Delhi District Court
State vs 1.Rakesh Singh @ Harkesh on 26 October, 2012
FIR No. 34/09
Convicted Accused Rakesh Singh for the
offences punishable u/s 342/
506/ 385 IPC and 365/120B
IPC; and
Accused Priya Harshvardhan
for the offences punishable u/s
365/120B
03.11.2012
ORDER ON THE POINT OF SENTENCE
Pre: Ld. APP for the state.
Ld. counsel Sh. K S Sharma for convict persons.
Convict are in JC.
Arguments on sentence heard. Vide separate order placed along
side in the file, convict P. Harshvardhan is sentenced to undergo
Rigorous imprisonment for 3 years for the offence u/s 365/120B IPC
and fine of Rs.20,000/ in default 6 months further R.I. ; and convict
Rakesh Singh is sentenced to undergo 6 years R.I. and fine of
Rs.10,000/ in default further 6 months R.I.; Rigorous imprisonment for
1 year for the offence u/s 342 IPC; Rigorous imprisonment for 5 years
for the offence u/s 506 - II IPC; further Rigorous imprisonment for 2
years for the offence u/s 385 IPC. All sentences shall run concurrently.
Benefit of section 428 Cr. PC be given to both the convict persons. No bail
application in respect of accused P. Harshvardhan has been moved by Ld.
Counsel, as the accused is in J/C. Copy of this order and judgment be
given to the convict at free of cost forthwith. Orders accordingly.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
1
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
FIR No. 34/09
State Vs 1.Rakesh Singh @ Harkesh
Singh
2.Priya Harshvardhan
Police Station Punjabi Bagh
Under Section 365/ 328/ 342/ 385 / 34 and 506
PartII, IPC
Convicted Accused Rakesh Singh for the
offences punishable u/s 342/
506/ 385 IPC and 365/120B
IPC; and
Accused Priya Harshvardhan
for the offences punishable u/s
365/120B
03.11.2012
ORDER ON THE POINT OF SENTENCE
Pre: Ld. APP for the state.
Ld. counsel Sh. K S Sharma for convict persons.
Convict are in JC.
During the course of arguments ld. APP along with ld. Counsel Sh.
M.L. Mahajan submits that offences of such types are increasing day by
day. He again argues and submits that accused Rakesh Singh for the
offences punishable u/s 342/ 506 II/ 385 IPC and 365/120B IPC and
accused Priya Harshvardhan for the offences punishable u/s 365/120B
have been convicted. ld. APP further submitted that a lenient view has
already been taken by the court acquitting the accused persons for the
offence punishable u/s 328 IPC. Further, accused P. Harshvardhan has
also been acquitted for the offences punishable u/s 342, 328, 385 IPC and
2
506II, IPC. Ld. APP further submits that offence u/s 365 IPC is
punishable upto 7 years and fine. ld. APP again submits that both the
convict persons deserve maximum punishment as after hatching criminal
conspiracy the victim was taken away from her house. On these grounds
ld. APP submits that both the convicts deserve maximum punishment.
Contrary to it, ld. Counsel Sh.K S Sharma for convict P.
Harshvardhan submits that convict is aged about 26 years old. He has
also old parents to look after who are suffering with old age ailments. He
is the only bread earner in his family. He further submits that convict has
already remained in judicial custody for about 1 month during the course
of trial of the case. Ld. counsel again submits that no previous criminal
antecedents have borne on record in respect of convict. Ld. Counsel
again submits that he is a graduate and working as Computer Operator with
National Disaster Management Authority. On these grounds ld. counsel
for convict prays for taking lenient view at the time of awarding the
sentence and release him on probation of good conduct. But no application
in this regard has been moved by ld. Counsel.
Further, ld. Counsel Sh. K S Sharma for convict Rakesh Singh
submits that convict is aged about 26 years old. He has also old parents
to look after who are suffering with old age ailments. He is the only bread
earner in his family. He further submits that convict has already remained
in judicial custody for about 2 years 8 months during the course of trial of
the case. Ld. counsel again submits that no previous criminal antecedents
have borne on record in respect of convict. ld. Counsel again submits that
maximum sentence for the offences u/s 365 and 506 II IPC is 7 years and
for the other offences sentences are below 7 years. On these grounds ld.
counsel for convict prays for taking lenient view at the time of awarding the
3
sentence and to release him for the period as already undergone by him
during the course of trial.
I have heard the submissions of ld. counsel for the convict and ld.
APP as well. Keeping in view of the facts and circumstances of the case
and family background of accused persons I am of the view in respect of
convict Priya
Harshvardhan that undoubtedly accused has clear
antecedents but he has been convicted u/s 365/ 120 B IPC against which a
serious consideration is required. Therefore, I am not inclined to release
him on probation of good conduct. Further, taking into consideration of all
the facts and circumstances of the case to my view ends of justice will be
met if accused/ convict P. Harshvardhan is sentenced to undergo Rigorous
imprisonment for 3 years for the offence u/s 365/120B IPC and fine of
Rs.20,000/ in default 6 months further R.I. No bail applicaton has been
moved by ld. Counsel being accused in JC.
So long as accused / convict Rakesh
Singh is concerned, the
offences against which Rakesh Singh is convicted appears to be of serious
nature. Hence, to my view the principle of parity qua for the offence u/s
365/ 120 B IPC is not applicable in the present case as he has been
convicted along with other offences 342/ 506II/ 385 IPC. Therefore, to
my view ends of justice will be met if accused Rakesh Singh is sentenced
to undergo 6 years R.I. and fine of Rs.10,000/ in default further 6 months
R.I. ; further ends of justice will be met if he is sentenced to undergo
Rigorous imprisonment for 1 year for the offence u/s 342 IPC;
Rigorous imprisonment for 5 years for the offence u/s 506 - II IPC;
further Rigorous imprisonment for 2 years for the offence u/s 385 IPC.
