Delhi District Court
St. vs Lucy Ming & Ors. on 5 October, 2010
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution: 30.09.2008
Date of judgment reserved on : 21.09.2010
Date of decision : 05.10.2010
S.C No. 109/2008
St.Vs Lucy Ming & Ors.
F.I.R. No.401/2008
U/s 328/381/411 IPC
P.S : Malviya Nagar
1. Sandeep Kumar S/o Lt. Ishwar Sudhir Kamela
R/o H. No. 6,Gali No. 4, Village Shahpur Jat,
PS : Hauz Khas, New Delhi.
2. Raju S/o Not Known R/o Not known
3. Rahul Paul @ Bikky S/o Lalan Paul
R/o H. No. 39/4, Village : Mohd. Pur, New Delhi.
4. Lucy Ming D/o Tanis Ming R/o Vill. Putudai
PS : Kingerkera, Distt. Sundergarh, Orissa.
J U DG M E N T :
Accused Rahul Paul @ Vicky & Lucy Ming were charge sheeted in a case
FIR No. 401/2008 registered in PS Malviya Nagar on 11.5.2008 u/s.
328/381/411/120B/34 IPC. Charge sheet was committed to sessions court by Ld.
MM after getting compliance of section 207 CrPC. Prima facie charge for offence
Page No. 2
of criminal conspiracy entered by these two accused persons and pursuant to this
criminal conspiracy further offence u/s. 328 and 381 IPC were found committed
by them and charge u/s. 411 IPC in alternative was also found made out against
Rahul Paul. Charge framed was to the effect that on 9.5.2008 both accused entered
into a criminal conspiracy to administer an intoxicating drug to complainant
victims Ms. Sharan Suri and Saloni Mahajan in the residential house D253, 2nd
floor, Sarvodaya Enclave, Delhi in order to commit theft of belongings and
valuables of the victims. Pursuant to this criminal conspiracy on 9.5.2008 accused
Lucy Ming working as a maid servant with victims Sharan Suri and Saloni
Mahajan served food in the dinner placed with some intoxicating drug with an
intend to commit theft of the valuables of the Sharan Suri and Saloni Mahajan and
after committing the said offence, accused took away laptops, two mobile phones,
two gold bangles, two gold rinks and one ring studded with diamond, a credit card
of HSBC, a cash amount of Rs. 11000/ 800US $ and a wrist watch.
Alternative charge u/s. 411 IPC against accused Rahul Paul is that on
3.6.2008 he was found possessing above said stolen two laptops, mobile phones
make NOKIA model 6681 , Model 6280 and Model 6220 and five credit cards
when he was apprehended from Ashram Chowk Flyover , Delhi and accused
knew or had reason to believe that these were stolen articles. Both accused
persons claimed trial by pleading not guilty to charge.
Facts in brief wherein case came to be registered and investigated and
finally accused persons charge sheeted are :
A written complaint Ex. PW 5/A was given by Sh. Rajiv Yadav , he Page No. 3 claimed to be brother in law of Ms. Sharan. According to information he received a call from Ms. Niman Suri that she was not having contact with her daughter Sharan Suri or her friend Salon Mahajan. Informant then reached residence of those two girls Sharan and Saloni at D253, 2nd Floor, Sarvodaya Enclave and meanwhile called their mobile no. but numbers were not answering. He reached the said residence and got no response to door bell. He called their mobile numbers but it responded switched off. He again got a call from Niman Suri that there was no response even from the landline number of Sharan Suri's residence.
Informant broke the door and took entry into the house when it was around 6 PM. He found cooler, fan and television were on . He shocked that door of the bed room of the Sharan Suri was closed and he opened it and found Sarun and Saloni lying in unconscious position. With the help of a friend who had also arrived, attempt was made to revive the girls but seeing that they were not responding and looked as if they were drugged, informant informed Ms. Niman Suri ( she is mother of Sharan Suri and was residing in Chandigarh). Informant called for ambulance and got both the girls removed to Max Hospital, Saket, New Delhi. Informant then took a look around in the house and found that mobile phones of both Sharan Suri and Saloni Mahajan were not there and he also could not see their laptops.
