Delhi District Court
State vs . (1) Dal Chand on 16 July, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 63/2013
Unique Case ID No.: 02404R0293542011
State Vs. (1) Dal Chand
S/o Hari Singh
R/o N25, B/204, Lal Bagh,
Delhi.
(Convicted)
(2) Raj Kishore
S/o Ram Prakash
R/o Village Chakwan Khurd,
PS Basrehar, Distt. Etawa, U.P.
(Convicted)
(3) Manish Chand
S/o Anokhe Lal Yadav
R/o Village Chakwan Khurd,
PS Basrehar, Distt. Etawa, U.P.
(Convicted)
(4) Sanjay Yadav
S/o Ranvir Singh
R/o Village Chakwan Khurd,
PS Basrehar, Distt. Etawa, U.P.
(Juvenile)
FIR No.:: 179/11
Under Section: 363/364A/120B/34 Indian Penal Code.
Police Station: Adarsh Nagar
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 1
Date of committal to Sessions Court: 08.11.2011
Date on which judgment was reserved: 8.7.2013
Date on which Judgment pronounced: 8.7.2013
JUDGMENT (ORAL)
(1) As per allegations, on or before 11.7.2011 the accused Dal Chand, Raj Kishore and Manish Chand along with their coaccused Sanjay Yadav (Juvenile) entered into a criminal conspiracy to kidnap 'P' (name of the child is being withheld) for ransom pursuant to which on 11.7.2011 at about 5:00 PM they kidnapped the child 'P' aged about 6 years from Jhuggi No. E15, Lal Bagh, Azad Pur, Delhi and made a ransom call demanding Rs. Twenty Lacs which in case if not paid 'P' would be killed.
BRIEF FACTS / CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 12.07.2011 at about 4.30PM one Dharambir came to the police station Adarsh Nagar and informed that that his son namely 'P' was missing since 5.00PM on 11.07.2011. On the basis of the said statement of Dharambir the present case was got registered and efforts were made to trace out the kidnapped child On 14.07.2011 the complainant Dharamvir came to the police station and informed the Investigating Officer that he had received a ransom call on his mobile bearing no. 9953716681 on 13.07.2011 at St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 2 around 8.00PM from number 9058435350 from an unknown person that the child was with them and in case if he wanted to keep child alive he should pay them the ransom of Rs. Twenty Lacs. Dharambir further informed that on 14.07.2011 at about 1.00PM he again received a ransom call from another mobile bearing no. 9528839799 wherein the caller threatened to kill his child in case he informed the police or anybody else. According to Dharambir on 14.07.2011 at about 8.40PM he received another call from the same number and had spoken to his child on the said number and also told the caller that they should decrease the amount of the ransom and give him threefour days' time on which caller had given him two days' time to arrange for the money. Supplementary statement of Dharambir was recorded and the Call Detail Records were obtained and analysed on which it was revealed that the said calls were being made from Etawa, UP and one of the numbers i.e. 9990834556 was constantly in touch with the complainant as well as the person who had called on 13.07.2011. The complainant Dharambir informed that the above number i.e. 9990834556 was belonging Dal Chand who was grandson in relation of Dharambir after which the police reached the Jhuggi of Dal Chand but he could not found him and they came to know that Dal Chand had gone to his native village i.e. village near Mainpuri and had relatives in Etawa, U.P. (3) Thereafter a raiding party was constituted and on 16.07.2011 they reached at Police Station Basrehar, Etawa where the complainant St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 3 Dharambir also reached after which they joined local police officials with them and left the Police Station for village Chakwan Khurd.
Pursuant to a secret information the police party reached the house of Manish Yadav in village Chakwan Khurd but on seeing them one boy who was sitting outside the house them immediately ran inside. The raiding party entered the said room at the first floor from where the kidnapped child/ victim 'P' was recovered and the accused Dal Chand and Raj Kishore were apprehended and arrested. On the pointing out of accused Dal Chand the accused Sanjay Yadav was also apprehended and arrested from his house. The accused persons and the victim were thereafter brought to Delhi where the disclosure statements of the accused persons were recorded wherein they have disclosed their involvement in the crime. During Police Custody Remand on 19.07.2011 the accused Dal Chand got recovered a mobile phone NOKIA1616 containing a SIM of Idea bearing number 9990834556 from his Jhuggi. On the same the statement of the victim child was recorded by the Ld. MM under Section 164 Cr.P.C. During the intervening night of 1910.07.2011 the police party along with the accused Sanjay Yadav reached village Chakwan Khurd i.e. the native village of accused Sanjay Yadav who got recovered two mobile phones from his house from a black coloured box i.e. one mobile having the words Lava writing on the body and was containing the SIM bearing no. 9528839799 from which the ransom call had been made and the other St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 4 mobile had words GFive written on it having a SIM bearing no. 9045201176 after which both the said mobile phones were seized. Thereafter efforts were made to trace the accused Manish Yadav but he could not be found there. However, while the police party along with the accused were going to the railway station and reached near Subzi Mandi, on the pointing out of accused Sanjay Yadav, the accused Manish Chand was apprehended and arrested. Form the personal search of the accused Manish Chand one mobile phone bearing the words i18 having the SIM of number 9627469605 was recovered and the accused disclosed that from the said mobile he used to talk to his other associates. The said mobile phone was thereafter seized and the accused was brought to Delhi. After completion of investigations charge sheet was filed in the Court against all the four accused persons i.e. Dal Chand, Raj Kishore, Manish Chand and Sanjay Yadav. However, during the trial the accused Sanjay Yadav was declared a Juvenile and hence he is facing trial before the Juvenile Justice Board.
CHARGE:
(4) Charge under Sections 120B and Sections 364A read with 120B Indian Penal Code were settled against accused Dal Chand, Raj Kishore and Manish Chand to which they pleaded not guilty and claimed trial.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 5
EVIDENCE:
(5) In order to prove the onus upon it, the prosecution has examined as many as Sixteen Witnesses as under:
Public witnesses/ victim:
(6) PW1 'P' (name of the child is withheld) is the victim child aged about seven years. He has been examined by the Ld. Predecessor of this Court without oath after satisfying himself that the child witness was capable of understanding the nature of queries being put to him.
(7) The child witness has stated that on 11.07.2011 in the evening hours, he was playing outside his house and in the meantime accused Dal Chand who was his neighbour came there and told him that his mother called him "Teri Mummy Bula Rahi Hai". According to the witness, accused Dal Chand took him and handover to three other persons namely Raj Kishore, Manish and Sanjay whose names he came to know later on and they took him in a bus to Itawah. The child witness has correctly identified all the accused Dal Chand, Raj Kishore and Manish in the Court. He has further stated that he was confined in a hut which remained closed and he had asked the accused Raj Kishore, Manish and Sanjay to take him to his parents "Mujhe mummypapa ke pass lekar jaao" on which they replied that they will take him to his parents on the next day "Kal Lekar Jaayenge". The witness has also stated that he was confined in the said hut for five days and thereafter they left him before a St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 6 police personnel. According to him, whenever he used to cry in the said hut the accused persons told him to keep quiet and assured him that they would take him to his father on the next day "Chup ho Jaao, Kal lekhar chalenge". He has also stated that he had identified the accused persons at Delhi. He has also proved that his statement has been recorded before the Ld. Magistrate in the court which is Ex.PW1/A. He has not been crossexamined by the accused persons despite opportunity in this regard and hence his statement in the court has gone uncontroverted.
(8) PW8 Dharambir is the father of victim child 'P' and has deposed that on 11.07.2011 at about 5:00 PM his son 'P' aged about 6 years had gone to play outside the house but did not return back and at that time he was wearing a blue coloured half pants and while coloured vests. According to the witness he tried to search his son but could not trace him and on 12.07.2011, he went to Police Station Adarsh Nagar where the police recorded his statement which is Ex.PW8/A. He has further deposed that on 13.07.2011 at about 8:00 PM he received a telephone call on his mobile 9953716681 but same was disconnected after which he dialed on the said number i.e. 9058435350 and the receiver said that he has kidnapped his son 'P' and if he wanted his son back, he has to pay a sum of Rs. 20 lakh as firauti or else they would kill his son (Tumhare Bachche 'P' ka apharam humne kar liya hai. Yadi tum apne bachche Prine ko surakshit chahte ho toh Bees lakh ki firauti deni St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 7 hogi. Agar firauti hahin doge, toh humhare bachche ko maar denge).
According to the witness, he asked the receiver as to from where he could get the amount (Itni badi rakam mere paas kahan se aayegi) on which he receiver told him to sell his land (Tumhare pass Zaminey hai, bech do). The witness has further deposed that he requested the fellow not to kill his son and he will made arrangements of money (Bachche ko maarna mat, main intezam karoonga). He has testified that when he dialed the said number after some talk, it was disconnected and thereafter the caller dialed on his mobile number and then they talked again. He has also deposed that on 14.07.2011 at about 1.00 PM he again received a telephone call from mobile number 95218839799 on his mobile and the caller asked for extortion money (Rupyon ka intezam huwa ya nahin) on which he told the caller to give him some time for arranging the amount on which the caller threatened him (witness) that if he could not arrange the amount of Rs. 20 lakh they would kill his son 'P' (Agar Bees lakh rupey se kam huwe toh bachche ko maar denge). According to the witness, he asked the caller to allow him to talk with his son 'P' but the caller replied that he was away from the child and he would get him talked after some time. He has further testified that on the same day at about 8:40 PM the caller again telephoned him form the subsequent mobile number i.e. 9528839799 and get his talk with his son 'P' and again threatened him that if Rs. Twenty Lacs were not arranged in some days they would kill his son (Yadi Kuchh Din ke Andar Bees Lakh Ka St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 8 intezam Nahin huwa Toh Tumhare Ladke Ko Jaan Se Maar Denge). He has also deposed that he asked the caller that Zameen bechkar firauti ki rakam jama karne mein kuch samay to lagega hi. Witness has further deposed that he has told the said facts to the police who recorded his statement.
(9) The witness has testified that on 15.07.2011 at about 6:20 PM he again received a call from mobile no. 9528839799 and the caller asked him about the arrangement of money on which he told him that some amount had been arranged and prayed for one or two days time to arrange the balance amount after which the call was disconnected. According to the witness, he went to the Police Station where he came to know that the police officials of his case had gone to Itawah, UP on which he also went to Itawah by train and made inquires at Police Station Itawah from where he came to know that the police officers had gone to Police Station Basrehad. He has testified that he immediately reached to Police Station Basrehad at about 3:00 PM where police officials of his case met him and one secret informer was also present. The witness has further deposed that thereafter they all went to Village Chakwan Khurd and at the instance of secret informer they reached to the house of Manish Yadav. According to him, on seeing them one boy who was sitting outside the house, ran away and when they went inside the house, his son 'P' was found on the first floor. He has testified both the accused Dal Chand and Raj Kishore who were present at the house, were St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 9 apprehended and arrested. He has proved the arrest memo of the accused Dal Chand which is Ex.PW8/B and his personal search memo which is Ex.PW8/C, the arrest memo of accused Raj Kishore which is Ex.PW8/D and his personal search was conducted vide Ex.PW8/E. He has also proved that the Investigating Officer prepared the seizure memo Ex.PW8/F with respect to recovery of his son 'P' and thereafter they went in search of accused Sanjay Yadav who was apprehended vide memo Ex.PW8/G, arrested vide memo Ex.PW8/H and his personal search was conducted Ex.PW8/J. Witness has also brought his mobile phone having no. 9953716681 and has identified his photograph on the Customer Application Form Ex.PW8/K and on the copy of Voter Identity Card which is Ex.PW8/L. He has correctly identified the accused Dal Chand, Raj Kishore and Sanjay Yadav (Juvenile) in the Court.
(10) In his crossexamination by the Ld. Defence Counsel the witness has admitted that Manish never made any telephone call to him on his mobile. Witness has also deposed that accused Dal Chand and Raj Kishore were present inside the house where his son 'P' was recovered whereas one of them ran away from the spot. According to the witness, he is a driver by profession and used to run Vikram Tempo for the last 16 years and he used to earn from the driving and also has agricultural land. He has deposed that there is total 12 bighas land in the name of his St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 10 family at village Gothpur, District Manpuri, U.P. and ear Rs.25,000/ to Rs.30,000/ annually from the sale transaction of the agricultural production. The witness has further deposed that some of the portion of his land had been acquired by the Government and he had received the compensation of Rs.1,00,000/ approximately which amount was lying with his brother in law (Behnoi) namely Jaiveer. He has testified that he had not demanded the said amount from Jaiveer since he had asked him to invest the said amount in committee.
(11) The witness has also deposed that accused Dal Chand is his distant relative. He has denied the suggestion that accused Dal Chand had accompanied him at the time of search of his son and has voluntarily explained that Dal Chand did not meet him at the time of missing of his son. According to the witness, no quarrel had ever taken place between him and accused Dal Chand. He has further deposed that his wife Mamta did not accompany him in the search of his son and has voluntarily explained that she was not present on that day as she had gone to Argra at the house of her Bua. The witness has also deposed that he did not inform her about the missing of his son 'P'. According to him, he had recognized the voice of accused Sanjay in front of the police as the person who made him telephonic call. He has also deposed that police made inquires from him and he told them that he felt the voice of accused Sanjay on mobile. He has denied the suggestion that he had been visiting the villages where he had gone on 15.7.2011. He has St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 11 however admitted that he has family relations in those villages and his relatives are residing there. Witness has admitted that accused Dal Chand was having visiting terms with his family and has voluntarily explained that accused Dal Chand was living in his neighbourhood. He has denied the suggestion that the accused persons have been falsely implicated by him to settle other financial issues. According to the witness, the accused Dal Chand had worked with him only for one month prior to the incident. He has testified that he is having a mobile phone bearing No. 9953716681 and Dal Chand was having a mobile phone but he is unable to tell its number. According to him, he did not visit Police Station on 11.7.2011 not he made any call at 100 number regarding missing of his son. Witness has admitted that he did not suspect any person while he lodged the FIR. Witness has further deposed that he went to Itawa on 15.07.2011 on the instruction of Delhi Police. He has also deposed that in his presence police did not ask any public person to join the investigations nor obtained the signatures of any public persons in his presence. He does not remember how many stories were there in the house from where his son was recovered but states that his son was recovered from the first floor of the house. According to the witness, he did not enter the house. He has denied the suggestion that the accused persons were not present at the time when his child was recovered or that the accused Dal Chand was present with him at the time when his child was missing.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 12 Nodal Officers:
(12) PW2 Gaganjeet Singh Sidhu is the Nodal Officer from Tata Teleservices Ltd. has brought the Call Detail Record in respect of mobile no. 9045201176 from 01.07.2011 to 15.07.2011 which is Ex.PW2/A. According to the witness, as per the record the said mobile phone has been registered in the name of Brij Kishore S/o Ram Prakash R/o Chamba Khurd, Post Chitbhawan Itawah, U.P. and the Customer Application Form is Ex.PW2/B; the copy of ration card of applicant/ Brij Kishore which is Ex.PW2/C and location chart is Ex.PW2/D. The witness has also placed on record the certificate under Section 65B of Indian Evidence Act which is Ex.PW2/E. According to him, during the course of investigations his company provided the copy of CDR which is on record which is Ex.PW2/F and copy of the Customer Application Form which is Ex.PW2/G. This witness has also not been cross examined by the accused despite opportunity in this regard. (13) PW3 Pawan Singh Nodal Officer of IDEA Cellular Ltd. has deposed that on the application of SI A.P. Singh, Police Station Adarsh Nagar which is Ex.PW3/A he had provided the requisite information of mobile no. 9990834556 for the period from 07.07.2011 to 15.07.2011 which is Ex.PW3/B. He has proved having provided the attested copy of Customer Application Form which is Ex.PW3/C according to which the said mobile has been registered in the name of Gariba S/o Bhule. The St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 13 witness has also proved the attested copy of voter ICard of Gariba S/o Bhule which is Ex.PW3/D and certificate U/s 65B of Indian Evidence Act regarding the correctness of computer generated record which is Ex.PW3/E. He has not been cross examined by the accused persons despite opportunity in this regard.
(14) PW4 Israr Babu Alternate Nodal Officer, Vodafone Mobile Ltd. has brought the record of mobile no. 9953716681 and 9627469605.
According to witness, as per record, mobile no. 9953716681 is registered in the name of Sh. Dharambir S/o Badri Prasad, R/o E15, Kaushal Puri, Azad Pur, Delhi and proved the attested copy of Customer Application Form which is Ex.PW4/A, copy of voter ICard of the applicant which is Ex.PW4/B and attested copy of computer generated call detail record (CDR) of the above said mobile from 05.07.2011 to 15.07.2011 which are Ex.PW4/C and certificate U/s 65B of Indian Evidence Act which is Ex.PW4/D. Witness has further deposed that as per record, mobile no. 9627469605 is registered in the name of Dinesh Kumar S/o Dashrath Singh, R/o Panna Pur Nangla Chanderbhan, Mathura, UP and proved the attested copy of Customer Application Form which is Ex.PW4/E, copy of driving license which is Ex.PW4/F, CDR of said mobile from 01.07.2011 to 15.07.2011 which are Ex.PW4/G and certificate U/s 65B of Indian Evidence Act which is Ex.PW4/H. This witness has also not been cross examined by the St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 14 accused persons despite opportunity.
