Delhi District Court
St. vs Sonu Etc. on 5 February, 2011
St. Vs Sonu etc.
FIR No.331/08, PS: Uttam Nagar
U/s 365/367/342/323/34 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI
SC No. : 259/1/10
State
Versus
1. Sonu
S/o Lala Ram
R/o B.41A, Som Bazar
Vikas Nagar, Uttam Nagar, Delhi.
2. Neeraj
S/o Ram Gopal
R/o C39, Som Bazar
Vikas Nagar, Uttam Nagar, Delhi.
Case arising out of :
FIR No. : 331/08
U/s : 365/367/342/323/34 IPC
P.S. : Uttam Nagar
Date of FIR : 17.09.2008
Date of Institution : 01.12.2008
Date of Final Arguments : 01.02.2011
Judgment reserved on : 01.02.2011
Date of judgment : 02.02.2011
S.C. No.259/1/10 Page 1 of 16
St. Vs Sonu etc.
FIR No.331/08, PS: Uttam Nagar
U/s 365/367/342/323/34 IPC
JUDGMENT
1. The case FIR no. 331/08, Under section 365/367/342/323/34 IPC, police station Uttam Nagar has been committed to the court of sessions for trial of the accused Sonu S/o Lala Ram and Neeraj S/o Ram Gopal.
2. Whereas the accused Sonu and Neeraj are facing the charges that on 19.07.2008 at about 02:00 PM at shop no.57, Tyagi Market, Vikas Nagar along with their 2/3 associates abducted Rajesh Parikh son of Tara Chand Parikh with intention to cause grievous hurt confined Rajesh Parikh.
PW6 Rajesh Parikh made a complaint that he was doing the work of property dealing and private security at office no. 57, Tyagi Market, Vikas Nagar. On 17.09.2008 at about 0202:30 PM, he along with his associate Sailesh were in his office. 45 boys came to his shop in a maruti van of white colour bearing registration no. DL6 CH 7045. Out of those 45 boys, he knew Sonu and Neeraj. Two days prior to 17.09.2008, he had handed over Neeraj to the police of police station Uttam Nagar as accused Neeraj had come to commit theft in his shop at about 12:00 Mid Night. When Neeraj and Sonu along with 23boys started beating him on entering his shop saying that "tujhe kaun bachane wala tune parso band karwaya that, ab konsi police konse thane se kise bulata hai". They forcibly put him in their maruti van and took him via Ganda Nala towards probably Mohan Garden.
S.C. No.259/1/10 Page 2 of 16St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC They had again given him beatings there and took him to some fields where there was a shop and they kept him inside the shop where they had given him beatings with iron pipes. He lost consciousness and then they left him in the shop and went away. Some passersby rescued him from that shop. He had lost consciousness, he does not know who had called the police and who had taken him to Deen Dayal Hospital where he had recovered consciousness and was medically examined vide complaint Ex.PW6/A. Accused Neeraj was arrested vide arrest memo Ex.PW5/B and personal search memo Ex.PW5/A. The accused Neeraj had also made disclosure statement Ex.PW6/B. The pointing out memo of accused Neeraj Ex.PW6/C. Both the accused are also identified by him. He also identified the one iron pipe partly bend from the middle portion which is Ex.P1, another iron pipe badly bend is Ex.P2. Identity of the car is not disputed by both the accused persons as the car is taken on superdari by the mother of the accused Sonu.
