Delhi District Court
State vs . Krishan Kumar @ Malhi on 31 January, 2023
IN THE COURT OF MS. ANU AGGARWAL, ASJ-07,
PATIALA HOUSE COURT, NEW DELHI DISTRICT, NEW DELHI
STATE VS. KRISHAN KUMAR @ MALHI
Session Case No. : 64/2021
FIR No. : 183/2009
PS : Tilak Marg
JUDGMENT
a) Unique Case ID No. : DLND01-002749-2019
b) Name, Parentage & address of
accused persons : 1. Ajay Kumar
S/o Sh. Raghubir Singh,
R/o Village & Post Office Bhagwi,
Tehsil-Charkhi Dadri, Haryana.
(already convicted vide Judgment
dated 31.08.2016)
2. Jitender Kumar @ Jitu
S/o Sh. Hari Ram,
R/o V PO- Shahdat Nagar,
Tehsil-Kosli, District- Rewari, Haryana.
(already convicted vide Judgment
dated 31.08.2016)
3. Vijay Phogat
S/o Sh. Maha Singh,
R/o Village-Bhiwani,
PS- Charkhi Dadri, Haryana.
(already convicted vide Judgment
dated 31.08.2016)
4. Krishan Kumar
S/o Sh. Chand Ram,
R/o H. No.191, Village Jhaswa,
District Jhajjar, Haryana.
c) The plea of the accused : Pleaded not guilty and claimed trial.
FIR No.183/09 Page No. 1/33
d) Date of institution of case : 2010.2009
e) Date of reserving Judgment : 27.10.2022
f) Pronouncement of judgment : 31.01.2023
Brief facts of the case
1. In the present case, accused Ajay Kumar, Jitender @ Jeetu and Vijay Phogat has already been convicted by the Ld. Predecessor of this Court vide Judgment dated 31.08.2016 and this Judgment is pertaining to accused Krishan Kumar, who was earlier declared Proclaimed Offender and subsequently arrested.
2. Brief facts of the case are that on 21.07.2009, a complaint was made by Ajai Kumar Garg regarding the kidnapping of his son Abhai Garg. He informed the police that his son victim Abhai Garg left the house along with Ajay (named as accused no.1 and already convicted) to inspect some properties in Gurgaon. He left around 1:30 pm and did not return home overnight. On 21.07.2009 at about 6 am, a call was received from wife of Ajay stating that her husband Ajai and victim Abhai has been kidnapped by some miscreants from Gurgaon. She also informed that Ajay came to her house and collected Rs. 1 lakh and some ornaments and also took their two children along with him. It was further stated by the complainant that at about 8 am, when they were going to the residence of Ajay to make inquiry, a call was received from Ajai wherein he stated that he has been freed after some warning and financial transactions but Abhai is still with kidnappers.
2.1. It was further stated by the complainant that he had made inquiries with wife of Ajay and she revealed that Ajai and Abhai had gone to Gurgaon to look some properties with Sh. Satya Narain Jhangu, owner of Prem or Prime Properties, Gurgaon. He filed a complaint to register the case regarding kidnapping of his son and on the said complaint, present FIR no. 183/09 u/s 365 IPC was registered and investigation was carried out.
FIR No.183/09 Page No. 2/333. During investigation, it was found that wife of Ajay Kumar (Convict no.1) had already left for her parental house at Rohtak. The inquiry was conducted with Ajit, brother-in-law of Ajay and Sanjay, brother of Ajay and after inquiry, the police suspected that Ajay Kumar is behind kidnapping of victim Abhai. The raids were conducted at many places to find out about whereabouts of accused Ajay Kumar and victim Abhai. A ransom call for Rs. 3 crore was received from the phone of the victim and SMS was also received.
4. During investigation, it was found that the ATM card of SBI Bank of victim Abhai Garg has been used at the ATM at Rewari. The details/ location of the phone of the victim and the accused was located and the car of the accused Ajay Kumar bearing registration no. DL3CAC8319 was found stationed at a road going from Madsa Flyover towards Gurgaon. Accused Ajay Kumar was found sleeping in the car. He was interrogated and from his possession, the SIM card of the victim was recovered. He disclosed that he along with Vijay (already convicted), Krishan and Jitender @ Jeetu (already convicted) had kidnapped victim for ransom. He also informed that the victim has been confined in one room at Kosli Kasba.
5. A rescue team was formed and at the instance of accused Ajay Kumar, victim was freed from the house of Sheela Yadav, Kosli Kasba. Co-accused Vijay was arrested from the spot and one desi katta was recovered from his possession. He was arrested. Medical examination of the victim was got conducted and he was handed over to his father Ajai Kumar Garg. Thereafter, raid was conducted to arrest co- accused Jitender @ Jeetu and Krishan Kumar. Co-accused Jitender @ Jeetu surrendered at Patiala House Court and at his instance, gold chain, mobile phone, shirt, etc of the victim was recovered. Accused Krishan Kumar was absconding and proceedings to declare him Proclaimed Offender were carried out. Pending PO proceedings, the charge-sheet was filed as against the other accused persons on 20.10.2009 before the Ld. MM. The supplementary charge-sheet against accused FIR No.183/09 Page No. 3/33 Krishan Kumar, who was declared Proclaimed Offender vide order dated 24.02.2010, was filed on 10.09.2010.
6. On 28.10.2012, accused Krishan Kumar was arrested from his village Jhaswal and kalandara u/s 41.1 (c) CrPC was prepared. He was produced before the Ld. MM and was sent to judicial custody. Accused Krishan Kumar refused to participate in the TIP proceedings. His police custody remand was taken and he informed the police that he had thrown the watch, ATM card and the country made pistol used in the commission of the offence in the canal near Kosli, Kasba. Thereafter, he informed the police that he had thrown the articles on the terrace of the house of Sheela Yadav. However, nothing was recovered at his instance from any of the place as disclosed by him in his disclosure statement. A supplementary charge-sheet was filed on 24.01.2013 against accused Krishan Kumar u/s 365/364A/120B IPC and 25/54/59 Arms Act. The same was committed to the Sessions Court by Ld. MM on 24.01.2013.
7. The charges u/s 364A/365/394/120B/174A IPC was framed against accused Krishan Kumar @ Malhi vide order dated 16.04.2013. The main charge-sheet was directed to be clubbed with the supplementary charge-sheet by the Ld. Predecessor of this Court vide order dated 16.04.2013. Thereafter, all the witnesses were examined and the case was listed for recording of statement of accused u/s 313 CrPC vide order dated 01.04.2016. The Statement of the accused persons were recorded on 03.05.2016 and the case was listed for defence evidence of accused Ajay. However, accused Krishan Kumar again absconded and was declared Proclaimed Offender vide order dated 04.08.2016.
8. Accused Ajay Kumar, Jitender @ Jeetu and Vijay Phogat were convicted by the Ld. Predecessor of this court vide Judgment dated 31.08.2016. Accused Krishan Kumar @ Malhi was again arrested on 17.02.2021 and supplementary charge-sheet was filed against him u/s 174A IPC. Vide order dated 18.09.2021, charge u/s 174 IPC FIR No.183/09 Page No. 4/33 was framed against him. He pleaded not guilty and claimed trial.