(15) PW5 Ved Prakash Nodal Officer, Reliance Communications Ltd. has brought the record of mobile no. 9528839799. According to the witness, as per record mobile no. 9528839799 is registered in the name of Sunit S/o Chhote Lal, R/o 114, Chaubiya, Etawa and proved the attested copy of Customer Application Form which is Ex.PW5/A; copy of voter ICard which is Ex.PW5/B, attested copy of computer generated call detail record of the above said mobile from 14.07.2011 to 15.07.2011 which is Ex.PW5/C and certificate U/s 65B of Indian Evidence Act which is Ex.PW5/D. He has not been cross examined by the accused persons despite opportunity. (16) PW6 Hayat Singh Nodal Officer, Unitech Wireless (Tamilnadu) Pvt. Ltd. has brought the record of mobile no. 9058435350 according to which the said mobile no. 9058435350 is registered in the name of Harpal Singh S/o Hari Singh, R/o 32, Tikupura, Etawa . He has proved the attested copy of Customer Application Form which is Ex.PW6/A, copy of voter ICard which is Ex.PW6/B, attested copy of computer generated call detail record (CDR) of the above said mobile from 08.07.2011 to 14.07.2011 which are Ex.PW6/C and certificate U/s 65B of Indian Evidence Act which is Ex.PW6/D. This witness has also not been cross examined by the accused persons despite opportunity. St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 15 Police / Official witnesses:
(17) PW7 HC Balraj Singh is a formal witness being the Duty Officer who has proved the departure entry made by Inspector Virender Kadyan, SHO Adarsh Nagar vide DD No.30 with SI A.P. Singh, ASI Shashi Kumar, Ct. Amit, Ct. Mehndi Hassan, HC Vinod and Ct. Rahul Tyagi in the investigation of Case FIR No.179/11 which is Ex.PW7/A. This witness has also not been cross examined by the accused persons despite opportunity.
(18) PW9 Ms. Shunali Gupta Ld. MM has proved that on 19.07.2011 she was working as Link MM of Sh. Neeraj Gaur, Ld. MM and he marked an application moved by Investigating Officer SI A.P. Singh for recording the statement U/s 164 Cr.P.C of Child witness namely 'P' S/o Dharamber, aged about 6 years which application is Ex.PW9/A. She has further proved that on 19.07.2011 at 03.00 PM she recorded the statement of child witness 'P' and before recording the statement she asked certain questions from 'P' to ascertain whether he can understand the question and reply properly and thereafter she recorded the statement of the child which is Ex.PW1/A. She has also proved that she had given a certificate regarding the correctness of the statement U/s.
164 Cr.P.C and further proved the application moved by Investigating Officer SI A.P. Singh for providing copy of statement which application is Ex.PW9/B. She has not been crossexamined by the Ld. Defence counsels despite opportunity in this regard.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 16 (19) PW10 HC Prahlad is a formal witness being the Duty Officer who has deposed that on 12.07.2011 at about 05:15 PM he received a rukka from SI A.P. Singh for registration of FIR on the basis of which he got recorded the FIR through Computer Operator, copy of which FIR is Ex.PW10/A and also made an endorsement on the rukka which is Ex.PW10/B. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity.
(20) PW11 Ct. Mehandi Hassan deposed that on 14.07.2011 he alongwith Inspector Virender Kadyan, SI AP Singh, Ct. Amit Kumar, ASI Shashi Kumar and Dharambir went to Itawa, UP and on 16.07.2011 they went to Police Station Basrehar, Itawa where Station Officer SI Deep Kumar was briefed after which SI Deep Kumar, Ct. Ramesh Kumar and other staff of UP police joined them for investigation. According to him, when they came out of the Police Station near the Petrol Pump one secret informer met and informed the UP Police that the kidnapped boy from Delhi was kept at village Chakwan Khurd at the house of Manish. Witness has further deposed that they reached at Village Chakwan Khurd where secret informer pointed out towards Manish sitting outside of the house but on seeing them Manish ran away from there and could not be apprehended. He has also deposed that thereafter they entered the house of Manish and on the first floor of the house they found the accused Dal Chand standing there after which they checked the room and found the kidnapped boy 'P' along with Raj St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 17 Kishore. The witness has further testified that SI AP Singh prepared the recovery memo regarding the boy 'P' which is Ex.PW8/F after which the accused Dal Chand was arrested vide memo Ex.PW8/B, his personal search was conducted vide memo Ex.PW8/C, accused Raj Kishore was arrested vide memo Ex.PW8/D and his personal search was conducted vide memo Ex.PW8/E. He has also deposed that accused Dal Chand and Raj Kishore were interrogated during which they disclosed about Sanjay Yadav (Juvenile) and thereafter they reached the house of Sanjay Yadav in the same village from where Sanjay was arrested vide Ex.PW8/G and his personal search was taken vide Ex.PW8/J. According to him, after completing the formalities they returned back to Delhi on 17.7.2011. He has proved that on the same day i.e. 17.07.2011 at about 9.00 AM the accused persons were interrogated by SI AP Singh one by one separately and recorded their disclosure statements of Dal Chand, Raj Kishore and Sanjay Yadav which are Ex.PW11/A, Ex.PW11/B and Ex.PW11/C respectively.
(21) The witness has further deposed that on 19.07.2011 he alongwith SI AP Singh, Ct. Amit and accused Dal Chand reached at Jhuggies at Lal Bagh, Azadpur, Delhi and accused Dal Chand opened a number lock of his jhuggi and his disclosure statement was recorded by the Investigating Officer which Ex.PW11/C1. According to him, one mobile phone was recovered at the instance of accused Dal Chand St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 18 belonging to him of make NOKIA with SIM and battery which was sealed and seized vide seizure memo Ex.PW11/D. The witness has also deposed that the accused Dal Chand disclosed that he had used the said mobile phone to make contact with Raj Kishore and others. According to witness on the same night he again went to the Police Station Basrehar along with SI AP Singh and accused Sanjay Yadav and Ct. Ramesh of UP Police was joined in the investigations. He has further deposed that at the instance of accused Sanjay Yadav at Village Chakwan Khurd two mobile phones make LAVA and one more phone were seized vide seizure memo Ex.PW11/E. According to the witness, thereafter they went to the house of Manish but he was not found there and thereafter they reached Police Station Basrehar. Witness has further deposed that while they were going to the railway station, on the pointing out of accused Sanjay Yadav at Mandi Gate, Itawah City, UP accused Manish Chand Yadav was apprehended and arrested in this case vide Ex.PW11/F, his personal search was conducted vide Ex.PW11/G and his disclosure statement was recorded vide Ex.PW11/H. According to witness, one mobile phone was also recovered from the possession of accused Manish which was seized vide seizure memo Ex.PW11/I. (22) The witness has correctly identified the accused Dal Chand, Raj Kishore and Manish in the Court and also identified the case property i.e. mobile phone make LAVA KKT30 and another mobile St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 19 phone of Gfive M55 recovered from the possession of Sanjay Yadav which are Ex.P1 and Ex.P2 respectively; mobile phone of vodafone bearing IOSouno and I18 which was recovered from the possession of Manish which is Ex.P3 and another mobile phone of NOKIA recovered at the instance of accused Dal Chand which is Ex.P4. (23) In his crossexamination by the Ld. Defence Counsel the witness has deposed that on 14.7.2011 they started from the police station at about 11:30 PM in a private Tata Sumo. He has testified that secret informer was with the UP police when they reached the village and the secret informer did not tell the description of the accused persons at the time of giving secret information. He has admitted that some villagers had gathered when they reached the village and has stated that the Investigating Officer did not ask any public person to join the investigations after reaching the village. The witness has also admitted that Dharambir also accompanied them to the first floor from where the child was recovered. According to him, the accused Dal Chand was apprehended by Ct. Amit and he himself apprehended the accused Raj Kishore. He has also deposed that the writing work was done while sitting on the boundary wall of the room and it took about two to two and a half hours in the writing work. Witness has further stated that some documents were prepared while sitting at Police Station Basrehar and deposed that the disclosure statement of accused Dal Chand and Raj Kishore were not recorded at the said village as the same were recorded St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 20 at Police Station Adarsh Nagar. He has testified that on 19.7.2011 they reached at the Jhuggi of accused Dal Chand at about 11:00 AM in a Government vehicle and it took about 15 minutes in recording the disclosure of accused Dal Chand. Witness has further deposed that the mobile phone was recovered from a suit case lying at the jhuggi of Dal Chand. He has admitted that the suit case was unlocked at that time and that the mobile phone recovered at the instance of accused is easily available in the market. He has testified that accused Manish was apprehended on 20.7.2011 at about 9:00 PM. He has denied the suggestion that accused Manish was lifted from his native village after fivesix days of the incident or that he did not join the investigations of this case. He has also denied that the accused persons have been falsely implicated in order to workout the present case. (24) PW12 HC Radhey Shyam is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entries in register no. 19 vide S.No. 3508/11, 3518/11 and S.No. 3523/11 which are Ex.PW12/A, Ex.PW12/B and Ex.PW12/C respectively. He has not been crossexamined by the Ld. Defence Counsel despite opportunity and his testimony has gone uncontroverted. (25) PW13 HC Ram Chander deposed that on 16.7.2011 he was posted at Police Station Basrehar, Distt. Etawa, U.P. and on that day he was working as Head Moharrar for recording the entires in the general St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 21 diary (Roj Namcha). According to the witness, at about 15:10 hours, Delhi Police came at the police station and the entry was made by him in the Roj Namcha vide Ex.PW13/A. He has further deposed that at about 16:35 hours the Delhi Police departed with the Station Officer SI Deep Kumar with other staff of the police station Basrehar for investigation and entry was made in the Roj Namcha vide Ex.PW13/B. Witness has further deposed that on the same day at about 20:30 hours the above said police officials returned back to the police station and entry was made in the Roj Namcha vide Ex.PW13/C. According to him, on 20.7.2011 at about 8:00 AM SI A. P. Singh of Delhi Police along with staff reached at his police station and made the arrival entries in the Roj Namcha vide Ex.PW13/D. Witness has further deposed that SI A. P. Singh also departed with the staff and made entires in the Roj Namcha at about 13:25 hours vide Ex.PW13/E. (26) In his crossexamination the witness has denied the suggestion that the above mentioned entries are fabricated and entered antedatedly only to facilitate the investigation of Delhi Police. (27) PW14 SI Deep Kumar (Police Station Vaidpura, Distt. Etawa , UP) has deposed that on 16.7.2011 he was posted at Police Station Busrehar, Distt. Etawa as Station Officer and on that day Inspector Virender of Delhi Police came at police station along with other staff including SI A.P. Singh and father of kidnapped boy St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 22 Dharambir. According to him, the entry was made in the Roj Namcha vide Ex.PW13/A after which he along with SI Shyam Lal Yadav and Ct. Ramesh Kumar of their Police Station with SOG Staff joined the Delhi Police team for conducting raid at Village Chakwan Khurd. He has deposed that they departed from the Police Station at about 16:35 hours and they made entry in the Roj Namcha vide Ex.PW13/B. He has further deposed that when they reached petrol pump Busrehar at about 16:45 hours one secret informer met him there who informed him that the kidnapped boy of Delhi was kept in the village Chakwan Khurd in the house of Manish Yadav. The witness has testified that they asked some public persons to join the investigations but none agreed. He has stated that they did not serve any notice to any public person due to shortage of time and thereafter without wasting further time they reached the house of Manish Yadav but on seeing them Manish Yadav ran away. According to the witness, they apprehended accused Dal Chand and found the kidnapped boy 'P' aged about 6 years in the room and accused Raj Kishore who kept vigil on the boy. The witness has further testified that SI AP Singh prepared the recovery memo regarding the boy 'P' which is Ex.PW8/F after which the accused Dal Chand was arrested vide memo Ex.PW8/B, his personal search was conducted vide memo Ex.PW8/C, accused Raj Kishore was arrested vide memo Ex.PW8/D and his personal search was conducted vide memo Ex.PW8/E. He has also deposed that accused Dal Chand and Raj Kishore were interrogated St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 23 during which they disclosed about Sanjay Yadav (Juvenile) and thereafter they reached the house of Sanjay Yadav in the same village from where Sanjay was arrested vide Ex.PW8/G and his personal search was taken vide Ex.PW8/J. He has further deposed that after these proceedings they returned back to the Police Station and made their arrival entry in the Roj Namcha at 20:30 hours vide Ex.PW13/C. He has correctly identified the accused Raj Kishore and Dal Chand in the Court. (28) In his crossexamination the witness has deposed that Delhi Police came to their Police Station at about 15:10 hours. He has admitted that the house of Manish was situated in the residential area. According to the witness, they did not obtain the names and addresses of the persons who refused to join the proceedings and has voluntarily explained that they did not have sufficient time to do so. The witness has further deposed that Pradhan of the village namely Huri Lal after the arrest of the accused persons and all the writing work was done in the Verandha of the house of Manish. He has denied the suggestion that he did not join the investigations or that the entries in the Roj Namcha have been fabricated at the instance of Delhi Police. (29) PW15 Ct. Ramesh Kumar Yadav has deposed that on 16.7.2011 he was posted at Police Station Basrehar, Distt. Etawa , U.P. and on that day at about 4:40 PM he along with SI Deep Kumar, SI Shyam Lal with Delhi Police officials and father of the kidnapped boy departed from the Police Station towards village Chakwan Khurd and on St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 24 the way one secret informer disclosed that the kidnapped boy from Delhi was kept in the house of Manish in the village Chakwan Khurd. According to the witness, when they reached the house of Manish Yadav, Dal Chand was found on the gate of the room situated at the first floor of the house where the child was kept and he was apprehended by them and when they entered the house Raj Kishore was found with the kidnapped child 'P' aged about 6 years. The witness has further testified that SI AP Singh prepared the recovery memo regarding the boy 'P' which is Ex.PW8/F after which the accused Dal Chand was arrested vide memo Ex.PW8/B, his personal search was conducted vide memo Ex.PW8/C, accused Raj Kishore was arrested vide memo Ex.PW8/D and his personal search was conducted vide memo Ex.PW8/E. He has also deposed that accused Dal Chand and Raj Kishore were interrogated during which they disclosed about Sanjay Yadav (Juvenile) and thereafter they reached the house of Sanjay Yadav in the same village from where Sanjay was arrested vide Ex.PW8/G and his personal search was taken vide Ex.PW8/J. The witness has further deposed that thereafter they returned back to the Police Station at about 8:30 PM. According to the witness on 20.7.2011 he again joined the investigations with SI A.P. Singh who along with his staff and accused Sanjay again reached at Police Station Basrehar at about 8:00 AM. He has testified that they all reached at village Chakwan Khurd after making the entry at the police and at the instance of Sanjay Yadav two mobile phones were St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 25 recovered from a box lying in the room which mobile phones were seized vide memo Ex.PW1/E. (30) He has correctly identified the accused Raj Kishore and Dal Chand in the Court and also identified the case property i.e. two mobile phones one make Lava KK30 and another of GFive M55 which were recovered at the instance of Sanjay Yadav which mobile phones are Ex.P1 and Ex.P2. This witness has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same. (31) PW16 Inspector Arvind Pratap Singh is the Investigating Officer of the present case who has deposed that on 12.07.2011 at about 4.30PM complainant Dharambir came to the police station and informed that that his son namely 'P' was missing since 5.00PM on 11.07.2011 on which he recorded his statement Ex.PW8/A and converted the same into a tehrir vide his endorsement Ex.PW16/A which he handed over to the Duty Officer for registration of the case. Witness has further deposed that he accompanied the complainant to Lal Bagh and tried to search for the missing child at Azadpur Bus Terminal and Railway Station but the child could not traced. He has also deposed that he came back to the Police Station and sent WT messages to all SSPs and DCPs in Delhi and all over India vide Ex.PW16/B and entered the detail of the child in the Zip Net and also issued hue and cry notices. According to him, on 14.07.2011 the complainant Dharamvir came to the police station and St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 26 informed that he had received a call on his mobile bearing no. 9953716681 on 13.07.2011 at around 8.00PM from number 9058435350 from an unknown person that the child was with them and in case if he wanted to keep child alive he should pay them the ransom of Rs. Twenty Lacs. Witness has further deposed that Dharambir further informed him that on 14.07.2011 at about 1.00PM he again received a ransom call from another mobile bearing no. 9528839799, wherein the caller threatened to kill his child in case he informed the police or anybody else. He has also deposed that Dharambir informed him that he told the caller that he was ready to pay the ransom but he should be allowed to talk to his child to ensure that his child was alive on which the caller told him that he would make him talk to the child in the evening. He has testified that Dharambir further informed him that on 14.07.2011 at about 8.40PM he received another call from the same number and had spoken to his child on the said number and also told the caller that they should decrease the amount of the ransom and give him threefour days' time on which caller had given him two days' time to arrange for the money. He has proved having recorded the supplementary statement of Dharambir and informed the senior officer and also obtained the call detail records of the numbers which Dharambir had given to him. The witness has further deposed that from the call detail record it was revealed that the said calls were being made from Etawa, UP and one of the numbers i.e. 9990834556 was constantly in touch with the complainant as well as the St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 27 person who had called on 13.07.2011 and on inquiry from Dharambir about the above number i.e. 9990834556 it was revealed that said number belongs Dal Chand who was grandson in relation of Dharambir. The witness has also deposed that they reached the Jhuggi of Dal Chand along with Dharambir but could not found him and they came to know that Dal Chand had gone to his native village i.e. village near Mainpuri and had relatives in Etawa, U.P. According to him, they immediately prepared a team consisting of himself, Ct. Amit, Ct. Mehandi Hassan, ASI Shashi Kumar, SHO Virender Kadyan and Ct. Rahul Tyagi. He has testified that they gave their contact numbers to Dharambir and told him to contact them at Etawa, UP and on 14.07.2011 at 11.45PM they started for Etawa after leaving a message for Dharambir at the Police Station. He has testified that on 15.07.2011 at 6:30 PM Dharambir came to the Police Station and informed that he had received another ransom call from the same number i.e. 9528839799 and when the Duty Officer conveyed to them this message they asked Dharambir to reach Etawa police line where they would be waiting for him. The witness has further deposed that meanwhile they came to know the relative of Dharambir that one of the relatives of Dal Chand was residing at Chakwan Khurd, Etawa and Dal Chand was frequently visiting there. (32) The Investigating Officer has further deposed that on 16.07.2011 they reached at Police Station Basrehar, Etawa in which they made DD entry regarding their arrival and complainant Dharambir also St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 28 met them there. He has also deposed that they constituted a raiding party and joined local police officials i.e. SI Deep Kumar, Ct. Ramesh Kumar, SI