Accordingly, convict P. Harshvardhan is sentenced to undergo
4
Rigorous imprisonment for 3 years for the offence u/s
365/120B IPC and fine of Rs.20,000/ in default 6 months
further R.I. ; and
convict Rakesh Singh
is sentenced to undergo 6 years R.I. and
fine of Rs.10,000/ in default further 6 months R.I.;
Rigorous imprisonment for 1 year for the offence u/s 342 IPC;
Rigorous imprisonment for 5 years for the offence u/s 506 - II
IPC;
further Rigorous imprisonment for 2 years for the offence u/s
385 IPC.
All sentences shall run concurrently.
Benefit of section 428 Cr. PC be given to both the convict
persons.
Copy of this order and judgment be given to the convict at free of
cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 03.11.2012
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
5
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 355/1/10
Assigned to Sessions. 29.04.09
Arguments heard on 01.10.2012
Date of order. 26.10.2012
FIR No. 34/09
State Vs 3.Rakesh Singh @ Harkesh Singh
s/o Babu Ram, r/o Village
Pokharbhida, PS Ghughuli, district
Maharaj Ganj, U.P.
4.Priya Harshvardhan s/o Ram
Kumar Shuka, R/o Village Ranipur
Post, Shalahpur PS Phaphund
Distt. Auriya U.P.
Present Add: WZ61 A, Narayana
village, New Delhi.
Police Station Punjabi Bagh
Under Section 365/ 328/ 342/ 385 / 34 and 506
PartII, IPC
JUDGEMENT
1. Briefly facts of the case are that on 11.11.2008 at about 12.30 p.m. outside of House No. 12, Road No. 73, West Punjabi bagh, Delhi accused persons in furtherance of their common intention abducted Harveen Kaur @ Seeba, aged about 33 years old wife of Amardeep Singh with intention to cause to be secretly and wrongfully confined her. She was confined upto 01.02.2009 at different places including Narayana, Delhi, Deemapur, Assam and Siliguri, West Bengal. Accused persons in furtherance of their common intention administered some 6 stupefying things by injecting her on 11.11.08. They have also administered certain drugs or substances by mixing in water with intend to cause hurt to Harveen Kaur while she was confined at Deemapur and Siliguri by accused persons. Between 11.11.2008 to 01.02.2009, accused persons in furtherance of their common intention both committed criminal intimidation by threatening Harveen Kaur with intend to cause alarm to her. Accused Rakesh used to keep the knife in order to intimidate her. During the said period accused persons in furtherance of their common intention put Harveen Kaur in fear of injury besides compelling her to drink water. Accused persons have also extorted a sum of Rs.30,000/.
2. In this regard, on 11.11.2008, DD no. 61B was recorded at PS Punjabi Bagh and duty officer marked the said to PW13 SI Khemender Pal Singh. The said DD was with regard to missing of one Sheeba @ Harveen Kaur. IO got originated the WT message throughout India regarding the same and published the notices in the newspapers and pamphlets were also got prepared. Harveen Kaur was searched but she could not be traced.
3. On 28.1.2009, Kamalpreet Singh, brother of Harveen Kaur came at the PS and gave a written complaint. IO made endorsement on the same 7 vide Ex. PW13/A and gave original Tehrir for the registration of the case. After the registration of the case, Duty officer gave copy of FIR and original Tehrir to IO as the investigation was assigned to him. He again originated the WE message and other formalities. On 29.1.2009, he called accused Priya Harshwardhan at the Police Station to conduct inquiry. He stated that accused Rakesh had taken Harveen Kaur to Balighat, Distt. Shiv Sagar at Assam. This fact was apprised to Sr. Officer and IO obtained permission to go to Assam.
4. On 30.1.2009, IO along with Ct. Umesh Tiwari, complainant Kamalpreet Singh, his brother Manpreet Singh @ Mony left from Delhi to Assam by air and on the same day they reached Assam. They hired a taxi for going to Shiv Sagar. On 31.1.2009 they reached at P.S. Simalgudi, Distt. Shiv Sagar, Assam in the evening. One ASI and one Ct. joined the investigation from P.S. Simalgudi, they searched for the accused and Harveen Kaur in the area of Balighat and Simalgudi but they could not be traced due to late hours.
5. On 1.2.2009 they again went to Balighat and enquired from the public persons. There is a village Manipuri and accused Rakesh was found coming from that place and on seeing Rakesh one public person stated that this person is living in village Manipuri alongwith a lady for the last 8 two months. They apprehended accused Rakesh. Thereafter, he took them to the room at Village Manipuri. The room was found bolted from outside. Accused Rakesh opened the gate by unbolting and Sheeba @ Harbeen Kaur was found present inside the room. Kamalpreet Singh, identified his sister Sheeba @ Harbeen Kaur. I.O. made enquiries from Sheeba @ Harveen Kaur and recorded her statement. He also interrogated accused Rakesh and recorded his disclosure statement vide Ex. PW1/D. I.O. arrested accused Rakesh and prepared his arrest memo and personal search memo vide Ex. PW1/C and PW1/E. From the personal search of accused two mobile phones, one black coloured purse, containing some visiting cards etc., one railway ticket, receipt of excess fare, an amount of Rs. 100/ were recovered. House owner Inder Kumar Singh and one public person namely Babu Hazarika were examined and their statement was recorded.