9. To prove and substantiate its case, the prosecution has examined 39 witnesses, in the main charge sheet and in the supplementary charge sheet:-
9.1. PW1 /HC Mukesh Kumar:- He was posted at PS Tilak Marg as Duty Officer. He had registered the FIR of this case vide Ex.PW1/A. He has also made endorsement on Rukka vide Ex.PW1/B. 9.2. PW2/Ajai Kumar is the father of victim Abhai Garg. He has deposed regarding the facts of the present case, kidnapping of his son Abhai Garg and is a material witness.
9.3. PW3/HC Pramod has deposed that on 30.07.2009, he went with PW29 IO Satyapal to Court No. 7, Patiala House Court where accused Jitender had surrendered and was taken on 2 days police custody remand. He identified the arrest memo & personal search memo vide Ex.PW3/A & B. Accused was brought to PS where he made disclosure statement in his presence, which is Ex.PW3/C. The accused allegedly disclosed and stated that he could get arrested Co-accused Krishan and also he could get recovered the gold chain & mobile phone beside other things.
9.4. PW4/Ct. Meher Singh is a formal witness. He has deposed that on 15.09.2009 on the instruction of PW29 IO Satyapal Singh, he had taken one sealed parcel sealed with the seal 'SK' along with documents to FSL Rohini and deposited the parcel in Ballistic Section. He has stated that no tempering was done with the parcel till it remained in his possession.
9.5. PW5/SI Rajwant Sharma has deposed that on 21.07.2009 he was posted as Sub-Inspector at PS Tilak Marg. He has deposed that Complainant Ajai Kumar came to the police station and gave a written complaint regarding abduction of his Son Abhai (PW6) vide Complaint Ex.PW1/A, which was presented to him at 11 AM. He prepared Rukka vide Ex.PW5/A for registration of FIR for offence U/s 365 IPC. Complainant Ajai Garg further revealed the number of the vehicle Maruti Wagon-R DL-3C-AG 8139 wherein Abhai had gone with accused Ajay Takshak from FIR No.183/09 Page No. 5/33 the house. He found the owner of the vehicle from the computer and it was found registered in the name of Smt. Nirmala (PW16) R/o H. No. 403, Sector 5, Pushp Vihar, New Delhi.
9.6. PW6/ Abhai Garg is the victim and the most material witness of the present case. He has deposed regarding facts of the case, how he was abducted and later on, recovered.
9.7. PW7/Ramesh Kumar Jyoterwal Assistant Manager, SBI, Rewari, Haryana has deposed that he handed over the CD containing CCTV footage to Police on 23.07.2009 for the period intervening night of 20/21 July 2009 from 11 PM to 3 AM night. The master copy of CD and copy of original CD are Ex.PW7/B, which was seized by police, vide seizure memo Ex.PW7/C. From the CD the print photographs were taken out and the same are collectively Ex.PW7/D. 9.8. PW8/ SI Shiv Charan was the member of raiding party constituted for finding out victim. He has deposed as to how accused Ajay was arrested and how a further raiding team was organized on the basis of disclosure of accused Ajay. He has deposed as to how the victim was freed from the clutches of the kidnappers and the apprehension of accused Vijay Phogat. He has deposed regarding the seizure of CCTV footage vide seizure memo Ex.PW7/C, the SBI, Rewari transaction enquiry seized vide seizure memo Ex.PW8/A, transaction slip of SBI Rewari Ex.PW8/B, other transaction enquiry Ex.PW8/C, four photographs developed from the CD Ex.PW7/D. The seizure memo of SIM of the victim with mobile phone and cash of Rs.9,000/- vide seizure memo Ex.PW8/D, the seizure memo of Wagon R bearing registration no. DL-3C-AG-8139 Ex.PW8/E, the disclosure statement of accused Ajay Ex.PW8/F, the sketch of country made pistol recovered from accused Vijay Phogat Ex.PW8/G, the seizure memo of the country made pistol Ex.PW8/H, the seizure memo of the articles recovered from the room where the victim was kept vide seizure memo Ex.PW8/J, arrest memo of accused Vijay Phogat Ex.PW8/J-1, personal search of accused Vijay Phogat Ex.PW8/J-2, disclosure statement of accused Vijay Phogat Ex.PW8/K, the seizure of motorcycle Ex.PW8/K, application for obtaining FIR No.183/09 Page No. 6/33 the handwriting of accused Ajay Kumar Ex.PW8/K-1, arrest memo of accused Ajay Kumar Ex.PW8/K-2, personal search of accused Ajay Kumar Ex.PW8/K-3, pointing out memo of the house where the victim was kept as Ex.PW8/K-4, the recovery memo of victim Abbey Kumar Garg Ex.PW8/K-5, handing over memo of the victim to his father Ex.PW2/B, The identification of car registration bearing no. DL-3C-AG-
8139 Ex.PW6/P-13, The identification of the recovered mobile phone with SIM and cash of Rs.6,000/- containing twelve currency notes five hundred in domination Ex.PW6/A-1 to PW6/A-12, MTNL SIM Ex.PW6/A-4, SIM of Reliance Mobile Ex.PW8/P-1, Samsung hand set with Reliance SIM Ex.PW8/Article-1, Mobile Phone Nokia Handset with Idea SIM as recovered Ex.PW8/Article-2, Country made pistol, one live and used cartridge Ex.PW6/A-1, the CD seized from SBI Branch, Rewari Ex.PW8/Article-3, two dandas Ex.PW6/A-9 & Ex.PW6/A-10, one red colour wire having one side three pin plug Ex.PW6/A-8, four iron chains Ex.PW6/A-5, eight locks with thirteen keys Ex.PW6/A-6, two jute rope Ex.PW6/A-7, one gas lighter Ex.PW6/A-11, one small pillow Ex.PW6/A-12, three packet of hand gloves Ex.PW6/A-14, one table fan Ex.PW6/A-13, motorcycle bearing no. DL3SW9031 Ex.PW8/Art-4.
9.9. PW9/Ct. Jitender Kumar has deposed more or less on similar lines as deposed by PW8 SI Shiv Karan in material particulars as he was also the member of the same raiding party and he has also identified accused persons along with the case property.
9.10. PW10/Puran Singh, Father-in-law of accused Jitender is a formal witness in this case. He has deposed that motorcycle No. DL 3S SW 9031 belonging to his son-in-law Jitender was seized vide seizure memo is Ex.PW8/K. 9.11. PW11/Sh. Mahesh Kumar has deposed that he used to run a sweet shop in the name of Bharat Sweet and Bakers at Sheetla Mata Road. On 23.07.2009, one person had left the Helmet on his shop. After about one week, police came to this shop with a person, who claimed that helmet belongs to him. He handed over the Helmet to the police, which was seized vide seizure memo is Ex.PW11/A. He FIR No.183/09 Page No. 7/33 identified accused Jitender.