Shyam Lal, Ct Mohd. Ahmed and two or three persons in their raiding party after which at 4.35PM they left the Police Station for Chakwan Khurd. According to the witness, as soon as they reached near petrol pump they met a secret informer who informed them that a child had been kidnapped from Delhi and brought to the village Chakwan Khurd and if raided immediately the life of the child could be saved. He has testified that he made a request to two or three passersbyes to join the police party but they refused and went away without disclosing their names and address after which without wasting any time they reached at the outskirts of village Chakwan Khurd and parked their vehicles outside the village. The witness has also deposed that the informer told them that the child was in the house of Manish Yadav after which they went towards the house of Manish Yadav but before they could reach to his house they noticed that one boy was sitting outside the house on seeing them immediately ran inside a house on getting suspicious they followed him into the house and found that on the room at the first floor one boy i.e. Dal Chand was standing outside. According to the witness, when they went inside the said room they found the child 'P' inside and one another boy sitting inside the room with 'P' whose name they came to know as Raj Kishore. The witness has also deposed that on inquiries from the said boys they came to know that there was one more boy with St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 29 them namely Sanjay Yadav who had gone to his house and the boy who was keeping a watch outside the house was Manish Yadav who had run away. He has proved having prepared the recovery memo of the child vide Ex.PW8/F; having prepared the arrest memo of Dal Chand vide Ex.PW8/B; his personal search was conducted vide Ex.PW8/C; having prepared arrest memo of Raj Kishore vide Ex.PW8/D and his personal search was conducted vide Ex.PW8/E. The witness has also deposed that accused Dal Chand then took them to the house of Sanjay Yadav from where the accused Sanjay Yadav was apprehended and arrested vide memo Ex.PW8/G and his personal search was conducted vide Ex.PW8/J. According to him, since it had become very dark and a large number of villagers were collected then they returned to the police station where they interrogated the accused at length and then recorded the statement of various witness. He has also deposed that on 16.07.2011 they started for Delhi where they reached on 17.07.2011 in the morning where all the three accused persons were interrogated and they disclosed their involvement in the kidnapping of the child 'P'. He has proved having recorded the disclosure statements of the accused Dal Chand, Raj Kishore and Sanjay Yadav which are Ex.PW11/A, Ex.PW11/B and Ex.PW11/C. He has further deposed that after getting the medical examination of accused persons they were produced before the Ld. Magistrate and four days' Police Custody remand was obtained. St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 30 According to him, the child 'P' was produced before the Ld. MM and was handed over to the custody of his parents by the court. The witness has also deposed that on 18.07.2011 they tried to search for the accused Manish Yadav as the accused disclosed that he could be found in Delhi but despite efforts they could not find him and hence they returned to the police station. He has testified that on 19.07.2011 the accused Dal Chand disclosed that he could get recovered the mobile phone from his jhuggi from which he used to talk to the complainant and to his co accused /associates. He has proved having recorded the supplementary disclosure statement of accused Dal Chand vide Ex.PW11/C1 and has deposed that pursuant to the same the accused Dal Chand took them to his jhuggi at Lal Bagh. The witness has also deposed that they requested threefour passersbyes to join them in the proceedings but they refused and hence without wasting of time they went to his jhuggi there Dal Chand had put a numbered lock on his jhuggi and after feeding the necessary number he opened the same and from the jhuggi he got a mobile phone recovered from a suit case which was NOKIA1616 containing a SIM of Idea bearing number 9990834556 . He has proved having seized the same vide memo Ex.PW11/D. According to the witness on the same day i.e. 19.07.2011 he asked Dharambir to reach at Rohini Court alongwith his child because his statement U/s 164 Cr.P.C was to be recorded. He has also deposed that he then went to the court and moved an application before the Ld. MM for recording of statement St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 31 vide Ex.PW9/A pursuant to which the proceedings U/s 164 Cr. P.C. was conducted by Ld. MM vide Ex.PW16/C and the statement of the child U/s 164 Cr. P. C. was recorded vide Ex.PW1/A. According to him, after the statement was recorded he moved an application for getting copy of the same vide Application Ex.PW9/B which application was allowed by the Ld. MM. He has further deposed that during the intervening night of 19/20.07.2011 he alongwith Ct. Amit Kumar, Ct. Mehandi Hassan and accused Sanjay Yadav left for village Chakwan Khurd Distt. Etawa UP and reached Police Station Basrehar on 20.07.2011 and made their entry, then they joined the local police in the police party and left for village Chakwan Khurd. According to the witness, when they reached the village he requested threefour public persons to join the police party but they refused and hence without wasting the time they accompanied Sanjay Yadav to his house from where he got recovered two mobile phone from his house from a black coloured box i.e. one mobile had the words Lava writing on the body and was containing the SIM bearing no. 9528839799 from which the ransom call had been made and the other mobile had words G Five written on it having a SIM bearing no. 9045201176. According to the witness, the accused Sanjay informed that the said mobile belong to Raj Kishore on which he used to talk to accused Raj Kishore and from which Raj Kishore used to speak to Dal Chand. He has proved having seized both the mobile phones vide memo St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 32 Ex.PW11/E. The witness has deposed that thereafter they went to the house of Manish Yadav but he could not be found there. According to him, they also went to the neighboring villages i.e. Village Tikupur and Chaubia and then returned to the police station and made their arrival/ wapsi entry. The witness has testified that while they were going to the railway station and reached near Subzi Mandi, accused Sanjay Yadav pointed out towards a boy who was standing in front of the gate of the Mandi and informed that he was Manish Yadav the coaccused for whom they were tracing. He has also deposed that on this they apprehended the accused Manish Yadav who was arrested vide memo Ex.PW11/C and his personal search was conducted vide Ex.PW11/C. According to the witness, during the search the accused handed over his mobile phone to them bearing the words i18 written on the same having the SIM of number 9627469605 from which he used to talk to his other associates on which he (witness) seized the same vide Ex.PW11/I. The witness has proved having interrogated the accused Manish thoroughly and recorded his disclosure vide Ex.PW11/H. He has also deposed that thereafter, they returned to Delhi and deposited the case property in the Malkhana and recorded the statements of various witnesses. The witness has further deposed that on 10.10.2011 the certified copies of the call detail record and the caller application forms were obtained from the service providers and he also recorded the statements of the various nodal officers. He has proved having prepared the charge sheet after recording St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 33 the statements of various witnesses and filed the same in the court against the accused Dal Chand, Raj Kishore and Manish Chand. According to him, since the accused Sanjay Yadav was found to be a juvenile his charge sheet was filed before the Juvenile Justice Board. He has correctly identified the accused Dal Chand, Raj Kishore and Manish in the Court and also identified the case property i.e. mobile phone of LAVA KKT30 and another mobile phone of GFive - M55 recovered from the possession of Sanjay Yadav which mobile phones are Ex.P1 and Ex.P2; mobile phone of Vodafone bearing IOSonuno and I18 recovered from the possession of accused Manish which mobile phone is Ex.P3 and one mobile phone of NOKIA recovered at the instance of accused Dal Chand which mobile phone is Ex.P4.
(33) In his crossexamination the witness has denied the suggestion that accused Dal Chand was working with complainant Dharmvir or that complainant has given a mobile phone bearing No. 9990834556 to Dal Chand as he is working for him for the last two month prior to the incident. According to the witness, on 14.07.2011 they started from the police station at about 11.30PM in a private TATA SUMO which vehicle was arranged by SHO but he is unable to tell the name of the driver. He has further deposed that the secret informer met them in front of petrol pump situated near Police Station Barsehar at about 5.00PM on 16.07.2011. He has testified that the secret informer did not tell the description of the accused persons and the time of giving St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 34 secret information. He has admitted that some villagers gathered there when they reached the village. According to him, he had asked public person to join the investigation after reaching the village but no legal notice was served upon those public persons. He has admitted that Dharambir also accompanied them to the first floor from where the child was recovered. He does not remember who apprehended which accused. According to the witness, the writing work was done while sitting in the Verandah on the roof and it took about one hour in the writing work. He has denied the suggestion that signatures of accused persons were obtained on blank papers and the same were converted into certain incriminating documents including the disclosure statement. He has testified that on 19.07.2011 they reached the jhuggi of accused Dal Chand at about 1011.00AM in a government vehicle but he is unable to tell its number. The witness has also deposed that it took about 1520 minutes in recording the disclosure statement of accused Dal Chand. He has admitted that the suitcase was locked at that time and states that none of the family members of the accused were present at that time. He has denied the suggestion that he did not conduct the investigations of this case in fair manner or that no mobile phone was recovered from the accused persons and the alleged recoveries were planted on them. He has further denied the suggestion that accused persons were not arrested in the manner as mentioned above or that nothing was recovered at the instance of the accused persons or that the alleged mobile phone was St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 35 planted upon accused Dal Chand.
STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:
(34) After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. The accused Manish Chand has stated that he is innocent and has been falsely implicated in the present case by the complainant at the instance of the Investigating Officer only to work out the present case. According to him, nothing was recovered from his possession or at his instance. He has further deposed that he did not make any disclosure statement nor he pointed out any place to the police and his signatures were obtained by the police forcibly.
(35) Similarly the accused Raj Kishore has stated that he is innocent and has been falsely implicated in the present case by the complainant at the instance of the Investigating Officer only to work out the present case. According to him, nothing was recovered from his possession or at his instance. He has further deposed that he did not make any disclosure statement nor he pointed out any place to the police and his signatures were obtained by the police forcibly. (36) The accused Dal Chand has also stated that he is innocent and has been falsely implicated in the present case by the complainant at the instance of the Investigating Officer only to work out the present St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 36 case. According to him, nothing was recovered from his possession or at his instance. He has further deposed that he did not make any disclosure statement nor he pointed out any place to the police and his signatures were obtained by the police forcibly.
(37) However, the accused have not examined any witness in their defence.
FINDINGS:
(38) I have heard the arguments advanced before me by the Ld. Defence Counsel and the Ld. Addl. PP for the State. I have also gone through the written memorandum of arguments filed on behalf of the accused persons and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
Public Witnesses/ victim/ complainant
1. Child witness He is the victim child aged about seven years. He has
'P' (PW1) been examined by the Ld. Predecessor of this Court
without oath after satisfying himself that the child witness was capable of understanding the nature of queries being put to him. He has stated as under:
1. That on 11.07.2011 in the evening hours, he was playing outside his house and in the meantime accused Dal Chand who was his neighbour came there and told him that his mother called St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 37 him "Teri Mummy Bula Rahi Hai".
2. That accused Dal Chand took him and handover to three other persons namely Raj Kishore, Manish and Sanjay whose names he came to know later on and they took him in a bus to Itawah.
3. That he was confined in a hut which remained closed and he had asked the accused Raj Kishore, Manish and Sanjay to take him to his parents "Mujhe mummypapa ke pass lekar jaao" on which they replied that they will take him to his parents on the next day"Kal Lekar Jaayenge".
4. That he was confined in the said hut for five days and thereafter they left him before a police personnel.
5. That whenever he used to cry in the said hut the accused persons told him to keep quiet and assured him that they would take him to his father on the next day "Chup ho Jaao, Kal lekhar chalenge".
6. That he had identified the accused persons at Delhi.
7. That his statement has been recorded before the Ld. Magistrate in the court which is Ex.PW1/A. The child witness has correctly identified all the accused Dal Chand, Raj Kishore and Manish in the Court.
2. Dharambir (PW8) He is the father of victim child 'P' and has deposed on the following aspects:
1. That on 11.07.2011 at about 5:00 PM his son 'P' aged about 6 years had gone to play outside the house but did not return back and at that time he was wearing a blue coloured half pants and while coloured vests.
2. That he tried to search his son but could not trace him and on 12.07.2011, he went to Police Station Adarsh Nagar where the police recorded St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 38 his statement which is Ex.PW8/A.
3. That on 13.07.2011 at about 8:00 PM he received a telephone call on his mobile 9953716681 but same was disconnected after which he dialed on the said number i.e. 9058435350 and the receiver said that he has kidnapped his son 'P' and if he wanted his son back, he has to pay a sum of Rs. 20 lakh as firauti or else they would kill his son (Tumhare Bachche 'P' ka apharam humne kar liya hai.
Yadi tum apne bachche Prine ko surakshit chahte ho toh bees lakh ki firauti deni hogi.
Agar firauti hahin doge, toh humhare bachche ko maar denge).
4. That he asked the receiver as to from where he could get the amount (Itni badi rakam mere paas kahan se aayegi) on which he receiver told him to sell his land (Tumhare pass Zaminey hai, bech do).
5. That he requested the fellow not to kill his son and he will made arrangements of money (Bachche ko maarna mat, main intezam karoonga).
6. That when he dialed the said number after some talk, it was disconnected and thereafter the caller dialed on his mobile number and then they talked again.
7. That on 14.07.2011 at about 1.00 PM he again received a telephone call from mobile number 95218839799 on his mobile and the caller asked for extortion money (Rupyon ka intezam huwa ya nahin) on which he told the caller to give him some time for arranging the amount on which the caller threatened him (witness) that if he could not arrange the amount of Rs. 20 lakh they would kill his son 'P' (Agar Bees lakh rupey se kam huwe toh bachche ko maar denge).
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 39
8. That he asked the caller to allow him to talk with his son 'P' but the caller replied that he was away from the child and he would get him talked after some time.
9. That on the same day at about 8:40 PM the caller again telephoned him form the subsequent mobile number i.e. 9528839799 and get his talk with his son 'P' and again threatened him that in case if Rs. Twenty Lacs were not arranged in some days they would kill his son (Yadi Kuchh Din ke Andar Bees Lakh Ka intezam Nahin huwa Toh Tumhare Ladke Ko Jaan Se Maar Denge).
10. That he told the caller that he needed time to sell his land to arrange for money (Zameen bechkar firauti ki rakam jama karne mein kuch samay to lagega hi).
11. That he told the said facts to the police who recorded his statement.
12. That on 15.07.2011 at about 6:20 PM he again received a call from mobile no. 9528839799 and the caller asked him about the arrangement of money on which he told him that some amount had been arranged and prayed for one or two days time to arrange the balance amount after which the call was disconnected.
13. That he went to the Police Station where he came to know that the police officials of his case had gone to Itawah, UP on which he also went to Itawah by train and made inquires at Police Station Itawah from where he came to know that the police officers had gone to Police Station Basrehad.
14. That he immediately reached to Police Station Basrehad at about 3:00 PM where police officials of his case met him and one secret informer was also present.
15. That thereafter they all went to Village Chakwan Khurd and at the instance of secret informer St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 40 they reached to the house of Manish Yadav.
16. That on seeing them one boy who was sitting outside the house, ran away and when they went inside the house, his son 'P' was found on the first floor.
17. That both the accused Dal Chand and Raj Kishore who were present at the house, were apprehended and arrested.
18. That the accused Dal Chand was arrested vide Ex.PW8/B and his personal search memo was conducted vide Ex.PW8/C, the accused Raj Kishore was arrested vide Ex.PW8/D and his personal search was conducted vide Ex.PW8/E.
19. That the Investigating Officer prepared the seizure memo Ex.PW8/F with respect to recovery of his son 'P'.
20. That thereafter they went in search of accused Sanjay Yadav who was apprehended vide memo Ex.PW8/G, arrested vide memo Ex.PW8/H and his personal search was conducted Ex.PW8/J. The witness has identified his photograph on the Customer Application Form Ex.PW8/K and on the copy of Voter Identity Card which is Ex.PW8/L. He has correctly identified the accused Dal Chand, Raj Kishore and Sanjay Yadav (Juvenile) in the Court. Nodal Officers
3. Gaganjeet Singh He is the Nodal Officer from Tata Teleservices Ltd. who Sidhu (PW2) has proved the following documents:
1. Call Detail Record in respect of mobile no.
9045201176 from 01.07.2011 to 15.07.2011 which is Ex.PW2/A.
2. The said mobile phone has been registered in the name of Brij Kishore S/o Ram Prakash R/o Chakvan Khurd, Post Chitbhawan Itawah, U.P. vide Customer Application Form which is Ex.PW2/B. St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 41
3. Copy of ration card of applicant/ Brij Kishore which is Ex.PW2/C and location chart is Ex.PW2/D.
4. Certificate under Section 65B of Indian Evidence Act which is Ex.PW2/E.
5. During the course of investigations his company provided the copy of CDR which is on record which is Ex.PW2/F and copy of the Customer Application Form which is Ex.PW2/G.
4. Pawan Singh He is the Nodal Officer of IDEA Cellular Ltd. and has (PW3) proved the following:
1. That on the application of SI A.P. Singh, Police Station Adarsh Nagar which is Ex.PW3/A he had provided the requisite information of mobile no. 9990834556 for the period from 07.07.2011 to 15.07.2011 which is Ex.PW3/B.
2. That the attested copy of Customer Application Form is Ex.PW3/C according to which the said mobile has been registered in the name of Gariba S/o Bhule.
3. That the attested copy of voter ICard of Gariba S/o Bhule which is Ex.PW3/D and certificate U/s 65B of Indian Evidence Act regarding the correctness of computer generated record which is Ex.PW3/E.
5. Israr Babu (PW4) He is the Alternate Nodal Officer, Vodafone Mobile Ltd.
and has proved the record of mobile no. 9953716681 and 9627469605. He has proved:
1. That as per record, mobile no. 9953716681 is registered in the name of Sh. Dharambir S/o Badri Prasad, R/o E15, Kaushal Puri, Azad Pur, Delhi and proved the attested copy of Customer Application Form which is Ex.PW4/A;
2. Copy of voter ICard of the applicant which is Ex.PW4/B and attested copy of computer generated call detail record (CDR) of the above said mobile from 05.07.2011 to 15.07.2011 which are St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 42 Ex.PW4/C.