ASI Jagpal (since deceased) prepared the rukka Ex.PW4/A on the basis of which FIR was registered. He also seized the maruti van vide Ex.PW4/C and also prepared site plan Ex.PW4/F. He also arrested the accused Neeraj and conducted the personal search of accused Sonu vide memo Ex.PW4/A and recorded his disclosure statement vide memo Ex.PW4/B. ASI Jagpal also prepared pointing out memo vide Ex.PW6/C and the same has been identified by PW4 Ct. Moti Ram and stated that they were aware about the abduction of S.C. No.259/1/10 Page 3 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC Rakesh Parikh in Maruti Van bearing no. DL6CH 7045 towards the Ganda Nala on 17.09.2008. He joined the investigation along with ASI Jagpal and went to the said Ganda Nala and noticed that one Maruti Van of while colour is standing in the filed. After seeing the police party, one of the person who was present there run away with the Maruti van. There was a room also, voice of cry was coming from the side of the said room. They went towards the room where victim Rajesh Parikh was found in injured condition. The injured was taken to the hospital and his statement was recorded by ASI Jagpal. Ct. Moti Ram went to the police station and accused Sonu was handed over who was interrogated and he made disclosure statement. The same was reduced into writing. MLC of the injured was prepared by PW13 Dr. Amit who opined the nature of injuries as ' simple' injuries.
PW8 Ct. Ajay proved the FIR no. 08/04 vide Ex.PW8/A. PW15 Smt. Bimla is the registered owner of the maruti van who stated that the accused Sonu is her son and she is the registered owner of the said car and she got released the maruti van on superdari vide Ex.PW15/A.
3. After completion of the investigation, the challan was filed in the court and charge under section 365/367/342/323/34 IPC was framed against the accused persons for which the accused persons pleaded not guilty and contested the trial.
4. The prosecution in all examined 15 prosecution witnesses including the victim PW6 Rajesh Parikh. The PW Sailesh, PW ASI Jagpal, Dr. Saurabh was not examined by the prosecution. The S.C. No.259/1/10 Page 4 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC identity of Marutu Van bearing registration no DL6CH 7045 is not disputed as such not produced.
5. After completion of the prosecution evidence, the statements of the accused persons recorded under section 313 Cr.P.C. and all the incriminating evidence led by the prosecution put to the accused persons one after the other to which they denied as false and incorrect with the submission that they are innocent and falsely implicated in the present case. The accused Sonu does not want to lead any defence evidence. Accused Neeraj examined his mother Shashi Bala in his defence as DW1 who stated that his son is being harassed by the police and falsely implicated. His son Sonu has no role in this case.
6. Having heard the submissions of Ld. APP for state and counsel for the accused persons and carefully gone through the material on record.
Ld. APP for state submitted that the prosecution examined all the material witnesses to prove the allegations against the accused persons. The testimony of the prosecution witnesses are trustworthy, believable and cogent. The accused persons are correctly identified by the complainant PW6 Rajesh Parikh in the court. On the contrary, the deposition of the DW1 Shashi Bala does not inspire confidence and she is an interested witness as not reliable. Under these circumstances, the accused persons are liable to be convicted for the charges as levelled against them.
7. Per contra, Ld. counsel for the accused persons submitted S.C. No.259/1/10 Page 5 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC that the prosecution failed to prove the allegations against the accused persons. The prosecution case is based upon the testimony of PW6 Rajesh Parikh victim and PW Sailesh who is an eyewitness, who took the Rajesh Parikh from the shop and also got conducted his medical examination in Deen Dayal Upadhayaya Hospital. Another witness ASI Jagpal Singh (since deceased) who prepared the documents during the course of investigation has also not been examined. PW6 Rajesh Parikh does not sustain any fracture or any bone injury on his person from iron pipe nor the same was found smeared with blood smeared. There is no fingerprints of the accused persons were lifted from the maruti van or iron pipes etc. The accused persons are named in this case because there was a quarrel between Neeraj and Rajesh and on an issue of a girl Nisha. Rajesh Parikh stated in his statement that he has not seen the driver of the maruti van as he was not in a position to see anyone. In cross examination on behalf of the accused Neeraj he stated that he along with his friend went to police station to hand over the accused Neeraj on 15.09.2008 and the accused Neeraj is a bad character. But there is no documentary record produced by Rajesh Parikh during the course of investigation nor the police has tried to verify this fact. The testimony of Rajesh Parikh has not been corroborated by any independent witness. It is matter of record that the complainant has enimical relations with the accused Neeraj, as such he has been falsely implicated in this case. All the documents prepared are fabricated and are prepared in the police station. No S.C. No.259/1/10 Page 6 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC written work was done at the spot. It is further contended that even though the case propery was being deposited in the malkhana but there is no witness who deposed regarding that the case property was intact during the custody of the MHC(M). Even though, the case property has not been sent to FSL or having no blood stained clothes or smeared with blood on the iron pipe. There are so many flaws, defect, and discrepancies. They are innocent and falsely implicated in this case. It is further contended that the police officials in connivance with the complainant made a false case against the accused persons. In these circumstances, the accused persons are liable to be acquitted from the charges framed against them.
