Delhi District Court
34. In Jodhraj Singh vs . State Of Rajasthan 2007 Crl. on 31 May, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.158/10
FIR No.200/09
PS: Neb Sarai
U/S:364A/34 IPC
The State
Versus
(1) Vikash Sethi @ Vickey
S/o Sh. Ashok Kumar
R/o 27/113, Jwala Nagar,
Amar Ashram, Shahdara,
Delhi.
(2) Shahid
S/o Sh.Atik Ahmed
R/o 8/94, Nehru Gali,
60- Futa Road,
Biswas Nagar, Shahdara,
Delhi.
Date of Initial Institution :13.11.2009
Date of Institution in the present court:15.12.2010
Date of Reserving Order :22.05.2012
Date of Pronouncement Order :31.05.2012
JUDGMENT
1. The accused persons are facing trial under Section 364A/34 IPC. The case of the prosecution as set up in the S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 1 /38 charge-sheet is that on 19.08.2009, DD No.31B was recorded at 9:45 p.m wherein it was stated that sister of the caller of mobile No. 9899978155 has not returned home since 4:00 p.m from tuition and that a call has been received that the sister of the caller was with him and a ransom of Rs.5 lacs was demanded. This DD was handed over to SI Narpat Singh, who alongwith Ct. Shailesh visited A-93, Jawahar Park, Khanpur, New Delhi where he met complainant Nisha Madan, who stated that her youngest daughter aged 7 years (name withheld and hereinafter referred to as 'victim'), who studies in class II had gone for tuition to the house of a neighbour Yudhister at 4:00 p.m but had not returned till 6:00 p.m. Yudhister told that she had not come for tuition that day. Further, it was stated that a message was received by her on her mobile phone 9971937898 at about 8:00 p.m demanding a ransom of Rs.1 lac and thereafter a phone call was received from an unknown person from mobile phone No. 9540560110 demanding a ransom of Rs.5 lacs and a threat not to inform the police. A case under Section 364A IPC S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 2 /38 was registered and call details of phone No. 9540560110 were obtained which showed the location of that phone at Vishwas Nagar, Shahdara etc. and since the mobile phone was switched off at 10:55 p.m on that day, the kidnappers could not be traced. Another DD No. 4A was recorded at 9:08 a.m on 20.08.2009 regarding a numberless motorcycle rode by two persons near the house of the complainant, who told Vikash Sethi, who was the son of the sister of the complainant Nisha Madan, to pay the money or else the victim would be killed. Police became suspicious on Vikash Sethi and reached his house at 27/113, Jwala Nagar, Shahdara, Delhi, where on interrogation Vikash Sethi confessed his crime and also stated that Shahid was also involved with him, who has kept the victim in his Barbar Shop at 8/94, Nehru Gali, Vishwas Nagar, Shahdara. He led the police to the said Barbar Shop from where the victim was recovered and a scooter NO. DL-7S-AQ-8264 was also got recovered by Vikash Sethi from a shopping center, 6 TEN. After completion of the investigation, charge-sheet was filed and S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 3 /38 since the offence under Section 364A IPC is triable exclusively the court of Sessions, the case was committed to this court.
2. On 17.03.2010, a charge under Section 364A/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 15 witnesses.
4. PW-1, Pawan Luthura, deposed to have sold mobile connection No. 9540560110 in the name of Shahid by taking the identity proof as a photocopy of the Driving License. In his cross-examination, he denied the suggestion that Shahid never bought the telephone connection from him or that Shahid never visited him for purchase of connection.