6. I.O. asked Harveen Kaur for medical examination but she stated that she did not want to conduct her medical examination. She gave her written statement to this effect vide Ex. PW1/F, duly signed by IO at point B and signatures of Harveen Kaur and Kamaljeet Singh are at point S2 and S respectively. Harveen Kaur was not feeling comfortable with accused Rakesh, hence she got separated from Rakesh and she was given in the custody of her brother Kamaljeet Singh. Thereafter, they 9 went at the residence of Ld. CJM, Distt. Shiv Sagar. I.O. moved an application for the transit remand of accused Rakesh. IO was directed to produce accused Rakesh at the concerned court at Delhi. Thereafter, they all started from Guwahati for coming back to Delhi by train and they reached at Delhi on 03.02.2009. Accused Rakesh Singh was got medically examined at Aruna Asaf Ali Hospital, New Delhi and thereafter accused was produced before the concerned court and from there he was sent to JC.
7. On 05.02.2009, IO moved an application under section 164 Cr.P.C. to get recorded statement of prosecutrix and the date was fixed for 07.02.2009. On 07.02.2009, IO attended the court along with prosecutrix Harveen Kaur and her brother Kamalpreet Singh. Ld. MM recorded statement of Harveen Kaur. After the statement of prosecutrix was recorded under section 164 Cr.P.C. Accordingly, both accused persons were arrested and booked for the alleged offences.
8. This case was committed to the Sessions Court and received on 29.04.2009 for trial as it pertains to the heinous crime committed under sections 365/ 328/ 342/ 385 / 34 and 506 PartII, IPC which is exclusively triable by court of Sessions and Ld. predecessor of this court framed charge for the offences punishable u/s 365/ 328/ 342/ 385 / 34 10 and 506 PartII, IPC against accused persons, to which they did not plead guilty and claimed trial.
9. To prove and substantiate its case the prosecution has examined witnesses namely PW1 Kamapreet Singh - brother of prosecutrix - he is the witness to the recovery of prosecutrix from the possession of accused Rakesh - he correctly identified the accused persons as culprits; PW2 Smt. Harveen Kaur, prosecutrix - star witness; PW3 Ct. Umesh Tiwari - recovery witness of prosecutrix; PW4 Ct. Praveen - DD writer, on 11.11.2008 at PS Punjabi Bagh; PW5 Ct. Sunil - DD writer on 30.01.09 at PS Punjabi Bagh; PW6 Ct. Vijender Kumar - another DD writer on 03.02.2009 at PS Punjabi Bagh; PW7 Mohd. Babu Hazarika - Taxi Driver at Simanguri junction, Assam - he left the accused at hotel with a lady, as she was stated as his wife; PW8 HC Satpal - duty officer on 28.01.2009 - he recorded FIR of the present case vide copy of FIR Ex.PW8/A and his endorsement as Ex.PW8/B; PW9 Ashok Kumar, Section Officer, National Disaster Management, Ministry of Home Affairs he affirmed the fact that accused Rakesh was working as Data Entry Operator but he was not permanent employee however, this witness is hostile witness on some material aspects; PW10 M N Vijayan, Nodal officer - he got exhibited the telephone call details in respect of phone 11 no.9250504030 w.e.f. 01.10.2008 to 25.12.2008; PW11 Vijay Singh, Sr. Booking Clerk, New Delhi Railway Station - he got exhibited the railway tickets of accused as Ex.PW11/A to PW11/E; PW12 Ct. Ravinder Tomar - he is the witness to the arrest of accused Priya Harshvardhan on 29.03.09 and he got exhibited the arrest memo as Ex.PW12/A, disclosure statement as Ex.PW12/B, personal search memo as Ex.PW12/C and seizure memo of motor cycle no. DL 6 S 9 0970 as Ex.PW12/D; PW13 SI Khemender Pal Singh - Investigating Officer; PW14 SI Kartar Singh - formal IO, who prepared the charge sheet and handed over the case file to MHCR on 17.03.09; and PW15 SI Manohar Lal II I.O., he arrested the accused Priya Harshvardhan on 29.03.09.
10.I have gone through the testimonies of all these witnesses very carefully. It has come on record that PW2 Smt. Harveen Kaur @ Seeba was married to Amardeep Singh on 16.10.1994 and she along with her two children aged about 14 years and 7 years, was residing at H. No. 12/73, Punjabi Bagh, Delhi. In the month of April 2008, repairing work was going on in the aforesaid house and accused Rakesh Singh was searching work of electricity, hence he was engaged for electricity work. During the period work, he developed intimacy with children of Smt. Harveen Kaur. It has also come on record that in the month of 12 September 2008, a quarrel took place between Smt Harveen Kaur @ Seeba and her husband on account of Rakesh, electrician. On this accused Rakesh used to ask Smt. Harveen Kaur as to why her husband used to quarrel with her. Thus, accused gained her sympathy and confidence. He also used to offer her Prasad, 23 times from a temple and after taking that Prasad she used to become mum. Accused used to address Harveen Kaur as his Bhabhi. Further, perusal of the testimony of prosecutrix that accused Rakesh Singh introduced his co accused Priya Harshvardhan with Smt. Harveen Kaur and stated that Harshvardhan is Govt. Servant and wanted to leave Govt. job to go to USA. It has also come on record in the testimony of PW2 prosecutrix that accused Rakesh used to make telephone calls to Smt. Harveen Kaur.
11.Further, it has come on record in the testimony of PW2 prosecutrix, that on 10.11.2008, accused Rakesh came at the residence of Smt. Harveen Kaur, asked her to make a call at his mobile and when she made a call to accused, he threatened Smt. Harveen Kaur to hand over telephone call details to her husband namely Amardeep. He demanded an amount of Rs.10 lacs, in lieu of not handing over the call details to her husband and he asked her to pay the said amount by 11.11.2008.
