Delhi District Court
Dilshad Khan vs State on 4 January, 2013
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IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS): OUTER DISTRICT
ROHINI COURTS: DELHI
Criminal Appeal No.08/2012
Dilshad Khan ...Appellant
Versus
State ...Respondent
Date of Institution:21.03.2012
Date of conclusion of Arguments:21.12.2012
Date of pronouncement of Judgment:04.01.2013
AND
Criminal Appeal No.11/2012
Hari Chand ...Appellant
Versus
State ...Respondent
Date of Institution:14.03.2012
Date of conclusion of Arguments:21.12.2012
Date of pronouncement of Judgment:04.01.2013
Dilshad Khan Vs. State page1 of9
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JUDGMENT
1. This judgment shall decide two appeals bearing Nos.08/2012 and 11/2012 titled as Dilshad Khan Vs. State and Hari Chand Vs. State. Appellants are aggrieved by the judgment dated 22.02.2012 and order dated 24.02.2012 vide which they were held guilty u/s 365 IPC and 368 r.w.s. 365 IPC respectively and were directed to undergo simple imprisonment for four years each and to pay a fine of Rs.10,000/ and in default, they were directed to undergo SI for six months. For the sake of convenience, appellants are hereinafter referred to as accused.
2. Facts of the case are that Virender Singh aged about 1½ years was taken to the cote by his grandmother Dayawati on 25.09.1991. When she was putting fodder before the animals, somebody kidnapped the minor who was sleeping on the cot. The grandmother went to police station and got registered DD No.12A to the effect that when she was feeding the animals with fodder, somebody kidnapped her grandson. Further contents of the DD are that she had not seen anybody coming and going at that time in the cote. The police swung into action and recorded the statement of Urmila, mother of the minor. On her statement, case FIR was registered. She also stated that her son Virender Singh was taken by her mother in law in the cote on 25.09.1991 and from there, he Dilshad Khan Vs. State page2 of9 3 was kidnapped by someone when he was sleeping on the cot. She expressed suspicion that her son might have been kidnapped by his relatives, namely, Umed and Raj. Accused Dilshad Khan was the tenant of the complainant and he was absconding since 25.09.1991. When he returned to his rented house on 27.09.1991, he was arrested, made disclosure statement and got recovered the child from the house of accused Hari Chand.
3. In order to establish the case, police examined seven witnesses. PW1 Raj Kumar is the father of the kidnapped boy. He is witness to the disclosure statement Ex.PW1/A of accused Dilshad Khan and consequent recovery of the son vide memo Ex.PW1/B from the house of accused Hari Chand on 27.09.1991. PW2 Dayawati is the grandmother of the child whereas PW5 Urmila is the mother. PW3 Ct. Sukhbir was to depose about the disclosure statement and consequent recovery of the child. His examination in chief was deferred but did not appear thereafter. So, his evidence is not being taken into account. PW4 Jagdish Pant is the erstwhile owner of scooter No.DA13926 which he sold to accused Dilshad Khan in 1990 but still the ownership papers were in his name. PW6 had claimed u/s 161 Cr.PC that he had seen a person, namely, Mukesh (acquitted by the trial Court) on 25.09.1991 with the kidnapped boy at 2.10 P.M. He was declared hostile. After allowing of application u/s 311 Cr.PC for several witnesses, only Dilshad Khan Vs. State page3 of9 4 PW7 retired HC Inder Singh was examined who registered FIR Ex.PW7/A.
4. Ld. Counsels submitted that accused Hari Chand was held guilty u/s 368 IPC, Dilshad Khan u/s 365 whereas the third accused Mukesh was acquitted by the trial Court. Counsel for accused Dilshad Khan stated that PW2 and PW5 have improved a lot in their deposition as compared to their previous statements in writing in the form of DD No.12A and u/s 154 Cr.PC. It is pertinent to mention that PW2 had stated in DD No.12A that she was not aware by whom her grandson was kidnapped whereas PW5 had expressed apprehension in her statement u/s 154 Cr.PC that her son might have been kidnapped by her relatives Umed and Raj. In examination in chief, PW2 deposed at one place that accused Dilshad Khan kidnapped her grandson. At other place in examination in chief, she deposed that third accused Mukesh told her in police station that the boy was kidnapped by accused Dilshad Khan. PW5 stated in examination in chief that her son was kidnapped by accused Mukesh and Dilshad Khan. She was fully confronted with her statement Ex.PW5/A on this issue. She admitted it correct that she had stated before the police that her brother in law(Jija) Umed and Jeth Yograj might have kidnapped the son with whom they had property dispute. So, PW2 and PW5 have contradicted themselves with her previous statements in Dilshad Khan Vs. State page4 of9 5 writing. These are very vital contradictions, and hence, their examination in chief on this issue are not being taken into account. To the same effect is the finding of the trial Court.