9.12. PW12/Sh. Deepak, Nodal Officer, Vodafone has deposed regarding CDR of mobile no. 9899851821 (Nirmala Devi). As per their record, the said mobile number was found in the name of Sahil Shukla R/o House No. 430, Sector-5, Pushp Vihar. He has deposed regarding Customer application form Ex.PW12/A, Copy of Election Card Ex.PW12/B, the CDR Ex.PW12/C and 65B certificate Ex.PW12/D. 9.13. PW13/Dr. Subodh Sharma, RML Hospital has deposed that he has been deputed to appear on behalf of Dr. Vineet Pathak. He has seen Dr. Vineet Pathak writing & signing in the course of his official duties. He has seen MLC No. 90245/09, pertaining to patient Abhai Garg dated 24.07.2009. On the said MLC injuries are mentioned from portion A to A. 9.14. PW14/Dr. Durgesh, Medical Officer, RML Hospital has deposed that on 24.07.2009, he had examined the patient (victim) vide MLC Ex.PW14/A. 9.15. PW15/ASI Jagbir Singh is a formal witness who has deposed that on 12.10.2009, he took a sealed parcel from Malkhana of PS Tilak Marg to FSL, Rohini.
9.16. PW16/Smt. Nirmal Takshak was the registered owner of the car Wagon R bearing registration no. DL3CAG8139 which was seized by the police and she got it released on superdari on 19.02.2010 on the direction of the court of Sh. J.R. Aryan, Ld. ASJ after execution a superdarinama Ex. PW16/A. The car is Ex. PW6/P-13. Photocopy of RC is Ex. PW16/P-1.
9.17. PW17/Sh. Satya Narain Janghu has deposed that in the year 2009, he was working as a property dealer having his office at A-9, New Palam Vihar, Gurgaon, Bahghera road, Haryana. He was known to accused Ajay Kumar Takshak and on 20.07.2009 at around 04:00/05:00 PM, accused Ajay Kumar Takshak alongwith one Abhai Garg had come to his office. Abhai Garg was driving the car and he told him that he wanted to purchase some property in the range of rupees 1 - 1.25 crore. Abhai Garg told him that he wanted to purchase a residential plot and he had shown him the plots and had also taken him for site visit. Thereafter, on the next day, Abhai Garg again went to his office and told him that he had come to Gurgaon for FIR No.183/09 Page No. 8/33 some work and therefore he had come to his office. After taking a cup of tea, Abhai left his office.
9.18. PW18/Ct. Prem Raj has deposed that on the intervening night of 30/31.07.2009, he was posted at PS Tilak Marg and had joined the investigation of this case. He had accompanied Inspector Satpal Singh to District Jajhar and Ct. Parvesh along with accused Jitender @ Jitu left PS Tilak Marg at around 10:30/11:00 PM. They reached at PS Kosli and made relevant entries. Thereafter, they all reached at Nahar Road where accused Jitender @ Jitu pointed towards one house and informed that Abhai Garg was kept in that house and it belonged to Smt. Sheela Yadav. A pointing out memo Ex.PW18/A in this regard was prepared. Thereafter, accused Jitender @ Jitu led the police party to one house in village Naya Gaon in Shahdutt Nagar and got recovered one shirt of peach colour lining from inside one Almira in the house. One mobile phone make Nokia 1650 of black and white colour and one gold colour chain 22 carat was produced by accused Jitender. The articles were seized vide seizure memo Ex.PW18/B. Thereafter, they came to Gurgaon at a sweet shop at Sheetla Mata road where one helmet was lying on the counter of one shop. Accused Jitender @ Jitu picked up the same and handed over the same to the IO and disclosed that he was wearing that helmet at the time of withdrawing money from the ATM. The chain was identified by him as Ex.PW6/A2 and the shirt as Ex.PW18/1. The black colored mobile phone Nokia of black and white colour containing one SIM card of Idea and the mobile bearing model number 1650 and IMEI no. 359337026072242 Ex. PW18/2 was also produced. He had identified the helmet Ex. PW11/1 and had also identified the accused in the court.
9.19. PW19/Smt. Sheela Yadav has deposed that in the month of June 2009, she was a teacher in Yaduvanshi School, Narnol and owned a house situated at Nahar road, Kosli of 200 yards. On 04.06.2009, she had rented out the abovesaid house to accused Jitender @ Jeetu for an amount of Rs.2700/- and within 8-10 days, the said house was vacated by accused Jitender @ Jitu. On 26.06.2009, she let the above said house to accused Ajay for a rent of Rs.3,000/- and accused Ajay told her that he FIR No.183/09 Page No. 9/33 would keep his family in that house and would do the business of Computer Centre in Kosli. She correctly identified both the accused persons in the court.
9.20. PW20/Sh. Rakesh Soni, Telecom Officer, Tis Hazari Exchange produced the CDR of mobile no. 9868045777 & 9868189085 (Abhay's phone) and the records of the mobile phone were proved by RS Yadav, Junior Telecom Officer (PW-21).
9.21. PW21/Sh. R. S. Yadav, Junior Telecom Officer, Tis Hazari Exchange has deposed that on 12.10.2009, he handed over the Call details of Mobile No. 9868189085 & 9868045777 to the police. As per record, the mobile no. 9868189085 was issued in the name of Accused Ajay Kumar and Mobile No. 9868045777 was issued in the name of Abhai Kumar. CDR from the period 15.07.09 to 29.07.09 is already exhibited as Ex.PW8/DX1 to Ex.PW8/DX8. He brought 65B Certificate Ex.PW21/C issued by him.
9.22. PW22/Sh. Vinod Kumar, Nodal Officer, MTNL has brought original record of customer application form of Smt. Jagdish Sahani, W/o SH. R. L. Sahani R/o A-2A72, Janakpuri, New Delhi pertaining to mobile no. 9868189085 along with copy of the election card of the applicant Jagdish Sahani. He also brought the record of mobile no. 9868145777 issued to one Abhai Garg along with the photocopy of the license.
9.23. PW23/SI K. L. Yadav has deposed and corroborated the testimonies of PW8 SI Shiv Karan and PW9 Ct. Jitender in material particulars as he was also the member of the same raiding party and he has also identified accused persons alongwith the case property.
9.24. PW24/Ms. Deepa Verma, Deputy Director, FSL, Rohini - Hand Writing Expert. She has deposed that questioned documents marked as Q1 to Q3 in a small spiral pocket diary along with standard writing of Ajay Kumar mark S1 to S5 was examined. She got exhibited the report as Ex.PW21/A. As per findings, the person who wrote the specimen writings mark S1 to S5 also wrote the question writing mark Q1 to Q3.
FIR No.183/09 Page No. 10/339.25. PW25/Sh. Ashok Kumar, Record Clerk, Sheikh Sarai, RTO brought the summoned record regarding registration of vehicle Chetak Scooter bearing registration no. DL3SW 0903, which was registered on 08.03.2001 in the name of Pradeep Kumar Saini. The record of registration of the vehicle is Ex.PW25/A. The vehicle make Wagon R LX1 Maruti Car bearing registration no. DL3CAG 8139 was registered in the name of Smt. Nirmala Takshak on 18.05.2006. The copy of the record is Ex.PW25/B. 9.26. PW26/SH. R. K. Singh, Nodal Officer, Airtel has brought CAF (Customer Application Form) regarding 9810020946 (Ajai Garg) along with ID proof. The CDR is from 21.07.2009 till 24.07.2009 running into six pages Ex.PW26/B. 9.27. PW27/Pawan Singh, Nodal Officer, Idea Telecom also brought the summoned record in respect of Mobile No. 9811078474. As per CAF, this number was allotted to Jitender Kumar and activated on 07.02.2002. Photocopy of CAF is Ex.PW27/A. Copy of driving license is Ex.PW27/B. He has deposed that CDR is not available with the company as they are more than one year old.
