender led the police party to a park in Vaishali and got recovered one bag from behind the bushes which was seized by the police vide memo Ex. PW 20/22. He prepared the site plan Ex. PW 20/21 and PW 20/22.
43. PW 21 is Dr. R.K. Punia. He conducted the postmortem on the dead body. He proved his report as Ex. PW 21/A. He opined ante mortem ligature strangulation. Death was due to asphyxia as a result of ligature strangulation. According to PW 21 Ligature strangulation was sufficient to cause death in ordinary course of nature. Time since death was approx. 36 hours to 48 hours prior to autopsy.
44. PW 22 is H.C. Subhash Chand. He sent 5 sealed parcels and two sample seals to CFSL Hyderabad through constable Megh Raj vide RC No. 30/21.
45. PW 23 is Smt. Surekha Khanna. She deposed that Milan Mittal used to come to her house for tuition at about 3 Contd....
21/ 3:30 p.m and used to leave at 5:00 p.m. On 4-1-2002, Milan came to take tuition at about 3:30 p.m and left at about 5:00 p.m with another boy Hitesh.
46. PW 24 is Sher Singh. He had taken the photographs of the dead body.
47. PW 25 is Inspector B.R. Man. He is the IO of the case. He unfolded the sequence of investigation done by him.
48. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C. was recorded and incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated in this case. No evidence in defence was led by the accused persons.
49. I have heard Ld. APP for the state, Sh. Dhanbir Singh advocate for accused Jaffar Abbas, Sh. R.S. Malik, advoacate for accused Ritesh Mittal and Sh. L.S. Saini, advocate for accused Narender Chauhan and have also gone through the Contd....
22records of the case.
50. It is urged by the Ld. APP for the state that on the basis of the evidence and the material available on record, accused persons be convicted. He further urged that the prosecution has been able to prove the case against the accused persons beyond reasonable doubt and the chain of circumstances is so complete that there is no escape for the accused persons.
51. On the other hand, it is urged by Sh. Dhanbir Singh, advocate for accused Jaffar Abbas that the case is based on circumstantial evidence and there is not an iota of incriminating evidence against accused Jaffar Abbas. He further urged that the identity of the accused Jaffar Abbas could not be established. He further urged that the recovery of broken number plate is planted because as per PW 2, he saw the broken number plate with No. 1172 on the car and PW 7 has also deposed that when the car was returned to him Contd....
23it was having broken number plate with number 1172 so the alleged recovery of this number plate at the behest of accused Jaffar Abbas is not possible. He further urged that nothing was discovered on the basis of the disclosure statement of accused Jaffar Abbas.
52. The present case is based on circumstantial evidence and the law regarding circumstantial evidence is well settled. When a case rests upon a circumstantial evidence, such evidence must satisfy 3 tests :-
53. (i) The circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established.
(ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of accused.
(iii) The circumstances, taken accumulatively should firm a chain so complete that there is no escape from the conclusion that within all human probabilities, the crime was Contd....
24committed by the accused and none else.
54. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis then that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
55. In the instant case, in order to prove the guilt against accused Jaffar Abbas, the prosecution has relied upon :
(i) Identification
(ii) Recovery of broken number plate having No. 1172.
(iii) Disclosure statement which led to the discovery.
56. As far as circumstance No. 1 is concerned, PW 2 is the witness who has seen the child being taken away in a Santro car. He has not seen the persons who were there in the car as the car had coloured glasses and he even could not see how many persons were sitting in the car.
Contd....
25
57. The other witness whose testimony is relevant against this accused is PW 7 Jitender. He is the person who had given the Santro Car bearing No. DL4 C N 1172 to accused Ritesh Mittal on 4-1-2002 which was used in the kidnapping of Milan Mittal.
58. According to this witness at that time accused Ritesh Mittal, accused Narender Chauhan and accused Jaffar Abbas were present and they all went away in the Santro Car. According to him on that day at about 8:00 p.m, he received a telephone call from accused Ritesh Mittal who asked him to collect the car from near the Oaisis hotel and when he went there all the three accused persons were present with the car.
59. In his cross examination, he has stated that accused Jaffar Abbas was not known to him prior to 4-1-2002 . He further deposed that police had not asked him about the description of the accused. He further deposed that he had seen accused Jaffar Abbas prior to his statement Ex.PW7/DA Contd....