5. PW-2, Mrs. Nisha Madan, the complainant deposed S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 4 /38 on the line of her complaint and proved the same as Ex.PW2/A. However, she turned hostile regarding the mobile number from which the call and the SMS were received and was thus declared hostile and was cross- examined by the Ld. Addl. PP. During her cross- examination, she stated that she does not recall if she had received the SMS and the call from mobile No. 9540560110. However, she admitted that when she received the call, the ransom amount was enhanced to Rs. 5 lacs. She also denied to have told the police that Vikash had ever told her to give money if she had the money. She denied the suggestion that she is deposing falsely in order to save Vikash as he is the son of her sister. She admitted that statement of the victim was recorded under Section 164 Cr.P.C. In her cross-examination by accused Vikash, she stated that Vikash never called her on phone. She also stated that she never felt the call to have been made by Vikash as she was familiar with his voice.
6. The victim deposed as PW-3 and stated that on that S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 5 /38 day somebody came at around 4:00 p.m when she was going for tuition and told her that Vickey is calling her. She went with him on a scooter with her bag. She could not tell the number of the scooter but stated that another scooter No. 333 was following her and she was taken to a Barber Shop. She stated that she does not know, who took her on scooter but she could identify him. Further, she stated that Vickey did not meet her and she was taken directly to a Barber Shop and Vickey was not there even. In the morning, some uncles came and after pulling down the shutter, they started beating Vickey and Lucky regarding Shahid she stated that Shahid is a Barber to whose shop she was taken and in whose shop she remained during night. She identified Shahid in the court. She proved her statement under Section 164 Cr.P.C as Ex.PW3/A. She was cross-examined by the Ld. Addl. PP wherein she denied the suggestion that she was taken by Vikash or she was threatened by him or demand of money by Vikash from her mother in her presence. To the court's question as to whether Shahid was also giving beatings to S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 6 /38 Vickey, she replied that Shahid did not give beatings to the Vickey, rather Shahid was also given beatings. To another court's question as to who kept her at the shop of Shahid, she replied that she remained in the custody of two uncles, who had taken her.
7. PW-4: Ms. Astha Pathak, Paryas NGO proved her counseling report with with respect to the victim as Ex.PW4/A.
8. PW-5 : Vishal Gaurav, Nodal Officer, Bharati Airtel Ltd., proved that phone number 9971937898 is in the name of Nisha w/o Ravinder Kumar r/o B-56-A, Jawahar Park, New Delhi and proved the Call Detail Records from the period of 19.8.09 to 20.8.09 as Ex.PW5/C.
9. PW- 6: Pawan Luthra, Nodal Officer, Idea Cellular Ltd., brought the certified record of phone number 9540560110. which is in the name of Shahid s/o Ateek Ahmad r/o 8/94, Naruh Gali, Vishwash Nagar, Shahdara, S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 7 /38 New Delhi. The call detail record of the above said mobile number from the period of 19.8.09 to 20.8.09 was proved as Ex.PW-6/C. In his cross examination for accused Shahid, he stated that he cannot tell as to who presented the documents for installing mobile number 9540560110 and as to who was in possession of mobile number 9540560110 on the relevant dates.