9.28. PW28/Ct. Parvesh, Posting PCR, North Zone has deposed that on 31.07.2009, he joined the investigation. Along with IO Insp. Satyapal, Ct. Prem Raj and accused Jitender, he had gone to Kosli (Jhajjar). Accused Jitender pointed out toward a house and stated that they had confined one Garg in that house. Accused Jitender got recovered one shirt of peach color, one Nokia mobile of black and white color and one gold chain after taking out form an almirah and same were taken into possession vide seizure memo Ex.PW18/B. Pointing out Memo of the house of Sheela Devi is Ex.PW18/A. The chain is Ex.PW6/A2, Shirt is Ex.PW18/A & mobile phone is Ex.PW18/2.
9.29. PW29/Inspector Satyapal Singh - is the second IO of the case. He has deposed that he had produced accused Ajay and Vijay before the court and obtained Police Custody remand of three days of both the accused persons. Thereafter, accused Ajay and Vijay were brought to the PS and interrogated and put into the lock-up. On FIR No.183/09 Page No. 11/33 25.07.2009, he had taken accused Ajay to Gurgaon, Rewari and the place where the alleged kidnapped boy was kept at village Kosli, Nagarpur Road at the house of Sheela Yadav. He also searched for co-accused Jitender and Krishan Kumar but both could not be found. He has further deposed that on 26.07.2009, accused Ajay had taken Inspector Satyapal, SI Shiv Karan and Ct. Sukhwinder to the local areas in Delhi i.e., Shahpur Jatt, Saket, Sagarpur [at the sasural of accused Jitender at RZ-233, Sagarpur] and one motorcycle bearing no. DL-3SW-9031 make Bajaj Discover was found parked outside house of in-laws of accused Jitender. Accused Ajay pointed towards the motorcycle and informed that it was the same motorcycle which was taken by him for withdrawing money from the ATM. It was informed by the father- in-law of accused Jitender that had left the motorcycle two days back at his house. The said motorcycle was taken into possession vide seizure memo Ex.PW8/K. 9.30. PW30/HC Chet Ram, P.S. Dwarka has deposed that on 03.11.2012, he along with Ct. Pankaj and Insp. Satyapal had taken accused Krishan to village Jhalswa, Distt. Rewari where accused Krishan pointed out at the house of Sheela and disclosed that Abhai had been kept in the said house. IO prepared pointing out memo, which is Ex.PW30/A. Accused had also disclosed that he used a country made pistol and the same was thrown near a canal and he could get it recover but no recovery could be affected as the accused gave contradictory statement regarding throwing of the weapon of offence.
9.31. PW31/Ct. Pankaj has deposed that on 30.10.2012, he joined the investigation along with IO. Accused Krishan was arrested form Patiala House Court vide Arrest Memo Ex.PW31/A. He was interrogated and his disclosure statement was recorded vide Ex.PW31/B. Accused has disclosed about the place where Victim Abhai was kept after his kidnapping. He along with Insp. Satyapal and HC Chet Ram had taken the accused Krishan to village Kosli, Rewari where accused had pointed out the house of one Sheela and disclosed that victim was detained in the said house after kidnapping. IO prepared the pointing out memo Ex.PW30/A. Accused had also disclosed that he had used a country made pistol and the same was thrown near a FIR No.183/09 Page No. 12/33 canal and he could get it recovered but no recovery could be effected. The accused further disclosed that he had thrown the weapon of offence at the roof of house of Sheela Devi but when the roof was searched, no recovery could be effected. Because of contradictory statement of the accused, no recovery could be effected.
9.32. PW32/ASI Ram Pal has deposed that he had received the process u/s 83 Cr.P.C. in respect of Accused Krishan Kumar. He went to his address but the accused was not found. He did not find movable and immovable property of the accused. His Report Ex.P2 dated 28.11.2009.
9.33. PW33/HC Anil Kumar has deposed that on 28.10.2012, he was posted at PS GK. He had received information regarding accused Krishan who has been declared Proclaimed Offender. He had arrested the accused from village Jhaswa, Distt. Jhajjar.
9.34. PW34/Ms. Ambika Singh, Ld. MM has deposed that on 30.10.2012, she was working as link MM to the Court of Ms. Navita Kumari Baga, the then Ld. MM, PHC, New Delhi. Application for conducting TIP proceedings in respect of accused Krishan Kumar @ Malhi was marked to her. The accused was produced in muffled face and accused stated before her that he wanted to get his TIP done. Accordingly, the TIP proceedings were fixed on 31.10.2012 at 2 pm in Central Jail, Tihar. On 31.10.2012, the accused was produced before her in Central Jail, Tihar and was duly identified by Assistant Superintendent, Tihar. Accused Krishan Kumar stated before her that he does not want to participate in TIP proceedings as his photographs were taken by the police and the same were shown to the witness in the police station and outside the court. His statement was recorded and the TIP proceedings were concluded vide Report Ex.PW34/A. 9.35. PW35/Ct. Sunil Panwar has deposed that on 28.10.2012, HC Anil had received information from a special informer that one person who has been declared Proclaimed Offender in the present case would be coming at Village Jhaswa, District Jhajjar and if raid is conducted, he could be apprehended. HC Anil left for village Jhaswa. Accused Krishan Kumar was arrested and his personal search was FIR No.183/09 Page No. 13/33 conducted vide memo Ex.PW33/A and Ex.PW34/B. The Kalandara was prepared which is Ex.PW33/D. 9.36. PW36/Ct. Mahender Singh has deposed that he was entrusted with the process u/s 82 CrPC against accused Krishan Kumar. He executed the same. He appeared before Ld. MM and gave his statement Ex.CW1/A dated 07.10.2009.
10. After completion of the prosecution evidence, initially, the statement of the accused Krishan Kumar was recorded u/s 313 CrPC on 03.05.2016. In his statement, accused Krishan Kumar denied all the allegations and has taken the defence that he was not with the other accused persons and was not aware as to what they did with Abhai. He has further stated that he has been falsely implicated and was lifted from his village. He did not make any disclosure statement and his signatures were taken forcibly on blank papers. He has further stated that PWs have deposed against him being police officials and interested witnesses. He did not lead any evidence in defence.
11. After recording of the statement of all the accused persons, the case was listed for defence evidence of accused Ajay vide order dated 03.05.2016. However, accused Krishan Kumar again absconded and was declared PO vide order dated 04.08.2016. After he was declared PO, vide order dated 19.08.2016, the Ld. Predecessor of this Court directed to open a separate file for accused Krishan Kumar and vide his Judgment dated 31.08.2016, accused Ajay Kumar Takshak, Jitender Kumar @ Jeetu and Vijay Phogat were convicted for the offence u/s 364A/365/394 IPC r/w Section 120B IPC, Section 120B IPC and accused Vijay Phogot was also convicted u/s 25 Arms Act.