8. Keeping in view of the submissions of Ld. APP for state and counsels for the accused persons and material on record.
9. The section 365 IPC defined kidnapping or abducting and wrongful confinement of a person defined as "wh oever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine" .
This section lays down the same penalty as section 363, but it punishes abduction not mentioned in that section. It requires an intention to confine a person secretly and wrongfully. Kidnapping and confining in broad daylight without any secrecy amounts to an offence under section 342. The essence of an offence under this section is S.C. No.259/1/10 Page 7 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC kidnapping. Therefore, where the accused cannot be convicted under section 363, he cannot be convicted under this section. Where a person was abducted in order that he might be held to ransom by his abductors, it was held that this section is applicable. The prosecution must prove :
(i) Kidnapping or abduction by the accused.
(ii) The accused thereby intended that the person kidnapped or abducted should be kept in wrongful or secret confinement.
10. To prove the ingredients of section 365 IPC, it is essential that there should be abduction, if no abduction is there, the offence under section 365 is not made out. To prove charge of wrongful confinement, proof of actual physical restriction is not essential. It is sufficient if the evidence shows that such an impression was produced in the mind if the accused as to create a reasonable apprehension in the mind of the victim. The referred to in the section must exist at the time of the kidnapping or abduction. The intention can be inferred from the subsequent acts and conduct of the kidnapper or abductor.
In case titled as 1984 Crl. L.J. (NOC) 90 : (1984) 1 Chand L.R. (Cri)251, where the victim was dragged from his house and secretly and wrongfully confined in the house of the accused and was recovered by the police from the house of the accused and found injuries on the back of the victim, offence of kidnapping was established.
11. In the present case, the PW6 Rajesh Parikh stated that on S.C. No.259/1/10 Page 8 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC 17.09.2008 at about 0202:30 PM, he along with his associate Sailesh were in his office. 45 boys came to his shop in a maruti van of white colour bearing registration no. DL6C 7045, Sonu and Neeraj were there. The accused Neeraj and Sonu started beating him and entered in his shop. They forcibly put him in the Maruti Van and took him via Ganda Nala towards Mohan Garden and they have again given him beatings. They kept him in a shop which was in the fields and given him beatings with iron pipes there. He lost his consciousness and then the accused persons left him in the shop and went away. Some passersby rescued him from the shop. He was got medically examined, the intimation was given to the police vide DD No.26A on 17.09.2008 at about 02:45 PM from the mobile no. 9250586908. After endorsement, the information was transmitted to ASI Jaipal Singh on his mobile phone vide DD No.27A. On 17.09.2008 at about 02:47 PM, an information was received at the PCR that one Maruti Van via Kakrola Mor towards Dwarka kidnapped one boy. This information was also given to ASI Jagpal Singh. Ct. Moti Ram and Ct. Suresh followed the Maruti Van and when they reached at Ganda Nala near Bharghav Property found Maruti Van lying in the field and nobody was there in the Van. After seeing the police party, the driver run away towards Kakrola Mor. There was a hue and cry from the room and on search of the room Rajesh Parikh was found in the injured condition. The accused Sonu was arrested on 17.09.2008 at police picket, Kakrola Mor. Maruti Van was also recovered on S.C. No.259/1/10 Page 9 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC 17.09.2008 and seized. On the disclosure statement of the accused Sonu, accused Neeraj was also arrested on 04.10.2008. On the basis