Delhi District Court
Addl. Sessios Judge (North):Delhi vs . on 10 August, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIOS JUDGE (NORTH):DELHI.
S.C. No. 03/10
ID No.02401 R 0591542009
State
Vs.
Subhash Kumar @ Babloo
S/o Sh. Ram Pratap
R/o Vill. Koluha Thika,
PS Purniya, Distt. Shivhar
Bihar.
FIR No.:206/08
PS : Anand Parbat
U/S 363/364A read with Section 34 IPC
Date of Institution:21.11.09
Date of reserving judgment:03.08.10
Date of pronouncement:10.08.10
JUDGMENT
1 In the present case charge was framed against accused Subhash in respect of offences U/S 363 & 364 read with Section 34 IPC. It was alleged that on 30.12.08 at 17/100B, Gali No.5, Than Singh Nagar, Anand Parbat, Delhi accused Subhash alongwith coaccused Shakur Ansari (PO) and Vikas @ Malli ( facing trial at Juvenile court) kidnapped Anurag aged about 7 years from the lawful guardianship of his parents without their consent. It was further alleged that after kidnapping the child, he kept him(Anurag) in detention till 14.1.09. The conduct of the accused Subhash @ Babloo gave rise to a reasonable apprehension that the kidnapped child Anurag may be put to death and the said act of kidnapping was done in order to compel the complainant to pay ransom. Accused pleaded not guilty to the said charge and claimed trial. 2 Ten witnesses were examined by the prosecution to prove its case. They are Master Anurag (PW1), Kamal(PW2), Dashrath Shah(PW3), Rajesh SC No. 03/10 1/18 2 Kumar(PW4), HC Puran Singh(PW5), Raju Shah(PW6), HC Mahesh Kumar (PW7), ASI Hira Lal (PW8), Sh. Gaurav Rao, Ld. M. M.(PW9) and SI Suresh Chand (PW10).
3 Statement of accused had been recorded U/S 313 Cr.P.C wherein he denied the allegations of prosecution. He has submitted that it is a false case. Complainant has deliberately and intentionally implicated him to extract the money from him. He has further stated that he contested the elections of Jila Parishad against Shri Narain, who was the close relative of complainant. Due to that enmity the complainant falsely implicated him in this case. 4 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State. I have perused the case file.
5 In this case out of the 10 witnesses PW1 Master Anurag is the star witness of this case being the victim. At the time of deposition PW1 was eight years old.
6 In Sube Singh V. State, 2005{1}JCC 64, it was held by Hon'ble Delhi High Court that PW22 being a child witness was capable of being tutored or influenced to depose falsely against the appellant. The law is well settled that in a case resting upon the testimony of a child witness alone the Court must look for corroboration as a child is susceptible to tutoring and influence.
7 After going through the testimony of PW1 Master Anurag, I am of the considered view that he is not trust worthy and reliable. Besides this he is a tutored witness and has deposed in court at the instance of his father. 8 From the testimony of PW1 Master Anurag it is not clear as to on which pretext Raju (coaccused) took him down stairs. In his statement before Ld. M. M. Ex.PW9/A he has stated that Raju took him on the pretext of medicines but in his testimony he has deposed that Raju took him SC No. 03/10 2/18 3 down stairs on the pretext of toffee.
9 From the testimony of PW1 it is not clear as to with whom and where PW1 was taken after his kidnapping. In his statement U/S 164 Cr.P.C Ex.PW9/A Raju took him to Shakur Ansari (PO) and thereafter Raju and Shakur Ansari took him to a train and went somewhere. But in his testimony in court, he has deposed that accused Subhash was sitting in the vehicle and Shakur was standing near the vehicle. They took him to the station where Vikas @ Malli was standing. In other words, as per the testimony of PW1, coaccused Raju, Subhash and Shakur took him to the station where coaccused Subhash was standing.