12. Thereafter, accused Krishan Kumar @ Malhi was again arrested on 17.02.2021 under DD No. 34A u/s 41.1 (c) CrPC. Kalandara u/s 41.1(c) CrPC was filed against him. Additional charge u/s 174A IPC was framed against him on 18.09.2021 to FIR No.183/09 Page No. 14/33 which he pleaded not guilty and claimed trial. Pursuant to the same, the prosecution examined two witnesses in the Kalandara i.e. PW-1A ASI Chandehas and PW-1B ASI Inder Singh.
12.1. PW-1A ASI Chandehas has deposed that he was posted as HC at PS Mandir Marg and was assigned the duty to arrest Proclaimed Offender. He came to know that accused Krishan involved in case FIR No. 183/2009 PS Tilak Marg has been declared PO. Accordingly, he had inspected the case file with permission. Thereafter, he deployed his sources for collecting information of PO Krishan. On 16.02.2021, he had received information about the availability of accused Krishan Kumar @ Malhi at his residence at Village Jhasva, PS Salavas, District Jhajhar, Haryana with his family. On the basis of information, SI Jai Singh and ASI Inder Singh joined with him and formed the raiding party. He along with raiding party reached at PS Salavas from where he joined police officials from the police station Salavas and then reached at the house of the accused/proclaimed offender Krishan Kumar @ Malhi on 17.02.2021 in the morning at about 06:30 AM. Accused Krishan Kumar @ Malhi was apprehended. He arrested him under Section 41.1(C) Cr.P.C. vide arrest memo Ex.PW1A/A. The personal search of accused was conducted vide memo Ex.PW1A/B. He brought the accused to Delhi at PS Mandir Marg. He had made relevant arrival entries vide GD No. 34A, Ex.PW1A/C. He prepared Kalandara under Section 41.1(C) Cr.P.C. (P.O.) Ex.PW1A/D and the same is accompanied with copy of DD No. 34A, arrest memo, personal search memo, MLC, P.O. Order (copy) and conviction slip which was duly forwarded by the then SHO Inspector Ram Niwas.
12.2. PW-1B ASI Inder Singh has deposed that he was posted as ASI at PS Mandir Marg. On 16.02.2021, HC Chanderhas received secret information regarding Proclaimed Offender Krishan Kumar in case FIR No. 183/2009 PS Tilak Marg. He formed raiding party, including SI Jai Singh and himself. On the same day, they went to Village Jhasva, PS Salavas, District Jhajhar, Haryana. They reached at PS Salavas. The next day, they along with Police Officials of PS Salavas reached at FIR No.183/09 Page No. 15/33 the house of accused at about 06-06:15 AM. Accused Krishan Kumar @ Malhi was apprehended. HC Chanderhas arrested him under Section 41.1(C) Cr.P.C. having informed him about the proclamation order and conducted his personal search.
13. Thereafter, the prosecution evidence was closed vide order dated 02.05.2022. The supplementary statement of accused Krishan Kumar @ Malhi was recorded u/s 313 CrPC. He has stated in his statement that he did not abscond. He was at his home as his mother and father were ill due to which he could not appear before the court. He has admitted his arrest, preparation of kalandara and production before Duty MM. He did not lead any evidence in the kalandara u/s 174A IPC.
14. After recording of the statement of the accused, the case was listed for final arguments. The State moved an application u/s 311 CrPC for examining the process server who had executed the process u/s 82/83 CrPC against Krishan Kumar on 26.05.2022. The said application was allowed on the same day and accordingly, ASI Rajesh Kumar was examined as PW-1C.
PW-1C ASI Rajesh Kumar has deposed that on 02.08.2016, he was posted at PS Tilak Marg as Head Constable. On that day, on the instructions of IO/SHO, one notice u/s 82 CrPC issued in the name of Krishan Kumar @ Malhi S/o Sh. Chand Ram R/o Jhaswa, PS Sallhawas, District Jhajjar Haryana, was handed over to him for execution. Thereafter, he went to the abovesaid address where the father of accused Krishan Kumar namely Chand Ram met him, who told him that Krishan Kumar was not residing there and he resides somewhere in Gurgaon. He further told him that there is no exact time when accused would visit his house at Jhajjar, Haryana. No further satisfactory answer was given by the father of the accused and he told him that if accused would visit the house, the court proceedings would be intimated to the accused. Thereafter, he pasted copy of 82 CrPC notice on the said house and also munadi was conducted by reading over the notice u/s 82 CrPC in public in loud voice. Thereafter, he came back and pasted one copy of the notice on FIR No.183/09 Page No. 16/33 the notice board of Patiala House Court. He prepared his report which is Ex. PW- 1C/A. Thereafter, on 13.10.2016, on the instructions of IO/SHO, one 83 CrPC proceeding issued in the name of Krishan Kumar @ Malhi S/o Sh. Chand Ram R/o Jhaswa, PS Sallhawas, District Jhajjar Haryana, was handed over to him for execution. He went to the abovesaid address where the father of accused Krishan Kumar namely Chand Ram met him, who told him that Krishan Kumar was not having any movable or immovable property and he further told him that he was not aware of the present address of the accused Krishan Kumar. No movable or immovable property belonging to the accused could be found. He prepared his report Ex.PW1C/B.
15. After recording of the statement of PW-1C, prosecution evidence was closed and second supplementary statement of the accused u/s 313 CrPC was recorded on 02.07.2022. In the second supplementary statement, the accused denied all the allegations. On the same day, one application u/s 311 IPC was moved by the defence to recall PW-6 Abhai Garg and PW-29 Inspector Satpal Singh for further cross- examination. The said application was allowed vide order dated 07.07.2022 and accordingly, PW-6 Abhai Garg was further cross-examined on 27.09.2022 and PW-29 ASI Satyapal was further cross-examined on 07.10.2022. The accused did not lead any defence evidence and accordingly, final arguments were heard.
16. I have heard the final arguments of Sh. Girish Kumar Manhas, Ld. Addl. PP for the State and Sh. Suresh Sisodia, Ld. Defence Counsel.
17. Ld. Addl. PP for the State has argued that prosecution has proved the case against the accused beyond all reasonable doubts. The other three co-accused persons have already been convicted. The victim has identified the accused. The Ld. Addl. PP for the State has further argued that accused absconded twice and was declared FIR No.183/09 Page No. 17/33 Proclaimed Offender. The prosecution has examined all the necessary witnesses as to prove the case u/s 174A CrPC as against the accused in the supplementary charge- sheet. It is argued that the accused should be convicted.
18. Ld. LAC for the accused Krishan Kumar has argued that no recovery has been effected from the possession of the accused and the only evidence against him is the disclosure statement of the co-accused persons. There are material contradictions in the testimony of the witnesses. The accused was not involved with other co-accused persons and there is no evidence lead by the prosecution to prove criminal conspiracy between the accused and other co-accused persons.
19. It is further argued by the Ld. LAC that PW-2 Ajai Kumar has not made any telephone to his son and there are contradictory statements given by him during his evidence. He has not mentioned in his complaint Ex.PW2/A that he tried calling his son's mobile number and his number kept coming either switched off or engaged. There is no explanation as to why PW-2 did not call Ajay Takshak's mobile number to find the reason as to why Abhai has not returned home. It is further argued that there are material contradictions between the statement of the son of the victim and the victim and leading to raising the suspicion over the case of prosecution. It is further argued that theory projected by victim Abhai that accused Krishan had put the firearms against his body from the back is concocted as no such firearm has been recovered from the possession of the accused. It is argued that nothing has been recovered from the possession of accused Krishan. It is further argued that the accused has never absconded and has been PO wrongly. It is argued that the accused should be acquitted.