Informant then went upstairs to the servant quarter of the maid servant of Lucy Ming as she was maid servant with these two girls since June 2006. The maid servant was found missing. Her mobile telephone no. 9910765130 but it was responding switched off.
Page No. 4
Both Sharan and Saloni were admitted in emergency award of Max Hospital. Informant came back to the residential flat of the girls and the maid servant Lucy was found missing. In these circumstances informant alleged in this report that he suspects maid servant responsible for this occurrence i.e., to drug Sharan and Saloni with intention to commit theft and was missing and absconding. He further gave in report that further details about articles stolen int his incident would be given by the girls themselves. On this report, SI Chand Singh now examined as PW18 got a case registered through FIR Ex. PW 6/A for offence u/s. 328/381 IPC.
MLC Ex. PW 7/A and Ex. PW 7/B respectively of Sharan and Saloni were prepared at Max Hospital shows that both the victims girls were brought to the hospital on 10.5.08 at 7.35 PM, with the state of body condition of drowsiness's and they were treated accordingly. It is a matter of record that stomach wash of both the victims girls when later on got examined from FSL , no trace of any tranquilizer or any other alkaloids, barbiturates could not detected. Both the victims girls after discharging from the hospital on 11.5.2008 they provided details of their stolen articles to the police. According to Sharan Suri , article took away by thief comprised a laptop make Compaq , two cell phones, two gold bangles, one gold ring, one diamond ring, credit card of HSBC, ICICI, Reliance data card, a cash amount of Rs. 11000/ and a wrist watch . Articles taken away in this incident belongs to Saloni Mahajan comprised one cell phone , one laptop, Rs. 1200/ cash and debit and credit cards.
DD No. 43A was recorded on 10.5.2008 at 8.10 PM in PS Malviya Nagar Page No. 5 on the basis of an information from Max Hospital that Ms. Saloni Mahajan and Ms. Saloni Suri had been admitted by their brother in law Rajiv and SI Chand Singh was given copy of this DD to inquire into the matter.
SI Chand Singh visited the servant quarter where Lucy Ming was residing and found from that room a black colour and blue colour bag with word Addidas found printed on it. He further found a lady bag of black colour, a laptop bag of black colour and another black colour lady bag which contained some visiting cards and some further misc. articles and all these bags and articles were seized through memo Ex. PW 8/B. On 3.6.2008 accused Rahul Paul was arrested by SI Rajiv Kakkar and his staff officials from SO, Crime Branch and this arrest was effected on a secret information that a person carrying stolen goods would be arriving Ashram Chowk fly over at around 8 PM to sell to those stolen articles. A raiding team was organized and this team comprised SI Rajiv Kakkar SI Jai Kishan, SI Narendra, HC Bachhu Singh, HC Mahavir, HC Rajbir etc. The team reached Ashram Chowk, flyover and despite their efforts to join some public persons as a witness by requesting some passers by, they could not succeed. Finally they apprehended accused Rahul Paul who arrived underneath flyover holding a bag in his right hand. On being identified by informant he was apprehended and his name and address particulars were revealed by him. The bag being hold and carried by him was checked and it was found containing one laptop make DELL mettalic grey colour and another laptop make Compaq silver black colour. There were cords of both laptops also in the bag. Search of accused was taken and three mobile Page No. 6 phones make NOKIA & five bank cards were recovered. On being interrogated accused Rahul confessed that he had stolen those articles with his girl friend Lucy Ming from a house in Sarvodaya Enclave where Lucy was working as a maid servant and had given some sedative tablets to the land ladies. Verification of that confession revealed that present case FIR No. 401/2008 was found registered. With the arrest of accused Rahul Paul a criminal case for offence u/s. 411 IPC was got registered as FIR 386/2008 Ex. PW 10/A at PS New Friends Colony.
