Delhi District Court
State vs . Mahavir Singh & Ors on 2 May, 2018
1/23
IN THE COURT OF SHRI DEEPAK KUMAR1
MM02: WEST: TIS HAZARI COURTS : DELHI
FIR No. 513/2006
PS: Hari Nagar
U/s.363/379/368/120B IPC
State vs. Mahavir Singh & ors
Date of Institution of case: 17.11.2006
Date of Judgment reserved: 01.05.2018
Date on which Judgment pronounced: 02.05.2018
JUDGMENT
Unique ID no. of the case : 2926/2018
Date of commission of offence : 17.09.2006
Name of complainant : Ranbir Singh
Name and address of accused : 1. Mahavir
S/o Sh. Chote Lal
R/o Vill. Hathrol, Distt Kanooj, U.P
2. Gudiya
W/o Sh. Gautam
R/o RZD/55, Dabri Ext. Delhi
3. Manju (since PO)
Offence complained of : 363/379/368/120B IPC
Plea of accused : Pleaded not guilty
Date of order : 02.05.2018
Final order : Accused Mahavir convicted for
offences U/s 363/368/120B IPC
Accused Gudiya convicted for
offence u/s 368/120B IPC.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
2/23
BRIEF REASONS FOR DECISION
Brief facts
1. Vide judgment dated 09.12.2014 passed by the then Ld. MM, accused persons namely Mahavir and Gudiya were convicted for offence u/s 368/120B IPC. Against the said judgment, accused persons had preferred separate appeals before Ld. Sessions court. Vide common judgment dated 14.11.2017, Ld. Sessions court has set aside the judgment of conviction dated 09.12.2014 and order of sentence dated 22.12.2014 and the matter was remanded back to this Court for fresh decision.
2. Vide this judgment I shall dispose off the present case filed by ASI Balwan Singh (hereinafter referred as IO) against Mahavir, and Gudiya (hereinafter referred as accused persons) on the complaint of Sh. Ranbir Singh (hereinafter referred as complainant) for committing offences under sections 368/363/120B of Indian Penal Code (hereinafter referred as IPC).
3. Brief facts of the present case are that on 11.09.2006 Ranbir Singh (PW1) got admitted his son Kuldeep aged about four months suffering from pneumonia in DDU Hospital in ward no.5 and on 16.09.2006, Kuldeep was shifted to ward no.4. As the ward was empty, wife of PW1 took her son Kuldeep to gallary and at about 9 pm, PW1 also came at hospital. PW1 remained awake till 2 am and thereafter, he along FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
3/23with his wife (PW2) and child slept in the gallary. On next morning at 5 am, when PW1 got up, he found his child Kuldeep missing. He searched for his child and could not find him and upon this, he went to PP Hari Nagar Chowki where police recorded his statement which is Ex. PW1/A. Upon statement Ex.PW1/A, PW15 SI Balwan Singh prepared rukka which is Ex. PW15/A and handed over the same to PW11 Ct. Arjun for registration of FIR. PW7 HC Ranbir Singh registered the FIR which is Ex.PW7/A and made endorsement on rukka which is Ex. PW7/B. PW15 prepared site plan at the instance of the complainant which is Ex. PW15/B. On 23.09.2006 at about 7.30 pm, one police party consisting of PW9 SI Harinder Singh, PW10 Ct. Bharatveer, PW15 ASI Balwan, PW1 Ranbir and PW2 Poonam along with one secret informer went to Udham Singh Park Hari Nagar and on the pointing out by the secret informer, accused Mahavir was apprehended and he made disclosure statement which is Ex. PW8/A regarding his involvement in the present case. He was arrested vide arrest memo which is Ex. PW8/B and his personal search was carried out vide personal search memo which is Ex. PW8/C. 15 currency notes of Rs.100/ were recovered from his possession which were seized vide seizure memo which is Ex. PW8/N. Accused Mahavir had received consideration amount of Rs.6000/ for kidnapping the child and handing over the same to coaccused persons. PW2 identified the recovered currency notes as Ex.P2 (colly). Accused Mahavir had shown the place from where he had kidnapped the child and PW15 prepared pointing out memo at his instance which is Ex. PW8/D. Thereafter, police team along with complainant and his wife went to house no. RZD55 where PW15 FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