20. In the present case, all other accused persons have already been convicted by the Ld. Predecessor of this Court vide Judgment dated 31.08.2016. As regard accused Krishan, the charges have been framed against him u/s 364A/365/394/120B/174A FIR No.183/09 Page No. 18/33 IPC on 16.04.2013. Further charge u/s 174A IPC was framed against him on 18.09.2021. For the sake of brevity and convenience let the relevant sections be reproduced verbatim which are as under:-
"120A IPC. Definition of criminal conspiracy.-When two or more persons agree to do, or cause to be done.-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.] 120B IPC - Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] FIR No.183/09 Page No. 19/33 362 IPC-Abduction.-
Whoever by force compels, or by any deceitful means induces, any persons to go from any place, is said to abduct that persons.
364 IPC - Kidnapping for ransom, etc.- Whoever kidnaps or abducts any persons or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such persons, or by his conduct gives rise to a reasonable apprehension that such persons may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or 2[any foreign State or international inter-governmental organization or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.] 365 IPC- Kidnapping or abducting with intent secretly and wrongfully to confine person.--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall he punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.
394 IPC - Voluntarily causing hurt in committing robbery.-If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such persons, and any other person jointly concerned in committing or FIR No.183/09 Page No. 20/33 attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
21. The complainant Ajai Kumar is the father of victim Abhai Kumar and has been examined as PW-2. On the careful perusal of the testimony of PW-2, it has come on record that on 20.07.2009 his son Abhai Garg (PW6) left from his residence C-2/33, Bapa Nagar at around 02:30 pm with convict Ajay Takshak in a silver color Maruti Wagon R vehicle for seeing some properties at Gurgaon. He did not return to his residence till 11:30 PM and 12 O'Clock and his phone number was responding as "Switched off". In the next morning on 21.07.2009 at around 06:00 AM, he received telephone call from the wife of convict Ajay Takshak informing him that Abhai and her husband (Convict Ajay Takshak) both had been kidnapped. He, immediately, left for the house of convict Ajay. Along with, his brother-in-law and would be father-in- law of his son Abhai had also gone. While they were on the way to Pushp vihar, at around 8 a.m., he received a call from Ajay Takshak on mobile phone wherein convict Ajay Takshak told that he had been let off after some financial settlement and warning. Ajay further told that the culprits were not releasing Abhai. They reached at the house of accused Ajay in Pushp Vihar and he informed the wife of accused Ajay about receiving the call from accused Ajay that he had been let off. On further inquiry, wife of accused Ajay told that Ajay had visited his residential house late in the previous night and collected one lakh rupees from the house plus some jewellery and took away their two children and thereafter, she had no contact with Ajay and she did not know whether Ajay had been released or not. As he perceived from the behaviour of wife of accused Ajay that she was not telling truth, he inquired from the neighbouring people and came to know that accused Ajay was in debts and the story of accused Ajay taking Rs. 1 lakh from the house could not be probable one. He went FIR No.183/09 Page No. 21/33 to Police Station Tilak Marg and lodged the FIR. He has identified his complaint as Ex.PW2/A. He has also informed the mobile number on which he has received the call from accused Ajay.
He has further deposed that on the intervening night of 21.07.2009 and 22.07.2009 at about 1 O'Clock, PW2 received a call from the mobile number of his son Abhai on his mobile number and the caller disclosed his identity as Jeetu (Convict no. 2). The caller informed him that he along with Ajay Takshak and two other culprits had kidnapped Abhai. He demanded a ransom of Rs.3 crores and had further threatened him that if he would informed anything to the police, Abhai would be killed. PW2 has further deposed that on 22.07.2009, he received four SMS on his mobile phone and when on 22/23.07.2009, he was in the Police Station, he had received similar threatening calls on his mobile phone which were recorded. He has deposed that on 24.07.2009, he had received his son from Police Station Tilak Marg.
22. Therefore, PW-2 has not only prove his complaint Ex.PW2/A but has also given the detailed version as to how his son got missing and how he went to the house of accused Ajay and lodged the complaint. There is no reason for disbelieving the testimony of PW-2.
23. Perusal of the case file and deposition of PW6 Abhay Garg (victim) shows that he knew accused Ajay Takshak since 2006. He has deposed that on 20.07.2009 at about 02.00 or 02.30 PM, accused Ajay Takshak came to his house and asked him to come along with him to meet one Satya Narayan Jhangu. He had accompanied accused Ajay Takshak in the Wagon R Car and they reached at the office of Satya Narayan Jhangu. Thereafter, accused Ajay advised him (PW6 Abhay Garg) not to talk about any college canteen matter and instead inquire about a flat with Satya Narayan Jhangu. At that time, Abhay had suspicion on accused Ajay Takshak. When they came out of the office at around 3:13 or 4:00 PM, accused Ajay Takshak procured a liquor from a liquor vendor and got the cold drink for Abhai. Accused Ajay Takshak FIR No.183/09 Page No. 22/33 took him to show a plot of Mukund. He drove the vehicle passing through some fields and when they reached at open side, accused Ajay Takshak pointed towards some open area as plot of Mukund. They reached at the plot which was having boundary and accused Ajay started consuming liquor. At that time, 3-4 boys came towards their vehicle. They were in muffled face and entered inside the vehicle. Victim was on the left side of seat of the driver and he tried to came out but he was forced to be inside the vehicle. He has further deposed that they all were armed with firearms weapons which were kind of pistol. One person who was at the back seat of Wagon R car caught hold of his neck by putting his arm around his neck. He has stated that the said person was accused Krishan whose name he came to know later on. He has further deposed that accused krishan had put his firearms against his body and other accused persons were seating on the back seat of the car and they had also put their firearms against his body.
24. PW-6 Abhai Garg was initially examined on 09.08.2010 when accused Krishan Kumar was declared Proclaimed Offender. PW-6 has deposed that he would identify accused Krishan in case, he would have been present in the Court. Thereafter, accused Krishan Kumar was arrested and PW-6 was again summoned and was further examined on 19.04.2014. During his examination on 19.04.2014, he identified accused Krishan in the Court.
25. He has further deposed that accused Jeetu and Vijay had also put their firearms against him. They took out his pocket purse and mobile phone. They put him in the dikky of the car threatening him with the gun. He has deposed that accused Krishan was holding a danda and was handing over it to accused Vijay. They tied his hands and legs and forced him inside the dikky. His mouth was gagged with cloth. They drove him to a place and brought him inside one room. They removed the cloth from his eyes and unfolded his hands and tied his hands with the chain used to chain dogs. They bolted the room from outside. He has deposed that accused Jeetu and FIR No.183/09 Page No. 23/33 Vijay took the pin number of his debit and credit card by threatening him and putting burning bidi on his hand.
