Delhi District Court
State vs . Vijay Kumar & Anr. on 15 January, 2016
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS : Rohini Courts(NW) : Delhi
In the matter of :
SC No. 1/15
State Vs. Vijay Kumar & anr.
FIR no. 384/03
PS South Rohini
U/s 120B/363/364A/468 & 471 of IPC
State
Versus
1. Vijay Kumar
S/o Sh. Babu Lal
R/o J338, Shakur Pur,
Delhi34.
2. Kanwar Pal @ Bholu
S/o Sh. Budh Ram
R/o H.No. 73, near Saini Chopal,
Village Naharpur,
Delhi.
Date of receipt : 5.01.2015
Date of arguments : 15.01.2016
Date of announcement : 15.01.2016
JUDGMENT
1. The present judgment is directed against accused Vijay Kumar and accused Kanwar Pal only. Third accused Puran Dass is a proclaimed offender vide order dated 20.12.2014. The accused were charge sheeted with the case of the prosecution that on 10.07.2003 and prior to it, they entered into a criminal SC no. 1/15 Page 1 of 14 2 conspiracy to kidnap minor child of 8 years namely Aditya Pal Singh @ Dollar, the son of the complainant, for demanding ransom. In conspiracy, Aditya Pal Singh was kidnapped in a Santro car bearing fake number plate; ransom was demanded and; thereafter the child was released without taking any ransom.
1.1. Briefly stated the story of prosecution is that, on 10.07.2003, on receipt of DD no. 18A SI Surajbhan along with Ct. Ramallu went to House no. A3/112, Sector8, Rohini, where complainant Harcharan Singh met the Sub Inspector and gave his complaint. Harcharan Singh stated that on that day at about 2.30 PM his both sons got down at the main road, near his house from the school bus of Goodley Public School, Shalimar Bagh, Delhi. His both sons were walking towards their house and the complainant was waiting outside his house for his kids. One white Santro car was also parked on the way. When the kids reached near the Santro Car, the occupants of the car spoke to his kids. The complainant being curious also started walking towards the car and in the meantime saw that his younger son Aditya Pal Singh aged 8 years was pulled inside the car and the car sped away. His another son aged 13 years also witnessed the incident. The complainant could note down only the partial number of the car DL0031. The car had tinted glasses. The complainant also disclosed that the car was occupied by three boys aged about 2025 years and he also gave broad description of the offenders. On this complaint, present case was registered and investigation was undertaken. On the mobile phone no. 9811371888, several calls for ransom SC no. 1/15 Page 2 of 14 3 were received from various numbers. Initially the kidnappers demanded a ransom of Rs. 25 Lakh which was ultimately reduced to Rs. 3 Lakhs. The complainant was called to deliver the ransom at Cblock, Saraswati Vihar Stand on outer ring road, but nobody turned out to receive the ransom there. Subsequently, phone was received by the complainant that the boy was standing at some Farmer's Society, Sector13, Rohini. The boy was recovered from there. Statement U/s 164 Cr.P.C of the boy was recorded. During investigation, complainant Harcharan Singh also handed over one audio cassette in which the ransom calls were recorded by him.
1.2. Subsequently, the three accused were apprehended by the Special Cell of North West on 14.07.2003. Allegedly the three accused were travelling in the same Santro car at the time of their apprehension and from the car two forged number plates bearing no. DL 8C H 0031 were also recovered. At the time of apprehension, the Santro car was bearing no. DL 8C J 2117. They were subsequently formally arrested in the present case. The accused persons allegedly pointed out the place from where forged number plates were got prepared, the STD booths from where the ransom calls were made etc. On completion of investigation, chargesheet was filed against the above mentioned two accused.
2. Accordingly, charge U/s 120B/363/364A/468 & 471 of IPC was framed against both the accused Vijay and Kanwar Pal, to which both the accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined total 17 SC no. 1/15 Page 3 of 14 4 witnesses.
3.1. PW1 Anuj @ Vinay Aggarwal used to sit at the telephone booth of his maternal grandfather at Punjabi Bagh near Gate no. 1, Maharaja Agrasen Hospital. The witness however could not recollect anything about the call made from his STD booth by either of the accused at the time of incident. The witness also did not recognize the accused as the person who made call to anybody from his booth on any day. The witness could not recollect even the telephone number of the booth despite being suggested under leading questions by the Ld. Prosecutor and he could not identify the accused. The testimony of this witness is therefore of no help to the prosecution.