4/23prepared pointing out memo of the said house which is Ex. PW8/E. After entering in aforesaid house, coaccused Gudiya was apprehended by police and she disclosed that the kidnapped child was present with co accused Manju on the first floor of the house and first floor was searched, coaccused Manju was found having the kidnapped child in her lap and the child was identified by PW1 and PW2 immediately. Coaccused Manju was also apprehended and the child was recovered vide seizure memo which is Ex. PW8/L. The child was handed over by PW15 to PW1 and PW2 vide handing over memo which is Ex. PW15/D. PW15 also seized one kara of victim with identity of K vide seizure memo which is Ex.PW8/M which was recovered from the possession of the coaccused Manju and sealed with the seal of BS. PW15 prepared site plan of the place of recovery of child which is Ex. PW15/C. Trial
4. After completion of investigation, charge sheet was filed against the accused persons under sections 363/365/368/369/411/120B/34 IPC on 17.11.2006 against accused persons and copies were supplied to accused persons on the same day itself. Charge for the offences under section 120B/368/34 IPC was framed against accused Gudiya, charge for the offence under section 120B/363/368 IPC was framed against accused Mahavir and charge under section 120B/368/379 IPC was framed against accused Manju on 17.02.2007 and all the accused persons pleaded not FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
5/23guilty and claimed trial. Thereafter, matter was put up for prosecution evidence. During the proceedings accused Manju was declared as proclaimed offender vide order dated 06.04.2013.
Appreciation of evidence in the light of settled legal propositions.
5. In order to prove its case against the accused, the prosecution has examined fifteen witnesses.
6. PW1 Ranbir Singh is the complainant and he deposed on the lines of his complaint.
7. PW2 Smt. Poonam is the wife of PW1 and she also deposed on the lines of PW1 Ranbir Singh.
8. PW3 Dr. Kiran Gautam examined accused Manju on 18.09.2006 in her nursing home. She exhibited seizure memo of register dated 18.09.2006 as Ex. PW3/A, photocopy of OPD register as Ex. PW3/B, admission record of other patients dated 18.09.2006 which were examined by the doctors alongwith coaccused Manju as Ex. PW3/C to Ex. PW3/E.
9. PW4 Dr. Deepak Gautam deposed about the immunization given to child on 18.09.2006 and exhibited immunization record of child FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
6/23as Ex. PW4/A. He stated that victim Kuldeep was brought in nursing home by accused Gudiya.
10. PW5 Sheela and PW6 Dinesh deposed about handing over of child to them by accused Mahavir. PW5 stated that on 17.09.2006 the child was handed over to her by accused Mahavir and was taken back on 18.09.2006 from her by accused persons. In view of the statements made by accused Mahavir and Gudiya and submissions made by their counsels, it was observed vide order dated 19.03.2018 that evidence of PW5 Sheela stands concluded qua accused Mahavir and Gudiya.
11. PW7 HC Ranbir Singh being the duty officer exhibited copy of FIR as Ex. PW7/A and endorsement on rukka as Ex. PW7/B.
12. PW8 Ct. Sharan Pal, PW9 Inspector Harinder Singh and PW10 HC Bharatveer accompanied the IO during the investigation.
13. PW11 HC Arjun recorded the statement of complainant at PS regarding missing of his child.
14. PW12 Bijender Singh deposed that accused Mahavir was driver of one of his ambulance bearing No. DL1A1092 and he used to remain present in DDU Hospital.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
7/2315. PW13 Sheesa Viji and PW14 Shini James stated that on 11.09.2006 the victim was admitted in Ward No. 5 in DDU Hospital and was shifted to Ward No. 4 on 16.09.2006 and next day they came to know that child was missing from Ward No. 4.