10. PW-7: HC Ramphal proved recording of FIR No. 200/09 u/s 364-A IPC as Ex.PW7/A, and endorsement on rukka Ex.PW7/B
11. PW-8: HC Hari Om, proved recording of DD number 31 B as Ex PW 8/A.
12. PW-9: HC Satbir Singh proved recording of DD number 4A as Ex PW 9/A
13. PW-10: HC Kuldeep Singh, proved handing over of DD no. 31 B to the SI Narpat Singh S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 8 /38
14. PW-11 Ct. Shailesh deposed that on 19.08.2009, he alongwith SI Narpat Singh reached at House No. A-93, Jawahar Park, Deoli, Khan Pur and meeting, Smt. Nisha Madaan the mother of victim. On 20.08.2009, IO received DD No. 4-A Ex. PW-9/A. IO checked the ransom calls and number was also put on surveillance. As per the surveillance, the location of the mobile number was found from the side of Shahdara (East Delhi). They both reached at House NO. 27/113, Jwala Nagar, Shahdara, near Amar Ashram. There, IO enquired from accused Vikash Sethi and during the inquiry, he confessed his guilt. The disclosure statement of accused Vikash Sethi @ Vicky is Ex.PW11/A. His arrest memo was proved as Ex.PW11/B, personal search memo as Ex.PW11/C. At his instance, victim was recovered from MZ Parlour, 60 Futa Road, Nehru Gali, Vishwash Nagar, Shahdara. Recovery memo was proved as Ex.PW11/D and seizure of school bag, notebooks and tiffin of girl from the said Parlour was proved as Ex.PW11/E. Arrest of Shahid was proved as Ex.PW11/F and his personal S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 9 /38 search memo is Ex.PW11/G, his disclosure statement as Ex.PW11/H, site plan of the place of recovery, as Ex.PW11/I. He was cross examined by Ld. Addl. PP wherein he admitted that one mobile phone alongwith SIM card used for ransom calls, was seized from Vikas vide seizure memo Ex.PW11/J. It is further correct that at the instance of accused Vikash Sethi @ Vicky, scooter bearing No. DL 7S AQ 8264, which was used for kidnapping of girl, was recovered from in front of Shopping Centre 6 Ten, 60 Futa Road, Vishwash Nagar, Shahdara which was seized vide seizure memo Ex.PW11/K. He identified mobile phone make Nokia model No. 2760 having IMEI number : 357 662017970142 along with SIM card of idea from accused Vikas Sethi @ Vicky. The mobile is Ex. P1 and SIM card Ex. P2. He also identified the school bag, 2 text books of class IInd one is Rhimjim- II (Hindi) and Marigold (English), 4 note books, one plastic tiffin box of pink colour.
S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 10 /38
15. In his cross-examination by accused Vikash, he stated that he left the spot at about 11:50 p.m for PS for registration of the FIR which was registered at 1:05 a.m on 20.08.2009. He stated that accused Vikash was arrested at about 5:10 p.m on 20.08.2009. He denied the suggestion that victim was not recovered at the instance of Vikash Sethi. He also denied the suggestion that Vikash Sethi was arrested after calling him in the PS.
16. PW- 12, Sh. Sanjeev Kumar, Metropolitan Magistrate, proved the statement of the victim recorded under Section 164 Cr.P.C as Ex.PW3/A.
17. PW 13, Vinod Kumar proved the release of scooter no. DL 7S AQ 8264 on superdari vide its superdiginama Ex.PW13/A.
18. PW 14, Sachin Sharma stated that his mother Urmila Sharma is the owner of 8/94, Nehru Gali, Vishwas Nagar. He stated that one of the shops at ground floor was S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 11 /38 let out to Shahid, who used to run a Barber Shop in the name 'M.Z. Parlour' in it. He further stated that no rent agreement was executed for it.
19. PW-15, SI Narpat Singh stated to have received DD No.31B on 20.08.2009 at about 9.50 p.m. He alongwith Ct. Shailesh reached A-93, Jawahar Park, Khanpur, New Delhi, where, he met complainant/Smt. Nisha Madan, who stated that her daughter aged 7 years, who was studying in 1st standard went for tuition at about 2.00pm and did not return back till 6.00pm. On searching, tutor stated that, on that day she did not come for tuition to him. At about 8.00 p.m, she received an SMS on her mobile number i.e. 9971937898 demanding Rupees One Lakh as ransom and not to inform the police, from mobile number 9540560110. After some time, she received a call on the same mobile number, from the same mobile number demanding Rupees Five Lakhs and threat. He proved the recording of her statement as Ex.PW6/A, preparation of rukka as Ex.PW15/A and sending it to PS for registration S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 12 /38 of case through Ct. Shailesh at 11:50 p.m. He further stated about receipt of DD No.4A and about reaching the residence of Vikash at 27/113, Jwala Nagar, Shahdar where he confessed his crime and told that the girl was kept in a Barber Shop at Vishwas Nagar. After interrogation, he was arrested and from his personal search a Nokia Mobile Phone having Idea Sim Card was recovered which was used for making the ransom call. His disclosure statement was recorded. Then, accused Vikash Sethi took them to 