13
12.On 11.11.2008, accused along with coaccused Priya Harshvardhan were found standing at some distance from the house of Harveen and accused Priya Harshvardhan gave signal to Smt. Harveen Kaur to collect the call details and at his instructions to take the jewelery consisting of ear ring diamond set, diamond Kade and an amount of Rs.60,000/ in cash and he stated that documents would be handed over at Naraina, Delhi. Accused Harshvardhan made Smt. Harveen Kaur to sit in a TSR along with him. Accused Harshvardhan handed over some papers and when she was scrutinizing those papers, accused Rakesh administered an injection on her left arm and due to the same Smt. Harveen Kaur became restless and in semiconscious condition.
13.It has also come on record in the testimony of PW2 prosecutrix that when Smt. Harveen Kaur regained her consciousness, she found herself in a train and at that time no one except accused Rakesh was present in the train compartment and she stated that she was in the area of Deemapur, Assam and he also stated that inlaws of Harveen Kaur had lodged a report against her for theft of Rs.9 lacs.
14.Further, it has come on record that PW2 Smt. Harveen Kaur asked accused Rakesh to drop her at her residence and at that time accused Rakesh administered some stupefying substance in the water, made her 14 to drink and due to the same, she became restless and unconscious. When she gained her consciousness, she found herself along with accused in a room and at that time accused Rakesh stated that she was in the area of ULFA and she should not raise any voice otherwise she would be killed. Accused Rakesh used to administer some medicines to Smt. Harveen Kaur and she used to remain restless. She has further stated that accused also used to brandize Smt. Harveen Kaur with a knife and he never provided mobile to Smt. Harveen Kaur to make telephone call. Accused Rakesh used to threat Smt. Harveen Kaur to disclose herself as his wife.
15.Further, perusal of the testimonies of prosecution witnesses it has come on record that on 11.11.2008 at about 03:30 PM, Amardeep Singh informed his brotherinlaw PW1 Kamalpreet Singh at Patiala regarding missing of Harveen Kaur. PW1 Kamalpreet Singh along with his family members came to Delhi, searched for his sister Harveen kaur but she could not be traced and finally he lodged missing report on 24.01.2009 which is Ex.PW1/A. On 11.11.2008, duty officer gave copy of DD No.61B which is Ex.PW1/DA, to PW13 SI Khemender Pal, regarding missing of Mrs. Harveen Kaur @ Seeba and IO got originated WT message regarding the same. On 28.01.2009, Kamalpreet Singh, brother of Harveen Kaur gave a written complaint and PW13 15 Khemenderal Singh made his endorsement on the same vide Ex.PW13/A and accordingly, case FIR No.34/09 Ex.PW8/B was registered by PW8 HC Satpal, duty officer of PS Kirti Nagar. Endorsement of duty officer is Ex.PW8/B. On 29.01.2009, accused was called at the Police Station who stated that accused Rakesh had taken Harveen Kaur to Balighant, Distt. Shiv Sagar in Assam. On 30.01.2009, PW13 Khemenderpal Singh, Ct. Umesh Tiwari, complainant Kamalpreet Singh along with his brother Manpreet Singh @ Moni went to Assam by air and reached there on the same day and hired a taxi for going to Shiv Sagar. On 31.01.2009, they all reached at PS Simalgudi, Distt. Shiv Sagar, Assam, local police officials joined the investigation. On 01.02.2009, accused Rakesh was found coming from village Manipuri side, accused Rakesh was apprehended, inquired upon and then he had taken the police party to his room situated in village Manipur. That room was found bolted from outside, accused Rakesh opened the gate and Smt. Harveen Kaur was found present inside the room. She was identified by Kamalpreet Singh, her brother. On 01.01.2009, police party along with accused Rakesh started from Gauhati for coming to Delhi by train and reached Delhi on 03.02.2009. On 07.02.2009, Ld. MM recorded statement of Smt. Harveen Kaur under section 164 Cr.P.C.
16.Further, perusal of the testimonies of all the witnesses it has come on 16 record that on 29.03.2009 accused Priya Harshvardhan was brought by his friend namely Baljeet at PS, where he was arrested. He was inquired upon vide disclosure statement vide Ex.PW12/B; arrest memo and personal search memo are Ex.PW12/A and C and he also got recovered CBZ motorcycle of black colour vide memo Ex.PW12/D. PW10 M.N. Vijayan, Nodal Officer,TATA Services, produced the call details of mobile no.9250504030, vide Ex.PW10/A and also produced the photocopy of application and ID proof vide Ex.PW10/B and C. PW11 Sh. Vijay Singh, Sr. Booking Clerk of New Delhi Railway Station exhibited the tickets vide Ex.PW11/A, B, C, D and E.
17.On perusal of depositions of all the prosecution witnesses and their cross examinations I find minor type of contradictions and variations in their statements. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eye witnesses are immaterial unless they demolished the basic case of the prosecution".
Observations made in the aforesaid case by the Hon'ble Supreme Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all. 17
18.After recording prosecution evidence, statements of accused persons u/s 313 Cr.PC were recorded. Accused persons pleaded that they are innocent and they have been falsely implicated. Accused P. Harshvardhan produced one defence witness namely DW1 Shireesh Kumar and other accused did not lead defence witness. DW1 Shireesh Kumar, Assistant in Department of NDMA, Ministry of Home Affairs, New Delhi appeared before the court with summoned record i.e. original attendance register for November, 2008. As per entry in the said register in the said month Mr. P. Harshwardhan was on duty in the office on 11/11/08. Photocopy of the said entry at Page No.57 and 58 is Ext. DW 1/A (OSR). This witness has been crossexamined by ld. APP. During the course of crossexamination it has come on record that he has no document to show that he has been authorized by Incharge/ department to produce the attendance register in question. He joined the department in August, 2011. He admitted that the attendance register does not bear any certificate with regard to the pagination of attendance roll register, however, it bears the date that it is w.e.f. 23/08/06. he admitted that none of the employees in the entire attendance register has put his/her signatures as a mark of leaving the office in the column i.e. departure. It is also correct that none of the employee including P. Harshwardhan has 18 put the arrival time against the column arrival and all the employees have simply made their initials. He also admitted that in the entire attendance register it does not find the signature /initial of the section incharge under whose custody the attendance register is maintained.