Meanwhile during investigation with the help of a mobile phone call received on a mobile no. 9899310582, accused Lucy Ming was found to be in a place in Bihar. SI Chand Singh with a team of police officials reached District Gaya Bihar and reached hostel Gautam. Accused Lucy Ming was found to have stayed in that hotel Gautam from 13.5.2008. Hotel Manager Nitin Kumar PW3 on being shown the photograph of Lucy Ming confirmed that Lucy Ming had arrived with two boys in the hotel on 13.5.2008 and room no. 202 was hired by them. One boy had introduced himself as Aftab and entered his entry in the hotel admission register by putting his signature in Bangla language . Both the boys left the hotel just after an hour but accused Lucy Ming stayed their for 5 days. Accused Lucy Ming became perturbed as soon the boys left the hotel and stopped taking food. She then provided a mobile no. 9899310582 and PW3 Nitin Kumar , Hotel Manager gave a call on that number and Aftab responded to that call and came to the hotel on 17.5.2008 finally, staying there over night, next morning both Aftab and Lucy left the hotel. Hotel Manager Nitin then identified accused Lucy Ming when he appeared in this trial and was examined as PW3 as the same girl who had Page No. 7 stayed in the hotel from 13.5. to 18.5.2008.
On 20.6.2008 a police team headed by SI Chand Singh went to the native place of Lucy Ming and that was village Puttudei, PS Kinjarkila, District Sundergarh, Orissa. Accused was found present in her house with her family members. She was arrested from that place and ASI Surendra Kumar Patel PW12 from PS Kinjarkila was joined as a witness in that arrest. Lucy Ming gave a confessional statement which was recorded as Ex. PW 9/C and after taking a transit remand of accused she was brought to Delhi.
SI Chand Singh then took up investigation for the recovery of stolen jewellery items of victims girl and in that regard on the basis of information conveyed by accused Rahul Paul accused confessed that one Sandeep Kamila R/o village Shahpur jat, house no. 6, Gali No. 4, Delhi, was arrested on 5.6.2008 and he addmitted before police that some stolen jewellery had been sold to him but then he admitted that by melting it and reframing it in a new jewellery he had sold it. This confession of Sandeep Kamila was recorded Ex. PW 18/F but since the IO had failed to effect any recovery of the stolen gold articles of Sharan and Saloni, Ld. MM directed release of Sandeep Kamila on a personal bail bond and finally IO placed Sandeep Kamila in column no. 2 of the charge sheet and no further action was ever taken against Sandeep Kamila. Another person namely Raju was kept in column no. 2 and according to confession given by Rahul Paul, he being employed with a chemist shop had assisted in procuring sedative tablet but then IO appears to have shown his incapability in collecting any further incriminating evidence against this accused Raju and matter remained as such. With this incriminating Page No. 8 evidence and material collected during investigation that accused Rahul Pual and Lucy Ming were charge sheeted and as seen above , charge was framed against them for said offences and case was committed to Sessions.
In all 18 prosecution witnesses have been examined. PW1 Sharan Suri and PW4 Saloni Mahajan are victim girls both supported charge that they only two girls were residing in house no. D253 Sarvodya Enclave, 2nd Floor, New Delhi. They were both employed in a private job and they used to leave residence in morning at around 8 or 8.30 AM and used to reach their residence by 7/7.30 PM in the evening. They further despoed that accused Lucy Ming was engaged as a maid servant who had been procured through placement agency and was with them for about three years. Witness from placement agency PW2 also deposed those facts and in fact Lucy Ming in her 313 CrPC did not deny or disputed the said fact.