26was recorded. He further stated in his cross-examination that when he was taking the delivery of the Santro Car at Oaisis hotel, accused Jaffar Abbas told him that his name was Jaffar Abbas. He stated that he had told to the police, the name of the third person as Jaffar Abbas. This part of his statement was confronted as the same was not there.
60. It is the admitted fact on record that accused Jaffar Abbas was not known to PW 7 prior to 4-1-2002 . Test Identification Parade of accused Jaffar Abbas was not conducted and according to PW 7 he had seen the accused in the police station prior to recording of his statement Ex. PW 7/DA. This witness says that accused Jaffar Abbas had told his name to him but this is quite strange and unnatural on the part of the person who is alleged to have committed a crime, that he would unnecessary disclose his name and create evidence against him. If that was so then this witness must have definitely told the name of the accused to the police.
Contd....
27But the IO who has been examined as PW 25 stated that if PW 7 had told the name then he would have definitely mentioned the same in the statement U/s 161 Cr.P.C of this witness.
61. I have no hesitation in coming to the conclusion that this witness has not given the name of the accused as Jaffar Abbas as stated by him otherwise, there was no occasion for the IO not to mention his name in the statement U/s 161 Cr.P.C. In any case, if this witness had actually seen accused Zaffar Abbas, he could have at least given the description of the accused who was present alongwith co-accused Ritesh Mittal and Narender Chauhan at the time of taking and return of the Santro car and more so when the accused himself introduced him to this witness as Zaffar Abbas.
62. The incident had occurred on 4-1-2002, and the evidence of this witness was recorded on 5-4-2003, thus there was a lapse of more than a year between the occurrence and Contd....
28the examination of this witness. In my opinion, such identification in the circumstances of this case would hardly furnish any evidence against the accused. Reliance can be placed on Mohd. Abdul Hafiz Vs. State of Andhra Pradesh 1983 S.C. Cases (Criminal) 139.
63. The next piece of evidence against accused Jaffar Abbas is the recovery of broken number plate of the Santro Car. According to the prosecution, this accused made a disclosure statement Ex. PW 20/S on 9-1-2002 disclosing that the broken number plate had been thrown by him near garbage dump Pitam Pura. This number plate was recovered vide memo Ex. PW 20/D. According to this memo, on the pointing out of accused Jaffar Abbas a broken number plate 1172 black with numbers written in white was recovered from a dustbin at Pitam Pura. This number plate has been exhibited as P-11.
64. According to the evidence on record, PW 2 had seen Contd....
29the Santro Car in which the child Milan Mittal was kidnapped and he had noticed that the number plate on the rear of the car was broken into half and numbers 1172 were only readable on the rear number plate. This witness identified the car as Ex. P-10. This witness is very categorical about the fact that the car was having broken number plate 1172 on the rear side.
65. Jitender PW 7 is the person who had given the Santro Car to the accused persons and according to this witness the number plate on the rear of the car was in broken condition when it was returned to him. The number plate Ex. P-11 was shown to him and after seeing the number plate he stated that this plate was affixed on the rear of the car when it was returned to him.
66. Then there is the recovery memo of the car bearing No. DL4 CM 1172 which is Ex. PW 20/F. In the said recovery memo, nothing has been mentioned about the Contd....
30number plates whether any of the number plate was broken or missing. However, there is a mention about the paintings on both side of the car and also about the black glasses of the car. The most important and relevant fact about the number plate has not been mentioned in the recovery memo of the car, for the reasons best known to the I.O.
67. So from the evidence and material on record it appears that the car was having the broken number plate 1172 (Ex. P-11) affixed on its rear when it was noticed by PW 2. In the same condition with number plate 1172 (Ex. P-11) affixed on it, the car was returned to PW 7 Jitender. Now according to the prosecution, this number plate Ex. P-11 was recovered at the instance of accused Jaffar Abbas but I fail to understand how this number plate 1172 (Ex. P-11) could be recovered at the instance of the accused Jaffar Abbas when it was affixed on the Santro car when it was returned to PW 7 Jitender. The only inference which can be drawn is that in Contd....
31order to involve the accused in the crime, the number plate was plated upon him. Even otherwise, there is no mention about the number plates in Ex. PW 20/F which otherwise has the other description of the car.