19.Thereafter, case was fixed for arguments. Ld. Counsel for accused persons submitted that the evidence on record discard the allegations of section 342, 328 and 365 IPC by plain reading of statement of PW7 Babu Hazarika and PW2 Harveen Kaur. From the statement of PW7 it is apparent that neither it can be case of abduction or confinement or administering any stupefying substance since PW2 used to cook the meal on LPG Gas cylinder. As a matter of statement of PW7 discard the testimony of PW2 visa vis the other connected witnesses. Besides, there is no medical record supporting the case of the prosecution. Controverting the submissions of ld. Counsel for accused persons, ld. APP again submitted that examination in chief of PW2 not only talks about the allegations of abduction under section 365 IPC but also all the valuables of the prosecutrix visavis her confinement, under administering of poisoning substance. Even the witness PW2 was got threatened on the one pretext or the other.
20.Again, ld. Counsel for accused persons submitted that DW1 established 19 that accused P. Harshvardhan was not present on the scene of occurrence as he was on duty while ld. APP submitted that in the crossexamination of DW1 it has come on record that he could not prove the attendance of P. Harshvardhan..
21.ld. counsel for accused persons again submitted that in the entire prosecution story involves the contents of the complaint as well as the FIR and further her statement recorded u/s 161 Cr. PC and thereafter her statement recorded u/s 164 Cr. PC and finally her statement before the court. ld. Counsel for accused persons submitted that prosecutrix has changed her stand during her examination, which is quite evident from reading the contents of all the statements. Ld. Counsel again submitted that in the present case there is no motive and mens rea has either been assigned or has been attempted to be proved by the prosecution, because nothing has come out from the examinations of all the witnesses about the intention and ultimate goal to kidnap the prosecutrix, because neither she was raped or her valuables were snatched/ misappropriated, because she herself has accepted that she was in the possession of all her valuables while she was recovered by the police. Ld. Counsel again argued and submitted that as per the prosecution prime witness Ct. Umesh Tiwari, who was the member of the raiding party and SI/ IO K P Singh and as per DD entry 7 B dated 30.01.2009 20 they left for Assam on 30.01.09 but on the contrary as per the cross examination of the brother of the prosecutrix PW1, it was stated by him that they left for Assam on 29.01.2009 and this contradiction goes to show the dents in the prosecution story, because PW1 had accompanied the police team from the starting of the investigation till the arrest of the accused persons. On these grounds ld. Counsel for accused persons submitted that accused persons be acquitted in the interest of justice.
22.Contrary to it, ld. APP argued and submitted that there are sufficient evidence on record to hold the accused persons guilty for the offences as leveled in the charge. All the material witnesses have correctly identified the accused persons as culprit. However, some minor type of contradictions have come on record. These contradictions do not affect the fate of the case since there is crystal clear evidence on record against the accused. On these grounds ld. APP prayed for convicting the accused.
23.Before reaching at any conclusion let the relevant sections be re produced verbatim which are as under: "328. Causing hurt by means of poison, etc. with intent to commit an offence. Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to 21 such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurl, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
342. Punishment for wrongful confinement.Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
359. Kidnapping.Kidnapping is of two kinds: kidnapping from [India], and kidnapping from lawful guardianship.
362. Abduction.Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
365. 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 extend to seven years, and shall also be liable to fine.
385. Putting person in fear of injury in order to commit extortion.Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
506. Punishment for criminal intimidation.Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 8[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
34. Acts done by several persons in furtherance of common intention.When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if were done by him alone.]"
22
24.In case titled as Joygopal (1865) 4 WR (Cr) 4, it is observed that :
"where a deleterious drug is administered, an offence is committed under this section although life is not endangered. Thus, where a man administered the juice of some leaves to some villagers by way of ordeal and some of them showed symptoms of poison or where a compounder had dispensed a deleterious substance to his own doctor and showed no anxiety to save the doctor out of the calamity. Where the accused administered powder of dhatura to a woman and robbed her of her jewellery while she was senseless, this offence was held to have been committed."
25.Section 365 IPC lays down that where a person was abducted in order to that he might be held to ransom by his abductors, it was held that this section is applicable. The prosecution must prove :
(i) Kidnapping or abduction by the accused.
(ii)The accused thereby intended that the person kidnapped or abducted should be kept in wrongful or secret confinement.
26.To prove the ingredients of section 365 IPC, it is essential that there should be abduction, if no abduction is there, the offence under section 365 is not made out. To prove charge of wrongful confinement, proof of actual physical restriction is not essential. It is sufficient if the evidence shows that such an impression was produced in the mind if the accused as to create a reasonable apprehension in the mind of the victim. The intention can be inferred from the subsequent acts and conduct of the kidnapper or abductor. In case titled as 1984 Crl. L.J. (NOC) 90 : (1984) 1 Chand L.R. (Cri)251, where the victim was dragged from his house and secretly and wrongfully confined in the house of the accused and 23 was recovered by the police from the house of the accused and found injuries on the back of the victim, offence of kidnapping was established. In case titled as Po Lan (1912) 6 LBR 160 ; Samundar (1926) 27 Cri LJ 64 (Lah); Bahadur Ali AIR 1923 Lah 158, again it has been observed that: "Section 365 IPC is only applicable where a person was abducted in order that he might be held to ransom by his abductors."