Both the victim girls further deposed on 9.5.2008 they were served with food in the dinner at around 9 PM and it was prepared by Lucy Ming. After taking dinner both retired to their room. PW Sharan Suri says that she went into sleep and did not know about happened till next day when she found herself in Max Hospital. Similar is the evidence of Saloni Mahajan. It is further proved from the MLC Ex. PW 7/A and B respectively that both girls were brought to Max Devki Devi Hospital, Saket on 10.5.2008 at 7.30 PM. PW4 deposed that after taking food in dinner on 9.5.2008, she felt drowsy and became unconscious and when she regained consciousness she had found herself in Max Hospital and it was on 11.5.2008. Victim Saloni PW1 deposed that as she reached home she found her laptop make compaq, two Nokia mobile phones, two bank credit cards ( 1 from Page No. 9 HSBC and other of ICICI Bank ) two gold bangles, two gold rings, one studded with diamond and a cash amount Rs. 10000/ to Rs. 11000/ taken away from her vallet. Around 88 US $ and wrist watch which belonged to her father and a data card of laptop make Reliance were also found missing. Articles found missing by Saloni Mahajan as per her deposition were her laptop make DEL, an amount of Rs. 1200/, a mobile telephone handset make NOKIA and her three bank card ( one of ICICI and two of HDFC bank). Her black colour leather hand bag was also missing.
Both witnesses deposed further that accused Lucy Ming was also missing from the place. Witnesses then identified their stolen articles as later on recovered by the police and exhibited those articles. Stolen articles recovered in this case which belonged to Sharan Suri comprised her laptop, one mobile phone make NOKIA, a debit card of HSBC and another debit card of Standard Charter bank and she identified those articles. Stolen articles of Saloni Mahajan recovered later on and identified and exhibited by her comprised her three bank cards, her mobile phone make NOKIA and her laptop make DEL. This witness Saloni Mahajan further proved a mobile handset make Motorola and deposed that mobile telephone was operating on a SIM no. 9910765130 and that mobile phone had been provided to Lucy Ming while she was working as a maid with them so as to keep connectivity with her. The mobile handset when produced in court and exhibited by the witness it was not bearing its original SIM but was bearing a SIM card of Airtel with a number 8991100610049840611. This is the testimony of victim girls. Cross examination on witnesses did not suggest anything whereby Page No. 10 their testimony could be said to be doubtful or unacceptable. Defence suggested to PW1 is that since wages of Lucy Ming had not been paid for one year or that Lucy Ming had been pressing hard for payment of her wages that witness got her falsely implicated. Witness deposed that Lucy Ming used to be paid Rs. 3000/ a month. It is difficult to believe any such defence that two young girls living comfortably with a maid for past three years and rather the maid entirely dependent for her food and shelter on them, they would get her falsely implicated only for the reason that one year wages had become in arrears. May be defence suggested by the counsel was even not conveyed by accused because accused Lucy Ming in her 313 CrPC statement has not spoken any such reason for her implication by these young victim girls.
As regards accused Rahul Paul , PW1 admitted in cross examination that when this accused had been arrested by the police she was called to see if she could identify him but witness deposed that she saw him for the first time. Witness deposed that she had identified Rahul when he was in crime branch office where Inspector Ved Prakash was present but she did not recollect the date when she saw him in that office.
Next material witness is the complainant Rajiv Yadav and he besides proving his complaint as Ex. PW 5/A whereupon the FIR of this case registered, he fully supported the case that on 10.5.2008 when he found mobile phone of both victim girls not responding, he reached the residential premises D253, Sarvodaya Enclave, and the door bell did not respond and the landline no. also did not respond and then he broke open the door and took entry and found both victim girl Page No. 11 lying unconscious in bedroom. He further deposed that he found laptops of both the girls as well their mobile phones not seen in the house. Witness further deposed that he went to the servant quarter which was on the terace and found the quarter locked. He called mobile no. 9910765130 but it was found switched off. Victim girls were got admitted to Max Hospital. He further deposed that as per appearance of victim girls it looked if they had been drugged. He further deposed that later on he obtained call details of the mobile phone of accused Lucy Ming from Airtel and he proved those mobile telephone details as Ex. PW 5/B and he further states that mobile no. 9899310582 which belongs to co accused Rahul Paul had been called by Lucy on the date of incident and call details showed that they both were in constant touch.