3. Certificate U/s 65B of Indian Evidence Act which is Ex.PW4/D.
4. That as per record, mobile no. 9627469605 is registered in the name of Dinesh Kumar S/o Dashrath Singh, R/o Panna Pur Nangla Chanderbhan, Mathura, UP.
5. Attested copy of Customer Application Form which is Ex.PW4/E.
6. Copy of driving license which is Ex.PW4/F.
7. Call Detail Record of said mobile from 01.07.2011 to 15.07.2011 which are Ex.PW4/G and certificate U/s 65B of Indian Evidence Act which is Ex.PW4/H.
6. Ved Prakash He is the Nodal Officer from Reliance Communications (PW5) Ltd. who has proved the record of mobile no.
9528839799 as under:
1. That the mobile no. 9528839799 is registered in the name of Sunit S/o Chhote Lal, R/o 114, Chaubiya, Etawa vide Customer Application Form which is Ex.PW5/A.
2. Copy of voter ICard which is Ex.PW5/B.
3. Attested copy of computer generated call detail record of the above said mobile from 14.07.2011 to 15.07.2011 which is Ex.PW5/C .
4. Certificate U/s 65B of Indian Evidence Act which is Ex.PW5/D.
7. Hayat Singh He is the Nodal Officer, Unitech Wireless (Tamilnadu) (PW6) Pvt. Ltd. and has brought the record of mobile no.
9058435350 as under:
1. That the mobile no. 9058435350 is registered in the name of Harpal Singh S/o Hari Singh, R/o 32, Tikupura, Etawa vide Customer Application Form which is Ex.PW6/A,
2. Copy of voter ICard which is Ex.PW6/B, St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 43
3. Attested copy of computer generated call detail record (CDR) of the above said mobile from
08.07.2011 to 14.07.2011 which are Ex.PW6/C.
4. Certificate U/s 65B of Indian Evidence Act which is Ex.PW6/D. Police / Official witnesses:
8. HC Balraj Singh He is a formal witness being the Duty Officer who has (PW7) proved the departure entry made by Inspector Virender Kadyan, SHO Adarsh Nagar vide DD No.30 with SI A.P. Singh, ASI Shashi Kumar, Ct. Amit, Ct. Mehndi Hassan, HC Vinod and Ct. Rahul Tyagi in the investigation of Case FIR No.179/11 which is Ex.PW7/A.
9. Ms. Shunali She has proved the following aspects:
Gupta Ld. MM 1. That on 19.07.2011 an application moved by (PW9) Investigating Officer SI A.P. Singh for recording the statement U/s 164 Cr.P.C of Child witness namely 'P' S/o Dharamber, aged about 6 years which application is Ex.PW9/A.
2. That on 19.07.2011 at 03.00 PM she recorded the statement of child witness 'P' and before recording the statement she asked certain questions from 'P' to ascertain whether he can understand the question and reply properly and thereafter she recorded the statement of the child which is Ex.PW1/A.
3. That she had given a certificate regarding the correctness of the statement U/s. 164 Cr.P.C and further proved the application moved by Investigating Officer SI A.P. Singh for providing copy of statement which application is Ex.PW9/B.
10. HC Prahlad He is a formal witness being the Duty Officer who has (PW10) deposed that on 12.07.2011 at about 05:15 PM he received a rukka from SI A.P. Singh for registration of FIR on the basis of which he got recorded the FIR through Computer Operator, copy of which FIR is St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 44 Ex.PW10/A and also made an endorsement on the rukka which is Ex.PW10/B.
11. Ct. Mehandi This witness has deposed on the following aspects:
Hassan (PW11) 1. That on 14.07.2011 he alongwith Inspector Virender Kadyan, SI AP Singh, Ct. Amit Kumar, ASI Shashi Kumar and Dharambir went to Itawa, UP.
2. That on 16.07.2011 they went to Police Station Basrehar, Itawa where Station Officer SI Deep Kumar was briefed after which SI Deep Kumar, Ct. Ramesh Kumar and other staff of UP police joined them for investigation.
3. That when they came out of the Police Station near the Petrol Pump one secret informer met and informed the UP Police that the kidnapped boy from Delhi was kept at village Chakwan Khurd at the house of Manish.
4. That they reached at Village Chakwan Khurd where secret informer pointed out towards Manish sitting outside of the house but on seeing them Manish ran away from there and could not be apprehended.
5. That thereafter they entered the house of Manish and on the first floor of the house they found the accused Dal Chand standing there after which they checked the room and found the kidnapped boy 'P' along with Raj Kishore.
6. That SI AP Singh prepared the recovery memo regarding the boy 'P' which is Ex.PW8/F after which the accused Dal Chand was arrested vide memo Ex.PW8/B, his personal search was conducted vide memo Ex.PW8/C.
7. That accused Raj Kishore was arrested vide memo Ex.PW8/D and his personal search was conducted vide memo Ex.PW8/E.
8. That accused Dal Chand and Raj Kishore were interrogated during which they disclosed about Sanjay Yadav (Juvenile) and thereafter they St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 45 reached the house of Sanjay Yadav in the same village from where Sanjay was arrested vide Ex.PW8/G and his personal search was taken vide Ex.PW8/J.
9. That after completing the formalities they returned back to Delhi on 17.7.2011.
10. That on the same day i.e. 17.07.2011 at about 9.00 AM the accused persons were interrogated by SI AP Singh one by one separately and recorded their disclosure statements of Dal Chand, Raj Kishore and Sanjay Yadav which are Ex.PW11/A, Ex.PW11/B and Ex.PW11/C respectively.
11. That on 19.07.2011 he alongwith SI AP Singh, Ct. Amit and accused Dal Chand reached at Jhuggies at Lal Bagh, Azadpur, Delhi and accused Dal Chand opened a number lock of his jhuggi and his disclosure statement was recorded by the Investigating Officer which Ex.PW11/C1.
12. That one mobile phone was recovered at the instance of accused Dal Chand belonging to him of make NOKIA with SIM and battery which was sealed and seized vide seizure memo Ex.PW11/D.
13. That the accused Dal Chand disclosed that he had used the said mobile phone to make contact with Raj Kishore and others.
14. That on the same night he again went to the Police Station Basrehar along with SI AP Singh and accused Sanjay Yadav and Ct. Ramesh of UP Police was joined in the investigations.
15. That at the instance of accused Sanjay Yadav at Village Chakwan Khurd two mobile phones make LAVA and one more phone were seized vide seizure memo Ex.PW11/E.
16. That thereafter they went to the house of Manish but he was not found there and thereafter they reached Police Station Basrehar.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 46
17. That while they were going to the railway station, on the pointing out of accused Sanjay Yadav at Mandi Gate, Itawah City, UP accused Manish Chand Yadav was apprehended.
18. That Manish Chand has arrested in this case vide Ex.PW11/F, his personal search was conducted vide Ex.PW11/G and his disclosure statement was recorded vide Ex.PW11/H.
19. That one mobile phone was also recovered from the possession of accused Manish which was seized vide seizure memo Ex.PW11/I.
12. HC Radhey He is a formal witness being the MHCM who has Shyam (PW12) proved the entries in register no. 19 vide S.No. 3508/11, 3518/11 and S.No. 3523/11 which are Ex.PW12/A, Ex.PW12/B and Ex.PW12/C respectively.
13. HC Ram Chander This witness was posted at Police Station Basrehar, (PW13) Distt. Etawa, U.P. on 16.7.2011 and was working as Head Moharrar for recording the entires in the general diary (Roj Namcha). He has proved the following aspects:
1. That at about 15:10 hours, Delhi Police came at the police station and the entry was made by him in the Roj Namcha vide Ex.PW13/A.
2. That at about 16:35 hours the Delhi Police departed with the Station Officer SI Deep Kumar with other staff of the police station Basrehar for investigation and entry was made in the Roj Namcha vide Ex.PW13/B.
3. That on the same day at about 20:30 hours the above said police officials returned back to the police station and entry was made in the Roj Namcha vide Ex.PW13/C.
4. That on 20.7.2011 at about 8:00 AM SI A. P. Singh of Delhi Police along with staff reached at his police station and made the arrival entries in the Roj Namcha vide Ex.PW13/D. St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 47
5. That SI A. P. Singh also departed with the staff and made entires in the Roj Namcha at about 13:25 hours vide Ex.PW13/E.
14. SI Deep Kumar This witness was posted at Police Station Vaidpura, (PW14) Distt. Etawa , UP on 16.7.2011 and has joined the investigations with Delhi Police. He has deposed as under:
1. That on 16.7.2011 Inspector Virender of Delhi Police came at police station along with other staff including SI A.P. Singh and father of kidnapped boy Dharambir.
2. That the entry was made in the Roj Namcha vide Ex.PW13/A after which he along with SI Shyam Lal Yadav and Ct. Ramesh Kumar of their Police Station with SOG Staff joined the Delhi Police team for conducting raid at Village Chakwan Khurd.
3. That they departed from the Police Station at about 16:35 hours and they made entry in the Roj Namcha vide Ex.PW13/B.
4. That when they reached petrol pump Busrehar at about 16:45 hours one secret informer met him there who informed him that the kidnapped boy of Delhi was kept in the village Chakwan Khurd in the house of Manish Yadav.
5. That they asked some public persons to join the investigations but none agreed.
6. That they did not serve any notice to any public person due to shortage of time and thereafter without wasting further time they reached the house of Manish Yadav but on seeing them Manish Yadav ran away.
7. That they apprehended accused Dal Chand and found the kidnapped boy 'P' aged about 6 years in the room and accused Raj Kishore who kept vigil on the boy.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 48
8. That SI AP Singh prepared the recovery memo regarding the boy 'P' which is Ex.PW8/F after which the accused Dal Chand was arrested vide memo Ex.PW8/B and his personal search was conducted vide memo Ex.PW8/C.
9. That the accused Raj Kishore was arrested vide memo Ex.PW8/D and his personal search was conducted vide memo Ex.PW8/E.
10. That accused Dal Chand and Raj Kishore were interrogated during which they disclosed about Sanjay Yadav (Juvenile) and thereafter they reached the house of Sanjay Yadav in the same village from where Sanjay was arrested vide Ex.PW8/G and his personal search was taken vide Ex.PW8/J.
11. That after these proceedings they returned back to the Police Station and made their arrival entry in the Roj Namcha at 20:30 hours vide Ex.PW13/C. He has correctly identified the accused Raj Kishore and Dal Chand in the Court.
15. Ct. Ramesh This witness was posted at Police Station Basrehar, Kumar Yadav Distt. Etawa , U.P. on 16.7.2011 and has joined the (PW15) investigations along with SI Deep Kumar, SI Shyam Lal with Delhi Police officials and father of the kidnapped boy. He has corroborated the testimony of SI Deep Kumar (PW14) in toto.
16. Inspector Arvind He is the Investigating Officer of the present case and Pratap Singh apart from the documents proved by the various others (PW16) witnesses, he has proved the following documents:
Ex.PW16/A Tehrir
Ex.PW16/B WT Message
Ex.PW16/C Application for recording u/s. 164
Cr.P.C.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 49
(39) Coming now to the microscopic evaluation of the evidence
against the accused.
Statement of the victim child:
(40) The entire case of the prosecution revolves around the
statement of the child witness 'P' who at the time of the incident was aged about six years. He has been examined in the Court without oath and has identified all the accused Dal Chand (who was known to him previously being a neighbour) and the accused Raj Kishore and Manish Chand by name as well as by pointed out towards them as the persons who had kidnapped him and had kept him in a room which remain closed for five days and did not take him to his parents. The child witness 'P' has also made a statement before the Ld. MM under Section 164 Cr.P.C. which has been duly proved by Ms. Shunali Gupta, Ld. MM.
(41) Before coming to the merits of the case, I may observe that in so far as the child witness is concerned, the law in this regard was briefly summed up by the Hon'ble Mr. Justices S. Ravindra Bhat and S.P. Garg in the case of State Vs. Jai Hind in Crl. A. No. 179/2012 & Crl. M.A. No. 7959/2011 decided on 13.07.2012, which is as under:
(42) The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. [Ref.: Ratansinh Dalsukhbai Nayak v. State of St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 50 Gujarat reported in 2004 (1) SCC 64]. It should be accepted albeit with circumspection. This decision had accepted the observations Dattu Ramrao Sakhare v. State of Maharashtra reported in (1997) 5 SCC 341 where it was held that:
"....... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored......"
(43) Further, in the case of Pancchi Vs. State of U.P reported in AIR 1998 SC 2726 it was held:
"......... It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring........"
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 51
(44) In earlier cases the Supreme Court urged caution while dealing with the testimony of a child witness. The position seemed to be that it is necessary to see whether the testimony of a child has been corroborated in essential particulars, unless the circumstances render it safe to accept the testimony without corroboration [Porapati Muthiah ILR 1965 AP 650; Shaik Umar Saheb 1957 AP 343; Abbas v. Emperor 1933 Lah 667; Jalwanti v State 1953 Pat 246; Munna v State 1985 Cr LJ 1925 (All.)]. However, the later position is that there is no rigid rule that corroboration is essential [Munna v. State (1985) Cr. L. J 1925 (All) Jarina Khatun v. State of Assam 1992 Crl. L.J 733 (735) Gau.] (45) A common sense approach was advocated by the Court in the early case of Mohamed Sugal Esa v. The King A.I.R 1946 P.C.3:
".....Once there is admissible evidence a court can act upon it; corroboration, unless required by a statute, goes only to the weight and value of the evidence. It is a sound rule not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law....."
(46) Late in Rameshwar v. State of Rajasthan AIR 1952 SC 54 the Hon'ble Apex Court held as under:
"...... The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 52 it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand....."
(47) It was observed by the Hon'ble Court that it would be seen that the Court has over the years attributed to the testimony of child witnesses the same kind of credibility that it attached to the statement of any other witness if the testimony is consistent. (48) Child witness can be a competent witness provided the statement of such witness is reliable, truthful and corroborated by other prosecution evidence [Ref.: IV (2012) SLT 257]. (49) Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J in Wheeler v. United States (159 U.S. St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 53
523). The evidence of a child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [Ref.: Surya Narayana Vs. State of Karnataka reported in 2001 (1) Supreme Court 1]. (50) The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. [Ref.:Golla Yelugu Govindu Vs. State of Andhra Pradesh reported in 16 (2008) SCC 769].
(51) Applying these principles to the facts of the present case, coming first to the statement of the child witness 'P' before the Court. I St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 54 may observe that prior to recording of the statement of the child the Ld. Predecessor of this court had satisfied himself with regard to the understanding of the child to the extent that he was capable of understanding the nature of the queries being put to him and was giving rational answers only after which he proceeded to record the statement of the child, the relevant portion of which is as under:
"........ On 11.07.2011 I was present at my house. It was in the evening hours. I was playing outside my house. Accused Dal Chand, who was my neighbor came to me (the witness correctly identified the accused Dal Chand by pointing out towards him, present in the court), and he asked me, "Teri Mummy Bula Rahi Hai" Thereafter, he took me and handed over me to three other persons. Later on, I came to know the names of the said three persons are Raj Kishore, Manish and Sanjay (the witness correctly identified the accused persons by pointing out towards them as Raj Kishore, Manish and Sanjay, who are also present in the court). All the said three above said accused persons took me in a bus to Itawah. I was confined in a hut, which remained closed. I asked the accused Raj Kishore, Manish and Sanjay, "Mujhe Mummy Papa ke paas Lekar Jaao".
Then they replied, "Kal Lekar Jaayengi". I was confined in the said hut for five days. The accused persons did not take me to my parents. Thereafter, they left me before a police personal. Whenever, I used to cry in the said hut, the accused persons told me that , "Chup Ho Jaao, Kal Lekar Chalenge". I identified the accused persons at Itawah. Again said: St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 55
In Delhi. My statement was also recorded before the Ld. Magistrate in the court (U/s 164 Cr. P. C.). At this stage, one sealed envelop duly sealed with the seal of Court (SG) already available in the judicial file is taken out from the same and opened. The same is Ex.PW1/A. The witness identifies his signatures and thumb impression at points X and Y...."
(52) The child witness 'P' has not been crossexamined by the accused persons and his testimony has gone uncontroverted and unrebutted. He has corroborated his earlier statement made to the Ld. MM under Section 164 Cr.P.C. on the aspect that while he was playing outside his house, the accused Dal Chand who was his neighbour came to him and took him stating that his mother was calling and thereafter they all i.e. Dal Chand, Raj Kishore and Sanjay (juvenile accused) took him to different places and kept him confined in a hut.
The Ld. Predecessor of this Court before recording the statement of the child witness was satisfied regarding the competence and capability of the child in understanding the nature of inquiries being put to him. Earlier the child / victim 'P' had made a similar statement before the Ld. MM under Section 164 Cr.P.C. vide Ex.PW1/A (duly proved by Ms. Shunali Gupta, Ld. MM) which statement is being reproduced as under:
".......11/7/11 ko shaam ko main ghar ke bahar khel raha tha. Dal Chand jo humare ghar ke paas rehta hai St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 56 mere paas aaya aur bole ki tujhe teri mummy bula rahi hai. Jaise hi main uske paas aaya to vah mujhe kahin door le gaya. Vahan par Sanjay, Manish aur ek aadmi tha. Voh log mujhe bus mein baithakar Itawa le gaye. Vahan par en loogon ne 4 din tak mujhe jhopri mein band rakha. Jab mainne kaha ki mujhe apne mummy papa ke paas janahai to vah bole ki tere papa apneaap yahan aa jayenge. Phir police vale vahan aa gaye aur mujhe le gaye..."