27.In another case 'Shivraj Chandrappa Vs State of Maharashtra 1998 Cr. LJ 3168 (Bom)' it was observed that: "The accused asked the victim girl to go inside the room to bring the tobacco packet, followed her into the room, locked the door from inside, wrapped cloth around her mouth so that she could not should and fell her on the wooden trunk in an attempt to rake her. She anyhow removed the cloth wrapped round her mouth and shouted, released herself and ran way. The accused is guilty of outraging modesty and wrongful confinement of the victim girl."
28.In judgment 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' it has also been observed that : 'Reasonable doubt' is one which occurs to a prudent and reasonable man The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or nonexistence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances 24 before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its nonexistence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'.
29.In the case in hand it has come on record that PW2 Smt. Harveen Kaur @ Seeba was married to Amardeep Singh on 16.10.1994 and she along with her two children aged about 14 years and 7 years, was residing at H. No. 12/73, Punjabi Bagh, Delhi. Accused Rakesh Singh came into her contact while he was searching work of electricity. During the period work, he developed intimacy with children of Smt. Harveen Kaur. Accused gained her sympathy and confidence. Accused Rakesh used to address Harveen Kaur as his Bhabhi. Further, perusal of the testimony of PW2 prosecutrix that accused Rakesh Singh introduced his co accused Priya Harshvardhan with Smt. Harveen Kaur and stated that Harshvardhan is Govt. Servant and wanted to leave Govt. job to go to USA. On careful perusal of the testimony of PW2 prosecutrix it has come on record that on 10.11.2008, accused Rakesh came at the residence of Smt. Harveen Kaur, asked her to make a call at his mobile and when she made a call to accused, he threatened Smt. Harveen Kaur to hand over telephone call details to her husband namely Amardeep. He demanded an amount of Rs.10 lacs, in lieu of not handing over the call 25 details to her husband and he asked her to pay the said amount by 11.11.2008. On , accused along with coaccused 11.11.2008 Priya Harshvardhan were found standing at some distance from the house of Harveen and accused Priya Harshvardhan gave signal to Smt. Harveen Kaur to collect the call details and at his instructions to take the jewelery consisting of ear ring diamond set, diamond Kade and an amount of Rs.60,000/ in cash and he stated that documents would be handed over at Naraina, Delhi. Accused P. Harshvardhan made Smt. Harveen Kaur to sit in a TSR along with him. Accused Harshvardhan handed over some papers and when she was scrutinizing those papers, accused Rakesh administered an injection on her left arm and due to the same Smt. Harveen Kaur became restless and in semiconscious condition. It has also come on record in the testimony of PW2 prosecutrix that when Smt. Harveen Kaur regained her consciousness, she found herself in a train and at that time no one except accused Rakesh was present in the train compartment and he stated that she was in the area of Deemapur, Assam and he also stated that inlaws of Harveen Kaur had lodged a report against her for theft of Rs.9 lacs. Further, it has come on record that PW2 Smt. Harveen Kaur asked accused Rakesh to drop her at her residence and at that time accused Rakesh administered some stupefying substance in the water, made her to drink and due to the 26 same, she became restless and unconscious. When she gained her consciousness, she found herself along with accused in a room and at that time accused Rakesh stated that she was in the area of ULFA and she should not raise any voice otherwise she would be killed. Accused Rakesh used to administer some medicines to Smt. Harveen Kaur and she used to remain restless. She has further stated that accused also used to bandize Smt. Harveen Kaur with a knife and he never provided mobile to Smt. Harveen Kaur to make telephone call. Accused Rakesh used to threat Smt. Harveen Kaur to disclose herself as his wife. This version of PW2 prosecutrix corroborates with the testimony of PW1 Kamalpreet Singh. On 11.11.2008, duty officer recorded DD No.61B vide Ex.PW1/DA regarding missing of Mrs. Harveen Kaur @ Seeba and IO got originated WT message regarding the same. On 28.01.2009, PW1 Kamalpreet Singh, brother of Harveen Kaur gave a written complaint and PW13 Khemenderal Singh made his endorsement on the same vide Ex.PW13/A and accordingly, case FIR No.34/09 Ex.PW8/B was registered by PW8 HC Satpal, duty officer of PS Kirti Nagar. Endorsement of duty officer is Ex.PW8/B. On 30.01.2009, PW13 Khemenderpal Singh, Ct. Umesh Tiwari, complainant PW1 Kamalpreet Singh along with his brother Manpreet Singh @ Moni went to Assam by air. On 31.01.2009, they all reached at PS Simal 27 Gudi, Distt. Shiv Sagar, Assam, local police officials joined the investigation. On 01.02.2009, accused Rakesh was found coming from village Manipuri side, accused Rakesh was apprehended, inquired upon and then he had taken the police party to his room situated in village Manipur. That room was found bolted from outside , accused Rakesh opened the gate and Smt. Harveen Kaur was found present inside the room. On 01.01.2009, police party along with accused Rakesh started from Gauhati for coming to Delhi by train and reached Delhi on 03.02.2009. On 07.02.2009, Ld. MM recorded statement of Smt. Harveen Kaur under section 164 Cr.P.C. Further, perusal of the testimonies of all the witnesses it has come on record that on 29.03.2009 accused Priya Harshvardhan was brought by his friend namely Baljeet at PS, where he was arrested. He was inquired upon vide disclosure statement vide Ex.PW12/B; arrest memo and personal search memo are Ex.PW12/A and C and he also got recovered CBZ motorcycle of black colour vide memo Ex.PW12/D. PW10 M.N. Vijayan, Nodal Officer,TATA Services, produced the call details of mobile no.9250504030, vide Ex.PW10/A and also produced the photocopy of application and ID proof vide Ex.PW10/B and C. PW11 Sh. Vijay Singh, Sr. Booking Clerk of New Delhi Railway Station exhibited the tickets vide Ex.PW11/A, B, C, D and E. In a judgment 'Samir Saha V State of Tripura 1998 (cr. LJ) 28 1360 (Gau)' it has been observed that "
.......when it is proved that the victim girl was confined to a room and the door was locked so that she might not escape, then the offence punishable under section 365, I.P. Code is proved."