Defence suggested to witness is that accused persons were being falsely implicated as wages of Lucy were not being paid. Such a defence appears totally untenable as not supported by any other fact or circumstance.
Condition of both the victim girls as found when they were brought to Max Hospital , has been deposed by doctor who had attended upon them and proved their MLC's . Both the victims were seen drowsy when brought to the hospital. Stomach wash was not taken as the alleged consumption of poisonous / intoxicating substance had been administered 22 hours before.
The next set of important evidence comprised PW11 SI Rajiv Kakkar, PW13 HC Mahavir and PW15 HC Bachu Singh. These police officials were from SOS Crime Branch and according to these witnesses on 3.6.2008, HC Bachu Singh received a secret information that a person carrying stolen goods would be Page No. 12 arriving near Ashram Chock flyover to sell those goods at 8 PM. The place was raided by organizing a raiding team and these three PWs were part of that team. They apprehended accused Rahul Paul in this case from underneath Ashram Chowk flyover at around 8 PM when accused was seen carrying a bag in his hand. The search of bag revealed recovery of two laptops make DEL and Compaq. Three mobile phones make NOKIA and five credit cards were also recovered in the personal search of accused. IMEI no. of mobile phone and series no. of the credit cards were noted in Ex. PW 11/A, seizure memo of those articles. Laptops along with bag were seized through memo Ex. PW 11/B. Accused Rahul Paul when interrogated, witness deposed, he disclosed that those articles had been given to him by Lucy Ming, a domestic help working in Sarvodaya Enclave. A criminal case FIR u/s. 411 IPC was got registered by SI Rajiv Kakkar.
These witnesses further deposed on 4.6.2008 accused Rahul Paul gave a disclosure statement and pursuant to that disclosure he got recovered one Aitrel SIM card which was found fixed / fitted in the mobile phone make Motorola and this recovery was effected from a suitcase in a room situated in village Mohamadpur where accused Rahul Paul was residing as tenant. IMEI No. of mobile phone along with series no of the SIM cards were noted in seizure memo Ex. PW 11/F. Finally the material witness is the IO PW18 SI Chand Singh. He has deposed as regards arrest of accused Rahul Paul by crime branch police officials. IO deposed that on 4.6.2008, he came to be informed about arrest of Rahul Pal by the crime branch officials and he then effected his arrest in this case when stolen Page No. 13 properties of this case had been recovered from accused Rahul Paul. Accused Rahul Paul when interrogated in this case he gave a confession which was recorded as Ex. PW 18/E and as per that confession, gold ornaments comprised one gold ring, a gold bangle had been sold by him with one Pradeep Kamila a jeweller situated in Hauz Khas and accordingly Pradeep Kamila was arrested and as per his confession Ex. PW 18/F that gold jewellery was melted by him and his arrest was effected by arrest memo Ex. PW 18/G. IO further deposed that on 18.6.08 he received secret information that Luch Ming had reached her home in her native village in Orissa. A team formed by the IO proceeded and reached the native place of accused Lucy Ming and accused Lucy Ming was arrested from her house on 20.6.2008. PW12 a police official Surendra Kumar Patil was joined in those proceedings. Accused Lucy Ming gave a confession / disclosure which was recorded Ex. PW 9/C but admittedly there is no recovery or discovery of any fact pursuant to that disclosure. Transit remand of Lucy Ming was obtained and she was brought to Delhi and was got remanded to JC.
Accused when examined to explain this incriminating evidence against them, accused Lucy came out with defence plea that she had been falsely implicated. She denied to have served dinner to the victim girls on 9.5.2008. She explained that on 9.5.2008 she had received a call from Rajiv Yadav at around 5 PM whereby she was asked not to prepare dinner as didis ( victim girls) would be taking food outside. Rest entire case, accused explained by denial. She admitted that she had been provided with a mobile phone by the victim girls but was not Page No. 14 aware if it was operating on number 9910785130 or that it was responded switched off when Rajiv tried to contact that no. on 9.5.2008. As regards her absence from servant quarter, accused explained that she was on leave on 9.5.2008. She denied to have stolen any article from the house. Finally accused explained that she was innocent but she could not say as to why victim girls had deposed against her.