16. PW15 SI Balwan Singh being the IO of this case, deposed about the investigation being carried out by him in this case.
17. Thereafter, prosecution evidence was closed vide order dated 07.10.2013. Statement of accused persons were recorded on 19.08.2014 wherein they pleaded false implication. Accused Gudiya stated that she has been falsely implicated at the instance of her inlaws with whom she did not have cordial relations. She further stated that one police officer used to reside in the neighborhood of her in laws. She claimed to have been implicated in this case as her husband had purchased a plot of 100 yards and when she was in custody in this case, the plot was sold by her inlaws and they vanished away alongwith the consideration amount of that plot and other articles. Accused Mahavir stated that he was an ambulance driver and two lady patients had come to him and asked him to leave them at Sagar Pur and he had dropped them at Sagar Pur. They opted not to lead defence evidence.
18. I have heard final arguments put forth by Ld. APP for the State and Ld. Defense Counsels. Written submissions filed on behalf of FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
8/23accused persons have also been perused carefully. Ld. Counsel for accused Gudiya placed his reliance upon following judgments : (I) State Vs. Om Prakash Crl. L.P. No. 74/2013 decided on 05.08.2013.
(II) Griftar Alla Bux Vs. State 1973 Crl. L.J. 12.
Ld. Counsel for accused Mahavir placed his reliance upon the judgment in State Vs. Om Prakash & Ors. Crl. LP No. 74/2013.
19. In the present case, accused Mahavir has been charged for offence u/s 363/368/120B IPC and accused Gudiya has been charged for the offence u/s 368/120B IPC. At the outset it assumes significance and relevance to discuss the relevant legal provisions before proceeding further in the matter.
20. Section 363 IPC reads as "Whoever kidnaps any person from or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine". The essential ingredients for proving the offence of kidnapping as per section 361 IPC are following: i) The person was at the time of offence a minor or of unsound mind ii) Such minor or person of unsound mind was at the time lawfully entrusted to the keeping of a guardian, iii) The accused took or enticed such minor or person of unsound mind out of such kidnapping and iv) He took or enticed etc. without the consent of such guardian.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
9/2321. Under Section 368 IPC it has been provided that anyone found guilty of wrongfully confining a kidnapped/abducted person with the knowledge that the person so confined had been kidnapped/abducted shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge or for the same purpose as that with or for which he conceals or detains such kidnapped/abducted person in confinement. This section refers to some other party who assists in concealing any person who has been kidnapped and not to the kidnappers. For the purpose of this section, it is not necessary to prove that the person confined was abducted by any particular person. The ingredients necessary to constitute the offence u/s 368 IPC can be tabulated as follows for ready reference: i) A person has been kidnapped, ii) The accused was privy to that fact, and iii) The accused must have concealed or confined such person. Thus, the only facts that are required to be established for offence u/s 368 IPC are that the child in question has been kidnapped, the accused knew that the said person had been kidnapped and the accused having such knowledge, wrongfully conceals or confines the person concerned.
22. After setting the tone and tenor of law in place, now coming to the present case in question. It is alleged against accused Mahavir that he kidnapped the child namely Kuldeep from DDU Hospital in the intervening night of 1617.09.2006 and sold the child to coaccused Manju (since PO) with the help of coaccused Gudiya. It is argued on behalf of FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
10/23accused Mahavir by Ld. defence counsel that there is no evidence on record to prove the fact that child was stolen or kidnapped by accused Mahavir from DDU Hospital. It is further argued that identity of victim is not proved beyond reasonable doubt as no medical report is available on record to prove the fact that it was the same child recovered on 23.09.2006 which was stolen on 17.09.2006. It is further argued that identity of victim is disputed as PW13 and PW14 have stated the age of child as 4 years whereas PW1 and PW2 have stated that child was of 4 months on the date of incident.