26. He has further deposed that only accused Krishan and Vijay used to be there in the room. He asked them to release him but they told that other persons had gone to withdraw the money. He has deposed that on 22.07.2009, he crawled and knocked on the door for asking some water and food. He was provided with food. The accused persons threatened him to be quiet. On 23.07.2009, he again knocked at the door for some water. Accused Krishan and Vijay came inside the room and accused Krishan was having danda. He was put on the floor and accused Vijay sat on his back. Accused Krishan inflicted blows with danda on the sole of his feet and around 40-45 danda blows were given to him due to which he sustained fracture. He has deposed that on 24th July in the morning, police rescued him. He has deposed that he gave statement before the Magistrate.
27. PW-6 Victim Abhai has given detailed version of the incident as happened with him. He specifically named accused Krishan and also deposed about the specific role being played by accused Krishan. His statement was recorded before the Ld. Magistrate u/s 164 CrPC. Even in his statement u/s 164 CrPC, he has named accused Krishan as one of the person who had abducted him. He was again called for cross- examination and was further cross-examined by the Ld. LAC for accused Krishan on 27.09.2022 i.e. nearly after 12 years of the incident. In the cross-examination, he has deposed that accused Krishan was seating at the back of his car. Even after span of 12 years of the incident, witness again identified accused Krishan in the Court. He has further deposed that police had disclosed him the name of accused Krishan as he could identify his face but was not aware of his name. He has admitted that in his statement u/s 164 CrPC, he has not disclosed that when he was asked to sit in the dikky, accused Krishan was holding danda and he handed over it to Vijay. However, he has given the plausible explanation of the same and has stated that there might be FIR No.183/09 Page No. 24/33 some minor discrepancies in his statement recorded u/s 164 CrPC and the one given in the Court but he has disclosed all major acts to the Magistrate. He was very disturbed when he gave statement to the Magistrate and was physically injured. Though, he has stated that he could not tell how many rooms were there in that house where he was confined but he has given the plausible explanation that the cloth from his eyes was untied only after taking him to the room where he was confined. He has further deposed that mostly Vijay and accused Krishan used to remain at a place where he was confined. He has further deposed that when he was beaten with danda by accused Krishan, no bleeding took place but he suffered fracture. The perusal of the cross-examination of the witness reflect that his testimony has remained consistent throughout and there are no material contradictions in his testimony. There is no reason to disbelieve the testimony of victim Abhai Garg.
28. PW13/Dr. Subodh Sharma, RML Hospital has deposed that he has been deputed to appear on behalf of Dr. Vineet Pathak. He has seen Dr. Vineet Pathak writing & signing in the course of his official duties. He has seen MLC No. 90245/09, pertaining to patient Abhai Garg dated 24.07.2009. On the said MLC injuries are mentioned from portion A to A. PW14/Dr. Durgesh, Medical Officer, RML Hospital has deposed that on 24.07.2009, he had examined the patient (victim) vide MLC Ex.PW14/A. Victim Abhai was rescued on 24.07.2009 and was examined by the Doctor. His MLC Ex.PW14/A was prepared. As per MLC, he had difficulty in walking and was keeping his left foot forcefully on the ground and was dragging his right lower limb. On local examination, swelling was found all over his left foot and left ankle, tenderness and restriction of mobility at ankle joint and toe joint, bruises on left foot, abrasion all over encircling lower wrist, swelling was found at lower foot and ankle. The nature of the injury was found to be simple, however, the nature of the injuries as stated in the MLC corroborates the version of PW-6 that he was given beatings with danda on his feet.
FIR No.183/09 Page No. 25/3329. Further, perusal of the case file and deposition of PW8 Shiv Karan, IO it has come on record that police was working on the complaint Ex.PW2/A, which was made by PW2 Ajay Kumar, who happens to be father of victim. PW8 testified that on 23.07.2009 he along with SI K. L. Yadav, Ct. Jitender and SHO Inspector Mohan Singh went to Station Road, Rewari, Haryana since money had been withdrawn from SBI ATM situated at Rewari from the account of abhay Garg [victim]. In this regard, CCTV footage was converted into CD and was taken into possession vide seizure memo Ex.PW7/C and computerized copy of the said transactions was taken into possession vide seizure memo Ex.PW8/A; Ex.PW8/B; and Ex.PW8/C. Four photographs of the CD were also got prepared vide Ex.PW7/D.
30. Again perusal of the deposition of PW8/IO reveals that SIM Card of cell phone of Abhay Garg [victim] was found active and location was found at Hero Honda Chowk near Haldiram Wala at NH 8, SI Shiv Karan. So, a team of police party proceeded in that direction. In the meantime, Inspector Mohan Singh informed PW8 Shiv Karan that Inspector Dinesh Kumar is chasing Wagon R bearing No. DL-3CAG- 8139, which belongs to Kidnapper/accused Ajay Kumar Takshak. The Wagon R car was finally spotted at one mini market which was at a distance of about 1 km from Jharsa flyover. The front gate of the Wagon R was opened and accused Ajay was laid down on the driver seat in a drunken condition. Accused Ajay Takshak was taken out and Wagon R was searched. Accused Ajay was also searched and SIM Card of Abhay Garg [victim]; mobile phone; and cash of about Rs.9000/- kept in a purse was taken into possession vide seizure memo Ex.PW8/D. Accused Ajay Takshak disclosed that he had kidnapped Abhay Garg [victim] with his associates and kept him in village Kosli, District Jhajjar Haryana vide disclosure statement Ex.PW8/F. Thus, a team comprising of additional DCP Vimal Anand gupta, ACP Vijay Singh, Inspector Mohan Singh, SI Shiv Karan along with 20-25 officers and commandos was constituted and they left in 5-6 private vehicles and officials gypsy towards village FIR No.183/09 Page No. 26/33 Kosli on the intervening night 23/24.07.2009 and reached near the village Kosli at about 03:30 AM. Accused Ajay Takshak took the police party to the house of one Sheela Yadav.
31. The house of Sheela Yadav was raided after being surrounded by commandos. Accused Vijay Phogat was found to be present on the roof of the kothi and was brought down by the commandos and on the personal search, accused Vijay was found in possession of a desi Katta along with two live cartridges in his right dub of pant vide sketch of the same was prepared Ex.PW8/G and was taken into possession vide seizure memo Ex.PW8/H. There accused Vijay Phogat got recovered the abducted boy Abhay Garg who was kept in a room. Abhay Garg [victim] was found lying on the bed sheet on the floor of the house on a thin mattress. Hands and legs of victim Abhay Garg were tied with a rope and one bucket filled with urine was also there. Victim Abhay Garg was very frightened and perplexed. He was made untied and photographs of the room were taken. So, accused Ajay Takshak was arrested vide his arrest and personal search memos Ex.PW8/K-2 and K-3. His disclosure statement was also recorded vide Ex.PW8/F. Pointing out memo Ex.PW3/K-4 was prepared of the place where victim Abhay Garg was kept. The recovery memo of kidnapped Abhay Garg was also prepared vide Ex.PW8/K-5. The custody of Abhay Garg [victim] was handed over to his father vide handing over memo Ex.PW2/B.
32. PW-9 Ct. Jitender Kumar has also given the detailed version of the investigation conducted by the IO in the present case and has deposed on a similar line as PW-8. His testimony has further corroborated the testimony of PW-8.
33. PW-19 Sheela Yadav is the owner of the house where the victim was confined. As per her testimony, she had given the said house on rent to accused Jitender @ Jeetu on 04.06.2009 and on 26.06.2009 had let the house to accused Ajay.
