Delhi District Court
State vs 1. Raj Kumar @ Bhola S/O. Sh. on 19 January, 2011
IN THE COURT OF SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST)
FTC : KARKADOOMA COURT: DELHI.
SC No. 141/10
FIR No. 624/05
PS Kalyan Puri
U/s. 364A/302/201/120B IPC
Instituted on 07.10.2010
Argued on 21.12.2010
Decided on 14.01.2011
State Versus 1. Raj Kumar @ Bhola S/o. Sh.
Hargovind, R/o. Village-Roop
Pur, PS- Seohara, Bijnour, UP.
2. Rakesh S/o Sh. Keshav, R/o.
Village-Roop Pur, PS- Seohara,
Bijnour, UP.
3. Mohan S/o. Sh. Bharat Singh
R/o. Vill. Madhi, PS. Dhampur,
Bijnour, UP
4. Neetu @ Pravendra S/o. Sh.
Sukhlal Singh R/o.Vill. Madhi,
PS. Dhampur, Bijnour, UP
JUDGMENT
1 In brief the case of prosecution is that Ashok @ Bunty aged about 18-19 years went missing on 06.12.05 and never returned to his house. When PW5 Ram Kishan his father returned to his house at 8.30 AM, he came to know that Ashok @ Bunty had not returned to the house. He and his family members made efforts to trace him but could not find him. On 07.12.05, they made a call at 100 number and police asked them to continue search. On 08.12.05 PW5 lodged a complaint at PS Kalyan Puri regarding missing of his son Ashok @ Bunty. On 09.12.05, at about 8-9 PM, when electricity was off, son of PW5 gave him jeans jacket of Ashok @ Bunty, on opening it he found ransom demand (letter) pasted on it. His son told him that jacket was lying on the main gate of their house. PW5 along with his brother Jai Prakash(PW2) went to the police station and told the entire incident to the SHO. Police recorded statement of PW5 and registered FIR.
2. In the letter, demand of Rs.10,00000/-( Rupees Ten Lacs) was made for releasing Ashok @ Bunty and threat was mentioned to kill him if the police is in- formed. At the given time and place, PW5 went with police but no one came there. Again on 12.12.05 at the same time when electricity was off, some person threw shirt with ransom letter in its pocket, which was worn by his son. In the said letter same demand for ransom and threat to kill his son was repeated. Again it was brought to the knowledge of the police. At the given time and place, PW5 with police team reached but no one came there. On 16.12.05 police recovered a dead body in the drain near Sabzi Mandi, Gajipur in a decomposed condition. Since dead body was decomposed, it could not be identified by son of PW5 as of Ashok @ Bunty.
3. On 15.01.06 at 7-7.15 PM, accused Rakesh came to throw a letter at the door of house of PW2 Jai Prakash, brother of PW5 and was apprehend- ed by PW2. Police was informed and accused Rakesh and one envelope thrown by him was handed over to the police. The envelope was found containing ransom de- mand of Rs.15,00000/-( Rupees Fifteen Lac Only). During interrogation by the po- lice, accused made disclosure statement that Raj Kumar @ Bhola had asked him to throw this letter. Accused led the police to Village Bhoapur, District Ghaziabad, to the house of Mohan and on the pointing of accused Rakesh, accused Raj Kumar was apprehended, from there a dairy with some pages missing was recovered. Accused Raj Kumar was interrogated and he made disclosure statement stating that he has entered into a conspiracy with his associates Neetu and Mohan to kidnap and kill de- ceased Ashok @ Bunty. Accused Raj Kumar disclosed that accused Neetu told him that adjacent to his( Neetu) house, there is a three storey house and owner was hav- ing vehicle and instigated him to kidnap their child. Accused Raj Kumar disclosed that he with his associates Neetu and Mohan had taken Ashok @Bunty to Subzi Mandi, T- Point at NH-24 and had killed Ashok @ Bunty there and had thrown his body in the drain. Accused Raj Kumar led the police to the spot and got recovered two stones with bloodstains on it. He also got recovered chappal and pant of the de- ceased.
4. On 16.01.06 investigation was taken over by SHO, Rajesh Kumar(PW16). On 17.01.06 both accused Rakesh and Raj Kumar led the police party to village Bhoapur and on the basis of secret information, accused Neetu and Mohan were ap- prehended from Tea Stall at Village Nand Gram District Ghaziabad. Both these ac- cused were arrested and during interrogation they made disclosure statement.