10 It is worth noting that PW1 Anurag did not mention the name of accused Subhash in his statement U/S 164 Cr.P.C Ex. PW9/A but in his testimony in the court he named accused Subhash, who was allegedly sitting in the vehicle and took him to the railway station. He has categorically admitted in crossexamination by ld. counsel for accused recorded on 13.4.10, when he made the statement to ld. M.M., he did not name the Subhash in that statement. 11 It is further worth noting that PW1 did not fully support the prosecution case and was crossexamined by Ld. Addl. P.P wherein he has admitted that Raju was working in the factory of his father and used to provide toffee. He has further admitted that Subhash and Coaccused Raju took him to the station in auto rickshaw and when they reached at the railway station the other person, who was with accused Subhash also came on the station and after making them to sit in the train he left. It is worth noting that PW1 has not deposed of his own but deposed at the instance of his father as in his cross examination by ld. counsel for accused he has deposed "I have been told by my father as to what I have to state before court". Since PW2 was tutored one and there are material contradictions in his testimony, I am of the considered SC No. 03/10 3/18 4 view that testimony of PW1 is of no avail to the prosecution. 12 Another material witness is PW2 Kamal. He has deposed that he was running a toy factory in Gali No.9, Than Singh Nagar, Anand Parbat in the year 20082009. Accused Vikas Kumar @ Malli was working in his factory as labourer for about two years before the incident. However, he (Vikas @ Malli)left the work in his factory, but again came to the factory after 2/3 months. He was labourer in month of November December 2008, . Accused Subhash @ Babloo present in court used to come to him and to Vikas @ Malli occasionally. He does not know anythingelse about this case. Police inquired him in this case but did not record his statement. In crossexamination by Ld. Addl. P.P PW2 has admitted of having made the statement Ex.PW2/A from point X to X. However, he (PW2) has denied of having made the statement from point Y to Y. He has denied that the entire statement Ex.PW2/A was recorded by the police at his behest. He has further denied on 30.12.08 accused Subhash present in court was with Vikas or that they received a telephone call at 3.00 PM or thereafter they went out of the factory and after sometime Vikas came back. He has further denied that at about 4.00 PM accused Vikas again went out of factory and came back at about 6.007.00 PM. He further denied that he suspected accused Subhash and Vikas to be behind the kidnapping of a child in the present case. He has further denied that he has been intentionally concealing the truth regarding the kidnapping as he has been won over by the accused. In cross examination by ld. counsel for accused PW2 has deposed that he was running his factory alone and no labour was engaged in December 2008. Since PW2 Kamal has not supported the prosecution case either in examinationinchief or in crossexamination by Ld. Addl. P.P, I am of the considered view that testimony of PW2 is also of no avail to the prosecution.
13 Another material witness examined by the prosecution is PW3 SC No. 03/10 4/18 5 Dashrath. He is the father of kidnapped Master Anurag. He has deposed that he is doing the packing work of torch on labour basis. One Raju was also doing the packing work with him. On 30.12.08 his wife and son Anurag aged seven years were supposed to leave for the native place in the evening. On the said day, at about 3.00 PM his son Anurag had gone to buy chocolate from the shop but he did not come back to the house. He made the search of his son but he was not found. On reaching the house of Raju, he found that room was locked. Ultimately, he made the complaint Ex.PW3/A at the PS raising suspicion upon Raju. On the basis of his complaint FIR was registered at PS Anand Parbat. Police also searched of his son Anurag but to no avail. On 3.1.09 at about 3.30/3.45 PM he received a call on his mobile phone from a mobile number, which was told by him to the police but he does not remember the number. On the phone call, he was informed that his son was secure and he was asked to arrange Rs.11 lakhs. The said number was confirmed to be a STD of Riga. On 4.1.09 he again received a telephone call from another mobile number enquiring from him about the arrangement of money. The said phone call also belonged to Riga. On 5.1.09 he again received a call by which he was directed to reach Sitamarhi and not to waste time in arranging money otherwise his son would be killed. He has further deposed that he kept on searching his son. Police officials were also making efforts to search his son. Thereafter, he went to his village Maisora, Distt. Shivhar, Bihar. Money was also demanded from his father. On 14.1.09 he received an information from Sonu, who is maternal uncle of Raju. He (Sonu) informed him that his son Anurag was present at Hanuman Mandir near Sitamarhi station. He went to Hanuman Mandir, Sitamarhi, where his son was found. He (Anurag) was taken to his house at native village. Polic also visited the village. Later on his son was brought to PS Anand Parbat. It was probably on 16/17 January, 2009 but he does not remember the exact date. SC No. 03/10 5/18 6 Thereafter his son was produced before the court and handed over to him. He identified the accused Subhash in court.