3.2. Similarly, PW2 Amardeep who used to run STD booth at Punjabi Delux Dhaba, Madhuban in Haryana could not recollect whether any of the accused made any call from his STD booth to anybody at the time of incident. Even this witness could not identify the accused. The witness was declared hostile and was subjected to cross examination by the Ld. Prosecutor. Nothing material came in favour of the prosecution even in the cross examination by the Ld. Prosecutor. Rather the witness in his cross examination stated that he had not seen either of the accused, prior to his deposition in the court and that it was wrong to suggest that the accused led the police team to his STD booth on 23.7.2003. The witness even denied having made any statement to the police and he also denied that document Mark P2A was prepared in his presence. It may be mentioned here that this document Mark P3A was subsequently exhibited in the evidence of PW6 as Ex.PW6/F SC no. 1/15 Page 4 of 14 5 and this document is regarding pointing out of the STD booth of this witness by accused Kanwar Pal, but the witness denied execution of this document and signing this document.
3.3. Similarly, PW3 Rameshwar also used to run STD booth at Railway road, Gharonda in Haryana. He also could not recollect whether any of the accused made any call from his STD booth to anybody at the time of incident. Even this witness could not identify the accused. The witness was declared hostile and was subjected to cross examination by the Ld. Prosecutor. Nothing material came in favour of the prosecution even in the cross examination by the Ld. Prosecutor. Rather the witness in his cross examination stated that he had not seen either of the accused, prior to his deposition in the court and that it was wrong to suggest that the accused led the police team to his STD booth on 23.7.2003. The witness even denied having made any statement to the police and he also denied that document Mark P3A was prepared in his presence. It may be mentioned here that this document Mark P3A was subsequently exhibited in the evidence of PW6 as Ex.PW6/F and this document is regarding pointing out of the STD booth of this witness by accused Kanwar Pal, but the witness denied execution of this document and signing this document.
3.4. Similarly, PW9 Sh. Pradeep also used to run STD booth at Subzi Mandi, Panipat in Haryana. He also could not recollect whether any of the accused made any call from his STD booth to anybody at the time of incident. Even this witness could not identify the accused. The witness was also declared hostile and was subjected to cross examination by the Ld. Prosecutor.
SC no. 1/15 Page 5 of 14 6Nothing material came in favour of the prosecution even in the cross examination by the Ld. Prosecutor. Rather the witness in his cross examination stated that it was wrong to suggest that police brought accused Kanwar Pal to his STD booth or that he identified accused Kanwar Pal on that day. Even this witness did not identify either of the accused in the court and denied that accused was brought to his STD booth. Even this witness denied having made any statement to the police.
3.5. Similarly, PW10 Inderjeet Singh also used to run STD booth at Sonepat Bus Stand in Haryana. He also could not recollect whether any of the accused made any call from his STD booth to anybody at the time of incident. Even this witness could not identify the accused. The witness was also declared hostile and was subjected to cross examination by the Ld. Prosecutor. Nothing material came in favour of the prosecution even in the cross examination by the Ld. Prosecutor. Rather the witness in his cross examination stated that it was wrong to suggest that police brought either of the accused to his STD booth or that he identified accused on that day. Even this witness did not identify either of the accused in the court and denied that accused was brought to his STD booth. Even this witness denied having made any statement to the police.
3.6. Similarly, PW17 Gyan Prakash also used to run STD booth at Village Samalkha District Panipat, Haryana. He also could not recollect whether any of the accused made any call from his STD booth to anybody at the time of incident. Even this witness could not identify the accused.
SC no. 1/15 Page 6 of 14 73.7. PW7 SI Umesh Sharma and PW5 Ct. Anand both deposed regarding apprehension of three accused. It is deposed that on 14.07.2003 a secret information was received by SI Umesh regarding the three accused to the effect that they would come to M2K, Rohini in a Santro Car. Regarding this DD no. 15 Ex.PW7/A was lodged. Secret information was conveyed to Inspector Kulbhushan Sharma who directed the Sub Inspector to conduct raid. Thereafter, a raiding party was formed comprising of these two witnesses and other police officials. The three accused were apprehended at about 2.40 PM from M2K Rohini, when they came in a Santro Car which was stopped on the pointing out of the informer. From the car, two number plates bearing no. DL 8C H 0031 were recovered whereas the car was bearing another number plate viz., DL 8C J 2117. The three accused made their disclosure statements and they were arrested. The fake number plate was seized after sealing the same. The information of arrest of these accused was given to the investigating officer of the present case.