Similarly accused Rahul Paul also explained evidence as false. He denied recovery of stolen articles from him as deposed by witnesses SI Rajiv Kakkar and others. He denied to have got recovered a mobile phone with a SIM Card as shown under seizure memo Ex. PW 11/F. He denied possession of a mobile no. 9899310582 or that a call on that mobile was received on 17.5.2008 made by Lucy or that hotel Gautam situated at Gaya, Bihar, was revealed and accordingly police team reached Gaya, Bihar. Accused denied to have had any acquaintance with Lucy. Accused then examined his wife in his defence as DW1.
Ld. Addl. PP argued that the victim girls for whom accused Lucy was working as a maid servant had no reason at all to implicate her falsely. Their evidence is corroborated by the medical reports i.e., MLCs that both the victim girls were brought to Max Hospital in the evening of 10.5.2008 and both were in a drowsy condition. It is argued that both the victims specifically deposed about their valuable articles taken away in this incident and accused Lucy was found missing from the servant quarter. Conduct of accused Lucy thus support the prosecution charge that she disappeared as she was involved in the offence of this case. Witness PW3 Manager hotel Gautam,Gaya, Bihar , has identified accused Page No. 15 Lucy to have stayed in his hotel from 13.5.2008 to 18.5.2008. Recovery of stolen property has not been challenged in cross examination by any material put to the witness. The facts and circumstance proves a conspiracy hatched between both accused persons and this crime was committed and thereby prosecution charge could be held to have been duly proved.
On the other hand, it has been argued from defence side that both the accused are innocent and there is no convincing evidence to hold the charge proved. I have appreciated these contentions.
While analyzing evidence of victim girl PW1 and 3 it has been found that these two girls had a least reason or motive to see accused Lucy falsely involved in this case. Admittedly Lucy was working for about three years with these young girls and only these these three females were in this household managing their affairs. Defence suggestion given to witnesses that because of some wages fell overdue which Lucy had been demanding that they got her falsely implicated appears to be unacceptable. Two young girls would not be expected to get their maid falsely implicated only because of any dispute over her wages. Their evidence that on 9.5.2008 night after taking food in dinner which had been prepared by Lucy, then became drowsy and went into a deep sleep till next day evening both were found lying unconscious in their house. It is further found proved from their evidence and the evidence of Rajiv Yadav PW5 that accused Lucy was found missing from house. Evidence to that extent appears credible and convincing.
But then we have another important piece of evidence which cast a very Page No. 16 serious doubt in the alleged role of accused Lucy. PW5 when reached house of victim girl on 10.5.2008 evening and found the mobile phone of the victim girl not responding, he further found house bolted from inside and the door bell was not being responded. Witness broke open the door and took entry. That is what the witness stated in evidence and narrated in his complaint Ex. PW 5/A as well.
According to victim girls they were served food in dinner prepared by Lucy at around 9 PM on 9.5.2008 . They both deposed that soon after taking food they retired to bed room and started watch television and they went into sleep and later on they realized that it might be because of some intoxicant given to them in their dinner food. Both the girls are silent as to how the main entry door of their residential flat came to be bolted from inside. There is no prosecution case or either investigated by the police whether besides main entry door of the flat which PW5 says he had to break open to take entry, whether there was any other means or mode for entry or exit in that flat.