14 In crossexamination by ld. counsel for accused PW 3 has deposed that he earned Rs. 3000/ approximately from the business. Raju, Vikas and Subhash were not aware about his income. Rs1700/ used to be paid to Raju. He further admitted that he and Subhash belong to same district i.e Shivhar. He has further deposed that he does not know as to whether his close relative Shri Narain had contested the election of Jila Parishad. He cannot say as to whether Subhash had opposed Shri Narayan in the said elections. He has further deposed that on 30.12.08 when he came to know that his son was missing, other family members i.e his wife and daughters were present at home. His daughter Radha had seen Raju calling his son Anurag from the house. Radha saw that accused Raju was calling Anurag from gali and Anurag was going towards him. He hs admitted that accused Subhash was not seen there by them. He has told about the phone numbers of the callers on the same dates, when he received the calls. He was having TATA mobile having No. 9213128657. He cannot say whether the said calls were made to him by Subhash or somebody else. He can recognise the voices of Raju and Shakur but of not Vikas and Subhash. HIs mobile number was known to Raju and Shakur. He has denied that the said calls were made to him by Raju. The calls were received on all the dates. He has denied that accused Subhash is falsely implicated in this case. He cannot say accused Subhash was present at Hanuman Mandir, Sitamarhi when his son was found as there was crowd of devotees. He has admitted that no statement of accused Subhash was recorded in his presence.
15 In crossexamination by ld. counsel for accused he (PW3)has denied that he falsely implicated the accused as he contested the election of Jila Parishad against his close relative Shri Narayan.
SC No. 03/10 6/18 7 16 It is worth noting that PW3 has categorically deposed that he received the calls on his mobile phone on 3.1.09, 4.1.09 and 5.1.09. The calls which PW3 received on 3.1.09 and 4.1.09 were received by him from mobile phones. It is significant to note that PW3 could not tell the mobile number through which he received the ransom call on 3.1.09 and 4.1.09. On 5.1.09 also he received the ransom call by which he was directed to reach Sitamarhi and not to waste time in arranging money otherwise his son would be killed. It is the case of PW3 that he had informed about all the said calls to the police and all the said numbers were ascertained to be of STD Booth Riga.
17 Another material witness examined by the prosecution is PW10 SI Suresh Chand. He has deposed that on 31.2.08 complainant Dashrath had given a written complaint Ex.PW3/A. The complainant named the accused Raju Shah in the complaint. They searched for the accused Raju for 23 days but he (Raju)could not be located. On 3.1.09 complainant received a phone call regarding the demand for ransom money. On verifying the call details, the said call was found to be from Distt. Reegha (Bihar). A raiding team was sent to the house of accused Raju. Accused Raju was not at his home in Bihar nor his family members were aware about him. On 45.1.09 also complainant received calls from Distt. Reegha in which the caller stated that child was safe and he was asking for money. On 14./15.1.09 the complainant informed him on telephone regarding the recovery of his son. The team was again sent to where child was recovered as told by the complainant. The complainant alongwith his son came back to Delhi. One Raju, who was named in the FIR also came alongwith his father. He interrogated Raju Shah. He also examined the victim Anurag, who told that Raju and accused Subhash @ Babloo had taken him to Nepal and many other places. He apprehended the accued Vikas and arrested him vide SC No. 03/10 7/18 8 memo Ex.PW5/A and conducted his personal search vide memo Ex.PW5/B. One mobile phone was recovered from the personal search of accused Vikas. He got the accused Raju examined U/S 164 Cr.P.C. He obtained 10 days PC remand of accused Vikas and he went to District Sitamarhi, Shivhar Purnia in Bihar in search of coaccused Shakur and Subhash @ Babloo but they could not be apprehended there. As there were incriminatory evidence against accused Raju Shah, who was named in the complaint, he prepared chargesheet against him also and same was filed in juvenile court. Accused Subhash present in court was correctly identified by him.