23. From the bare perusal of facts and circumstances of the case and the overwhelming evidence led by the prosecution, this court finds no merit in the argument that identity of victim Kuldeep is doubtful. PW1 and PW2 are parents of victim Kuldeep and they had correctly identified their child at the time of recovery and they remained steadfast and unmoved in their deposition before the court regarding the identity of the child. Mere absence of medical report of the parents of victim to connect them with the victim, cannot be treated as absolute ground to falsify the case of prosecution. Similarly, the arguments that complainant had given different versions regarding the existence of photograph and its handing over to the police in Examination in chief and cross examination do not appear to have enough silage to fuel the case of the defense. The parents of the child are lay persons who stood their ground despite the agony and detailed grilling through cross examination. Some minor variations can not throw FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
11/23away the case of the prosecution in its entirety.
24. It is trite to mention here that human minds naturally tend to make some improvements or embellishments when being asked to state the same submissions again and again. However, what is required by the court is to see and appreciate the substance of the facts mentioned in the statements or depositions and not get swayed away by some flourishes or trimmings which overall does not negate the substance and salience of the facts. The Identification by parents of child is enough to prove the identity of the victim and no good reason or occasion has been brought to the notice of the court as to why PW1 and PW2 have gone to an extent of identifying somebody else's child as their own or why would they falsely implicate the accused persons especially when there was no previous enmity between the accused persons and complainant. It appears quite improbable that parents of four months child of humble background would like to see themselves entangled in a situation where they have to travel pillar to post just to claim somebody else's child as their own and specially when even not an iota of materials was brought on record to show if they were harboring any grudge against the accused persons.
25. In the present case the fact of kidnapping stands established conclusively from the facts and circumstances of the present case. It has been contended that contradiction occurred due to statements of PW13 and PW14 qua age of victim which are fatal to the case of the prosecution.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
12/23Again this argument is of no help to the accused as in this case statement of PW13 and PW14 are of no significance and their version that victim was of 4 years cannot be termed as major contradiction going to the roots of this case. The fact has been proved by the record of DDU Hospital from where the child was stolen and there are depositions of PW1 and PW2 that victim was of 4 months on the date of incident. Therefore, contradiction occurred in the deposition of PW13 and PW14 at most falls under the category of natural contradictions which are bound to occur in a criminal trial which take the lay persons through the journey of complexity of legal procedures like examination and crossexamination in the intimidating atmosphere of court proceedings which sometimes continue for months and for which the witness remain little prepared. No good reason has been given on behalf of accused Mahavir as to why he has been falsely implicated in this case by the complainant if he had nothing to do with the commission of offence. Merely alleging false implication without any rhyme or reason cannot be allowed to overpower the evidence placed on record by the prosecution. Therefore, allegations of false implication sound to be baseless and without any substance.
26. Ld. Counsel on behalf of accused Gudiya argued that no case is made out against accused Gudiya as nothing has been recovered from her possession. It has been asserted that she has been falsely implicated in this case at the disclosure of accused Mahavir and the alleged recovery of child was effected from coaccused Manju. It has been also pointed out FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
13/23that PW5 Sheela has categorically stated that child was handed over to accused Manju and accused had not visited the house of the PW5 to take the child. It has been asserted that apart from the disclosure statements of coaccused Mahavir Singh and herself, there is nothing on record which is incriminating against accused Gudiya. The disclosure statements were recorded in police custody, and therefore, same are not admissible as per Indian Evidence Act.
27. It is undisputed that nothing was recovered from possession of accused Gudiya. However, the fact of the matter is that coaccused Manju was arrested from the house of accused Gudiya at her instance and resultantly, recovery of the victim was effected. The circumstances under which recovery was effected from her house has not been explained by accused Gudiya. Further, in terms of section 106 of the Indian Evidence Act, where a fact is within the knowledge of any person, the burden of proving the same is upon him or her. It was therefore for the accused to have established on record the circumstances under which the recovery of child was effected from her house and at her instance. No reasonable explanation has been offered by accused to allow this court to draw positive inference in her favor.