If both the girls after taking food and having retired to bed room while watching television went into sleep, who bolted door form inside is a question which is unanswered in this case. Even if for a moment we proceed on an assumption that accused Lucy after serving dinner to both the girls left the flat to go to her servant quarter situated on the terrace and that door was bolted by the victim girls themselves, how can the articles found missing i.e., laptops,mobile phones and jewellery items were taken away by Lucy. A situation could have been argued and suggested that being busy working girls, when victims girls reached their flat in evening by around 7 or 7.30 PM, as they usually used to reach, Lucy Page No. 17 managed these stolen articles already removed from the flat and taken to her servant quarter but then this is a kind of situation which is not being supported by any evidence on record and thus to proceed on any such situation may be an approach as conjecturous. Another evidence creating doubt for such situation is the testimony of investigating officer himself. PW18 SI Chand Singh has stated on oath that he having reached Max Hospital pursuant to DD 43A which had been recorded regarding this incident and after getting the case registered on the written complaint given by Rajiv Yadav PW5, he reached the flat in question. IO has deposed that he saw the almirah and found its lock broken. If the almirah where vlauables were being kept by the victim girls for the safe custody was found its lock broken, how it could have escaped notice of the victim girls when they reached the flat on the date of the incident. If the flat was found bolted and entry could be taken by breaking open the door then breaking of the almirah's lock remained unanswered. Certainly this act could not have been done by Lucy when both the girls were present in the flat and Lucy was there to prepare food for dinner.
Though the Doctor deposed that there was no point in taking stomach wash of the victim girls, it being a gap of about 22 hours when the girls were brought to the hospital after incident, there is no investigation if any food prepared in the dinner and left over unconsumed could have been seized to get it analyze if any intoxicant had been mixed in the food. All these circumstances provide a probable credibility to the defence pleaded by Lucy that she had not in fact prepared food on that evening as Rajiv Yadav had given a call to her that they Page No. 18 would be going out for dinner. Admittedly Rajiv Yadav is the brother in law of Sharan Suri.
Then comes the incriminating evidence against Rahul Paul that on 3.6.2008 he was apprehended from Ashram Chowk flyover spot and stolen articles of this case i.e., two laptops , three mobile phone were recovered from his possession. Accused has disputed and denied this recovery. Arguments of Ld. defence counsel was that the police party had a sufficient time and opportunity to join any independent public witness and non joining of any independent witness should be considered casting doubt in the prosecution case. Ld. Addl. PP on the other hand submitted that police officials have specifically deposed that they had asked some passers by to join as a witness but when nobody came forward, they themselves had to act on the information and apprehended accused.
Though we have testimony of three police officials on the fact of recovery of stolen laptops and mobile phones from Rahul Paul and the witnesses includes SI Rajiv Kakkar but then again we have evidence from the IO PW18 and when testimony of these witnesses is closely scrutinized , it suggests that in absence of any independent witnesses to provide credence to the fact of recovery of stolen articles from Rahul Paul it leaves all doubt to suspect the recovery. IO deposed in his deposition dt. 21.7.2010 that while investigating case around 17th or 18th of may 2008, he came across a fact and that was that mobile no. 9899310582 had been called from the owner of the hotel, Hotel Gautam, Gaya, Bihar and that mobile phone was in possession and custody of accused Rahul Paul. How the police knew that this mobile was in possession of Rahul Paul is entirely anybody Page No. 19 guess. PW5 Rajiv Yadav deposed that by his own efforts he got the mobile call details of the mobile no. 9910765130 and that mobile had been provided by the victim girls to accused Lucy to maintain connectivity. He exhibited these mobile call as Ex. PW 5/B. These call details revealed that on 9.5.2008 i.e., date of occurrence there were around 20 calls in between 9 to 10 PM till 7.38 AM on 10.5.2008 and all these calls were in coming and out going of the mobile of Lucy i.e., 9910765130 and the calling or called no. was 9899310582. May be when this no. 9899310582 was called on 17.5.2008 by the Manager, Hotel Gautam, Gaya, Bihar. PW3 who has deposed so also in this trial, the location of this called no. was traced and that was in Gaya, Bihar. That is how the police suspected an accused carrying this mobile no, to be in Gaya, Bihar and the police proceeded to that place. Now IO deposed in evidence that this mobile was in possession and custody of accused Rahul Paul is a statement entirely irresponsible and the fact not at all investigated even thereafter if this mobile no. 9899310582 belongs to Rahul Paul either as a subscriber or is being subscribed by somebody else which was with him. This important aspect of the case had remained uninvestigated and court is unale to see whether it was on account of incompetence on the part of the police or apathy towards grievances and suffering of the victims.