30.Testimony of PW2 prosecutrix appears contradictory with regard to the allegations of injecting some stupefying substance by accused P. Harshvardhan to victim PW2 precisely for the reasons that in the statement recorded u/s 164 Cr. P.C. by ld. Magistrate, she stated that accused Rakesh met him and he took her on his bike at Naraina where coaccused P. Harshvardhan was standing with an Auto. Accused Rakesh asked her to sit in TSR for taking call details and went to park his bike. After sometime coaccused Harshvardhan injected her some stupefying substance as a result of which she became unconscious and when she regained her consciousness she found herself in a Train while, in the statement made before this court she has categorically stated that on 11.11.2008, accused along with coaccused Priya Harshvardhan were found standing at some distance from the house of Harveen and accused Priya Harshvardhan gave signal to Smt. Harveen Kaur to collect the call details and at his instructions to take the jewelery consisting of ear ring, diamond set, diamond Kade and an amount of Rs.60,000/ in cash and he stated that documents would be handed over at Naraina, Delhi. Accused Harshvardhan made Smt. Harveen Kaur to 29 sit in a TSR along with him. Accused Harshvardhan handed over some papers and when she was scrutinizing those papers, accused Rakesh administered an injection on her left arm and due to the same Smt. Harveen Kaur became restless and in semiconscious condition. This part of evidence goes to the root of the case and compels to think other wise to the allegations as levelled against accused P. Harshvardhan. In light of these facts and circumstances of the case and major contradictions I am of the view that prosecution has miserably failed to prove its case for the offences u/s 342/ 385/ 328 and 506II, IPC against accused P. Harshvardhan.
31.However, in light of the depositions of PW2, PW IO and other material witnesses, the role of accused P. Harshvardhan comes within the purview of the section 120 - B and 365 IPC precisely for the reasons that he along with main accused Rakesh hatched a criminal conspiracy to blackmail the victim PW2 prosecutrix. The conspiracy has been defined u/s 120A IPC such as : "120A. 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.30
Explanation.It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.] [120B. Punishment of criminal conspiracy.(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 3[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.]
32.In 'Devender V. State (2002) 5 SCC 234 and Mohd. Khalid V,. State (2002) 7 SCC 334', the elements of conspiracy have been set such as : "a) An object to be accomplished;
b) a plan or scheme embodying means to accomplish that object;
c)an agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means; and
d)in the jurisdiction where the statute required an overt act."
1. In the case in hand from the depositions of PW1 Kamalpreet Singh, PW2 prosecutrix and PW13 I.O., Khemenderpal and material available on record, it can easily be inferred that a criminal conspiracy was hatched by accused P. Harshvardhan along with main accused Rakesh to extort money from victim PW2 prosecutrix by doing blackmailing her, vide his disclosure statement Ex.PW12/B as consequent upon his disclosure statement Ex.PW12/B, police went to Assam and recovered 31 the prosecutrix from the clutches of accused Rakesh Singh vide depositions of PW2 prosecutrix, PW13 Khemender Pal and PW1 Kamalpreet Singh. This is an illegal act committed by both the accused persons to accomplish their object. Besides, in another case 'Firozuddin V. State (2001) 7 SCC 596' it has been held that:
"Like most crimes conspiracy requires an act (actus reas) and an accompanying mental state (mens rea).
The agreement constitutes the act and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group."
2. Thus, in light of the above discussed observations, it is crystal clear on record from the depositions of PW1 Kamalpreet Singh, PW2 prosecutrix and PW13 I.O., Khemenderpal that accused P. Harshvardhan was having the knowledge about his indulgence in this illegal act. Both the accused persons were in agreement to constitute the act and they had intention to achieve the unlawful objective of that agreement which constitutes the required mental state. Therefore, both conspirators are liable for crimes committed in furtherance of their criminal conspiracy. Hence, in light of these facts and circumstances of the case, I am of view that prosecution has successfully proved its case against accused P. Harshvardhan for the offences u/s 120 - B, 365 IPC vide 32 depositions of PW1, PW2 and PW13 and disclosure statement of accused Ex.PW12/B, vide subsequent recovery of victim at the information given by accused Priya Harshvardhan to police officials.
3. Further, so far as the role of accused Rakesh Singh is concerned, in light of the observations as discussed in judgments 'Samir Saha V State of Tripura 1998 (cr. LJ) 1360 (Gau), supra , it can easily be inferred that the ingredients of section 342 IPC are also met out as she was wrongfully confined in a TSR with both the accused persons vide deposition of PW2 prosecutrix; the ingredients of section 365 IPC are also met out since she was also wrongfully and secretly confined at Assam by accused Rakesh vide deposition of PW1 Kamalpreet Singh, PW13 Khemenderpal and PW2 prosecutrix since in their testimonies it has come on record that on 01.02.2009, accused Rakesh was apprehended and at his instance prosecutrix was recovered from a room which was found bolted from outside. The ingredients of section 385 IPC has also been proved on record again vide deposition of PW2 prosecutrix wherein she has established that accused Rakesh put her in fear of injury in order to commit extortion since he was demanding Rs.10 lacs from her. The ingredients of section 506 IPC are also met out since accused Rakesh threatened her to cause death, again vide 33 deposition of PW2 prosecutrix. Therefore, in light of the judgments i.e. 'Shivraj Chandrappa Vs State of Maharashtra 1998 Cr. LJ 3168 (Bom) ; Po Lan (1912) 6 LBR 160 ; Samundar (1926) 27 Cri LJ 64 (Lah); Bahadur Ali AIR 1923 Lah 158; 1984 Crl. L.J. (NOC) 90 : (1984) 1 Chand L.R. (Cri)251; and 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' and 'Samir Saha V State of Tripura 1998 (cr. LJ) 1360 (Gau)' discussed supra I am of the view that prosecution has successfully proved its case for the offences punishable under sections 342/385/506 IPC in respect of accused Rakesh Singh.