FIR No.183/09 Page No. 27/33Her testimony has remained unrebutted, so far as, accused Krishan is concerned.
34. PW-23 SI K L Yadav was also in the search team for searching accused persons and has deposed on a similar line as PW-8 and PW-9. He has deposed that on 22.07.2009, he along with SHO, SI Shiv Karan, Ct. Bahadur and Ct. Jitender went for searching accused persons. The SHO had received the information about the withdrawal of money with the help of ATM Card of the victim at Rewari. They went to Rewari and collected CCTV footage of the ATM machine of SBI Bank at Rewari. They saw that one person was withdrawing money and he was wearing helmet. IO/ SHO received information that vehicle no. DL 3CAG-8139 was near Jharsa Village near Highway. They found the said vehicle parked there and accused Ajay was seating in the driving seat. He was in drowsy condition. IO took search of him and found small pocket diary in his pocket. In the diary, the things required for kidnapping a person such as chain, plastic gloves, chain lock, etc. were noted. He was interrogated and he disclosed the name of his associates, Krishan, Vijay Phogat and Jitender @ Jeetu who had kidnapped victim Abhai Garg. He also disclosed that victim Abhai was confined in a house at Kosli District Mahendra Garh. A new police team was constituted and the raid was conducted. The victim was freed. He has given the detailed version as to how the raid was conducted and victim was freed.
35. Therefore, all the material prosecution witnesses i.e. PW-2/ Ajai Kumar, PW- 6 Abhai Kumar, PW-8 Shiv Karan, the Investigating Officers and other material witnesses have fully supported the case of prosecution and there is no material contradictions in their testimonies. The contention of the Ld. Defence Counsel that the benefits of the contradictions must be given to the accused does not hold good as those contradictions are only minor contradictions, which is bound to appear in every case.
36. Therefore, the prosecution has been able to prove beyond reasonable doubt FIR No.183/09 Page No. 28/33 that accused Krishan Kumar entered into criminal conspiracy with other accused/ convict persons to abduct victim Abhai Garg (PW-6) and they all abducted Abhai Garg for the purpose of ransom. Victim Abhai Garg was wrongfully confined and was also beaten up by the accused Krishan Kumar along with other accused persons/ convicts. Even though, no recovery has been effected from the possession of accused Krishan Kumar, it is not fatal to the case of prosecution as Krishan Kumar had absconded and was arrested after more than three years of the incident. Therefore, the chances of any recovery from him was definitely blink.
37. In view of the above findings, the prosecution has been able to prove the case beyond all reasonable doubts against accused Krishan Kumar for the offences u/s 364-A IPC r/w 120 B IPC, 365 IPC r/w 120 B IPC, 394 IPC r/w 120 B IPC and 120 B IPC.
38. Accused Krishan Kumar @ Malhi has also been charge-sheeted for an offence u/s 174A IPC. The charge u/s 174A IPC was framed against him twice. The first charge u/s 174A IPC was framed on 16.04.2013 and the second charge u/s 174A IPC was framed on 18.09.2021.
39. Section 174 A IPC provides the punishment for non-appearance in response to a proclamation under section 82 of CrPC. It is reproduced as under:-
"Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine".FIR No.183/09 Page No. 29/33
40. The proclamation is issued u/s 82 CrPC. It reproduced as under:-
"Section 82 CrPC Proclamation for person absconding- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:-
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is in respect of a person accused or an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 936, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by FIR No.183/09 Page No. 30/33 the Court under sub-section (4) as they apply to the proclamation published under sub-section (1)".
Therefore, as per the provisions of Section 82 CrPC, when a written proclamation is issued requiring the accused to appear at a specified place at specified time, he shall be given not less thirty days to appear from the date of publishing such proclamation. If the time given to him to appear is less than thirty days from the date of publishing the proclamation, such proclamation is not considered to have been executed as per law within the requirement of Section 82 CrPC. Once the proclamation is not executed as required under law, the person against whom such proclamation is issued, cannot be declared Proclaimed Offender on the basis of such proclamation.
41. Coming to the present case, the first charge u/s 174A IPC was framed on 16.04.2013. The accused was declared Proclaimed Offender on 24.02.2010. He was arrested on 28.10.2012 and was produced before the Court on 30.10.2012. In order to prove charges u/s 174A IPC, the prosecution has examined two witnesses:-
PW-32/ ASI Rampal has deposed that he had received process u/s 83 CrPC in respect of accused Krishan Kumar. He went to the given address at Village Jhashwa, PS Salavas, District Jhajjar Haryana and met the Pradhan of the village. The accused was not found at his address at Village Jhashwa. No movable and immovable property of the accused was found. He gave his report dated 28.11.2019 as Ex.P2.
PW-36/ Ct. Mahender Singh has deposed that he was entrusted with the process u/s 82 CrPC against accused Krishan Kumar and he executed the same. He had given his statement in the Court of Ld. MM as Ex.CW1/A dated 07.10.2009. The process u/s 82 CrPC and his statement recorded in the Court of Ld. MM is not in the judicial file.
42. As per PW-36, who was examined on 28.02.2015, the process u/s 82 CrPC and his statement was not found in the judicial file. However, the process u/s 82 CrPC issued against accused Krishan Kumar returnable on 10.10.2009 is in the FIR No.183/09 Page No. 31/33 judicial file. The perusal of the said process reflect that it was executed only on 06.10.2009 and the report was furnished on 07.10.2009. As the accused failed to appear on 10.10.2009, he was declared Proclaimed Offender on 24.02.2010.
Therefore, the accused was declared Proclaimed Offender on the basis of proclamation which was executed only on 06.10.2009 requiring the accused to appear on 10.10.2009. The process u/s 82 CrPC was not executed as per law and the time specified in the proclamation was less than thirty days from the date of proclamation for the accused to appear. Hence, the accused was not declared Proclaimed Offender as per law and therefore, the prosecution has failed to prove the charge u/s 174A IPC against the accused.
43. The second charge u/s 174A IPC was framed on 18.09.2021. As per the second charge, the accused was declared proclaimed offender on 13.10.2016. He was arrested on 17.02.2021 and was produced before the Court on the same day. The prosecution has examined three witnesses to prove the second charge u/s 174A IPC i.e. PW-1A ASI Chanderhas, PW1-B ASI Inder Singh and PW1-C ASI Rajesh Kumar.
44. However, the perusal of the process issued u/s 82 CrPC Ex.CW1/A against the accused reflect that it was issued on 20.07.2016 and was returnable on 04.08.2016. It was published on 02.08.2016. Even in the second proclamation issued against the accused, the time given to him to appear is less than thirty days of the date of issuance of the proclamation. Therefore, the second process u/s 82 CrPC has also not been executed as per law and the accused cannot be convicted u/s 174A IPC on the basis of such proclamation.
45. In view of the above observations, accused Krishan Kumar stands convicted u/s 364-A IPC r/w 120 B IPC, 365 IPC r/w 120 B IPC, 394 IPC r/w 120 B IPC FIR No.183/09 Page No. 32/33 and 120 B IPC and acquitted of all the charges u/s 174A IPC.
Announced in the open court On 31.01.2023 (Anu Aggarwal) ASJ-07/PHC/New Delhi 31.01.2023 FIR No.183/09 Page No. 33/33