'M.Z. Parlour', 8/94, Nehru Gali, Vishwas Nagar, Shahdara where the victim was found in the custody of Shahid and her school bag containing books, note-books and tiffin were recovered. Thereafter, accused Vikash led them in front of 6 TEN, Shopping Center, Vishwas Nagar, Shahdara where he got recovered scooter No. DL-7S-AQ-8264 which was used for kidnapping the victim from Jawahar Park. In his cross-examination, he stated that he did not record the statement of the tutor. He also stated that at the time of raid at the house of accused Vikash Sethi, his younger S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 13 /38 brother was also present there. It was stated that in the arrest memo, the accused was shown to be arrested from shop No. 8/94, Nehru Gali, Vishwas Nagar, Shahdara and he volunteered to say that the accused was apprehended from house No. 27/113, Jwala Nagar, Shahdara and on asking about the victim, he led the police to 'M.Z. Parlour'. He also stated that no public person agreed for joining the investigation. He also stated that the mobile phone was recovered from the accused Vikash Sethi from his pocket. He denied the suggestion that the victim was not recovered from the shop of Mohd. Shahid or that no bag etc were recovered from the shop of Mohd. Shahid.
20. All the circumstances appearing against the accused persons were put to them and their statements were recorded under Section 313 Cr.P.C but it was stated by them that a false case has been registered against them and the witnesses being interested witnesses have deposed falsely against them at the instance of the police. S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 14 /38
21. Ld. Counsels for the accused persons have argued that the prosecution is duty bound to prove the case against the accused persons beyond reasonable doubt but the prosecution has not discharged this burden and has not been able to prove the case beyond reasonable doubt against the accused persons. It has been stated that the PW-2 Nisha Madan, who is Mother of the victim (kidnapped girl) was declared hostile. PW-3 victim has also not supported the prosecution case that it was accused Vikas Sethi who had kidnapped her. The place of arrest of accused Vikas Sethi was given differently by PW-11 Ct. Sailesh and PW-15 SI Narpat Singh. An objection has been raised that the statement of the tutor where the prosecutrix used to go for tuition was not recorded by the IO. It has been argued that from the evidence on record prosecution cannot say that the prosecutrix was kidnapped for ransom by the accused persons. For accused Shahid it has been stated that there is no material on record to connect him with the offence. Depositions of the witnesses have been read to argue that there are fatal holes in the S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 15 /38 prosecution story and the accused persons may be acquitted.
22. On the other hand, Ld. Addl. PP has supported the prosecution case and has stated that the prosecution has been able to prove its case beyond reasonable doubt. It has been stated that although the victim and her mother have not fully supported the prosecution case but on material points there is corroboration. As per prosecution, the demand for ransom earlier was Rs. 1 lakh which was subsequently raised to Rs. 5 Lakhs. The recovery of the scooter used in the offence was proved by PW-13 Vinod Kumar and PW-14 Sachin Sharma. PW-1 proved the sale of mobile phone connection No. 9540560110 of Idea from which the ransom calls were made. The victim was recovered from the possession of Shahid and as such the Ld. Addl PP has prayed for conviction of the accused persons.
23. I have heard both the sides and have carefully S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 16 /38 perused the records.
24. The accused persons were charged u/s 364 -A/34 IPC i.e. kidnapping for ransom. Section 364-A IPC reads as under:-
"Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any forum states or international inter- governmental organization or any other person to do or abstain from doing any act or to pay a ransom shall be punishable with death or imprisonment for life and shall also be liable to fine. "
25. Section 364A IPC is aggravated form of punishment for kidnapping which is defined under Section 361 IPC. As per Section 361 IPC, if a minor female under 18 years of age is taken out of the keeping of her lawful guardian S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 17 /38 without the consent of such guardian, the offence of kidnapping becomes complete. So age of the kidnapped girl and absence of the consent of the guardian are necessary to be proved for an offence under Section 361 IPC. Section 364A IPC prescribes for a stringent punishment if the purpose of such kidnapping is ransom. Hence, in order to bring home successfully a charge under Section 364A IPC apart from the other ingredients as noted above, communication of ransom demand is also necessary.