28. It is the case of the prosecution that coaccused Manju was arrested in the house of accused Gudiya and accused Gudiya was instrumental in procuring the child from accused Mahavir. She played the FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
14/23role of mediator between Mahavir and Manju. Therefore, she was the active partner of the criminal conspiracy hatched between the accused persons which resulted in kidnapping and subsequent concealment and confinement of child for which accused persons shared informed knowledge. It has been argued by Ld. Counsel for accused that the disclosure statement of accused Mahavir is of no consequences in the eyes of the law for the reason that it is hit by section 27 of Indian Evidence Act. I find no merit in this argument for the reason that Section 27 of Indian Evidence Act talks about discovery and admissibility of new fact on the basis of disclosure statement of an accused. It is settled that only that part of disclosure statement is admissible pursuant to which a new fact has been discovered and which was especially in the knowledge of the accused.
29. Disclosure statement of accused Mahavir is relevant and admissible under section 27 of Indian Evidence Act to the extent that there was discovery of a new fact on his disclosure which was not in the knowledge of police officials prior to his arrest. He disclosed that the victim was in the house of accused Gudiya in Dabri. Accused Gudiya made a disclosure statement in police custody that child was in possession of coaccused Manju and pursuant to that disclosure child was recovered from the first floor of the house from accused Manju. Therefore, again there was discovery of new fact on the basis of disclosure statement of accused Gudiya which led to the discovery of victim and accused Manju.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
15/23Accordingly, that portion of disclosure statement of accused Gudiya is admissible against her and law is settled in this regard. Therefore, argument of defence that disclosure statements of accused Mahavir and Gudiya are inadmissible and cannot be used to convict the accused persons does not stand the scrutiny of law..
30. It is further argued on behalf of accused Gudiya that secret information received by the police officials on 23.09.2006 was not reduced in writing and was never reported to higher officials. It is not mandatory for police officials to reduce the secret information in writing or to report the same to higher authorities and it depends upon the facts and circumstances of each case. Ideally, it should be done but in cases nothing of that sort is being done by the IO due to mitigating circumstances i.e., due to paucity of time or chance of destruction of evidence or chance of fleeing of accused etc. then this formality can be dispensed with. Therefore, this argument is of no avail to the accused and likely to be shelved.
31. It is further argued that PW6 Dinesh has not identified accused Gudiya and has turned hostile. Therefore, benefit of doubt must be given to the accused. PW6 Dinesh is not only a material witness in this case. Accused Gudiya has been identified by PW5. PW1 and PW2 have correctly identified accused Gudiya as the same lady to whose house accused Mahavir took the police party for the recovery of child. They FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
16/23further deposed that it was disclosed by accused Gudiya that child was in the custody of accused Manju on first floor. Therefore, deposition of PW1 and PW2 are relevant enough to prove the involvement of accused Gudiya in the commission of crime. It is also relevant and significant to note that PW4 Dr. Deepak Gautam has deposed that accused Gudiya had brought the child for treatment at his nursing home on 18.09.2006. Therefore, chain of events are connected completely because PW1 and PW2 have stated that child was recovered from the house of accused Gudiya on 23.09.2006. PW5 has stated that accused Mahavir and Manju took the child from her house on 18.09.2006 and PW4 has stated that child was brought to nursing home on 18.09.2006 by accused Gudiya. All these facts lead to one inescapable conclusion that Gudiya was actively involved with other accused persons in concealing and confining the child which was evidently know to them as kidnapped child. Therefore, hostile deposition of PW6 is of no consequence in this case.