68. The next circumstance against the accused is his disclosure statement and recoveries there on. According to the prosecution, accused Jaffar Abbas made a disclosure statement on 9-1-2002, and he disclosed that they had thrown the dead body of Millan near Kakar Khera Village and after some distance from there accused Ritesh Mittal @ Shalu threw the school bag near Khera village. He further disclosed that two books and one shoe of Milan were left in the car which were thrown by accused Ritesh Mittal @ Shalu by the side of the road. Accused Jaffar Abbas then got recovered the broken number plate from the dustbin.
69. PW 25 is the IO of the case and he deposed that after the arrest of accused Ritesh Mitttal and Narender Contd....
32Chauhan and recording of their disclosure statements he arrested the accused Jaffar Abbas and recorded his disclosure statement as Ex. PW 20/S.
70. PW 20 has deposed that on the basis of the disclosure statement of accused Narender Chauhan which is Ex. PW 20/G they came to know the place of throwing the broken number plate Ex. P-11 and also that accused Narender Chauhan could show the place and get the said number plate and other articles recovered.
71. So from the testimony of PW 20 and PW 25 it is clear that after the disclosure statement of accused Narender Chauhan disclosing as to where the dead body was thrown, where the broken number plate and other articles were thrown and from where they could be recovered, the recording of disclosure statement of accused Jaffar Abbas was wholly an impermissible exercise and an attempt to rope him with the aid of Section 27 of the Evidence Act. Since the Contd....
33information had already been given by accused Narender Chuahan in his disclosure statement Ex. PW 20/G, the subsequent statement Ex. PW 20/S of accused Jaffar Abbas was not admissible in evidence because at the best it was leading to the rediscovery of a fact already disclosed and capable of discovery.
72. It has been admitted by PW 20 and PW 25 that the disclosure statement made by accused Narender Chauhan was first in point of time so the IO could have immediately acted upon the disclosure statement Ex. PW 20/G of accused Narender Chauhan rather than wait and record two more disclosure statements i.e. of accused Jaffar Abbas and accused Ritesh Mittal as if, authenticity of recoveries could be achieved by the mere number of disclosure statements leading to the discovery of one and the same fact.
73. This is all the evidence against accused Jaffar Abbas and in my opinion, it is not sufficient to connect the accused Contd....
34with the crime and the charge is not brought home to the accused. Accused Jaffar Abbas is, therefore, acquitted.
74. It is urged by the counsel for accused Ritesh Mittal that as per the story of the prosecution, there is no eye witness to the occurrence and the case merely rests on circumstantial evidence. He relied upon Sharad Birdhi Chand Sharda Vs. State of Maharashtra, AIR 1984 S.C. 1622. He further urged that there is no direct evidence to substantiate the charge of conspiracy against the accused and he further urged that in the absence of any explicit evidence, against the accused, he cannot be convicted purely on the moral ground because a child aged around 9 years has lost his life. He relied upon State of Haryana Vs. Jagbir Singh and another 2003 VIII AD S.C. 623.
75. He further urged that there is no direct evidence of kidnapping and PW 2 has not deposed a single word against the accused persons. He further urged that no person from the Contd....
35shop of barber has been examined where PW 2 has gone for his shave. He further urged that PW 2 has not deposed that Millan Mittal was carrying his school bag which means that he has not seen Millan Mittal at the alleged time and place. He further urged that when PW 2 has seen Millan Mittal being kidnapped in Santro Car having broken Number plate, even then he did not inform any one which according to the defence counsel was quite unnatural.
76. It is urged by the Ld defence counsel that the police was knowing about the place of occurrence on 5-1-2002 prior to the accused pointing it out. Ld defence counsel further urged that PW 7 is not a trust worthy witness because this witness has stated that he had signed the statement given to the police after accepting it as true but no signed statement of the witness is on record and that he is a tutored witness. He further urged that nothing was discovered on the basis of the disclosure statement of accused Ritesh Mittal.
Contd....
36
77. He further urged that PW 7 Jitender is not a registered owner of the car in question and the owner of the car has not been examined. He further urged that the witness of last scene i.e PW 11 has not supported the case of the prosecution. He further urged that the prosecution has failed to prove that the accused persons purchased the mobile phone in question.