26. So far as, the age of the victim is concerned, undisputedly, she was less than 18 years of age when she was kidnapped. Regarding consent it is clear that it is the consent of the guardian that matters and not the consent of the victim. In other words, if the guardian of a minor female has not consented for the taking away of the minor even if the victim consents for her being taken away, the taking away would still be inviting penal action and will be termed 'kidnapping'. On 19.08.2009, the victim had S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 18 /38 left her house at about 4:00 p.m for going to tuition and at that time she was kidnapped. Even though, at the relevant time when she was kidnapped, she was not accompanied by her guardian but even at that time, she was under the constructive guardianship of her mother. Her mother has deposed as PW-2 and has nowhere stated that she had authorised the taking away of her daughter by any person. The invocation of force for taking away is not a requirement of this Section. As such, taking away of a minor female without the consent of her guardians amounts to kidnapping within the meaning of Section 361 IPC. The other requirement of Section 364A IPC is regarding communication of the demand of ransom. It is trite that until and unless the demand of ransom is communicated, the offence u/s 364-A cannot be complete. As per the FIR, an SMS was received from mobile no. 9540560110 on complainant's mobile phone 9971937898 demanding Rs. 1 lakh and subsequently, a call was received demanding Rs. 5 lakh from same number on the same number. The complainant when deposing in Court S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 19 /38 as PW-2 refused to admit that the SMS and the Call were received from phone no. 9540560110, although, she stated that a ransom of Rs.1 lac was demanded in the SMS and Rs.5 lacs were demanded in the call by the caller. Call detail records of both the mobile phones were placed on record in which transmission of SMS and the call are shown. However, the text of SMS has not been placed on record to prove that by the said SMS a demand of the ransom amount of Rs.1 lac was communicated to the mother of the victim. So far as the call is concerned, PW-2 specifically stated that she never felt that the caller was Vikash Sethi as she is familiar with his voice being a relative of Vikash Sethi. PW-6 Pawan Luthra, Nodal Officer from Idea, proved that the mobile phone connection No. 9540560110 was issued in the name of Shahid. This mobile phone was, however, recovered from the possession of accused Vikash Sethi. PW-3 Victim stated that no ransom call was made in her presence. The evidence led by the prosecution thus falls short from proving the communication of ransom demand by the S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 20 /38 accused persons from the mother of the victim. Thus, giving a benefit of doubt, the accused persons cannot be convicted of an offence under Section 364A IPC as demand of ransom amount is a sine-qua-non for proving an offence u/s 364-A IPC. However, let us see, if with the given evidence, whether the offence of kidnapping simplicitor under Section 361 IPC punishable under Section 363 IPC read with Section 34 IPC, is made out against the accused persons or not. It goes without saying that no separate notice is required to be given to the accused persons for convicting them under Section 363 IPC as the said offence is a minor offence as compared to Section 364A IPC and the same is permissible to be done as per Section 222(2) of Cr.P.C.
27. PW-3 the victim, who was 7 years old when examined, has stated that somebody came and told her that Vicky Bhaiya was calling her. She went with him on a scooter and another scooter followed her and she was taken to the barber shop of Shahid bhaiya. She further S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 21 /38 stated that she does not know the person who kidnapped her but she could identify him. She stated that Vicky did not meet her. She refused the suggestion that she was kidnapped by accused Vikas @ Vickey.