18 In crossexamination by ld. counsel for accused PW10 has deposed that he had inquired about the phone number, from which the complainant Dashrath received the phone calls. The call was received by complainant on 3.1.09 from PCO. He had interrogated the PCOwala at Riga. The name of the PCOwala is Vimal Parsad. He did not examine the said PCOwala. He has deposed that he had also interrogated the PCOwala, from where the calls were made to the complainant on 5.1.09, but he did not record their statements. The complainant had also given the mobile phone at which he receive the ransom calls. The said phone number was 9213128657. He had obtained the call details of the mobile phone of the complainant from service provider, but he did not place the same on record because the call details of the phone Reegha (Bihar) from which the calls were received could not be obtained. He denied that he did not place the call details of the cell phone of complainant on record because the complainant had not received any phone call from Reegha on 3.1.09 or thereafter. He further denied that no PCOwala was examined and cited as witness because no such call was ever received from the complainant. He has deposed that the first team, which went for raid to Bihar comprised SI Ram Bilas and one more head constable. The raiding team has not SC No. 03/10 8/18 9 been cited as witness. He denied that that no such raiding team ever visited Reegha (Bihar). The complainant informed him on his cell phone regarding recovery of his son. He was not the part of the raiding team, which subsequently visited Bihar. The second team comprised SI Dharam Pal, HC Heera Lal and one more constable. The second team left for Bihar on 15.1.09. The team returned after 3/4 days. He did not record the statements of the raiding team. He had cited only HC Heera Lal as a witness in supplementary chargesheet to the arrest of accused Subhash and no other witness is cited. He denied that he got Subhash not arrested in Bihar and that is why SI Vishwanath of Bihar police has not been cited as witness. He denied that he did not investigate the matter fairly and properly only to save accused Raju Shah in the present matter. He further denied that he falsely implicated accused Subhash at the instance of complainant Dashrath Shah.
19 It is worth noting that PW10 SI Suresh Chand has deposed that on 3.1.09, 4,1,09 and 5.1.09 the complainant received the calls regarding the ransom . On verifying the call details the calls were found to be from District Reegha (Bihar). In crossexamination by ld. counsel for accused PW10 SI Suresh Chand has deposed that he had inquired about the phone number from which the complainant Dashrath received the phone calls. The call was received by complainant on 3.1.09 from PCO. He had interrogated the PCOwala at Riga. The name of the PCOwala is Vimal Parsad. He did not examine the said PCOwala. He also interrogated the PCOwala from where the calls were made to the complainant on 5.1.09, but he did not record their statements. He has further deposed that complainant had also given the mobile phone at which he received the ransom calls. He had obtained the call details of the mobile phone of the complainant from service provider, but he did not place the same on record because the call details of the phone Reegha (Bihar) from which the calls were SC No. 03/10 9/18 10 received could not be obtained. It is worth noting that IO SI Suresh Chand did not furnish any explanation as to why he could not collect the calls details of the phone, which were allegedly received from STD Booth Reegha (Bihar) by the complainant Dashrath. It is not the case of the IO that PCO's owner was not available as he has interrogated the PCOwala at Reegha (Bihar).
20 In Rajesh Dalal V. State, 2007 {4}JCC 3037, Hon'ble Delhi HIgh Court found the prosecution story doubtful. In that case PW6 Saurabgh Awasthy, who was kidnapped has deposed that a large number of telephone calls were made throughout the night by the kidnappers to his house, yet no record of such calls has been relied upon by the prosecution. Even the so called audio cassette which purportedly records the conversation between the kidnappers and PW5 did not fix the location nor the telephone number from which the calls were received. 21 It is further worth noting that PW3 Dashrath has categorically deposed that he cannot say whether the said calls were made to him by Subhash or somebody else. Since the prosecution did not place on record the call details of the phones made by the alleged kidnapper from STD Booth Reegha (Bihar), I am of the considered view that prosecution has miserably failed to prove on record that complainant Dashrath (PW3) received the ransom call from the accused.