78. He further urged that the name of PW 19 Gaurav was not mentioned in the list of prosecution witnesses filed alongwith charge sheet and the statement U/s 161 Cr.P.C was not supplied to the accused during the committal proceedings. It was only on 27-1-2004 when the Ld. APP moved an application only then the name of this witness was included by the court vide order dated 27-3-2004.
79. He further urged that Sim Card No. 9811587365 could not be recovered. He further urged that the prosecution has failed to prove that the death was homicidal. He further Contd....
37urged that everything was known to the police before recording the disclosure statement of accused Ritesh Mittal, therefore, the alleged disclosure statement and the alleged recovery of one copy and one bag of deceased Millan Mittal at the instance of accused Ritesh is inadmissible in evidence.
80. As far as the contention that statement of PW 19 was not on record and was subsequently brought on record vide order dated 27-3-2004, so the statement of this witness has no value in the eyes of law, has no force in it as the order dated 27-3-2004 allowing the name of Gaurav to be added in the list of witnesses became final and was not challenged.
81. It was then contended that the Sim Card No. 9811587365 could not be recovered. This contention also doesn't have any force in it because call records dated 4-1-2002 shows that calls were made from mobile No. 9811587365 to land line number 7220285 installed at the house of complainant from the mobile instrument Siemens S-
Contd....
384 bearing IMEI No. 445199456405630 so one thing is clear even if the sim card could not be recovered calls were made from the Sim No. 9811587365 which was used in Siemens S-4 mobile phone having IMEI No. 445199456405630 which was recovered from accused Narender Chauhan. So the non recovery of Sim card is not material.
82. As far as the contention of the Ld defence counsel that the prosecution has failed to prove that the mobile phone was purchased by accused Narender Chauhan, this contention, in my opinion, doesn't have any force because PW 8 had categorically stated that he had sold the mobile phone to Narender Chauhan who had made payment directly to him. Normally, it is seen that in such types of transactions like the one undertaken by PW 8 and accused Narender Chauhan through one Shanty, no written receipt or proof of payment are generally kept. More so this mobile phone model Siemens S-4 bearing IMEI No. 445199456405630 was Contd....
39recovered from the possession of accused Narender Chauhan which clearly shows that he was the owner of the phone. Even though, there is no written document of sale but the circumstances speak so, because men may lie but the circumstances don't lie.
83. As far as the contention of Ld. defence counsel that PW 2 has not deposed that Milan Mittal was carrying his school bag which goes to show that he was not seen at the alleged time and place by him. This contention of the Ld defence counsel has to be outrightly rejected because tutor Smt. Surekha Khanna has been examined as PW 23 who had given tuition classes to Milan Mittal on that day. This witness was cross examined but nothing material could be extracted from her cross examination which could discredit her testimony. So it is quite apparent that when the child had gone to attend his tuition classes, he must have been carrying his bags, books, copies, more so the witness PW 2 Contd....
40was not questioned about the bag of the child.
84. Regarding the unnatural conduct of PW 2, it has come on record that he had seen the child on 4-1-2002 at about 5:00 p.m standing near a Santro Car and talking to somebody and he saw that after few minutes Milan Mittal sat in the said car and the car passed by his side with great speed. PW 2 further deposed that rear number plate was broken and only No. 1172 was readable. Thereafter he went to his village at Haryana.
85. In his cross examination, this witness has stated that he had not told any one on 4-1-2002 that he had seen Millan going in a Santro Car. He further deposed that the car was having dark glasses. This witness no where says that he has seen Milan Mittal talking to the accused persons. What he has deposed is that he had seen the child sitting in a Santro car with broken rear number plate 1172 and after seeing this, he left for his village and only on the next day he told this fact to Contd....
41Prem Mittal, when he came to know that Milan Mittal was missing.
86. In my opinion, there is nothing unnatural about the conduct of this witness because how he could have imagined about the kidnapping of Milan Mittal but when on the next day, he came to know about the kidnapping, he disclosed about the facts of the previous day.
87. Now we have travelled up to the point that Milan Mittal was taken in a Santro Car with broken rear number plate having No. 1172. Now it is to be seen whether the prosecution has been able to prove that accused persons were there in the car. As far as accused Zaffar Abbas is concerned, I have already given benefit of doubt to accused Jaffar Abbas elsewhere in the judgment. Now it is to be seen whether accused Ritesh Mittal was there in the Santro Car or not. For this testimony of PW 2, PW 7 and PW 11 is relevant.