28. PW-2 Nisha Madan, mother of the victim deposed that on 19.8.2009 her daughter (victim) did not return to house after her tuition till 6 pm. She received an SMS on her mobile 9971937898 and a ransom amount of Rs. 1 lakh was demanded from her and she was instructed not to inform the place. Thereafter, she also received a call from the same number on which similar demand was made. However, she could not tell the number from which she received the SMS or telephone call. She was declared hostile and was cross examined by Addl. PP but she could not recall if the SMS and Call were received from mobile no. 9540560110. She accepted that the demand was enhanced to Rs. 5 lakh in the call. In her cross examination by the accused Vikas, she agreed that the accused Vikas never called her on phone. She further S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 22 /38 stated that she never felt that the ransom call was made by the accused Vikas as she is familiar with his voice.
29. There was one witness PW-1 Pawan Luthra who deposed about selling mobile connection no. 9540560110 in the name of Shahid. He denied the suggestion that Shahid did not purchase the aforesaid connection or some other person purchased the connection in the name of Shahid.
30. PW-11 Ct. Sailesh stated that during surveillance, the location of the mobile phone from which calls were made was found at Shahdara. He alongwith SI Narpat Singh reached the house of accused Vikash at House No. 27/113, Jwala Nagar, Shahdara where he confessed his guilt after inquiries. At his instance, the victim was recovered from MZ Parlour, Vishwas Nagar, Shahdara from Shahid who was owner of the said Parlour. The school bag of the victim, her notebooks, books and tiffin were also recovered from there. On being cross examined S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 23 /38 by the Addl. PP, he admitted that the accused Vikash had also produced the mobile phone with Sim Card which was used for making the ransom call. In his cross examination done on behalf of accused Vikash he denied the suggestion that the victim girl was not recovered at the instance of Vikash. He also denied the suggestion that he and SI Narpat Singh did not reach shop of Shahid i.e. MZ parlour at the instance of Vikash Sethi.
31. PW-15 SI Narpat Singh stated that on 20.8.2009 location of mobile no. 9540560110 was located at Shahdara. On 21.8.2009 he received DD No. 4A that two boys on a number plate less motorcycle had told Vikash near of the house of the victim that if the money is not paid, his sister will be killed, but no other person saw those boys. Police grew suspicious over Vikash and thus reached his house 27/113, Jwala Nagar where on inquiry he confessed the crime and told that the girl was kept in a barber shop at Biswas Nagar. From his search, the Nokia mobile phone from which the ransom calls were made was S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 24 /38 recovered with an IDEA sim. His disclosure was recorded and thereafter they reached MZ Parlour, shop No. 8/94, Vishwas Nagar, Shahdara from where the missing girl was found in the custody of Shahid. Her school bag, note books, books and tiffin were also seized. Thereafter, on 1.9.2009, statement of the victim girl was recorded u/s 164 Cr PC.
32. PW-12 Sh. Sanjeev Kumar, MM proved the statement of the victim recorded u/s 164 Cr PC. In this statement, the victim had stated that Vikas had taken her away and had kept her in a shop and when she told to go back to her house, the shopkeeper threatened her of being injured with a blade.
33. No doubt, the victim and her mother have not deposed anything against the accused Vikash but that conduct on their part is explainable as the accused Vikash is admittedly son of the sister of the complainant, who was mother of the victim. Being such a near relative, it is quite S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 25 /38 obvious that a lot of pressure must have been exerted on the complainant by her sister and other relatives in this regard not to name him so as to save him from the rigours of law. It is not that the complainant and the victim turned totally hostile to the entire prosecution case. They supported the prosecution case on material points except on the point of involvement of accused Vikash Sethi. It is trite that deposition of a hostile witness is not effaced completely but the same can be utilised on the points on which it has supported the prosecution case.
34. In Jodhraj Singh vs. State of Rajasthan 2007 Crl. LJ 2942, the Hon'ble Supreme Court has laid down that it is trite that only because a witness, for one reason or the other, has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. The courts even in such a situation are not powerless. Keeping in view the materials available on record, it is permissible for a court of law to rely upon a part of the testimony of the witness who has S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 26 /38 been declared hostile.