IO has deposed that with the help of this mobile telephone call from Gaya Bihar that he traced location of the person possessing this mobile and accodingly he reached Gaya on 20.5.2008. Hotel owner PW3 from the photograph of Lucy identified accused Lucy to be the girl who had stayed in hotel from 13.5.08 to 18.5.2008. Lucy had arrived in that hotel on 13.5.08 that two boys and one of Page No. 20 them had introduced himself as Aftab and rather made an entry in the hotel register in the name Aftab. According to this witness PW3 Aftab and other boy then left the hotel on 13.5.2008 itself and did not return till 17.5.2008 when girl Lucy got disturbed and stopped taking food and on that account hotel manager insisted upon her and she provided the said mobile 9899310582 and PW3 then called that no. which was responded to and the said Afatab arrived in hotel on 17.5.08 and he and Lucy then left the hotel on 18.5.2008. Who is that Aftab has remained entirely uninvestigated . If accused Rahul Paul could be that Afatab, the doubt has been clarified and cleared that he is not when PW3 in his cross examination deposd that accused Rahul Paul facing trial in this case was not one of those two boys who had accompanied Lucy on 13..2008 or the said Aftab who came to the hotel on 17.5.2008 and went away with Lucy on 18.5.2008. It means the person concerned who was in the constant touch with Lucy while carrying mobile telephone with no. 9899301582 was somebody and the police could not trace him. How the IO deposed that this mobile was in the possession and custody of Rahul Paul is a testimony without any basis. This aspect of the case as to whom this mobile no. belonged has created a serious lacuna in the case and sufficient to cast a serious doubt in the prosecution story that they in fact apprehended Rahul Paul in the manner as police officials have deposed.
Police officials who apprehended Rahul on 3.6.2008 have further deposed that at the instance of Rahul , they recovered one mobile telephone make Motorola with a SIM card from his room situated in village Mohd. Pur, Delhi on 4.6.2008. Again no public witness has been joined. Reason best known to the Page No. 21 police as to what they expect. Even according to police officials that room was opened by accused by procuring key from a neighbouring house but then police found it impossible or impraticable to join that neighbour or to join any public persons. They could have called any respectable. Again there is no investigation as to what that SIM card found in the mobile telephone of Motorola was belonging on number and to whom it belonged, i.e., its subscriber etc. When seen and analyzed the evidence of police officials PW11 , 13 and PW15 in the back drop of above said facts and circumstance, their testimony becomes doubtful if accused Rahul Paul was in fact apprehended with stolen property. Even other wise the story appears quite improbable that accused carrying stolen goods would be arriving at Ashram Chowk flyover to sell it as per the secret information given to the police. Recovery of stolen articles from Rahul Paul thus becomes doubtful.
When PW5 was examined in this case he said before the court that it was entirely by his own efforts that he procured telephone call details Ex. PW5/B and police was not at all caring to investigate all these important aspects. This is something very serious. This is a case where stolen jewellery of victim girls has remained undiscovered. It appears if investigation by the inefficient police official remained unsupervised and uncontrolled and the consequence is a common man becoming victim of the crime.
Admittedly when Lucy was apprehended from her native place in Orissa, not a single stolen article was recovered form her. May be it supports her past three years unblemished services as a maid servant rendered to the victim girls and merely that she was found absent from her servant quarter after this incident Page No. 22 that circumstances was calculated with a finger of doubt towards her. Prosecution charge cannot be said to have been proved from the evidence brought in this case. Both the accused persons are acquitted of the charge. Case property had already been got released by the victim girls and since there is claim by anybody on this articles, it will be deemed released to the victim girls.
Announced in the Open (J. R. ARYAN)
court on 05/10/2010. ADDITIONAL SESSIONS JUDGE
NEW DELHI.
Page No. 23