3.8. PW15 ASI Ram Bharose was the duty officer in Special Cell in North District who lodged DD no. 19 after the accused were brought under arrest by SI Umesh Sharma. The DD no. 19 is proved as Ex.PW15/A. 3.9. PW4 HC Jagdish was the malkhana moharrar in police station Rohini and he deposed that Ct. Avdesh carried two sealed parcels sealed with the seal of SB and BN to the FSL on 23.09.2008 vide road certificate Ex.PW4/B and endorsement in the register no. 19 Ex.PW4/A and after depositing the articles in SC no. 1/15 Page 7 of 14 8 the lab, he obtained one acknowledgement receipt Ex.PW4/C which he deposited in the malkhana.
3.10. PW11 Ct. Avdesh also corroborated the deposition of HC Jagdish.
3.11. PW6 HC Ram Kishan deposed that on 22.07.2003 both the accused Vijay and Kanwar Pal, while in custody, made disclosure statements and then led the police team to various STD booths in Haryana as well as in Delhi vide the pointing out memos Ex.PW6/B to 6/I, Ex.PW1/A and he also pointed out to the place of kidnapping vide Ex.PW6/J, the shop from where forged number plate was got prepared Ex.PW6/A, the spot where the number plate was changed as Ex.PW6/L. The witness also deposed that on 24.07.2003, investigating officer recorded sample voice of these two accused in two different audio cassettes and then sealed those cassettes with his seal of DN and took it into possession vide Ex.PW6/M. 3.12. PW8 Deepak Kumar Tanwar the scientific officer from FSL deposed that he compared the voice sample of the two accused with the questioned audio recordings in which ransom calls were made and found that the conversation Mark A1 to A3 matched with the voice of accused Kanwar Pal and the conversation Mark A4 & A5 matched with the voice of accused Vijay. He proved his report in this regard as Ex.PW8/A. 3.13. PW14 Inspector Suraj Bhan and PW12 Ct. B. Ramallu both deposed that on receipt of DD no. 18A, they reached the house of complainant where complainant lodged his complaint on which rukka was prepared and the case was got registered SC no. 1/15 Page 8 of 14 9 through PW12. Siteplan was prepared. On the same day, ransom calls were received by the complainant and ransom amount was settled for Rs. 3 Lakhs and then police waited for the offenders to come at the designated spot, but nobody turned up. Subsequently, a call was received that the kidnapped boy was near Farmer's Apartment, Sector13, Rohini and the boy was recovered. Further investigation of the case was then transferred to some other investigating officer.
3.14. PW13 Inspector Sandeep Gupta was the further investigating officer of the case who did not conduct any material investigation.
3.15. Similarly PW16 Inspector Raj Kishore Singh was the further investigating officer of the case who simply got deposited the two sealed parcels containing questioned conversations audio recordings with specimen voice samples to the FSL on 23.09.2008. No other material investigation was conducted by this investigating officer also.
3.16. No other prosecution witness was examined.
4. On completion of prosecution witnesses, all the incriminating evidence was put to both the accused in their statements U/s 313 Cr.P.C. In their statements, both the accused generally denied the evidence against them and claimed that they have been implicated in this case falsely. None of the two accused facing trial opted to lead evidence in defence.
5. I have heard Ld. Prosecutor for the State and Ld. Counsel for the two accused.
SC no. 1/15 Page 9 of 14 106. The victim boy who was kidnapped and his father and brother who were eye witness to the kidnapping as well as who received the ransom calls, could not be examined in the present matter as the victim, his brother and his father had shifted the address, and despite best efforts they could not be traced. Delay in filing of the chargesheet by the police was also one of the reasons as to why those witnesses could not be traced. As mentioned above, the incident of this case took place in July, 2003. But the chargesheet was filed only on 29.10.2010. Thereafter, the Ld. Magistrate initiated proceedings U/s 82 Cr.P.C against the proclaimed offender. Those proceedings also consumed a long time. The file was once committed before the Sessions Court in August 2013 but the Ld. sessions Court sent back the file for afresh proceedings U/s 82 Cr.P.C and for completing the proceedings U/s 204 Cr.P.C., vide order dated 16.08.2013. Again proclamation proceedings were conducted and then the file was ultimately received in this court on 5.1.2015. In absence of examination of the kidnapped boy, his brother and the complainant father of the kidnapped boy, the charges U/s 363 & 364A of IPC does not survive against the accused. Even otherwise, as mentioned above, none of the STD booth owners examined in the present matter identified any of the accused during evidence. There is no admissible evidence that either of these two accused kidnapped the boy or made any ransom call from any of the STD booth, the owners of which have been examined in the present trial. No mobile phones were recovered from the accused persons to connect them with the crime.