35. It is settled proposition of law that the evidence of a hostile witness is admissible to that extent it supports the case of the prosecution. The entire statement of a hostile witness cannot be discarded. In Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 , it has been observed as under :-
"That the fact that the witness was declared hostile did not completely efface his evidence, it remained admissible in the trial. Since his testimony was corroborated by other evidence, there was no legal bar to base his conviction upon it."
36. In Sat Paul v. Delhi Administration, AIR 1976 SC 294 , it has been held as "Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 27 /38 consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should as a matter of prudence discard his evidence in toto." Similar view has been taken in Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 SC 210.
37. However, there is a well known saying that witness may lie but the circumstances do not. The victim and her mother- complainant might have tried to save the accused but the circumstances are speaking against him. S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 28 /38
38. If we now see and join the chain of events, what emerges is that the a DD No. 31 B is recorded on 19.8.2009 regarding missing of the victim girl, whereafter IO/SI Narpat Singh with Ct. Sailesh meet mother of the victim and record her statement wherein she gives the phone no. 9540560110 from which she received ransom SMS and a call on her mobile phone number 9971937898. Rukka is prepared and sent through Ct. Sailesh for registration of FIR. Mobile connection No. 9540560110 was sold in the name of Shahid. Call details of 9540560110 were obtained which shows location of the phone at Vishwas Nagar, Shahdara. Next day a raid is conducted at the house of Vikas Sethi at 27/113, Jwala Nagar, Shahdara, Delhi where he admits his crime. He then leads the raiding party to MZ Parlour, Vishwas Nagar, Shahdara from where the victim was recovered in custody of Shahid alongwith her school bag, books, note books and tiffin.
39. It has been argued by both the Ld. Counsels for the S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 29 /38 accused persons that the arrest of the accused persons and the recovery of the victim are doubtful as the police has not involved any public person in these exercises. It is not even the case of the prosecution that the public persons were requested to join. A police officer performs dual roles - he has to perform the different parts of investigation and he can also be a witness to recovery. So far as the role of Investigation Officer is concerned, it is right that if public persons are involved in the said process, the investigation becomes more trustworthy but absence of public witnesses in the investigation processes does not ipso facto makes the entire investigation nugatory. So far as his role as a recovery witness is concerned, he is like any other witness who attests to the recovery of person or thing. If a police officer is a witness to recovery, this by itself does not become sufficient to doubt his impartiality simply because he happens to be a police officer and in terms of his duty he has taken steps for recovery of a kidnapped person at the instance of the accused without involving any public person in such S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 30 /38 recovery. In my opinion, it will be too much an expectation from a police officer who recovers a kidnapped person from the place disclosed by the accused. We cannot forget that safety and well being of the kidnapped person is the prime concern of police and they cannot be burdened with the onerous duty to joining public in it, as the public persons may have their own reservations in such joining. There is no requirement of law that unless and until public persons are involved every such recovery is to be discarded. It is only a rule of caution which is to be considered in the facts and cirucmstances of a case. In Karamjit Singh vs. State AIR 2003 SC 1311 it was held that "testimony of police personnel should be treated in same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witness, their depositions cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 31 /38 good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down." Even otherwise, the recovery of the victim at the instance of the accused Vikash Sethi from MZ Parlour from the custody of Shahid are admissible u/s 27 of the Evidence Act as neither the victim was recovered by them nor her whereabouts were known. She was recovered only when led by accused Vikash to MZ Parlour. The ground realities cannot be lost sight of that even in normal circumstances members of public are very reluctant to accompany a police party. Making efforts for joining public witnesses in recovery of the victim might have caused loss of precious time and might have jeopardized her safety as the victim was in custody of another accused. PW-11 Ct. Sailesh has deposed about