(53) It is writ large that Firstly the child / victim 'P' was found competent by the Ld. Predecessor of this Court of understanding the nature of queries being put to him and he was able to give rational answers thereof. Secondly the child / victim 'P' is consistent in his statement before this Court as well as in his statement under Section 164 Cr.P.C. recorded by the Ld. MM vide Ex.PW1/A and there are no contradictions in the same thereby ruling out the possibility of tutoring. Thirdly the entire testimony of the child witness has gone uncontrovered and unrebutted since the accused persons have chosen not to cross examine the witness. Lastly the statement of the child / victim 'P' finds due corroboration from the testimony of his father Dharambir (PW8) and police witnesses i.e. Ct. Mehandi Hassan (PW11); HC Ram Chander (PW13), SI Deep Kumar (PW14), Ct. Ramesh (PW15) and Inspector A.P. Singh (PW16) and other evidence on record which lends credence and authenticity to the uncorroborated version put forward by the child. St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 57 (54) I may observe that merely because the child 'P' aged about six years, his testimony cannot be rejected. He was previously known to the accused Dal Chand and was able to clearly identify the accused Dal Chand. Therefore, the question of identity being mistaken does not arise. Further, the child had remained with the accused persons i.e. Dal Chand, Raj Kishore and Manish for a long time and it was for this reason that he was in a position to identify them all. The victim / child has also proved that it was the police who had rescued him a fact which find independent corroboration and confirmation from the testimony of his father Dharambir (PW8) and the various police witnesses. In view of the above, I hereby hold that the victim / child 'P' is a credible, reliable and trustworthy witness. He has identified all the accused persons i.e. Dal Chand, Raj Kishore and Manish Chand of which Dal Chand was known to him previously being a neighbour and has also proved the allegations against these accused of having kidnapped him by calling out to him on the pretext that his mother was calling him, then taken him to unknown place in a bus and having kept him in confinement for five days under threats and fear despite his repeated pleas to them to take him to his father, after which his father and police came and rescued him. Dharambirthe father of the child proved the aspect of ransom calls and arrest of the accused persons:
(55) Dharambir the father of the victim / child has been examined as PW8. He has confirmed the complaint made by him to the police and St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 58 has further proved that on 11.7.2011 at about 5:00 PM the child had gone out to play after which he did not return and was wearing a blue coloured half pants and white coloured vests at that time. According to Dharambir he had received various telephone calls at various points of time when the caller asked him for ransom of Rs.20 lakhs. He has proved of having reported the said calls to the police on which the police tracked the calls after which a raiding team was constituted and he also join the raiding party at Police Station Basrehad, U.P. where the local police was also joined. Thereafter on a secret information they all reached the house of Manish Chand at village Chakwan Khurd and on seeing them one boy who was sitting outside the house, ran away after which they went inside the house from where the child was rescued and the accused Dal Chand and Raj Kishore were apprehended whereas one person managed to escape. Thereafter on interrogation accused Dal Chand and Raj Kishore disclosed the name of the person who was sitting outside the house as Manish Yadav and other person who managed to escape as Sanjay Yadav a resident of the same village. It was at the instance of accused Dal Chand and Raj Kishore that the accused Sanjay Yadav was then apprehended and arrested. The relevant portion of the testimony of Dharambir (PW8) is as under:
"......... On 11.7.2011 at about 5:00 PM my son 'P' went to play outside the house, but he did not return back home. He was of 6 years of age at that time. He was wearing a blue coloured half pants and white coloured St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 59 vests. I tried to search my son, but he could not be traced.
On 12.7.2011, I went to PS Adarsh Nagar and police recorded my statement. My statement is Ex.PW8/A bearing my signatures at point A. On 13.7.2011, at about 8:00 PM, I received a telephonic call on my mobile number 9953716681, but it was disconnected soon. Then I dialed on the said number i.e. 9058435350 and the received said that, "Tumhara bachche 'P' ka Apharan kar liya hai. Yadi tum apne Bachche 'P' ko surakshit chahte ho toh Bees Lakh ki firauti deni hogi. Agar firauti nahin doge, toh tumhare bachche ko maar denge". I asked them. "Itni badi rakam mere paas kahan se aayegi".
Then, received asked me that, "tumhare pass zaminey hai, bech do". I requested that fellow that, "Bachche ko maarna mat, main intezam karoonga". I may mention here that when I dialed the said number, after some talk, it was disconnected and thereafter, the caller dialed on my mobile number and then we talked again.
On 14.7.2011, at about 1:00 PM , I again received telephonic call from mobile number 9528839799 on my mobile. The said caller asked me, "Rupyon ka intezam huwa ya nahin". I requested that fellow to give me some time for arranging the said amount. That fellow told that, "Agar Bees Lakh rupye se kam huae toh bachche ko maar denge". I asked them to have a talk with my son 'P'. He replied that as he is away from the child and he will make me talk with my son 'P' after some time. Thereafter the phone was disconnected. At about 8:40 PM on the same day, the caller again telephoned on my phone from the St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 60 subsequent mobile number i.e. 9528839799 and make me talk with my son 'P' and thereafter that person again threatened me. "Yadi kuchh din ke andar Bees lakh ka intezam nahin huwa toh tumhare ladke ko jaan se maar denge". I asked that fellow that, "Zameen bechkar frauti ki rakam jama karne mein kuch samay toh lagega hi". I told these facts to the police. Police recorded my statement.
On 15.7.2011, at about 6:20 PM, I again received a telephone call from mobile number 9528839799 and the caller asked me about the arrangement of money. I asked him that some money has been arranged and I am trying to sell my land and I also told them that I will arrange the money within one or two days, thereafter, the call was disconnected. I went to the PS and I came to know that police officials of his case had gone to Itawah, UP. I also went to Itawah by train. I made inquiries at PS Itawah regarding the police officials of Delhi and they told me that they had gone to PS Basrehad. I immediately went to PS Basrehad and reached there at about 3:00 PM. Police officials of my case met me there. One secret information was with the police officials. Then we all went to Village Chakwan Khurd in the government vehicle, which was parked outside the village and at the instance of secret informer, we reached to a house. It was the house of Manish Yadav and one person was sitting outside the house. Secret informed told that he is Manish Yadav. Then, we reached there and on seeing us the said boy ran away from the spot. Then we went inside the house and checked the same and on the first floor of the said house, my son 'P' was found there. Accused Dal Chand and Raj Kishore, St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 61 both are present in the Court today, correctly identified. Both the accused were apprehended there.
My son was recovered. Accused Dal Chand was arrested vide memo Ex.PW8/B, bearing my signature at point A and his personal search was conducted vide memo Ex.PW8/C, bearing my signature at point A. Accused Raj Kishore was arrested vide memo Ex.PW8/D and his personal search was conducted vide memo Ex.PW8/E, both the memos bearing my signature at points A. IO prepared seizure memo with respect to recovery of my son 'P' vide memo Ex.PW8/F bearing my signature at point A. Then we went in search of accused Sanjay Yadav. He was apprehended vide memo Ex.PW8/G, bearing my signature at point A. He was arrested vide memo Ex.PW8/H and his personal search was conducted vide memo Ex.PW8/J, both the memos bearing my signature at points A. IO made interrogation from the accused persons.
Today, I have also brought my mobile phone having number 9953716681. I identify my photograph on the Customer Application form (CAF) at point A on Ex.PW8/K, which also bearing my signature at point A. Photocopy of my voter Identity Card is Ex.PW8/L which was filed by me at the time of obtaining the mobile connection.
Accused Dal Chand, Raj Kishore and Sanjay Yadav are present in the Court today, correctly identified by the witness...."
(56) Dharambir (PW8) has been crossexamined at length wherein he has admitted that Dal Chand was having visiting terms with St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 62 his family and states that he was residing in their neighbourhood but has denied that he has been falsely implicated on account of the financial dispute between them. Further, in his crossexamination Dharambir has clarified that he has a mobile phone bearing No. 9953716681 and the accused Dal Chand was also having a mobile phone but he is not aware of its number and make. According to Dharambir, he had recognized the voice of accused Sanjay in front of the police as the person who made him telephonic call. He has denied the suggestion that accused Dal Chand was present in his house and had also gone to Itawah to search for his son and that Dal Chand was present present at the spot when his son was rescued.
(57) It is writ large from the above there is no history of animosity between the accused Dal Chand and Dharambir (PW8) and hence, there is no reason for Dharambir to falsely implicate the accused Dal Chand. It is further evident from the testimony of Dharambir that he is most specific and consistent on the following aspects:
➢ That his son 'P' was aged about 6 years at the time of the incident. ➢ That on 11.07.2011 at about 5:00 PM his son 'P' had gone to play outside the house but did not return back.
➢ That he tried to search his son but could not trace him and on 12.07.2011, he went to Police Station Adarsh Nagar and lodged a missing report.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 63
➢ That on 13.07.2011 at about 8:00 PM he received a telephone call on his mobile 9953716681 but same was disconnected after which he dialed on the said number i.e. 9058435350 and the receiver told him that he has kidnapped his son 'P' and if he wanted his son back, he has to pay a sum of Rs. 20 lakh as firauti or else they would kill his son (Tumhare Bachche 'P' ka apharam humne kar liya hai. Yadi tum apne bachche 'P' ko surakshit chahte ho toh Bees lakh ki firauti deni hogi. Agar firauti hahin doge, toh humhare bachche ko maar denge).
➢ That on 14.07.2011 at about 1.00 PM he again received a telephone call from mobile number 95218839799 on his mobile and the caller asked for the ransom money (Rupyon ka intezam huwa ya nahin) on which he told the caller to give him some time for arranging the amount on which the caller threatened him (witness) that if he could not arrange the amount of Rs. 20 lakh they would kill his son 'P' (Agar Bees lakh rupey se kam huwe toh bachche ko maar denge).
➢ That on the same day i.e. 14.7.2011 at about 8:40 PM the caller again telephoned him form the subsequent mobile number i.e. 9528839799 and get his talk with his son 'P' and again threatened him that in case if Rs. Twenty Lacs were not arranged in some days they would kill his son (Yadi Kuchh Din ke Andar Bees St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 64 Lakh Ka intezam Nahin huwa Toh Tumhare Ladke Ko Jaan Se Maar Denge).
➢ That on 15.07.2011 at about 6:20 PM he again received a call from mobile no. 9528839799 and the caller asked him about the arrangement of money on which he told him that some amount had been arranged and prayed for one or two days time to arrange the balance amount after which the call was disconnected. ➢ That he had joined the investigations with the police at Police Station Basrehad, Distt. Itawah.
➢ That he along with the police went to Village Chakwan Khurd where at the instance of secret informer they reached to the house of Manish Yadav.
➢ That from the house of Manish Yadav his child was recovered and the accused Dal Chand and Raj Kishore who were present at the house, were arrested.
➢ That the accused Sanjay Yadav (juvenile) has also been arrested. (58) The testimony of Dharambir (PW8) finds independent confirmation and corroboration from the electronic evidence on record and therefore, I hereby hold that the prosecution has been able to prove that the kidnapping of the child / victim 'P' was committed for ransom of Rs. 20 lakhs.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 65 Electronic Evidence:
(59) Gaganjeet Singh Sidhu (PW2) Nodal Officer from Tata Teleservices Ltd. proved the Call Detail Record in respect of mobile no.
9045201176 (used by the accused Raj Kishore) from 01.07.2011 to 15.07.2011 which is Ex.PW2/A which mobile phone has been registered in the name of Brij Kishore S/o Ram Prakash R/o Chamba Khurd, Post Chitbhawan Itawah, U.P. vide Customer Application Form which is Ex.PW2/B. Here, I may mention that this Brij Kishore is the real brother of accused Raj Kishore.
(60) Further, Pawan Singh (PW3) Nodal Officer of IDEA Cellular Ltd. has has proved the Call Detail Record of mobile no. 9990834556 (used by the accused Dal Chand) for the period from 07.07.2011 to 15.07.2011 which is Ex.PW3/B which mobile number is registered in the name of Gariba S/o Bhule vide Customer Application Form which is Ex.PW3/C. Israr Babu (PW4) Alternate Nodal Officer from Vodafone Mobile Ltd. has proved that mobile no. 9953716681 is registered in the name of Sh. Dharambir S/o Badri Prasad, R/o E15, Kaushal Puri, Azad Pur, Delhi vide Customer Application Form which is Ex.PW4/A and the Call Detail Records of the said mobile from 05.07.2011 to 15.07.2011 are Ex.PW4/C. He has further proved that the mobile no. 9627469605 (used by the accused Manish Chand) is registered in the St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 66 name of Dinesh Kumar S/o Dashrath Singh, R/o Panna Pur Nangla Chanderbhan, Mathura, UP vide Customer Application Form which is Ex.PW4/E and the Call Detail Records of the said mobile from 01.07.2011 to 15.07.2011 are Ex.PW4/G. Ved Prakash (PW5) Nodal Officer from Reliance Communications Ltd. has proved that the mobile no. 9528839799 (used by the accused Sanjay Yadav) is registered in the name of Sunit S/o Chhote Lal, R/o 114, Chaubiya, Etawa vide Customer Application Form which is Ex.PW5/A and the Call Detail Records of the above said mobile from 14.07.2011 to 15.07.2011 is Ex.PW5/C. Further, Hayat Singh (PW6) Nodal Officer from Unitech Wireless (Tamilnadu) Pvt. Ltd. has proved that the mobile no. 9058435350 (used by accused Sanjay Yadav) is registered in the name of Harpal Singh S/o Hari Singh, R/o 32, Tikupura, Etawa vide Customer Application Form which is Ex.PW6/A and the Call Detail Record (CDR) of the above said mobile from 08.07.2011 to 14.07.2011 are Ex.PW6/C. (61) The case of the prosecution is that pursuant to his arrest the accused Dal Chand made a disclosure statement and got recovered a a mobile phone male NOKIA1616 from the suitcase of his Jhuggi which mobile phone having IMEI No. 357424045285146 was containing a SIM of Idea bearing number 9990834556 which mobile was seized vide memo Ex.PW11/D. Further, the accused Sanjay Yadav (Juvenile) got St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 67 recovered two mobile phones from his house from a black coloured box i.e. one mobile make LAVA, KKT 30 having IMEI No. 910040075118559 was containing the SIM bearing no. 9528839799 from which the ransom call had been made. The accused Sanjay yadav (Juvenile) also got recovered another mobile phone of make GFive, M55 containing a SIM bearing no. 9045201176 and disclosed that the said mobile belong to Raj Kishore on which he used to talk to accused Raj Kishore and from which Raj Kishore used to speak to Dal Chand. The said mobile phone was having a double SIM facility with IMEI Nos. 358933031209877 and 358933031711872. Thereafter both the said mobile phones were seized vide memo Ex.PW11/E. It is also the case of the prosecution that at the time of arrest the accused Manish Chand was carrying a mobile phone of i0SOUNO & i18 containing the SIM of Vodafone bearing No. 9627469605 which mobile phone was seized vide memo Ex.PW11/I. (62) I have examined the Call Details Record of the various mobile numbers and it is evident that all the accused including the accused Sanjay Yadav (Juvenile) were regularly in touch with each other. I now proceed to analyze the call details record of each of the accused individually including the accused Sanjay Yadav (Juvenile). (63) Coming first to the ransom calls which were made to complainant Dharambir on his mobile phone bearing No. 9953716681 St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 68 which calls were made from the mobile numbers used by the accused Sanjay Yadav (Juvenile) i.e. 9058435350 and 9528839799, I may observe that the said calls were made from the said phone numbers having IMEI No.910040075118550 make LAVA KKT30 got recovered by the accused Sanjay Yadav from his house. The details of the same are as under:
Sr. Calling No. Called No. Date Time Seconds Location No. 1 9058435350 9953716681 13/07/2011 19:58:49 79 Village Amritpur Etawa 2 9058435350 9953716681 13/07/2011 20:04:26 303 Village Amritpur Etawa 3 9528839799 9953716681 14/07/2011 13:02:43 422 S.N.Public School Etawa 4 9528839799 9953716681 14/07/2011 20:41:40 237 Chandanpur Etawa 5 9528839799 9953716681 15/07/2011 18:20:12 331 Ashok Nagar Etawa (64) Now coming to the accused Raj Kishore, I may observe that he was using the mobile no.9045201176 in mobile set make GFive having double SIM facility with IMEI Nos. 358933031209877 and 358933031711872, (got recovered by the accused Sanjay Yadav from his house) which phone as per the record has been registered in the name of his brother Brij Kishore. The relevant entries of which are as under: St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 69
Sr. Calling No. Called No. Date Time Seconds Location No. 1 9990834556 9045201176 11/7/11 6:17 15 Village Amritpur (Dal Chand) Etawa 2 9990834556 9045201176 11/7/11 6:18 43 Village Amritpur (Dal Chand) Etawa 3 9990834556 9045201176 11/7/11 9:33 126 Etawa (Dal Chand) 4 9990834556 9045201176 11/7/11 10:37 79 Dowari (Dal Chand) 5 9990834556 9045201176 11/7/11 10:41 1 Firozabad (Dal Chand) 6 9045201176 9990834556 11/7/11 14:02 89 NA/(CF) (Dal Chand) 7 9045201176 9990834556 11/7/11 15:37:57 36 Vidhan sabha Delhi (Dal Chand) 8 9045201176 9990834556 11/7/11 16:41:20 58 Mojiwala Bagh (Dal Chand) Azadpur Delhi 9 9045201176 9990834556 11/7/11 17:1:49 54 Mojiwala Bagh (Dal Chand) Azadpur Delhi 10 9045201176 9990834556 11/7/11 17:04:00 14 Model Town 2nd (Dal Chand) 11 9045201176 9990834556 11/7/11 17:49:23 40 Model Town 2nd (Dal Chand) 12 9045201176 9990834556 11/7/11 18:14:25 31 GTB Nagar (Dal Chand) 13 9045201176 9990834556 11/7/11 19:02:20 74 Brijpuri Delhi (Dal Chand) 14 9045201176 9990834556 11/7/11 19:04:17 23 Brijpuri Delhi (Dal Chand) 15 9990834556 9045201176 12/7/11 8:51 107 Etawa (Dal Chand) 16 9990834556 9045201176 12/7/11 19:15 553 Village Amritpur (Dal Chand) Etawa St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 70 17 9990834556 9045201176 12/7/11 19:47 420 Village Amritpur (Dal Chand) Etawa 18 9058435350 9045201176 12/7/11 20:16 88 Village Amritpur (Sanjay) Etawa 19 9990834556 9045201176 13/7/11 20:58 188 Ekdil (Dal Chand) 20 9058435350 9045201176 13/7/11 8:25:51 21 Ekdil (Sanjay) 21 9058435350 9045201176 13/7/11 10:43:33 185 Village Amritpur (Sanjay) Etawa 22 9058435350 9045201176 13/7/11 16:30:27 50 Village Amritpur (Sanjay) Etawa 23 9058435350 9045201176 13/7/11 16:40:39 37 Village Amritpur (Sanjay) Etawa 24 9058435350 9045201176 13/7/11 19:07:11 37 Village Amritpur (Sanjay) Etawa 25 9990834556 9045201176 14/7/11 7:59:17 119 Village Amritpur (Dal Chand) Etawa 26 9990834556 9045201176 14/7/11 9:15:18 241 Village Amritpur (Dal Chand) Etawa 27 9990834556 9045201176 14/7/11 20:19:59 13 Village Amritpur (Dal Chand) Etawa 28 9990834556 9045201176 15/7/11 8:40:39 207 Ekdil (Dal Chand) 29 9990834556 9045201176 15/7/11 8:47:57 46 Village Amritpur (Dal Chand) Etawa NOTE: The highlighted portions in respect of the location shows the presence of the accused Raj Kishore in Azadpur, Delhi at the time of the incident of kidnapping (though he is a resident of village Chakwan Khurd, PS Basrehar, Distt. Etawa, U.P.) and also his close contact with the accused person.