5. Only other remaining evidence on the file as to who kidnapped the boy Virender Singh is the disclosure statement Ex.PW1/A and seizure memo Ex.PW1/B. PW1 Raj Kumar deposed that since the day of kidnapping i.e. since 25.09.1991, his tenant Dilshad Khan was found absconding. He returned to the rented house on 27.09.1991 and police was informed by his mother. He was arrested and made disclosure statement Ex.PW1/A. He led the police party to Dakshin Puri, Khanpur in a house bearing NO.D55 and pointed towards a quarter in which his brother in law accused Hari Chand and friend Mukesh were found in the company of his kidnapped son Virender. The son was found lying on the cot. Recovery memo Ex.PW1/B was prepared. Ld. Counsels for the accused assailed the testimony of this witness stating that PW1 deposed at one place in examination in chief that he along with police party reached Dakshin Puri at about 12.0012.30 noon and at other place, he stated that time as 1.00 - 2.00 P.M. The variation is only 11½ hours. PW1 has two daughters and one son. What shall be the mental state of the father whose only son had been kidnapped? In that agitated state of mind, he is not expected to see the watch at what time he reached Dakshin Puri. This Dilshad Khan Vs. State page5 of9 6 variation in time is quite natural one. Ld. Counsels further argued that PW1 deposed that scooter of accused Dilshad Khan was also taken into possession from the house of accused Hari Chand at the time of recovery of the son vide memo Ex.PW1/C. They drew the attention of the Court towards seizure memo Ex.PW1/C suggesting that the scooter was seized from the rented room of accused Dilshad Khan. Next, the attention of the Court is drawn towards the deposition of PW1 who stated that accused Mukesh was also arrested from house No.D55, Dakshin Puri whereas he was arrested on subsequent date. It is true that testimony of PW1 is not convincing on the issue of recovery of scooter from house No.D55 and arrest of the accused from there on 27.09.1991. But, other facts which going against accused Dilshad Khan are in his admission u/s 313 Cr.PC that he was the tenant of the complainant and had some dispute with him. Further corroboration is coming from his act of absconding from the day of kidnapping i.e. from 25.09.1991 till 27092001. His counsel argued that complainant wanted accused to vacate rented house for which he was not agreeing and that is why, he has been falsely implicated. This defence has not been taken u/s 313 Cr.PC. In answer to the last question, he had stated that he had some dispute with the complainant. Nature of dispute was not stated by him. Even if the contention of the defence counsel is taken into account, that Dilshad Khan Vs. State page6 of9 7 motive can actuate even accused Dilshad Khan to kidnap the boy. So, evidence against accused Dilshand Khan is the disclosure statement, subsequent recovery of the kidnapped boy, his abscondance from the rented house and his dispute with the complainant.
6. Counsel for accused Hari Chand argued that there is nothing on the file which may suggest that his client was aware of the fact that Virender Singh had been kidnapped. In support, he relied upon State Vs. Tapan Kumar Mandal 2012 (3) JCC 2205 DHC. In the present case, date of kidnapping is 25.09.1991 and boy was recovered on 27.09.1991. So, the kidnapped boy remained in the house of accused Hari Chand for two days. Other incriminating circumstance against him is that he is the brother in law of third accused Mukesh (acquitted by the trial Court). PW1 has deposed specifically when he reached to the house of accused in the company of police, accused Hari Chand as well as his son were found there. He deposed about another person Mukesh also. He did not state in examination in chief and was not cross examined by the accused if any other person was also present there at that time or not. In the cited case, the kidnapped child was not recovered from the house of the respondent and rather, he was recovered from the custody of coaccused when they were making a telephone call from an STD booth. At that time, respondent was not Dilshad Khan Vs. State page7 of9 8 with them. It was observed by the Hon'ble High Court that respondent's involvement surfaced only in the disclosure statement of the coaccused. Moreover, there was an observation by the trial Court on the testimony of the kidnapped child showing his reluctance to identify the respondent as the person in whose house he had been kept. Facts of the case in hand are entirely different from the cited case.
7. The last contention of the counsels is that there is no corroboration to the testimony of PW1 as the IO was not examined despite allowing of application u/s 311 Cr.PC by the trial Court. It is an admitted fact that IO and PW3 could not be examined completely. The counsel could not pin point any prejudice caused to their clients due to nonexamination of the IO. PW1 has deposed specifically that accused Dilshad Khan made a disclosure statement and got recovered the kidnapped boy vide disclosure statement Ex.PW1/A and recovery memo Ex.PW1/B.
8. The cumulative effect of above discussion is that judgment passed by the trial Court does not require any inference.
9. ld. Counsels argued that accused Dilshad Khan is of 40 yrs. and he has clean antecedents. He is to maintain four children and a wife. Accused Hari Chand is of 56 yrs. He has three sons and three daughters and all are unmarried. The counsels submitted that accused faced trial since 1991. Taking into account these submissions, order on sentence of the trial court, is modified to the extent that the appellants shall undergo SI for three years.
10. Appeal is disposed off in aforesaid terms. TCR be sent Dilshad Khan Vs. State page8 of9 9 back with copy of this order. Copy of the judgment be kept in the criminal appeal No.11/2012 also. Appeal file be consigned to Record Room.
Announced in the open Court On this 04th day of January, 2013.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
Outer Distt: Rohini Courts: Delhi
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