of the disclosure statement of accused Sonu, the place of incident was identified and two iron pipes of length 82cm each recovered. The accused Neeraj also made a disclosure statement on 04.10.2008 who stated that he is having love affair with Nisha. The accused Rajesh used to tease her. He took Maruti Van of the accused Sonu @ Rs.400/ and he along with other associates Bijender, Ajay @ Anu, took the injured Rajesh Parikh and given him beatings and also took him to vacant plot where Rajesh Parikh was again beaten. After seeing the police party, he run away and also left the Maruti Van. He also pointed out the place of occurrence where Rajesh Parikh was beaten and confined. The pointing out memo Ex.PW6/C was prepared. The deposition of PW6 Rajesh Parikh is self explanatory as he has categorically identified both the accused persons and the injuries sustained by him are also proved by the MLC which was prepared by PW1 Dr. Anurag Dixit. PW2 Dr. Vinit Soni and PW13 Dr. Amit Aggarwal also proved the injuries sustained by the injured Rajesh Parikh and opined the nature of injuries as simple. It is also matter of evidence that the Maruti Van was recovered from a field from where the victim Rajesh Parikh was also recovered in injured condition. It is also proved that PW14 HC Daulat Singh proved the FIR No.223/03, PS Uttam Nagar, under section 378/411/34 IPC photocopy of the same is Ex.PW14/A which was registered against the S.C. No.259/1/10 Page 10 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC accused Neeraj. The accused Neeraj also involved in FIR No. 104/04, under section 399/402, PS Nabi Karim & FIR No. 191/04, PS Nabi Karim, under section 399/402. The complainant Rajesh Parikh made the complaint of theft against the accused Neeraj and got him arrested.
12. So far as with respect to the investigation conducted by ASI Jagpal, all the documents prepared during the course of investigation have been proved by the witnesses and the deposition of PW4 Ct. Moti Ram is corroborated to this effect and does not find any material improvement and contradiction in the deposition of PW6 Rajesh Parikh as well as the police officials. There is no delay in lodging the FIR. The information given to the police regarding the facts of kidnapping is through the mobile no. 9250586908. However, the PW Sailesh is one of the material witness who has to corroborate the deposition of PW6 Rajesh Parikh. The PW6 himself is victim and atrocities took place with him and also suffered the injuries and same are proved by medical evidence and the MLCs prepared, his sole testimony is ocular which can bring home the offence under section 342 IPC.
13. Section 365 IPC is only applicable where a person was abducted in order that he might be held to ransom by his abductors. This view was held in case titled as Po Lan (1912) 6 LBR 160 ; Samundar (1926) 27 Cri LJ 64 (Lah); Bahadur Ali AIR 1923 Lah
158.
14. The injuries proved through the doctor who examined the S.C. No.259/1/10 Page 11 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC patient is simple in nature as defined under section 323 IPC. Therefore, the prosecution succeeded to prove the guilt of the accused persons for the offence under section 342/323/34 IPC.
15. Keeping in view of the aforesaid discussion, facts and circumstances, the testimony of the prosecution witnesses brought home successfully the guilt against the accused persons. Hence, the accused Sonu S/o Lala Ram and Neeraj S/o Ram Gopal are hereby convicted for the offence under section 342/323/34 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court today ADDITIONAL SESSIONS JUDGE
i.e. on 02.02.2011 (WEST02):DELHI
S.C. No.259/1/10 Page 12 of 16
St. Vs Sonu etc.
FIR No.331/08, PS: Uttam Nagar
U/s 365/367/342/323/34 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST02) , DELHI.
SC NO. 259/1/10
State
Versus
1 Sonu S/o Lala Ram
R/o B41A, Som Bazar
Vikas Nagar, Uttam Nagar
Delhi.
2 Neeraj S/o Ram Gopal
R/o C39, Som Bazar,
Vikas Nagar, Uttam Nagar
Delhi.