apprehension of accused Vikash from Jwala Nagar, about his disclosure, about recovery of Nokia phone with IDEA sim card, and about going to MZ Parlour Vishwas Nagar and about recovery of victim with her school bag containing books, notebooks and tiffin. He S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 32 /38 proved the arrest memo of both the accused persons (Ex. PW-11/B and PW-11/F), recording of disclosure statements (Ex. PW-11/A and PW-11/H) , Seizure memo of Nokia phone with IDEA Sim (EX. PW-11/J) , recovery memo of victim (PW-11/D), seizure memos of school bag, note books, books and tiffin of the victim statements (Ex. PW-11/E). All this is corroborated from the deposition of PW-15 SI Narpat Singh. The discrepencies in the depositions of PW-11 and PW-15 are not fatal. One such discrepancy is regarding the dates mentioned by the IO/SI Narpat Singh wherein he mentioned the incidents of 19th August 2009 as those of 20th August 2009 and those of 20th August 2009 as that of 21st August 2009. However, the various documents i.e. DD entries, FIR, Arrest Memos and various other Memos shows that the witness has mentioned the dates wrongly. Regarding place of arrest of accused Vikash, PW-15 SI Narpat Singh clarified that he was apprehended at 27/113, Jwala Nagar and was arrested at 8/94, Bishwas Nagar. It has come in evidence that the IO/SI Narpat Singh and Ct. Sailesh had first gone to the S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 33 /38 house of accused Vikash at 27/113 Jwala Nagar where he admitted his guilt and disclosed that the victim was in custody of other accused Shahid at 8/94 Bishwas Nagar where the IO and the Ct. Sailesh go with accused and the victim is recovered from there. The discrepencies pointed out in the depositions are not fatal to the prosecution case.
40. In State vs. Sarvanam AIR 2010 SC 152 it was held by the Hon'ble Supreme court that "While appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the Court to reject evidence in its entirety.
Further, on the general tenor of the evidence given by the witness, the trial Court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate Court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of.
Difference in some minor detail, which does not otherwise affect the core of the S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 34 /38 prosecution case, even if present, that itself would not prompt the Court to reject the evidence on minor variations and discrepancies."
41. To the similar effect are the observations in Rakesh vs. State of M.P. 2011 (10) AD-SC 271 wherein it was held that "even if there are minor discrepancies, between the narration of witnesses when they speak on details, unless such contradictions are of material dimensions, the same should not be used to discard the evidence in its entirety. The trivial discrepancy ought not to obliterate the otherwise acceptable evidence."
42. In Sukhdev vs. State of Bihar 2001 (8) SCC 86 it was held "It is now well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 35 /38 evidence."
43. The evidence which has come on record against accused Shahid is that the mobile connection 9540560110 used in the crime was issued in his name and the victim was recovered from his custody. Against accused Vikash, the evidence which came on record is that the aforesaid mobile was recovered from his possession at the time of his arrest and he got recovered the victim after admitting his guilt. As per statement of the victim recorded u/s 164 Cr PC she was kidnapped by accused Vikash. In such circumstances, aid of Section 34 IPC comes handy. Section 34 lays down as under:
"when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
44. To attract this section the accused who is to be fastened with the liability on the strength of section 34 S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 36 /38 IPC should have done some act which has nexus with the offence. In Mahbub Shah vs. King AIR 1945 PC 118 it was held that it is difficult to procure direct evidence to prove common intention and in most cases it has to be gathered from the act and conduct of an accused or other relevant circumstances of the case. In Anwar vs. State 1997 (9) SCC 766 it was held that Common intention is to be inferred from the circumstances particularly the part played by the accused and the surrounding circumstances. In Noor Mohd. Vs. State AIR 1971 SC 885, it was held that participation in the commission of crime in furtherance of the common intention invites its application.
45. The depositions of the witnesses read with recovery of the victim from the custody of Shahid at the instance of accused Vikash unmistakably prove the guilt of the accused persons and they are convicted for the offence S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 37 /38 of kidnapping punishable u/s 363 IPC.
Announced in the open Court. (Rajeev Bansal) Dated:31.05.2012 ASJ-3/South District Saket Courts, New Delhi S.C. No.158/10 FIR No.200/09 State v. Vikash Sethi @ Vicky & Anr. 38 /38