SC no. 1/15 Page 10 of 14 117. So far as the matching of the voice samples with the ransom calls are concerned, the same can also not be used against the accused for the reason that the audio cassette recording was done by and was handed over by the complainant to the investigating agency. The complainant has not been examined being not traceable. How, when and where the recording was done by the complainant has not been proved. Secondly, the voice samples of the accused persons were obtained by the investigating agency during investigation without any permission from the concerned Magistrate. No independent witness was joined even at the time of obtaining voice samples of the two accused. In absence of examination of complainant, as to the audio recording done by the complainant qua ransom, the said audio recording qua ransom cannot be relied against the accused. Even otherwise the said audio recordings are electronic evidence, regarding which there is no compliance of Section 65B of Indian Evidence Act, 1872. In absence of the said requisite certificate, the said audio recordings cannot be used by the prosecution in its favour. Therefore, even that part of the evidence has to be excluded from the evidence led by the prosecution against the accused. Thus, so far as the charge U/s 363 & 364A of the IPC are concerned, there is no evidence against either of the accused to connect them with the crime.
8. Turning to the charge U/s 468 & 471 of IPC, in this regard the evidence led by the prosecution is that of PW5 Ct. Anand and PW7 SI Umesh Sharma, both of whom deposed that when the accused persons were apprehended pursuant to secret SC no. 1/15 Page 11 of 14 12 information on 14.07.2003, two forged number plates bearing no. DL 8C H 0031 was recovered from their possession. The said two number plates were recovered from inside the Santro car. It is the case of prosecution that at the time of kidnapping, the same Santro car was used with those forged number plates. In that regard, the only witness who could have deposed that those number plates were used was the complainant, father of the kidnapped boy. But he has not been examined as untraceable. Therefore, there is no evidence to the fact that this Santro car was used in the kidnapping or that it was bearing forged number plate at the time of kidnapping. As per prosecution, after the accused were arrested, they also pointed out to a shop namely Dimple Car Care at Naharpur, on 22.07.2003 stating that those number plates were got prepared from that shop. In that regard, pointing out memo Ex.PW6/K was prepared. During evidence, no one from Dimple Car Care has been examined to support the claim of prosecution that those number plates were got prepared at Dimple Car Care at Naharpur. If the accused had pointed out any such shop regarding which pointing out memo was prepared, why the pointing out memo does not bear signature of the said shop owner or the employee. No body from that shop was made witness against the accused. The person who prepared forged number plates at the instance of the accused at that shop and who was allegedly paid Rs. 100/ has not been examined. In the cross examination of PW5 Ct. Anand, it has come on record that Ct. Anand was the school mate of accused Kanwar Pal. It is difficult to believe that it was sheer coincidence that SC no. 1/15 Page 12 of 14 13 the witness who arrest the accused was also a school mate of the accused and therefore he knew the accused from before.
Admittedly, no public witness was joined by the investigating agency at the time when the accused were apprehended from M2K Rohini pursuant to the secret information. The secret information was received allegedly one hour before apprehension of the accused. Therefore, there was sufficient time for the investigating agency to join the independent witnesses but no one was joined. From the two recovery witnesses examined in the court, PW5 did not even claim that any independent witness was even requested to become witness. Though, PW7 SI Umesh claims that 23 passersby were requested to become witness but admittedly, even as per this witness no shopkeeper or anybody from residential houses located nearby was requested to become witness. M2K is a busy commercial area. The arrest was affected in day time at 2.40 PM. Nobody was even requested from commercial establishments or residential houses. There was no witness who was joined at the time of disclosure, arrest of accused or recovery. The said fact clearly reveals that there was absolutely no sincere attempt made to join any public witness and therefore, the recovery of those forged number plates has to be viewed with suspicion. Even otherwise when those forged number plates could not be connected with the crime, it would be technically difficult to convict the accused for an offence which is unconnected with the present incident.
9. Regarding other pointing out, the place of kidnapping was already within the knowledge of investigating agency and SC no. 1/15 Page 13 of 14 14 therefore, no fact can be said to have been discovered pursuant to the disclosure statements. The pointing outs to the STD booths are also inconsequential since none of the booth owners supported the case of prosecution.
10. There is no other evidence led by the prosecution to support the charge of conspiracy also.
11. The sum & substance of the above discussion is that both accused Vijay Kumar and Kanwar Pal are acquitted of all the charges.
Announced in the open court on 15th day of January, 2016. Dig Vinay Singh ASJ/Special Judge : NDPS (NW) Rohini Courts/Delhi SC no. 1/15 Page 14 of 14