(65) The aforesaid call detail record of mobile no. 9045201176 which is registered in the name of Brij Kishore (brother of accused Raj St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 71 Kishore) but actually used by the accused Raj Kishore, conclusively establishes that he was in constant touch with the accused Dal Chand and Sanjay (Juvenile). The following facts emerge from the analysis of the same:
➢ On 11.7.2011 at 16:41:20 (4:41 PM) and 17:1:49 (5:01 PM) the accused Raj Kishore was present in the area covered by the Tower installed at Mojiwala Bagh, Azadpur, Delhi (near the house of the victim) and was in constant contact with the accused Dal Chand. ➢ On 11.7.2011 at 17:04 (5:04 PM) and 17:49:23 (5:49 PM) the accused Raj Kishore was present in the area covered by the Tower installed at Model Town IInd, Delhi and was in constant contact with the accused Dal Chand.
➢ On 11.7.2011 at 19:02 (7:02 PM) and 19:04:17 (7:04 PM) the accused Raj Kishore was present in the area covered by the Tower installed at Brijpuri, Delhi (i.e. the route taken by him from Azadpur to Itawah) and was in constant touch with the accused Dal Chand.
➢ On 12.7.2011 at 8:15 AM the accused Raj Kishore was present in Etawa and was in constant touch with the accused Dal Chand. ➢ On 12.7.2011, 13.7.2011 and 14.7.2011 the accused Raj Kishore was present at Etawa and was in constant touch with the accused Dal Chand and Sanjay Yadav (Juvenile).
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 72 (66) Coming next to the accused Dal Chand, I may note that he was using the SIM no. 9990834556 in mobile set make NOKIA1616 having IMEI No. 357424045285146 got recovered by the accused Dal Chand from his Jhuggi which SIM as per record is registered in the name of one Gariba a resident of Azadpur. The analysis of the Call Detail Records of the above mobile phone shows that the accused Dal Chand was in constant contact with the accused Raj Kishore even prior to the date of incident and also thereafter. Further, he was in constant contact with the accused Sanjay Yadav. The relevant entries of the Call Detail Record of his phone are as under:
Sr. Calling No. Called No. Date Time Seconds Location No. 1 9990834556 9045201176 11/7/11 6:17 14 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 2 9990834556 9045201176 11/7/11 6:18 42 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 3 9990834556 9045201176 11/7/11 6:21 164 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 4 9990834556 9045201176 11/7/11 9:33 125 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 5 9990834556 9045201176 11/7/11 10:37 78 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 6 9990834556 9045201176 11/7/11 14:01 87 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 7 9990834556 9045201176 11/7/11 15:36 35 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 8 9990834556 9045201176 11/7/11 16:39 56 Mojiwala Bagh (Raj Kishore) Azadpur Delhi St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 73 9 9990834556 9045201176 11/7/11 17:00 52 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 10 9990834556 9045201176 11/7/11 17:47 38 Model Town 2nd (Raj Kishore) 11 9990834556 9045201176 11/7/11 18:12 30 Model Town 2nd (Raj Kishore) 12 9990834556 9045201176 11/7/11 19:00 72 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 13 9990834556 9045201176 12/7/11 19:02 22 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 14 9058435350 9990834556 12/7/11 11:46 79 Mojiwala Bagh (Sanjay) Azadpur Delhi 15 9058435350 9990834556 12/7/11 11:49 172 Mojiwala Bagh (Sanjay) Azadpur Delhi 16 9990834556 9045201176 12/7/11 19:15 553 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 17 9990834556 9045201176 12/7/11 19:47 419 Model Town 2nd (Raj Kishore) 18 9990834556 9045201176 12/7/11 20:58 187 Model Town 2nd (Raj Kishore) 19 9990834556 9045201176 13/7/11 11:54:28 721 Model Town 2nd (Raj Kishore) 20 9990834556 9045201176 14/7/11 7:59 118 Mojiwala Bagh (Raj Kishore) Azadpur Delhi 21 9990834556 9045201176 14/7/11 8:35:13 43 Lal Bagh (Raj Kishore) Azadpur Delhi 22 9990834556 9045201176 14/7/11 9:15:19 241 Lal Bagh (Raj Kishore) Azadpur Delhi 23 9990834556 9045201176 14/7/11 8:20:00 13 Lal Bagh (Raj Kishore) Azadpur Delhi 24 9990834556 9045201176 15/7/11 8:40:39 217 Lal Bagh (Raj Kishore) Azadpur Delhi 25 9990834556 9045201176 15/7/11 8:47:58 45 Lal Bagh (Raj Kishore) Azadpur Delhi St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 74 (67) Here, I may observe that the location of the mobile phone of the accused Dal Chand is shown to be Delhi throughout the period 11.7.11 to 15.7.11 because he had left his phone at his house which lends credence to the prosecution case and confirms the statement of the child witness 'P' made to the Ld. MM under Section 164 Cr.P.C. that initially it was the accused Dal Chand who took him to a place where he handed over him to other persons i.e. Sanjay, Raj Kishore and one another person i.e. Manish Chand who took him to Etawa . It also confirms the role of Dal Chand who during this period from 11.7.11 to 15.11.11 Dal Chand was continuously watching the activities of Dharambir father of the child / victim 'P' and communicating the same to the accused Raj Kishore (who is also related to Dal Chand being his mama in relation) and Sanjay whom he joined at Etawa later on 15.11.2011. This explains the apprehension of Dal Chand from village Chakwan Khurd from the house of Manish Chand from where the child was recovered by the police in the presence of his father.
(68) Coming now to the accused Sanjay Yadav who was declared as a Juvenile, I may mention that his call details record are required to be analyzed so as to connect all the accused with each other. The analysis of the Call Detail Record of mobile phone bearing No. 9058435350 which was actually being used by accused Sanjay Yadav (Juvenile) in mobile set make LAVA KKT30 having IMEI No. 910040075118550 got recovered by the accused Sanjay Yadav from his St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 75 house conclusively proves that he was in constant contact with the accused Manish Chand who was using the mobile no. 9627469605 make i0SOUNO having IMEI No. 354873045383490 recovered from the possession of the accused Mahish Chand. The relevant entries are as under:
Sr. Calling No. Called No. Date Time Seconds Location No. 1 9058435350 9627469605 11/7/11 06:42:24 17 Village Amritpur Etawa 2 9058435350 9627469605 11/7/11 08:41:29 22 Village Amritpur Etawa 3 9058435350 9627469605 12/7/11 08:16:15 1 Village Amritpur Etawa 4 9058435350 9627469605 12/7/11 08:28:40 51 Village Amritpur Etawa 5 9058435350 9627469605 12/7/11 08:39:43 12 Village Amritpur Etawa 6 9058435350 9627469605 12/7/11 08:48:07 23 Village Amritpur Etawa 7 9058435350 9627469605 12/7/11 08:58:46 23 Bharthna Choraha Etawa 8 9058435350 9627469605 12/7/11 09:48:30 10 Ayara B 9 9058435350 9627469605 12/7/11 09:58:01 34 Ayara B 10 9058435350 9627469605 12/7/11 17:11:12 42 Village Amritpur Etawa 11 9058435350 9627469605 13/7/11 7:27:33 36 Village Amritpur Etawa 12 9058435350 9627469605 13/7/11 11:43:23 56 Sirajmau 13 9627469605 9058435350 13/7/11 13:38:51 20 Civil Line 14 9627469605 9058435350 13/7/11 13:46:05 9 Civil Line St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 76 15 9058435350 9627469605 13/7/11 16:41:37 40 Killi Sultanpur 16 9058435350 9627469605 13/7/11 18:17:58 28 Killi Sultanpur 17 9058435350 9627469605 13/7/11 18:27:23 26 Killi Sultanpur (69) Further, the Call Detail Records of the mobile phone No. 9058435350 being used by the accused Sanjay Yadav (Juvenile) conclusively proves that he was in constant contact with the accused persons and also confirms the oral testimony of Dharambir on the aspect of the ransom calls made to him. The relevant entries in this regard are as under:
Sr. Calling No. Called No. Date Time Seconds Location No. 1 9058435350 9627469605 11/7/11 6:42:25 17 Village (Manish) Amritpur Etawa 2 9058435350 9627469605 11/7/11 8:4:50 21 Village (Manish) Amritpur Etawa 3 9058435350 9627469605 12/7/11 8:28:41 52 Vijay Nagar (Manish) Colony Etawa 4 9058435350 9627469605 12/7/11 8:39:45 12 Vijay Nagar (Manish) Colony Etawa 5 9058435350 9627469605 12/7/11 8:48:08 24 Vijay Nagar (Manish) Colony Etawa 6 9058435350 9627469605 12/7/11 8:58:47 23 Vijay Nagar (Manish) Colony Etawa 7 9058435350 9627469605 12/7/11 9:48:31 10 Basrehar Etawa (Manish) 8 9058435350 9627469605 12/7/11 9:58:03 34 Basrehar Etawa (Manish) St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 77 9 9058435350 9990834556 12/7/11 11:46:15 79 Friends Colony (Dal Chand) Etawa 10 9058435350 9990834556 12/7/11 11:49:01 172 Friends Colony (Dal Chand) Etawa 11 9058435350 9627469605 12/7/11 17:11:14 42 Village (Manish) Amritpur Etawa 12 9058435350 9045201176 12/7/11 20:16:17 88 Village (Raj Kishore) Amritpur Etawa 13 9058435350 9627469605 13/7/11 07:27:35 35 Village (Manish) Amritpur Etawa 14 9058435350 9045201176 13/7/11 08:25:52 20 Village (Raj Kishore) Amritpur Etawa 15 9058435350 9045201176 13/7/11 10:43:33 184 Village (Raj Kishore) Amritpur Etawa 16 9058435350 9627469605 13/7/11 13:58:32 20 Vijay Nagar (Manish) Colony Etawa 17 9058435350 9627469605 13/7/11 13:46:06 9 Vijay Nagar (Manish) Colony Etawa 18 9058435350 9045201176 13/07/11 16:30:27 50 Vijay Nagar (Raj Kishore) Colony Etawa 19 9058435350 9045201176 13/7/11 16:40:40 36 Vijay Nagar (Raj Kishore) Colony Etawa 20 9058435350 9045201176 13/7/11 16:41:38 40 Vijay Nagar (Raj Kishore) Colony Etawa 21 9058435350 9627469605 13/7/11 18:18:00 27 Village (Manish) Amritpur Etawa 22 9058435350 9627469605 13/7/11 18:27:25 25 Village (Manish) Amritpur Etawa 23 9058435350 9045201176 13/7/11 19:07:11 36 Village (Raj Kishore) Amritpur Etawa 24 9058435350 9953716681 13/7/11 19:58:49 79 Village (Dharambir) Amritpur Etawa 25 9058435350 9953716681 13/7/11 20:04:26 303 Village (Dharambir) Amritpur Etawa St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 78 (70) A dispute has been raised by the Ld. Defence Counsel on the aspect of user of mobile phone by the accused Dal Chand, Raj Kishore and Manish Chand. It is submitted that the various mobile phones do not belong to the accused persons and have been planted upon them only to work out the present case. The Addl. PP has on the other hand submitted that the aspect of user stands established from the Call Detail Records indicating that the accused were constantly in contact with each other and moving together at various places, an aspect which is indicated from the Location Chart. He also submits that not only has the child victim identified the accused but even his father Dharambir has identified the voice of Sanjay who used to make the calls to him.
(71) I have considered the rival contentions and I may observe that a joint reading / analysis of the aforesaid call details of the various mobile phone numbers indicate the close association of the accused with each other, an aspect which they have not been able to controvert. Further, it has also come on record that the accused Raj Kishore was using the mobile No. 9045201176 registered in the name of his brother namely Brij Kishore. When the aforesaid material was put to the accused persons under Section 313 Cr.P.C. they have simply denied the same. In case if the mobile phone was not recovered from the possession of the accused persons as claimed by them then it became all the more necessary for the accused to explain how the number of the other persons found reflected in the same. Further the analysis of the location chart of St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 79 the mobile phone No. 9045201176 being used by the accused Brij Kishore establishes his location in the area where the incident of kidnapping of the child took place and the route taken by the accused in reaching to Etawa from Delhi right from the date of kidnapping of the child, till the date of his recovery.
(72) It stands established from the electronic evidence on record that all the accused namely Dal Chand, Brij Kishore and Manish Chand were in constant contact with each other. In view of the above I hereby hold that the electronic evidence independently corroborates, confirms and connects the accused Dal Chand, Raj Kishore and Manish Chand with the offence and is also compatible with the route which the accused Raj Kishore and Manish had taken from Delhi (place of kidnapping) to Etawa (place where the child was taken) where they kept the kidnapped child with them i.e. from Azadpur to Model TownII then to Brijpuri and finally Etawa (details of which are reflected in the above tables). This electronic evidence also confirms that Dal Chand who was the grandson in relation to Dharambir the father of the child, was the one who was in close contact with both Dharambir and the accused Raj Kishore (his own mama) thereby confirming that he was keeping a watch over the activities of Dharamber and conveying the same to Raj Kishore at Etawa from where the ransom calls were being made by the other accused. The defence has not been able to successfully demolish the case put forth by the prosecution as aforesaid.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 80 Criminal Conspiracy:
(73) The case of the prosecution is that all the accused i.e. Dal Chand, Raj Kishore and Manish Chand along with their coaccused Sanjay Yadav (juvenile) entered into / hatched a criminal conspiracy to kidnap the child 'P' aged about 6 years for ransom pursuant to which on 11.7.2011 at about 5:00 PM the accused Dal Chand who was known to the child previously being related to his father, lured the child 'P' on the pretext that his mother was calling him and then took him to an unknown place where he handed over to his coaccused Raj Kishore, Sanjay and Manish Chand who took the child to Etawa. Pursuant to the criminal conspiracy after kidnapping of the child the accused Dal Chand himself remained in Delhi and watched the activities of Dharambir and passed on the information to his coaccused Raj Kishore who was his mama and Sanjay who were at Etawa (village Chakwan Khurd) where the child had been confined / detained and from where the calls for ransom were made by the accused to Dharambir. On the other hand the Ld. Defence Counsel has vehemently argued that there nothing on record which could show the existence of prior meeting of mind between the accused persons.
(74) I have considered the rival contentions. At the very outset I may observe that since conspiracy is the primary charge against the accused, we first advert to the law of conspiracy - its definition, essential features and proof.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 81 (75) Section 120A IPC defines "criminal conspiracy" as under: "Definition of criminal conspiracy When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
(76) It is clear from the above noted definition of "criminal conspiracy" that the three essential elements of offence of conspiracy are
(a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished; (b) a plan or scheme embodying means to accomplish that object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means. Thus, the gist of offence of criminal conspiracy is an agreement to break the law. (77) Sections 120A and 120B were brought on the statute book by way of Criminal Law Amendment Act, 1913. Earlier to the introduction of Sections 120A and 120B, conspiracy perse was not an St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 82 offence under the Indian Penal Code except in respect of the offence mentioned in Section 121A. In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law...." Thus, Sections 120A & 120B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable.
(78) Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under: "10. Things said or done by conspirator in reference to common design:Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
(79) Thus, the substantive section of the IPC i.e. Section 120A adumbrated thereon Section 10 of the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof. (80) After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 83 out as under: (A) When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement.
There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (State v Nalini (1999) 5 SCC 253) (B) The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 84 unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (Yash Pal Mittal v State of Punjab AIR 1977 SC 2433 and State v Nalini (1999) 5 SCC 253) (C) It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.
(D) The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 85 by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (Shivnarayan Laxminarayan Joshi v State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v State AIR 1988 SC 1883) (E) A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 86 is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and viceversa.
(F) Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the coconspirators. In short, the section can be analyzed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a coconspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh v State of Maharashtra AIR 1957 SC 747).
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 87 (81) As discussed in the foregoing paras, more often than not, the prosecution would adduce circumstantial evidence to prove the charge of conspiracy. [Ref.: State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 ].