32. It is further argued on behalf of accused Gudiya that PW8 has stated that they reached at the house of accused Gudiya at 09:30 PM then how come time of arrest has been mentioned as 09:10 PM in the arrest memo of the accused. It is further argued that no other public person was joined in the recovery proceedings. It has been contended that the same must be regarded as no police party had ever visited the house of accused Gudiya and the child was not recovered at her instance.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
17/2333. It is well known fact that public at large remain hostile to the police proceedings. They hardly allow themselves to get indulged in the proceedings if they do not claim any stake or interest in it. When police party was accompanied by complainant and his wife then nonjoining of other person from the public is inconsequential. As far as deposition of PW8 that they reached at the house of accused Gudiya at 09:30 PM is concerned, this is a minor contradiction which has occurred due to lapse of time and does not go to the roots of the case. Similarly the arguments that proper procedures were not followed in effecting the arrest of the accused at most may be irregular, however in no way it wash away the case of the prosecution in its entirety.
34. It is further argued on behalf of accused Gudiya that PW9 has stated that they went to spot of recovery in ambulance whereas IO has stated that they had gone in a private vehicle. This contradiction has been contended to have cast doubt on the fact that alleged recovery was effected from the house of accused Gudiya. The mere fact that two police officials have stated different mode of conveyance to reach the spot of recovery, is not fatal to the prosecution case which is otherwise proved. These contradictions are bound to occur in the testimony of prosecution witnesses due to passage of time and witness is not expected to parrot the facts on a given line. Therefore, this contradiction is again of minor in nature and is not going to help the accused persons.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
18/2335. In the present case, though there is no eye witness who had seen accused Mahavir kidnapping the child. However, the circumstantial evidence takes the center stage and effectively rescue and resurrect the case of the prosecution to its logical conclusion. It would be relevant here to refer the case of Sharad Birdhi Chand Sarda vs State Of Maharashtra 1984 AIR 1622 wherein Hon'ble Supreme Court elaborated the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti. It has been held by Hon'ble Apex Court that before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled :
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis is except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency.
4. They should exclude every possible hypothesis except the one to be proved.
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.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
19/2336. In the present case, it is correct that no eye witness has been examined by the prosecution who can lay claim to have seen accused Mahavir kidnapping the child from DDU Hospital. However, there are overwhelming evidence which inescapably point out that it was the accused Mahavir who had kidnapped the child in question. The entire chain of evidence has already been discussed above. At the risk of repetition it is further observed that it is undisputed fact that accused Mahavir was working as Ambulance driver and as such was having access to the DDU hospital. It has been further proved that child in question was minor who was taken away from lawful guardianship without the consent of such guardian. In the present case, it has been proved by the prosecution that the victim was left at the house of PW5 and PW6 by Mahavir on the pretext that mother of the child had expired. On the next day i.e., 18.09.2006 accused Mahavir represented accused Manju as aunt of the child and both of them took away the child from PW5. PW5 has corroborated this prosecution story in this regard and have correctly identified the accused persons. It has been further proved that the child in question was recovered at the instance of the accused Mahavir. Thus, it stands established beyond reasonable doubt that the child in question was found in possession of the accused Mahavir soon after its taking away from its lawful guardianship.
37. It is again pertinent to mention the provision of section 106 of the Indian Evidence Act, which provides that where a fact is within the FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
20/23knowledge of any person, the burden of proving the same is upon him or her. It was therefore for the accused to have established on record the circumstances under which the child was found in his possession soon after its removal from guardianship and how the recovery of child was effected at his instance. No reasonable explanation has been offered by accused to allow this court to draw positive inference in his favor. Similarly the provision of Section 114 of Indian Evidence Act also leaves before this court no option but to draw inference that it was the accused Mahavir who kidnapped the child in question.