FIR No. 331/08
U/S: 342/323/34 IPC
P.S. Uttam Nagar
ORDER ON SENTENCE:
Present: Sh. Subhash Chauhan, Additional Public Prosecutor for
State.
Both accused on bail with their respective counsel. Both accused/convicts have been convicted for offence punishable u/s 342/323/34 IPC vide separate detailed judgment dated 02.02.2011.
I have heard submission of Ld. APP for State and counsel for S.C. No.259/1/10 Page 13 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC accused persons on the point of sentence and carefully gone through the material on record.
Ld. APP for state submitted that prosecution has established its case against the accused persons u/s 342/323/34 IPC beyond all reasonable doubts and the testimony of all the prosecution witnesses inspire confidence, they are trustworthy and reliable. Both the accused persons in furtherance of their common intention alongwith their two three associates wrongfully confined Rajesh Parekh and voluntarily caused hurt upon him . Both of them are young and having hotblood, if at this stage they will not be severely punished, they may repeat the offence in future. The convicted and the victim/injured are living in the same vicinity. They also bear in mind that convicted will take revenge in future and also repeated same offence for which they are also facing trial. Therefore, under these circumstances, some deterrent punishment should be awarded to both the convicted and they may be sentenced severely, so that they may learned a lesson and have a deterrent effect in their minds. The convicted are liable to be punished maximum sentence as prescribed under the law.
Ld. Counsel for the convicts submitted that both the convicted are having their families and they are only bread earning members in their families. They are not previously convicted. They are first offender and the alleged crime has been done under the heat of passion. The accused Neeraj has remained in J/c for about four month and accused Sonu remained in J/c for 14 days. It is further submitted that both the convicts S.C. No.259/1/10 Page 14 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC have been facing trial since 2008 and have suffered economically, socially, mentally and physically. If the convicted persons are sent again behind the bars, it will punish not only them but also their family members.
Ld. Counsel for the accused persons further submitted that since the day of conviction, they are under the mental and physical trauma. They have spent a huge amount on litigation and also suffered economically. Apart from it, they have been appearing in the court regularly on each date and abstained from their employment. It is humbly prayed that the accused persons may be released on undergone imprisonment or probation of good conduct or as the Hon' ble Court may deem fit in the interest of justice.
Having heard the submissions of Ld. APP for state and Ld. Counsel for the accused persons and also gone through the material on record.
In view of the facts and circumstances of the case, no doubt, both the convicts are facing trial since 2008 and have been suffering physically, mentally, socially and economically. The deposition made by the witnesses are trustworthy, believable and cogent one. The prosecution has established its case against both the accused persons beyond all reasonable doubts to bring home the guilt of the accused persons. Therefore, to keep a check and balance between the victim and the offenders and to maintain harmony in the criminal justice system, since both the parties are residing in the same vicinity and has to see S.C. No.259/1/10 Page 15 of 16 St. Vs Sonu etc. FIR No.331/08, PS: Uttam Nagar U/s 365/367/342/323/34 IPC faces of each other regularly. Therefore, the accused namely Sonu S/o Lala Ram and Neeraj S/o Ram Gopal are hereby sentenced to undergone imprisonment with fine of Rs. 1000/ each, in default of payment of fine both the convicts will undergo SI for one month for offence punishable u/s 323/34 IPC. Both the convicts are also sentenced for undergone imprisonment and fine of Rs. 1000/ each , in default of payment of fine both the convicts will undergo SI for one month each for offence punishable u/s 342/34 IPC. Apart from that both the convicts are also directed to deposit compensation of Rs. 5000/ each u/s 357 Cr.P.C to be paid to the injured/complainant and in default of payment of compensation amount both the convicts will undergo SI for one month. Both the convicted persons will be granted benefit of section 428 Cr.P.C.
I think the sentence awarded will meet the end of justice. Copy of this order be given to the convicted free of cost forthwith.
ANNOUNCED IN THE OPEN COURT TODAY ON 05.02.2011 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST04) DELHI S.C. No.259/1/10 Page 16 of 16