(82) Applying the settled principles of law to the facts of the present case, I may observe that the evidence which has come on record confirms Firstly the accused Dal Chand was previously known to the victim / child and his father Dharambir being a distinct relations and had confidence of the child. Secondly from the statement of the child / victim 'P' (finding due corroboration from his earlier statement under Section 164 Cr.P.C.) which statement has not been controverted/ rebutted at all that it was the accused Dal Chand who called out to the child on the pretext that his mother was calling him after which he took him to an unknown place and handed him over to three other persons i.e. Sanjay, Manish and one another person (i.e. accused Raj Kishore who is the mama of the accused Dal Chand) who all then took the child to Etawa in a bus. Thirdly the electronic evidence on record establishes that all the accused were in constant contact with each other not only on the date of incident but also prior to that which indicates and establishes their close association and prior meeting of mind between them. Fourthly the electronic record also confirms the route taken by the St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 88 accused persons while shifting the kidnapped child to Etawa (as already discussed herein above while considering the electronic evidence). Fifthly initially the investigating agency was not aware about the details of the persons involved in the kidnapping of the child and it was only when the numbers from which the ransom calls were being made and also the number of the father of the victim were put on surveillance and examined that it transpired that there was one number which was common in both the call details and it is this which roused the suspicion of the Investigating Agency and when this number was shown to Dharambir (father of the victim) that it was revealed that it belonged to the accused Dal Chand. It is this which provided a lead to the Investigating Agency and the child was recovered and accused Dal Chand and Raj Kishore were arrested at the spot. The electronic record confirms the disclosure statements made by the accused persons and confirms the existence of conspiracy i.e. prior meeting of mind and pre planning and it was also revealed that the accused Raj Kishore was the maternal uncle (mama) of the accused Dal Chand and because they were in acute need of money, they along with Sanjay and Manish Chand who were known to Raj Kishore planned the kidnapping of the child 'P' and demanded ransom from his father Darambir by confining / detaining the child at village Chakwan Khurd and executing threats to Dharambir of causing death of his child 'P' in case if he did not accede to their demands and by their conduct gave rise to reasonable apprehension in the mind of St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 89 Dharambir that they may put his son / child 'P' to death and this they did in order to compel Dharambir to accede to their ransom demand. Lastly the manner in which the offence has been committed confirms due deliberations and planning pursuant to which the child who was known to Dal Chand was first lured by Dal Chand into accompanying him on the pretext that his mother was calling him and then took him to an unknown place where he handed over the child to Raj Kishore, Manish Chand and Sanjay (juvenile) after which the child was taken to Etawa in a bus and then kept in confinement / detention in the house of Manish Chand at village Chakwan Khurd with the accused keeping a watch over the child, while the demands of ransom were being made to the mobile of Dharambir the father of the child is sufficient evidence to confirm the prior meeting of mind and planning between the accused persons and existence of criminal conspiracy between them. (83) Therefore, in view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Dal Chand, Raj Kishore and Manish Chand of having hatched a criminal conspiracy to kidnap the child 'P' for ransom. Arrest of the accused and recovery of mobile phones:
(84) The case of the prosecution is that on 12.7.2011 after receiving the missing report, the police made efforts to trace out the missing child 'P' but could not trace him. On 14.07.2011 the complainant St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 90 Dharamvir came to the police station and informed him that he had received a call on his mobile bearing no. 9953716681 on 13.07.2011 at around 8.00PM from number 9058435350 from an unknown person that the child was with them and in case if he wanted to keep child alive he should pay them the ransom of Rs. Twenty Lacs. Dharambir further informed that on 14.07.2011 at about 1.00PM he again received a ransom call from another mobile bearing no. 9528839799 and on 14.07.2011 at about 8.40PM he received another call from the same number and had spoken to his child on the said number. The Call Details Record was obtained and it was revealed that the said calls were being made from Etawa, UP and one of the numbers i.e. 9990834556 was constantly in touch with the complainant as well as the person who had called on 13.07.2011 and on inquiry from Dharambir it was revealed that said number belongs to Dal Chand who was the grandson in relation of Dharambir (father of the child). Thereafter the police reached the Jhuggi of Dal Chand but could not found him and they came to know that Dal Chand had gone to his native village i.e. village near Mainpuri and had relatives in Etawa, U.P. A raiding team was constituted consisting of Inspector Arvind Pratap Singh, Ct. Amit, Ct. Mehandi Hassan, ASI Shashi Kumar, SHO Virender Kadyan and Ct. Rahul Tyagi and they all left for Etawa after leaving a message for Dharambir at the Police Station to meet them at Etawa. On 16.07.2011 the police party reached at Police Station Basrehar, Etawa where they made DD entry regarding their St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 91 arrival and complainant Dharambir also met them there after which the local police officials i.e. SI Deep Kumar, Ct. Ramesh Kumar, SI Shyam Lal, Ct Mohd. Ahmed and two or three more persons were joined after which they left the Police Station for village Chakwan Khurd. On the way a secret informer met the police party who informed them that a child had been kidnapped from Delhi and brought to the village Chakwan Khurd on which they all reached the village Chakwan Khurd where the informer pointed out the house of Manish Yadav but before they could reach to the said house they noticed that one boy was sitting outside the house and on seeing them immediately ran inside a house.
On getting suspicious the police party followed him into the house and found that on the room at the first floor they apprehended the accused Dal Chand and the victim child 'P' was found inside another room along with the accused Raj Kishore. Thereafter both the accused i.e. Dal Chand and Raj Kishore were arrested. Accused Dal Chand thereafter took the police to the house of Sanjay Yadav from where the accused Sanjay Yadav was apprehended and arrested. Thereafter they all returned back to Delhi and on 17.07.2011 in the morning all the three accused persons were interrogated and they disclosed their involvement in the kidnapping of the child 'P' which disclosure statements of the accused Dal Chand, Raj Kishore and Sanjay Yadav are Ex.PW11/A, Ex.PW11/B and Ex.PW11/C. On 19.07.2011 pursuant to his disclosure statement the accused Dal Chand got recovered a mobile phone make St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 92 NOKIA1616 containing a SIM of Idea bearing number 9990834556 from the suitcase lying in his Jhuggi, which mobile phone was seized vide memo Ex.PW11/D. Again on 20.7.2011 the police team reached village Chakwan Khurd Distt. Etawa UP along with accused Sanjay Yadav (Juvenile) and pursuant to his disclosure statement the accused Sanjay Yadav got recovered two mobile phones from his house from a black coloured box i.e. one mobile make LAVA containing the SIM bearing no. 9528839799 from which the ransom call had been made and another mobile make GFive having a SIM bearing no. 9045201176 which the accused Sanjay disclosed to be belonging to accused Raj Kishore. Thereafter both the mobile phones were seized vide memo Ex.PW11/E. On the same day while the police party were going to the railway station and reached near Subzi Mandi, accused Sanjay Yadav pointed out towards the accused Manish Chand who was then arrested and from his personal search one mobile phone having the words i18 written on the same with SIM of number 9627469605 was recovered from which the accused Manish used to talk to his other associates after which the mobile was seized vide Ex.PW11/I. (85) In this regard the prosecution has placed its reliance on the testimonies of Ct. Mehandi Hassan (PW11) and Inspector A.P. Singh (PW16) which finds due corroboration from the testimony of police officers of Uttar Pradesh Police i.e. HC Ram Chander (PW13), SI Deep St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 93 Kumar (PW14) and Ct. Ramesh (PW15) who have proved the various entries in their Roj Namcha and have also proved the arrest of the accused persons and the recovery of the child. They have also identified the accused persons in the Court. All the aforesaid witnesses have been crossexamined by the Ld. Defence Counsel at length but nothing much has come out of the same and all the said witnesses have corroborated each other on the material aspects. Form a joint reading of the testimonies of aforesaid witnesses, the following aspects stands established:
➢ That on 12.07.2011 at about 4.30PM complainant Dharambir came to the police station and informed that that his son namely 'P' was missing since 5.00PM on 11.07.2011 on which his statement was recorded and the present case was registered. ➢ That efforts were made to search for the missing child but he could not be traced.
➢ That on 14.07.2011 the complainant Dharamvir came to the police station and informed that he had received a call on his mobile bearing no. 9953716681 on 13.07.2011 at around 8.00PM from number 9058435350 from an unknown person stating that the child was with them and threatening that in case if he wanted to keep child alive he should pay them the ransom of Rs. Twenty Lacs.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 94 ➢ That Dharambir further informed the police that on 14.07.2011 at about 1.00PM he again received a ransom call from another mobile bearing no. 9528839799, wherein the caller threatened to kill his child in case he informed the police or anybody else. ➢ That the complainant Dharambir also informed the police that on 14.07.2011 at about 8.40PM he received another call from the same number and had spoken to his child on the said number and also told the caller that they should decrease the amount of the ransom and give him threefour days' time on which caller had given him two days' time to arrange for the money.
➢ That supplementary statement of Dharambir was recorded and the call detail records of the numbers which Dharambir had given to him were obtained and analyzed.
➢ That from the call detail record it was revealed that the said calls were being made from Etawa, UP and one of the numbers i.e. 9990834556 was constantly in contact with the complainant as well as the person who had called on 13.07.2011.
➢ That on inquiry from Dharambir about the above number i.e. 9990834556 it was revealed that said number belonged to one Dal Chand who was grandson in relation to him (Dharambir). ➢ That the police reached the Jhuggi of Dal Chand along with Dharambir but could not found him and they came to know that Dal Chand had gone to his native village i.e. village near Mainpuri St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 95 and had relatives in Etawa, U.P. ➢ That on 16.07.2011 the police party comprising of Inspector Arvind Pratap Singh, Ct. Amit, Ct. Mehandi Hassan, ASI Shashi Kumar, SHO Virender Kadyan and Ct. Rahul Tyagi reached at Police Station Basrehar, Etawa where they made DD entry regarding their arrival and complainant Dharambir also met them there.
➢ That thereafter they constituted a raiding party and joined local police officials i.e. SI Deep Kumar, Ct. Ramesh Kumar, SI Shyam Lal, Ct Mohd. Ahmed and two or three persons in their raiding party after which at 4.35PM they left the Police Station for Chakwan Khurd.
➢ That as soon as they reached near petrol pump they met a secret informer who informed them that a child had been kidnapped from Delhi and brought to village Chakwan Khurd and if raided immediately the life of the child could be saved. ➢ That the Investigating Officer made a request to two or three passersbyes to join the police party but they refused and went away without disclosing their names and address after which without wasting any time they reached at the outskirts of village Chakwan Khurd and parked their vehicles outside the village. ➢ That the secret informer told them that the child was in the house of Manish Yadav after which they went towards the house of St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 96 Manish Yadav but before they could reach to his house they noticed that one boy who was sitting outside the house on seeing them immediately ran inside a house.
➢ That on getting suspicious the police party followed the said boy into the house and found that accused Dal Chand was standing on the first floor outside the room.
➢ That when the police party went inside the said room they found the victim child 'P' inside and the accused Raj Kishore was present there.
➢ That on inquiries from the accused the police came to know that there was one more boy with them namely Sanjay Yadav who had gone away to his house and the boy who was keeping a watch outside the house was Manish Yadav who had run away. ➢ That thereafter both the accused Dal Chand and Raj Kishore were arrested in this case.
➢ That the accused Dal Chand then took the police party to the house of Sanjay Yadav (juvenile) from where the accused Sanjay Yadav was apprehended and arrested.
➢ That on 16.07.2011 the police party started for Delhi where they reached on 17.07.2011 in the morning where all the three accused persons were interrogated and their disclosure statements were recorded.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 97 ➢ That on 19.07.2011 pursuant to his disclosure statement the accused Dal Chand led the police party to this Jhuggi and got recovered a mobile phone make NOKIA1616 containing a SIM of Idea bearing number 9990834556 from the suitcase of his jhuggi, which mobile phone was thereafter seized.
➢ That on the intervening night of 1920.07.2011 the Investigating Officer A.P. Singh alongwith Ct. Amit Kumar, Ct. Mehandi Hassan and accused Sanjay Yadav left for village Chakwan Khurd Distt. Etawa UP and reached Police Station Basrehar on 20.07.2011.
➢ That after making their entry, the Delhi Police then joined the local police in the police party and left for village Chakwan Khurd.
➢ That the accused Sanjay Yadav led the police party to his house from where he got recovered two mobile phones from a black coloured box i.e. one mobile make LAVA containing the SIM bearing no. 9528839799 from which the ransom call had been made and another mobile of GFive having a SIM bearing no. 9045201176 which the accused Sanjay disclosed to be belonging to Raj Kishore on which he used to talk to accused Raj Kishore and from which Raj Kishore used to speak to Dal Chand. ➢ That both the aforesaid mobile phones were thereafter seized after which they returned to the police station and made their arrival/ St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 98 wapsi entry.
➢ That while the police party was going to the railway station and reached near Subzi Mandi, accused Sanjay Yadav pointed out towards the accused Manish Yadav who was apprehended and arrested.
➢ That from the personal search of the accused one mobile phone having the words i18 containing the SIM bearing No. 9627469605 was recovered and the accused disclosed that from the said phone he used to talk to his other associates on which the mobile phone was seized.
(86) In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Dal Chand, Raj Kishore and Manish Chand of having conspired to kidnap the child 'P' from Azadpur, Delhi and of taking him to Etawa where he was confined / kept in detention in the house of Manish Chand and of making ransom calls to Dharambir the father of the child who was threatened that they would cause death of the child 'P' in case if he did not accede to their demands and by their conduct gave rise to reasonable apprehension in the mind of Dharambir that his son shall be put to death in order to compel him to accede to their demand. Further, the arrest of the accused and the recoveries of the various mobile phones at the instance of the accused persons have also been proved beyond reasonable doubt and I hereby hold all the accused i.e. Dal Chand, Raj Kishore and St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 99 Manish Chand guilty of the offence under Section 364A read with 120B Indian Penal Code.
FINAL CONCLUSION:
(87) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(88) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 100 prepared in the present case have been substantially proved by the police witnesses. On the basis of the testimonies of the various witnesses particularly the child and his father and also on the basis of electronic evidence on record, the following facts stand established:
➢ That on 11.07.2011 at about 5:00 PM the child / victim 'P' aged about 6 years had gone to play outside his house but did not return back.
➢ That Dharambir the father of the child 'P' tried to search his son but could not trace him and on 12.07.2011, he went to Police Station Adarsh Nagar and lodged a missing report. ➢ That on 13.07.2011 at about 8:00 PM Dharambir received a telephone call on his mobile 9953716681 but same was disconnected after which he dialed on the said number i.e. 9058435350 and the receiver told him that he has kidnapped his son 'P' and if he wanted his son back, he has to pay a sum of Rs. 20 lakh as firauti or else they would kill his son (Tumhare Bachche 'P' ka apharam humne kar liya hai. Yadi tum apne bachche 'P' ko surakshit chahte ho toh Bees lakh ki firauti deni hogi. Agar firauti hahin doge, toh humhare bachche ko maar denge). ➢ That on 14.07.2011 at about 1.00 PM Dharambir again received a telephone call from mobile number 95218839799 on his mobile and the caller asked for the ransom money (Rupyon ka intezam St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 101 huwa ya nahin) on which he told the caller to give him some time for arranging the amount on which the caller threatened him (witness) that in case if he could not arrange the amount of Rs. 20 lakh they would kill his son 'P' (Agar Bees lakh rupey se kam huwe toh bachche ko maar denge).
➢ That on the same day i.e. 14.7.2011 at about 8:40 PM the caller again telephoned Dharambir form the subsequent mobile number i.e. 9528839799 and make him talk with his son 'P' and again threatened him that if Rs. Twenty Lacs were not arranged in some days they would kill his son (Yadi Kuchh Din ke Andar Bees Lakh Ka intezam Nahin huwa Toh Tumhare Ladke Ko Jaan Se Maar Denge).
➢ That on 15.07.2011 at about 6:20 PM he again received a call from mobile no. 9528839799 and the caller asked him about the arrangement of money on which he told him that some amount had been arranged and prayed for one or two days time to arrange the balance amount after which the call was disconnected. ➢ That Dharambir informed the police about the said ransom calls and the supplementary statement of Dharambir was recorded after which the call detail records of the numbers which Dharambir had given to the police were obtained and analysed. ➢ That from the call detail record it was revealed that the said calls were being made from Etawa, UP and one of the numbers i.e. St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 102 9990834556 was constantly in contact with the complainant as well as the person who had called on 13.07.2011. ➢ That on inquiry from Dharambir about the above number i.e. 9990834556 it was revealed that said number belonged to one Dal Chand who was grandson in relation to him (Dharambir). ➢ That the police reached the Jhuggi of Dal Chand along with Dharambir but could not found him and they came to know that Dal Chand had gone to his native village i.e. village near Mainpuri and had relatives in Etawa, U.P. ➢ That on 16.07.2011 the police party comprising of Inspector Arvind Pratap Singh, Ct. Amit, Ct. Mehandi Hassan, ASI Shashi Kumar, SHO Virender Kadyan and Ct. Rahul Tyagi reached at Police Station Basrehar, Etawa where they made DD entry regarding their arrival and complainant Dharambir also met them there.
➢ That thereafter they constituted a raiding party and joined local police officials i.e. SI Deep Kumar, Ct. Ramesh Kumar, SI Shyam Lal, Ct Mohd. Ahmed and two or three persons in their raiding party after which at 4.35PM they left the Police Station for Chakwan Khurd.
➢ That as soon as they reached near petrol pump they met a secret informer who informed them that a child had been kidnapped from Delhi and brought to village Chakwan Khurd and if raided St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 103 immediately the life of the child could be saved. ➢ That the Investigating Officer made a request to two or three passersbyes to join the police party but they refused and went away without disclosing their names and address after which without wasting any time they reached at the outskirts of village Chakwan Khurd and parked their vehicles outside the village. ➢ That the secret informer informed them that the child was in the house of Manish Yadav after which they went towards the house of Manish Yadav but before they could reach to his house they noticed that one boy who was sitting outside the house on seeing them immediately ran inside a house.