22 Another material witness examined by PW6 Raju Shah. He has deposed that he was working in the factory of complainant. He was staying in the house in front of the house of Sh. Dashrath on rent basis. In the front room of the same building one Sh. Shakur Ansari was staying. He (PW6) used to visit the room of Shakur. Accused Subhash and Malli @ Vikas also used to come to the room of Shakur Ansari. Accused Subhash, Malli @ Vikas and Shakur Ansari SC No. 03/10 10/18 11 asked him to bring the son of Dashrath to them, but he refused. For about one week they (accused Subhash, Malli @ Vikas and Shakur) kept on insisting him to bring the son of Dashrath to them. But he refused . At that, they (accused Subhash, Malli @ Vikas and Shakur), threatened him to kill with the knife. On the 30th day at about 3.00 PM said accused persons asked him to bring the son of Dashrath from his house on the pretext of toffee/chocolate. Accordingly, he brought Anurag, Son of Dashrath in the gali. The accused had asked him to make a call at the phone of Vikas @ Malli. He made a call at the phone of Vikas @ Malli from a nearby STD and spoke to Subhash. Subhash said that they were coming there and asked him to stay there. After about 5 minutes Vikas & Subhash came there and Vikas @ Malli pointed them (PW6 & Anurag) to Subhash and thereafter left the place. Accused Subhash hired a auto and got sit himself and made him to sit Anurag in the auto. He (PW6) asked Subhash as to where he was taking them (PW6 & Anurag), upon which he (Subhash)said to sit in the auto. On the way to railway station Vikas @ Malli brought the bag containing clothes and accompanied them to the railway station where from accused Subhash, took Anurag and him to Ludhiana by train. Accused Subhash kept them in Ludhiana the next whole day and then brought them at 9.00 PM at the railway station on the next day and they caught the train and reached Narkutia Ganj, Bihar in the evening on the following day. From the Narkutia Ganj accused Subhash caught the small meter gauze train and took them to Chainpur, Bihar to the house of his relative. The accused Subhash kept them in the house of the relative whole night and thereafter the next day he took them to Chinnargahpur, Nepal, where he kept them for about one week in somebody's house. During this time of one week, accused Subhash was not there but he used to come there. Thereafter about one week accused Subhash came there and brought Anurag and him to Sitamarhi station where he freed SC No. 03/10 11/18 12 Anurag near the temple and he left him at a distance from the railway station. He (PW6) remained at the Sitamarhi railway station the whole night. The next morning he could not find Anurag around. He (PW6) caught a train from there and reached Reegha where he made a call to his father . His father came there and took him to PS. The police suggested his father to take him to Delhi. He alongwith his father and uncle came to PS Anand Parbat Delhi. At PS Anand Parbat he came to know that the child Anurag had been found. IO recorded his statement. On 22.1.09 his statement Ex.PW6/A was recorded in the court by Ld. M.M. 23 In crossexamination by ld. counsel for accused, PW6 has deposed that for the first time when accused Shakur Ansari had asked me to bring the child Anurag, he was alone. He had told to the police in his statement that about one week prior to the incident accused Subhash asked him to bring Anurag. (Confronted with statement U/S 161 Cr.P.C wherein it is not so recorded.) . He does not recollect the phone number at which he contacted from the street after bringing Anurag. He does not remember as to whether he provided the said number to the police in the police station. He does not know the place of stay of accused Subhash. He did not inquire about the place of stay of Subhash or Vikas. From gali No.5 they (he, Anurag and Subhash) went to the bus stop on foot. Therefrom accused Subhash hired the auto. On the way nobody inquired from them as to where they were going. He cannot tell the name and number of the train, which took them to Ludhiana. He did not tell anybody in the train that accused Subhash was taking them. Anurag also did not ask as to where he was being taken. There was family in the house at Ludhiana where they were made to stay. That family did not inquire anything from him nor he told that family anything. During the stay till he was released, he did not tell anything to anybody. Anurag had inquired him in Nepal as to where he was and as to why SC No. 03/10 12/18 13 he had been brought there but he did not tell them that he has been brought forcefully. He was made to accompany Anurag for the reason that Anurag should not weep. Accused Subhash had brought them to Sitamarhi by bus. On the way to Sitamarhi from Nepal they had changed the bus. During their stay in Nepal about a week accused Subhash was not with them. Accused Subhash had taken Rs. 500/ which was in his pocket so that he(PW6) did not try to run from Nepal. He denied that accused Shukur and he only were involved in the kidnapping and they took the Anurag to Nepal or that accused Suhabsh was falsely implicated at the instance of Dashrath as complainant Dashrath was having enmity with Subhash.