88. PW 11 who was the witness of last scene has turned Contd....
42hostile but PW 7 Jitender has categorically stated that on 4-1- 2002, he had given the Santro Car of his brother Bearing No. DL4 CM 1172 to Ritesh Mittal at the dhaba of accused Narender Chauhan. The car was returned to him at about 8:00 p.m with the broken number plate. He has categorically deposed that the Santro Car was delivered by him to accused Ritesh Mittal at the dhaba of accused Narender Chauhan on 4-1-2002 at about 12:00 noon.
89. This witness was cross examined but there is nothing worth mentioning which could discredit this witness except that he had stated that he had given a statement in writing to the police which was signed by him on which much emphasis was laid by the defence counsel for discrediting this witness. In my opinion, a witness though wholly truthful is liable to be overawed by the court atmosphere and the cross examination made by the counsel and out of nervousness mix up facts, gets confused regarding sequence Contd....
43of events or fill up details from imagination on the spur of the moment. The sub conscious mind of the witness some times so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. It is also seen that invariably the witnesses add embroidery to prosecution story perhaps for the fear of being disbelieved. So the discrepancies which do not go to the root of the matter and shake the basic version of the witness therefore, cannot be annexed with undue importance. In my opinion, looking into the testimony of this witness the probabilities factors echoes in favour of the version narrated by PW 7.
90. From the testimony of this witness, it is also established that accused Ritesh Mittal and Narender Chauhan whom he had given Santro Car were previously known to him so there is no dispute of identity as far as these two accused persons are concerned.
Contd....
44
91. It is not understood as to why accused Ritesh Mittal had to borrow the car from PW 7 when he was having his own Matiz car and this conduct of accused clearly reveals his evil mind. The contention of the counsel for accused Ritesh Mittal that the owner of the car was not examined has no force in it as no prejudice has been shown to have been cause to the accused persons by non examination of the owner of Santro Car, who is the brother of PW 7. According to PW 2 he had seen Milan Mittal sitting in the Santro car of which rear number plate was broken, and this car was in the possession of accused Ritesh Mittal and Narender Chauhan.
92. The ransom calls were received by PW 19. According to this witness on 4-1-2002 at about 9:25 p.m he received a call at phone No. 7220285 and the caller told that the child was all right and he demanded a sum of Rs. 20 Lakh and also asked not to contact the police. He gave this information to Prem Mittal and after 2-3 minutes the Contd....
45telephone bell again rang and the caller again demanded a sum of Rs. 20 Lakh.
93. In the cross examination of this witness there is nothing which could shake the testimony of this witness, or render his testimony unbelievable. There were two land line numbers installed at the house of PW 1 Prem Mittal whose son was kidnapped. One number was 7220285 and the other number was 7417368 which was having a caller ID installed on it. But as a matter of fact no ransom call was received on this telephone number i.e. 7417368 which was having caller ID.
94. On 4-1-2002 at about 10:00 p.m a caller ID was installed on telephone No. 7220285, the number on which two ransom calls were given and which were received by PW 19 but after the installation of the caller ID no telephone call was received as the kidnappers somehow came to know that the caller ID had been installed on telephone no. 7220285 as Contd....
46well. Now it is to be seen, as to how, the caller came to know that the caller ID now existed on both the telephone Nos. i.e. 7220285 and 7417368. This information can only be passed by an insider who must have been present at the house of Prem Mittal. Now it is to be seen who could be the insider who passed that information.
95. In his cross examination, PW 1 has categorically stated that accused Ritesh Mittal attended the cremation of his son and had also come to his house on 4-1-2002 at about 9:30 p.m and was there up to 10:00 p.m when the caller ID was installed on the second line. There is no suggestion to the contrary. So from this testimony, it is clear that accused Ritesh Mittal was present at the time of installation of caller ID and was keeping a watch on the developments without being suspected.
96. The call records also shows that the phone calls were made on 4-1-2002 from telephone No. 9811587365 on Contd....
47telephone No. 7220285 from a mobile phone having IMEI No. 445199456405630 which was recovered from co- accused Narender Chauhan. So from this evidence on record, it is clear that after the installation of the caller ID which was installed in the presence of accused Ritesh Mittal no ransom call was made thereafter and this clearly shows the complicity of accused Ritesh Mittal so he was the insider who was aware that the caller ID existed on both the telephone numbers installed at the house of the complainant.