➢ That on getting suspicious the police party followed the said boy into the house and found that accused Dal Chand was standing on the first floor outside the room.
➢ That when the police party went inside the said room they found the victim child 'P' inside and the accused Raj Kishore was present there.
➢ That on inquiries from the accused the police came to know that there was one more boy with them namely Sanjay Yadav who had gone away to his house and the boy who was keeping a watch outside the house was Manish Yadav who had run away. ➢ That thereafter both the accused Dal Chand and Raj Kishore were arrested in this case.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 104 ➢ That the accused Dal Chand then took the police party to the house of Sanjay Yadav (Juvenile) from where the accused Sanjay Yadav was apprehended and arrested.
➢ That on 16.07.2011 the police party started for Delhi where they reached on 17.07.2011 in the morning where all the three accused persons were interrogated and their disclosure statements were recorded.
➢ That on 19.07.2011 pursuant to his disclosure statement the accused Dal Chand led the police party to this Jhuggi and got recovered a mobile phone make NOKIA1616 containing a SIM of Idea bearing number 9990834556 from the suitcase of his jhuggie, which mobile phone was thereafter seized.
➢ That on the intervening night of 1920.07.2011 the Investigating Officer A.P. Singh alongwith Ct. Amit Kumar, Ct. Mehandi Hassan and accused Sanjay Yadav left for village Chakwan Khurd Distt. Etawa UP and reached Police Station Basrehar on 20.07.2011.
➢ That after making their entry, the Delhi Police then joined the local police in the police party and left for village Chakwan Khurd.
➢ That the accused Sanjay Yadav led the police party to his house from where he got recovered two mobile phones from a black coloured box i.e. one mobile make LAVA containing the SIM St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 105 bearing no. 9528839799 from which the ransom call had been made and another mobile of GFive having a SIM bearing no. 9045201176 which the accused Sanjay disclosed to be belonging to Raj Kishore on which he used to talk to accused Raj Kishore and from which Raj Kishore used to speak to Dal Chand. ➢ That both the aforesaid mobile phones were thereafter seized after which they returned to the police station and made their arrival/ wapsi entry.
➢ That while the police party was going to the railway station and reached near Subzi Mandi, accused Sanjay Yadav pointed out towards the accused Manish Yadav who was apprehended and arrested.
➢ That from the personal search of the accused one mobile phone having the words i18 containing the SIM bearing No. 9627469605 was recovered and the accused disclosed that from the said phone he used to talk to his other associates on which the mobile phone was seized.
(89) The child / victim 'P' has identified the accused Dal Chand, Raj Kishore and Manish Chand as the persons who had kidnapped him. Further, the electronic evidence independently corroborates and connects the accused with the offence and is also compatible with the time which the accused could have taken in reaching to Etawa where they kept the kidnapped child with them.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 106 (90) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (91) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(92) This being the background, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Dal Chand, Raj Kishore and Manish Chand of having conspired to kidnap the child 'P' from Azadpur, Delhi and of taking him to Etawa where he was confined / kept in detention in the house of St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 107 Manish Chand and of making ransom calls to Dharambir the father of the child who was threatened that they would cause death of the child 'P' in case if he did not accede to their demands and by their conduct gave rise to reasonable apprehension in the mind of Dharambir that his son shall be put to death in order to compel him to accede to their demand which aspects have been established beyond reasonable doubt for which I hold the accused Dal Chand, Raj Kishore and Manish Chand guilty of the offence under Section 364A read with 120B Indian Penal Code and convicted them accordingly.
(93) Be listed for arguments on sentence on 10.7.2013.
Announced in the open court (Dr. KAMINI LAU)
Dated: 8.7.2013 ASJ (NW)II: ROHINI
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 108
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 63/2013 Unique Case ID No.: 02404R0293542011 State Vs. (1) Dal Chand S/o Hari Singh R/o N25, B/204, Lal Bagh, Delhi. (Convicted) (2) Raj Kishore S/o Ram Prakash R/o Village Chakwan Khurd, PS Basrehar, Distt. Etawa, U.P. (Convicted) (3) Manish Chand S/o Anokhe Lal Yadav R/o Village Chakwan Khurd, PS Basrehar, Distt. Etawa, U.P. (Convicted) (4) Sanjay Yadav S/o Ranvir Singh R/o Village Chakwan Khurd, PS Basrehar, Distt. Etawa, U.P. (Juvenile) FIR No.:: 179/11 Under Section: 363/364A/120B/34 Indian Penal Code. Police Station: Adarsh Nagar St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 109 Date of Conviction: 8.7.2013 Arguments heard on: 10.7.2013/ 12.7.2013 Date of Sentence: 16.7.2013 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
All the three convicts are in Judicial Custody with Sh. Rajneesh Antil Advocate / Amicus Curiae.
ORDER ON SENTENCE:
As per the allegations, on or before 11.7.2011 the accused Dal Chand, Raj Kishore and Manish Chand along with their coaccused Sanjay Yadav (Juvenile) entered into a criminal conspiracy to kidnap 'P' for ransom pursuant to which on 11.7.2011 at about 5:00 PM they kidnapped the child 'P' aged about 6 years from Jhuggi No. E15, Lal Bagh, Azad Pur, Delhi and made a ransom call demanding Rs. Twenty Lacs which in case if not paid 'P' would be killed.
The child 'P' and his father Dharambir have appeared before the Court and proved the specific allegations against the accused persons. On the basis of the statement of the child witness 'P' and his father Dharambir and also on the basis of the electronic evidence on record, this Court vide a detail judgment dated 8.7.2013 held all the accused namely Dal Chand, Raj Kishore and Manish Chand guilty of the offence St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 110 under Section 364A read with 120B Indian Penal Code.
It has been observed by this Court that it stands established that on 11.07.2011 at about 5:00 PM the child / victim 'P' aged about 6 years had gone to play outside his house but did not return back; that Dharambir the father of the child 'P' tried to search his son but could not trace him and on 12.07.2011, he went to Police Station Adarsh Nagar and lodged a missing report; that on 13.07.2011 at about 8:00 PM Dharambir received a telephone call on his mobile 9953716681 but same was disconnected after which he dialed on the said number i.e. 9058435350 and the receiver told him that he has kidnapped his son 'P' and if he wanted his son back, he has to pay a sum of Rs. 20 lakh as firauti or else they would kill his son (Tumhare Bachche 'P' ka apharam humne kar liya hai. Yadi tum apne bachche Prince ko surakshit chahte ho toh Bees lakh ki firauti deni hogi. Agar firauti hahin doge, toh humhare bachche ko maar denge); that on 14.07.2011 at about 1.00 PM Dharambir again received a telephone call from mobile number 95218839799 on his mobile and the caller asked for the ransom money (Rupyon ka intezam huwa ya nahin) on which he told the caller to give him some time for arranging the amount on which the caller threatened him (witness) that in case if he could not arrange the amount of Rs. 20 lakh they would kill his son 'P' (Agar Bees lakh rupey se kam huwe toh bachche ko maar denge); that on the same day i.e. 14.7.2011 at about 8:40 PM the caller again telephoned Dharambir form the subsequent St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 111 mobile number i.e. 9528839799 and make him talk with his son 'P' and again threatened him that if Rs. Twenty Lacs were not arranged in some days they would kill his son (Yadi Kuchh Din ke Andar Bees Lakh Ka intezam Nahin huwa Toh Tumhare Ladke Ko Jaan Se Maar Denge); that on 15.07.2011 at about 6:20 PM Dharambir again received a call from mobile no. 9528839799 and the caller asked him about the arrangement of money on which he told him that some amount had been arranged and prayed for one or two days time to arrange the balance amount after which the call was disconnected.
It has also been established that Dharambir informed the police about the said ransom calls and the supplementary statement of Dharambir was recorded after which the call detail records of the numbers which Dharambir had given to the police were obtained and analyzed; that from the call detail record it was revealed that the said calls were being made from Etawa, UP and one of the numbers i.e. 9990834556 was constantly in contact with the complainant as well as the person who had called on 13.07.2011; that on inquiry from Dharambir about the above number i.e. 9990834556 it was revealed that said number belonged to one Dal Chand who was grandson in relation to him (Dharambir); that the police reached the Jhuggi of Dal Chand along with Dharambir but could not found him and they came to know that Dal Chand had gone to his native village i.e. village near Mainpuri and had relatives in Etawa, U.P. St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 112 It further stands established that on 16.07.2011 the police party comprising of Inspector Arvind Pratap Singh, Ct. Amit, Ct. Mehandi Hassan, ASI Shashi Kumar, SHO Virender Kadyan and Ct. Rahul Tyagi reached at Police Station Basrehar, Etawa where they made DD entry regarding their arrival and complainant Dharambir also met them there; that thereafter they constituted a raiding party and joined local police officials i.e. SI Deep Kumar, Ct. Ramesh Kumar, SI Shyam Lal, Ct Mohd. Ahmed and two or three persons in their raiding party after which at 4.35PM they left the Police Station for Chakwan Khurd; that as soon as they reached near petrol pump they met a secret informer who informed them that a child had been kidnapped from Delhi and brought to village Chakwan Khurd and if raided immediately the life of the child could be saved; that the Investigating Officer made a request to two or three passersbyes to join the police party but they refused and went away without disclosing their names and address after which without wasting any time they reached at the outskirts of village Chakwan Khurd and parked their vehicles outside the village; that the secret informer informed them that the child was in the house of Manish Yadav after which they went towards the house of Manish Yadav but before they could reach to his house they noticed that one boy who was sitting outside the house on seeing them immediately ran inside a house; that on getting suspicious the police party followed the said boy into the house and found that accused Dal Chand was standing on the first floor St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 113 outside the room; that when the police party went inside the said room they found the victim child 'P' inside and the accused Raj Kishore was present there; that on inquiries from the accused the police came to know that there was one more boy with them namely Sanjay Yadav who had gone away to his house and the boy who was keeping a watch outside the house was Manish Yadav who had run away; that thereafter both the accused Dal Chand and Raj Kishore were arrested in this case; that the accused Dal Chand then took the police party to the house of Sanjay Yadav (Juvenile) from where the accused Sanjay Yadav was apprehended and arrested; that on 16.07.2011 the police party started for Delhi where they reached on 17.07.2011 in the morning where all the three accused persons were interrogated and their disclosure statements were recorded.
It also stands established that on 19.07.2011 pursuant to his disclosure statement the accused Dal Chand led the police party to this Jhuggi and got recovered a mobile phone make NOKIA1616 containing a SIM of Idea bearing number 9990834556 from the suitcase of his jhuggie, which mobile phone was thereafter seized; that on the intervening night of 1920.07.2011 the Investigating Officer A.P. Singh alongwith Ct. Amit Kumar, Ct. Mehandi Hassan and accused Sanjay Yadav left for village Chakwan Khurd Distt. Etawa UP and reached Police Station Basrehar on 20.07.2011; that after making their entry, the Delhi Police then joined the local police in the police party and left for St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 114 village Chakwan Khurd; that the accused Sanjay Yadav led the police party to his house from where he got recovered two mobile phones from a black coloured box i.e. one mobile make LAVA containing the SIM bearing no. 9528839799 from which the ransom call had been made and another mobile of GFive having a SIM bearing no. 9045201176 which the accused Sanjay disclosed to be belonging to Raj Kishore on which he used to talk to accused Raj Kishore and from which Raj Kishore used to speak to Dal Chand; that both the aforesaid mobile phones were thereafter seized after which they returned to the police station and made their arrival/ wapsi entry; that while the police party was going to the railway station and reached near Subzi Mandi, accused Sanjay Yadav pointed out towards the accused Manish Yadav who was apprehended and arrested; that from the personal search of the accused one mobile phone having the words i18 containing the SIM bearing No. 9627469605 was recovered and the accused disclosed that from the said phone he used to talk to his other associates on which the mobile phone was seized.
It has also been observed by this Court that the child / victim 'P' has identified the accused Dal Chand, Raj Kishore and Manish Chand as the persons who had kidnapped him and the electronic evidence independently corroborates and connects the accused with the offence and is also found compatible with the time which the accused could have taken in reaching to Etawah where they kept the kidnapped child with St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 115 them.
This being the background, it has been held by this Court that the prosecution has been able to prove and substantiate the allegations against the accused Dal Chand, Raj Kishore and Manish Chand of having conspired to kidnap the child 'P' from Azadpur, Delhi and of taking him to Etawah where he was confined / kept in detention in the house of Manish Chand and of making ransom calls to Dharambir the father of the child who was threatened by the accused that they would cause death of the child 'P' in case if he did not accede to their demands and by their conduct gave rise to reasonable apprehension in the mind of Dharambir that his son shall be put to death in order to compel him to accede to their demand which aspects have been established beyond reasonable doubt for which the accused Dal Chand, Raj Kishore and Manish Chand have been held guilty of the offence under Section 364 A read with 120B Indian Penal Code and accordingly convicted.
I have heard arguments on the point of sentence. The convict Dal Chand is stated to be a young boy of 21 years having a family comprising of parents, two sisters and two younger brothers. He is 8th class pass and is a labour by profession. The convict Raj Kishore is stated to be a young boy of 22 years having a family comprising of parents, two brothers and two elder sisters. He is totally illiterate and is a labour by profession. The convict Manish Chand is stated to be a St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 116 young boy of 25 years having a family comprising of parents, three brothers, one elder sister, wife and two daughters. He is 7th class pass and was doing a private job in Mathura.
The Ld. Defence Counsel has vehemently argued that all the convicts are young boys and are first time offenders having no previous criminal involvements. He further submits that the convicts belong to very poor families and are helping hands of their respective families. He requests that a lenient view be taken against all the convicts.
On the other hand the Ld. Addl. Public Prosecutor has prayed that a stern view be taken against the convicts keeping in view the allegations involved and the fact that the child 'P' was aged about 6 years at the time of the incident.
I have considered the submissions made before me and I may note that the Hon'ble Apex Court has in the case of Rajiv Vs. State of Rajasthan [1996 A.I.R. (SC) 787]: [1995(4) Crimes 695]: [1996(2) S.C.C. 175]: [1995(8) J.T. 520] observed that:
"...... Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 117 any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
The Hon'ble Court has further observed that:
After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha Vs. State of Callifornia, (402 US 183 : 28 L.D. 2d 711) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In Dhananjoy Chatterjee Vs. State of W.B., 1994(3) RCR (Crl.) 359 (SC): 1994 (2) SCC 220, this Court St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 118 has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminal and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment ......"
Further, it has been held by the Hon'ble Apex Court in the case of Surjit Singh Vs. Nahara Ram & Anr. reported in 2004 (50) ACC 179(SC) that:
"......... Law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to new challengers and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermining social order and lay it in ruins. Protector of society and stamping out criminal proclivity must be object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 119 "order" should meet challenges confronting the society. In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system, to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc....."
The main object of the provisions of 364A Indian Penal Code is to prevent minor children from being seduced for improper purposes and also to protect the rights and privileges of the guardians having the lawful charge of custody of their minor wards. Kidnapping a child from the custody of his parents for ransom is a serious crime and no sympathy can be shown to a person who in his capacity as a servant/ employee has abused and exploited the trust so reposed upon him by the employer. Using a small/ helpless child as an instrument to extort money is the worst kind of offence.
As on date kidnapping has become a major problem facing our society. It is a profitable business specifically, if the victim is a small child belonging to a poor family. In the recent past Delhi has experienced a spurt and rise in the incidents of kidnapping and St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 120 exploitation of small children belonging to poor families for ransom, trafficking, beggary and human organs trade. Kidnapping is an offence against the society and the courts cannot shut their eyes to permit the guilty to get away with lighter punishments just because the existing statutory laws do not sufficiently cover various situations. Under these circumstances the courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges.
India's capital Delhi has one of the highest numbers of missing children and the country has no central data on the number of children who go missing or what has happened to them. In Delhi alone as many as 3,529 cases of kidnapping were reported during the year 2011 whereas in the year 2012 a total number of 3,675 cases of kidnapping were reported showing that there is a 4.14% rise in kidnapping cases. The data further reveals that seven children, mostly from extremely poor families, go missing every hour with a count of 165 a day and about 10% or 6,000 children who went missing were infants less than a year old. In an answer to a right to information question by an NGO Alliance for Peoples' Rights, the Delhi Police revealed that 2,161 children had been registered as missing in New Delhi in a span of 270 days in 2010 i.e. an average of eight children going missing every day of which 603 are yet to be traced. Outer Delhi topped the list with 1,090 St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 121 followed by NorthEast Delhi with 1,031. The Right to Information filed in January to ascertain the number of children gone missing from the capital places reveals Outer Delhi at the highest pedestal with an average of two children missing per day followed by Jahangir Puri, Aman Vihar, Sultanpuri areas. According to the National Human Rights Commission over 44,000 children go missing every year. The National Centre for Missing Children says there are 10 lacs runaways in India every year, that is, a child runs away from home every 30 seconds.
Serious is the problem and hence stringent should be the punishment. In the words of Mr. Justice A. Pasayat in the case of Siddarama and Ors. Vs. State of Karnataka [2006 IV AD (Crl.) SC 78] it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal while achieving the avowed object of law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be.
Coming to the case in hand, the only mitigating factor is that all the convicts are young boys whereas the aggravating factor is that the victim / child 'P' himself is aged seen years old and belong to a poor family. In fact the convict Dal Chand was previously known to the child / victim 'P' being his neighbour. Therefore, I award the following sentence to the convicts:
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 122
1. The convict Dal Chand is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/ for the offence under Section 364A read with 120B Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
Further, I award the following sentence to the convict Raj Kishore:
1. The convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/ for the offence under Section 364 A read with 120B Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
I also award the following sentence to the convict Manish Chand:
1. The convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/ for the offence under Section 364 A read with 120B Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 123
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period undergone by them during the trial as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 16.7.2013 ASJII(NW)/ ROHINI
St. Vs. Dal Chand Etc., FIR No.179/11, PS Adarsh Nagar Page No. 124