24 It is worth noting that PW6 is an accomplice in the present case. PW10 SI Suresh Chand has deposed that as there was incriminating evidence against accused Raju Shah, who was named in the complaint, he prepared the chargesheet against him also and same was filed in Juvenile Court. 25 Section 133 Evidence Act is reproduced here for ready reference: An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Section 114 Illustration (b) Evidence Act is also reproduced here for ready reference:
(b)that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
26 In R v. Mullins, 3 Cox Cr 526 it was held An accomplice is a person who has concurred in the commission of an offence.
Further in Ramasami V. R. 27 M 271 it was held that term "accomplice" signifies a guilty associate in crime; or when the witness sustains such a relation to the criminal act that he could be jointly indicted with the accused, he is an accomplice.
SC No. 03/10 13/18 14
In S.C. Bahri v. State of Bihar, A 1994 SC 2420 it was held that "A combined reading of the two provisions that in section 133 and illustration
(b) of section 114 of Evidence Act goes to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to section 133 a conviction is "not illegal or in other words not unlawful" merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to illustration (b) of section 114 of Evidence Act with a view to emphasise that the rule contained therein as well as in Section 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. Since an approver is a guilty companion in crime and, therefore, illustration (b) to section 114 provides a rule of caution to which the courts should have regard. It is now well settled by a long series of decisions that except in circumstances of special nature it is the duty of the court to raise the presumption in Section 114 illustration (b) and the Legislature requires hat the courts should make the natural presumption in that section.
In Niranjan Singh V. State of Punjab, 1996(2)Crimes 251, 256(SC) it was held that ordinarily combined effort of section 133 and 114 of Evidence Act is that conviction can be based on uncorroborated testimony of as an approver but as a rule of prudence, it is unsafe to place reliance on the uncorroborated testimony of an approver.
In Bhuboni Sahu v. The Kind Emperor, AIR 1949 PC 257 it was held that the evidence of the accomplice must be corroborated not only with regard to the occurrence but also against each of the accused sought to be implicated in the crime.
This position of law has been reiterated by the Supreme Court in Narayan Chetan Ram Choudhary v. State of Maharashtra, 2000 (8)SCC
457. 27 The question that arises for consideration is whether PW6 Raju Shah is trust worthy and reliable and whether his testimony is corroborated with the testimonies of other PWs in material points. After going through the testimony of PW6, I am of the considered view that he is not trust worthy and reliable. His testimony is not corroborated with the testimonies of PWs on material points. SC No. 03/10 14/18 15 28 From the testimony of PW6 it is not clear as to who asked him to kidnap the son of complainant Dashrath. In his statement U/S 164 Cr.P.C Ex.PW6/A has deposed that accused Shakur has asked him to kidnap the child of complainant. He has further stated that Shakur asked him to bring Anurag on the pretext of toffee. He (PW6) kidnapped the child. Thereafter, Shakur threatened and stated to him that if he did not kidnap the child Anurag, he would kill him with knife. He got frightened and kidnapped child Anurag on the asking of Shakur. In other words, as per the statement U/S 164 Cr.P.C Ex.PW6/A Shakur only asked him to kidnapped the child and threatened him. But in his testimony in court PW6 has deposed that accused Subhash, Malli @ Vikas and Shakur Ansari asked him to bring the son of Dashrath to them, but he refused to bring the child. He has further deposed that for about one week they (Subhash, Malli @ Vikas and Shakur)kept on insisting to bring the son of Dashrath but he (PW6) still refused. Upon that they (Subhash, Malli @ Vikas and Shakur)threatened him to kill him with knife. 29 From the testimony of PW6 it is not clear as to who asked him to make a call and to whom. In his statement Ex.PW6/A, PW6 has deposed that accused Shakur has also stated to him that after kidnapping the child he (PW6) should make a call to accused Subhash. Accused Vikas gave the telephone number of Subhash. Accordingly, on the asking of accused Shakur, he telephoned accused Subhash. In other words, as per the statement Ex.PW6/A accused Shakur had stated to him to make a telephone call to accused Subhash after kidnapping the child. But in his testimony in court he (PW6) has deposed that accused Subhash, Malli @ Vikas and Shakur Ansari asked him to make a call at the phone of accused Vikas @ Malli. In other words, as per the testimony of PW6, it was accused Vikas to whom PW6 had to make a telephone call and not accused Subhash.