97. According to PW 20 and PW 25 when accused Narender Chauhan was arrested, he got recovered amongst other articles one slip of Bank of Baroda in the name of accused Ritesh Mittal on which telephone No. 7220285 and telephone No. 9811587365 were written alongwith two other telephone numbers. The said slip is Ex. P-19.
98. The testimonies of these witnesses on this score remained un-rebutted and unchallenged and there is no cross Contd....
48examination and not even a suggestion to the contrary is on record. This recovery of Ex. P-19 clearly shows that accused Ritesh Mittal and accused Narender Chauhan were working in the tandem and had planned the kidnapping of Milan Mittal otherwise there is no reason for the bank slip in the name of accused Ritesh Mittal to be found in the possession of accused Narender Chauhan with the telephone no. of the complainant written on it.
99. It was next contended by the counsel for accused Ritesh Mittal that the disclosure statement and the recoveries are inadmissible in evidence. This contention of the Ld defence counsel has force in it. According to the prosecution a copy Ex. P6/7 and a bag Ex. P5/6 are alleged to have been recovered at the instance of accused Ritesh Mittal on 9-1-2002 but it is an admitted fact on the record that the disclosure statement of accused Narender Chauhan was recorded first in point of time and in his disclosure statement Contd....
49he disclosed about the place of throwing of dead body, place of accident and the place of throwing the other articles which have been recovered in the instant case. It is also an admitted fact on record that the disclosure statement of accused Ritesh Mittal was recorded after the recording of the disclosure statement of accused Narender Chauhan. This is evident from the testimony of PW 20 and PW 25. So when once the fact has been discovered, Section 27 of the Evidence Act cannot be again made use of to rediscover the fact. So in my opinion, the recoveries dated 9-1-2002 on the basis of the disclosure statement of accused Ritesh Mittal are not admissible.
100. In the instant case, the IO after recording the first disclosure statement should have immediately acted on the disclosure statement of accused Narender Chauhan rather than wait and record two more disclosure statements namely that of Ritesh Mittal and Jaffar Abbas.
Contd....
50
101. Though there is no admissible recovery against accused Ritesh Mittal but in my opinion, the prosecution has been able to prove against accused Ritesh Mittal that he alongwith accused Narender Chauhan had taken the Santro car bearing No. DL4 CM 1172 from PW 7 Jitender and in the said Santro Car the child Milan Mittal was kidnapped on 4-1-2002 at about 5:00 p.m. This car was seen by PW 2 and he also saw Milan Mittal boarding the car and that the said car was having a broken number plate 1172 . The factum of broken number plate has been corroborated by PW 7 Jitender as he has deposed that when the car was returned to him the rear number plate was broken.
102. Then there is an evidence on record that accused Ritesh Mittal was present in the house of his brother Prem Mittal when the ransom calls were made on the telephone which was not having caller ID and when the caller ID was installed on this telephone, the calls stopped.
Contd....
51
103. The slip of Bank of Baroda in the name of accused Ritesh Mittal was recovered from accused Narender Chauhan which was having the land line number of complainant Prem Mittal because it is the case of the prosecution that accused Narender Chauhan was making the ransom call from the mobile phone which was lateron recovered form his possession. There is seldom any direct evidence of conspiracy because the conspiracies are hatched in secrecy. The essence of conspiracy is its secrecy. So, in my opinion, the prosecution has been able to bring home the charges against this accused.
104. Sh. L. S. Saini, counsel for the accused Narender Chauhan has more or less argued on the lines of other two counsels and submitted that he has been falsely implicated and the recoveries has been planted.
105. It has come in my judgment elsewhere that accused Narender Chauhan was present when the Santro car bearing Contd....
52No. DL 4 CM 1172 was taken from PW 7 Jitender. He was also present when the Santro car was returned to PW 7 Jitender. The call records shows that the calls were made on 4-1-2002 between 9:15 p.m to 9:30 p.m on telephone No. 7220285 from Mobile number 9811587365 having IMEI No. 445199456405630. This Siemens S-4 mobile phone was recovered from accused Narender Chauhan.