38. All three accused persons hatched a criminal conspiracy to kidnap the victim for the purpose to sell him to coaccused Manju and the consideration amount was Rs. 6000/. Out of that consideration amount of Rs. 1500/ was recovered from the possession of accused when he was apprehended on 23.09.2006. The role of each accused was different as accused Mahavir was working as ambulance driver in DDU Hospital. Therefore, he was having access in the hospital and his part was to kidnap the child. Coaccused Gudiya acted as mediator between Manju and Mahavir as accused Manju was living as a tenant in her house. This case has been proved by the prosecution on the basis of circumstantial evidence. In the case of circumstantial evidence, prosecution is duty bound to link the connecting evidence to each other in such a way that case is proved against accused persons beyond reasonable doubt. If even a single link is found missing then prosecution's story cannot be treated as true. It FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
21/23has been deposed by PW5 and PW6 that the victim child was left at their house by accused Mahavir on the pretext that mother of the child had expired. On the next day i.e., 18.09.2006 accused Mahavir represented accused Manju as aunt of the child and both of them took away the child from PW5. PW5 has corroborated this prosecution version in this regard and have correctly identified the accused persons. PW3 and PW4 have deposed that the child was brought to their nursing home on 18.09.2006 for the purpose of treatment and accused Manju also got treatment on that day. These witnesses have correctly identified coaccused Manju and Gudiya in the court. Therefore, it is proved that on 18.09.2006 the child was in possession of accused persons. Relevant record has also been exhibited by the prosecution of the said nursing home. Thereafter, accused Mahavir was apprehended on 23.09.2006, he disclosed about the house of accused Gudiya and subsequently, accused Gudiya disclosed to the police that child was in possession of coaccused Manju and Manju was arrested from her house and child was recovered. Therefore, from 17.09.2006 till 23.09.2006 the entire chain of facts has been proved by the prosecution beyond reasonable doubt.
39. Therefore, from the facts and circumstances of the case the knowledge qua child in question being kidnapped can be fairly attributed upon accused persons as right from the beginning they were aware that the child do not belong to them. Accused Mahavir misrepresented PW5 that mother of child has expired which was plain lie and was said with clear FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
22/23intention of concealing and confining the child. Similarly taking the child to nursing home by accused Gudiya without disclosing the true identity of child and later on the recovery of the child from her house and at her instance gives inescapable and irresistible conclusion that accused persons were sharing the knowledge that child was kidnapped one and despite having such knowledge they actively confined and concealed the child from its parents. The judgments relied upon by Ld. Counsel for accused persons do not help in furthering the case of the defense for the reason that the said judgments were delivered in the distinct sets of facts and circumstances and as discussed and decided above the overwhelming prosecution evidence conclusively proves the case of the prosecution evidence in its material particulars.
40. It is also pertinent to note that from the overwhelming evidence put forth by the prosecution and as discussed and decided above, it was established beyond reasonable doubt that the child in question belongs to PW1 Ranbir Singh and PW2 Smt. Poonam i.e. parents of child and the said child was taken away from their guardianship without the consent of their parents. Moreover, from the facts and circumstances of the case and the evidence led by the prosecution the only hypothesis which can be drawn is that child in question was kidnapped and the said fact was not only known to the accused persons but they also conspired together in concealing and confining the child. Therefore, the entire ingredients of section 368/120B IPC gets fully established.
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.
23/2341. Therefore, in light of given facts and material available on record, accused Mahavir stands convicted for committing offences under sections 363/368/120B IPC and accused Gudiya stands convicted for the offence u/s 368/120B IPC.
42. Let the parties be heard on the point of sentence. A copy of the judgments be given free of cost to all the convicts.
43. Bail bond in terms of Section 437 A Cr.P.C has already been obtained from the convict persons in compliance of the judgment of the Hon'ble High Court in State Vs. Virender Yadav & Anr. 2014 I.A.D (Del.) 389. Digitally signed by DEEPAK DEEPAK KUMAR Date:
KUMAR 2018.05.02
16:50:37
+0530
Announced in open Court on (DEEPAK KUMARI)
02.05.2018 (23 pages) M.M.02(West)/THC,
Delhi/02.05.2018
FIR No. 513/06 PS Hari Nagar State Vs. Mahavir & Ors.