SC No. 03/10 15/18 16 30 From the testimony of PW6 it is not clear as to who mde PW6 & Anurag to sit in the auto. In statement Ex.PW6/A, PW6 Raju Shah has deposed that Malli @ Vikas & Subhash made him and Anurag to sit in the auto rickshaw and took him and Anurag forcefully with him. Thereafter, accused Malli @ Vikas left the spot. In other words, it was accused Malli @ Vikas and Subhash, who made him and Anurag to sit in the auto rickshaw. But in his testimony in court PW6 has deposed that accused Subhash hired a auto and made him and Anurag to sit in the auto. He (PW6)asked as to where he was taking them, upon which he (Subhash) said to them to sit in the auto. 31 From the testimony of PW6 it is not clear as to where from he made a call to his father. In the statement Ex.PW6/A, PW6 has deposed that after 15 days accused Subhash left him at the Railway Station Sitamarhi, Bihar and Anurag was kept by him near Hanuman Mandir, Sitamarhi, which was near the railway station and ran away. PW6 telephoned his parents who came at the railway station who brought him back and produced him in the PS Reegha (Bihar). In other words, as per the statement Ex.PW6/A PW6 telephoned the parents from railway station Sitamarhi, but in his testimony in court he has deposed that about one week of their stay at Nepal accused Subhash came there and brought PW6 & Anurag to Sitamarhi station where he freed Anurag near the temple and left him at a distance from the railway station. He (PW6) remained at the Sitamarhi Railway Station the whole night. The next morning, he caught a train from Sitamarhi Railway station and reached at Reegha from where he made a call to his father.
32 In the present case, accused has examined Uday Veer, Warder, Tihar Jail No.1 as DW1. This witness has produced the record pertaining to the visit of complainant Dashrath and his wife Smt. Seema Devi to Tihar Jail No.1 to meet accused Subhash. The record produced by DW1 is Ex.DW1/A & SC No. 03/10 16/18 17 Ex.DW1/B. The photocopy of the meeting slip and visitor's pass is Ex.DW1/C. From the record Ex.DW1/A and Ex.PW1/C, it is proved on record by the accused that on 25.1.10 complainant Dashrath had visited Tihar Jail alongwith his wife Seema Devi to meet him.
33 It is also worth noting that DW1 has not been crossexamined by Ld. Add. P.P. No explanation has been furnished by the complainant as to why he had gone to meet accused Subhash in Tihar Jail on 25.1.10 before his deposition in the court.
41 In the present case complainant has been appearing regularly during trial. On 29.4.10 (when DW1, Udai Veer was examined by accused in his defence)he (PW3) was present alongwith his counsel Sh. Ravinder Kumar Tyagi. No attempt has been made to put suggestion to DW1 that complainant (PW3) did not visit Tihar Jail on 25.1.10 to meet accused Subhash. No explanation on part of prosecution about the visit of PW3 to meet accused at Tihar Jail, before his deposition in the court, castes a serious doubt in the prosecution story and the same cannot be ignored.
34 Keeping in view the serious pitfalls, in the testimonies of PWs, I am of the considered view that the prosecution has been miserably failed to prove that on 30.12.08 at 17/100B, Gali No.5, Than Singh Nagar, Anand Parbat, Delhi accused Subhash alongwith coaccused Shakur Ansari (PO) and Vikas @ Malli ( facing trial at Juvenile court) kidnapped Anurag aged about 7 years from the lawful guardianship of his parents without their consent and kept him in detention till 14.1.09 and the conduct of the accused Subhash @ Babloo gave rise to a reasonable apprehension that the kidnapped child Anurag might be put to death and the said act of kidnapping was done in order to compel the complainant to pay ransom. Accordingly, accused Subhash is acquitted of the offences, he was charged with. Accused is in JC in the case. He be released SC No. 03/10 17/18 18 immediately, if not wanted in any other case.
File be consigned to Record Room.
Announced in open court today on (Smt. Bimla Kumari)
10.08.10 Addl. Sessions Judge (North):Delhi
SC No. 03/10 18/18