106. The bank slip of Bank of Baroda in the name of accused Ritesh Mittal which was having telephone number of the home of the complainant on which there was no caller ID has also been recovered from the possession of accused Narender Chauhan and the testimony of PW 20 and PW 25 has gone unrebutted and unchallenged on this aspect.
107. There is no serious challenge to the recovery of mobile phone model Siemens S-4 having IMEI No. 445199456405630 and the bank slip Ex. P-19 from the possession of accused Narender Chauhan. The only Contd....
53contention to this effect was that no public witnesses were joined at the time of the recovery.
108. It is a matter of common knowledge that public persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. In this regard reliance can be placed on a judgment in case titled as Ambika Prasad Vs. State reported as JT 2000 (1) SC 273. In another case titled as Mohd. Anwar Vs. State reported as 1999 (10) AD 317 SC.
109. To sum up, accused Zaffar Abbas is hereby acquitted of all the charges as the prosecution has failed to prove the charges against him beyond reasonable doubt. Accused Ritesh Mittal and accused Narender Chauhan have kidnapped the child Milan Mittal for ransom and have subsequently murdered the child in consequence of the criminal conspiracy hatched by them. After the murder of the child Milan Mittal, his dead body was thrown near Kakar Khera Contd....
54Village and his school bag and shoe was also thrown in order to causing the disappearance of evidence which was lateron recovered. So both the accused namely Ritesh Mittal and Narender Chauhan are convicted U/s 364A/302/201/120B IPC.
(Announced in the open Court on 21-11-2008) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE, 01 NORTH WEST ROHINI COURTS : DELHI Contd....
55IN THE COURT OF SH. RAJNISH BHATNAGAR ADDL. SESSIONS JUDGE 01 NORTH WEST :
ROHINI COURTS : DELHI IN RE : Sessions Case No. : 54/2007 FIR No. :12/2002 P.S. : Shalimar Bagh U/s : 120-B IPC, 364A/302/201 R/w Section 120-B IPC State Vs.
1. Ritesh Mittal @ Shahi S/o Mahabir Mittal R/o UP-57, Pitam Putra, Delhi.
2. Narender Chauhan S/o Ramji Chauhan R/o KP-367, Pitam Pura, Delhi.
3. Zaffar Abbas S/o Rehman Khan R/o B-11/87, Pitampura, Police Line, Delhi.
ORDER ON SENTENCE
1. I have heard Ld. APP for the state, Sh. R.S. Malik, advocate, counsel for convict Ritesh Mittal and Sh. L.S. Saini, advocate, counsel for convict Narender Chauhan on point of sentence.
Contd....
56
2. It is urged by the counsel for both the convicts that they are of young age and have a family to support. Thus minimum sentence be awarded to them.
3. On the other hand Ld. APP submits that both the convicts don't deserve any leniency and maximum i.e. death punishment be awarded to them as they have murdered a teenage child.
4. Convicts Ritesh Mittal and Narender Chauhan have been convicted by me vide separate judgment dated 21-11-2008 U/s 364A/302/201/120 B IPC.
5. It is not a rarest of the rare case inviting imposition of capital punishment. I therefore sentence both the convicts namely Ritesh Mittal and Narender Chauhan to life imprisonment U/s 364A/120 B IPC and pay a fine of Rs. 5000/- each. They shall undergo rigorous imprisonment for three months in case of default of payment of fine.
6. I further sentence both the convicts namely Ritesh Mittal and Narender Chauhan to life imprisonment U/s 302/120 B IPC and pay a fine of Rs. 5000/- each. They shall undergo rigorous imprisonment for three months in case of default of payment of fine.
Contd....
57
7. I further sentence both the convicts to undergo imprisonment for 3 years and pay a fine of Rs. 2000/- each U/s 201/120 B IPC. In default of payment of fine both the convicts shall undergo rigorous imprisonment for two months. All the sentences to run concurrently. Ordered accordingly.
8. The benefit of section 428 Cr.P.C. be given to convicts.
Copy of judgment and order on sentence be given to convicts free of cost. File be consigned to Record Room. (Announced in the open Court on 03-12-2008) RAJNISH BHATNAGAR ADDL. SESSIONS JUDGE 01 NW ROHINI DELHI (Copy attached).
Contd....
58Contd....