4. It is interesting to note that the disclosure statement of accused Priya Harshvardhan was recorded by SI Manohar Lal, vide dt. 29.03.2009, in which it has been disclosed by accused Priya Harshavardhan that he alongwith Rakesh made a plan to extort money from Smt. Harveen Kaur by blackmailing her. It has also been disclosed by him that at his instance, accused Rakesh took the victim Smt. Harveen Kaur at Assam and they used to have mobile calls through their officials numbers, vide Ex.PW12/B and MarkA/PW10.
5. Apart from this,upon receiving information from coaccused P. Harsvardhan,the prosecutrix was traced from Assam with the help of local police vide deposition of PW15 IO SI Manohr Lal. Perusal of the disclosure statement and consequent upon the recovery on the 34 information received by the IO from coaccused Priya Harshvardhan, it reflects that there was a prior meeting of minds between both the accused persons with regard to the abduction of victim Harveen Kaur to keep her secretly for the purpose of extorting money. The indication to this effect can be ascertained from the deposition of PW1 Kamalpreet Singh, PW2 Smr. Harveen Kaur and PW13 SI Khemender Pal Singh. In light of the above observations and discussions, the prosecution has proved its case for the offence under section 365 IPC read with section 120B IPC against both the accused persons as accused P. Harshvardhan did not accompany at Assam with the team. Therefore, section 120B IPC is applicable in this case in stead of section 34 IPC. So, the accused persons are convicted u/s 365 IPC read with 120 B IPC.
6. So long as offence under section 328 IPC is concerned, the prosecution has failed to bring on record any material which goes to suggest that a stupefying or intoxicating substance was administered to the victim. Therefore, in absence of corroboration from other material sources for administering stupefying or intoxicating substance, I absolve both the accused persons for the offence under section 328 IPC.
7. So long as offence under section 342/ 385/ 506(II) IPC is concerned. In this regard, PW2 Harveen Kaur and PW13 SI Khemender Pal Singh have categorically deposed against accused Rakesh. PW2 Harveen Kaur deposed that accused Rakesh came at her residence and asked 35 her to make a call at his mobile and when she made a call to accused, he threatened Smt. Harveen Kaur to hand over telephone call details to her husband namely Amardeep. Accused Rakesh demanded an amount of Rs.10 lacs, in lieu of not handing over the call details to her husband and he asked her to pay the said amount by 11.11.2008. PW2 Harveen Kaur further deposed that When she gained her consciousness, she found herself along with accused in a room and at that time accused Rakesh stated that she was in the area of ULFA and she should not raise any voice otherwise she would be killed.
8. PW13 SI Khemdender Pal Singh categorically deposed in his deposition that Accused Priya Harshwardhan stated that accused Rakesh had taken Harveen Kaur to Balighat, Distt. Shiv Sagar at Assam. On 31.01.2009 he along with complainant reached at P.S. Simalgudi, Distt. Shiv Sagar, Assam in the evening. On seeing Rakesh coming from village Manipuri, one public person stated that this person is living in village Manipuri alongwith a lady for the last two months. Accused Rakesh was apprehended from village Manipuri. Accused Rakesh has taken to the room at Village Manipuri. The room was found bolted from outside. Accused Rakesh opened the gate by unbolting and Sheeba @ Harveen Kaur was found present inside the room. Kamalpreet Singh, identified his sister Sheeba @ Harbeen Kaur. He made enquires from 36 Sheeba @ Harveen Kaur and recorded her statement. Accused Rakesh was interrogated, vide his disclosure statement which is Ex. PW1/D. House owner Inder Kumar Singh and one public person namely Babu Hazarika were enquired and their statements were recorded. Hence, prosecution has successfully proved its case against accused Rakesh for the offences punishable u/s 342/ 506/ 385 and 365/ 120 B IPC.
9. So long as the offence u/s 328 IPC is concerned, I am of the view that prosecution has miserably failed to prove the ingredients of section 328 IPC since neither any doctor nor any medical document has been brought on record to show that body of the prosecutrix have some stupefying intoxicating substance. Therefore, all these facts and circumstances create a doubt as to whether accused had injected the prosecutrix with injection containing any poison or any stupefying, intoxicating or unwholesome drug or other thing with intent to cause hurt to the victim PW2 prosecutrix or not. So, the prosecution has failed to prove the offence u/s 328 IPC.
Accordingly, I convict accused Rakesh Singh for the offences punishable u/s 342/ 506/ 385 IPC and 365/120B IPC for the reasons as discussed in the preceding paras and I acquit him for the offence punishable u/s 328 IPC; and I convict accused Priya Harshvardhan for the offences punishable u/s 365/120B and I acquit him for the offences punishable u/s 342, 328, 385 IPC and 506II, IPC for the reasons as discussed in the preceding paras. 37 ANNOUNCED IN THE OPEN COURT ON THIS 26.10.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 38