5. During investigation, specimen handwriting of Raj Kumar was sent to FSL for comparison with the questioned handwriting of three ransom letters. TIP of arti- cles i.e. one pant, one pair of chappal, one Tabiz, one underwear, one baniyan and one red colour thread was got done from PW5 father of the deceased and he identi- fied all these articles as of his son. To establish the identity of deceased, DNA report of the blood of the deceased, his father PW5 and his mother Rakesh Devi PW13 was sought. DNA report established the identity of dead body which was recovered on 16.12.05 as of Ashok @ Bunty. After investigation, police filed chargesheet against all the four accused persons under Section364A/302/201/120B IPC.
6. Vide order dated 30.05.07 charge under section 386 IPC read with Section 120B IPC and 202 IPC was given to accused Mohan to which he pleaded not guilty and claimed trial. Charge under Section 364A read with Section 120B IPC, under Section 302 read with Section 120B IPC and under Section 201 read with Section 120B IPC were given to accused Raj Kumar @ Bhola, Rakesh and Neetu @ Parven- der to which they pleaded not guilty and claimed trial.
7. To prove its case prosecution examined 23 witnesses. PW1 is HC Prem Pal Singh, he proved Ex.PW1/A and PW1/B, photocopy of register No. 19 vide which one pulanda containing jean and jacket and other pulanda containing shirt was deposited in mal khana by SI Sansar Singh. He also proved Ex.PW1/C vide which a duly sealed pulanda containing stone pieces, diary and tape was de- posited with him by SI Sansar Singh in Mal Khana. He proved Ex.PW1/D vide which personal searches of accused Neetu and Mohan were deposited on 17.1.06. Ex.P- W1/E is the copy of the register No. 21 vide which he had sent viscera with sample seal vide RC No. 41/21. He further proved various entries on record Ex.PW1/F to PW1/H vide which pulandas were sent to FSL. PW2 Jai Prakash is the uncle of the decased Ashok @ Bunty, he proved seizure memo of the envelope containing threatening letter of 15.1.06 as Ex.PW2/A, the disclosure statement of accused Rakesh Ex.PW2/B, disclosure statement of accused Raj Kumar Ex.PW2/C, personal search memo Ex.PW2/D, seizure memo of stones Ex.PW2/E, seizure memo of chappal and pant of deceased Ex.PW2/F, the nishandehi memo Ex.PW2/H, arrest memo of accused Raj Kumar Ex.PW2/I, arrest memo and personal search memo of accused Rakesh Ex.PW2/J and PW2/K.
8. PW3 Sh. Anil Kumar is the younger brother of deceased who failed to identify body due to decomposition, on 16.12.05. PW4 HC Ashok Kumar was working as duty officer, he proved copy of the FIR Ex.PW4/A, endorsement on rukka Ex.PW4/B, copy of DD No. 3A as Ex.PW4/C, copy of DD No. 8A as Ex.PW4/D. PW5 Sh. Ram Kishan is the father of deceased, he proved his complaint Ex.PW5/A, the seizure memo of the jean and jacket Ex.PW5/B, seizure memo of the ransom letter Ex.PW5/C, seizure memo of the shirt Ex.PW5/D, seizure memo of the subsequent ransom letter Ex.PW5/E, the TIP proceedings of case property joined by him as Ex.PW5/F, the poster having photograph of his son Ex.PW5/G. The ransom letter on the pages of the diary is Ex.PW5/H and PW5/I. PW6 HC Raj Kumar deposited the exhibits of this case with FSL, Rohini. PW6A Dr. Mukta Rani proved the postmortem report Ex.PW6A/A. PW7 Ct. Krishan Kumar on 4.4.06 took the exhibits in this case vide RC No. 93/21 to FSL Rohini. PW8 Ct. Sheoveer joined the investigation on 17.1.06 with IO, he proved disclosure statement, arrest memo and personal search memo of accused Mohan and Neetu as Ex.PW8/A to PW8/F, the pointing out memo Ex.PW8/G prepared at the instance of accused Neetu. PW9 SI Mukesh Kumar Jain, Draftsman proved scaled site plan Ex.PW9/A. PW10 Ct. Mahesh Kumar accompanied ASI Abdul Wahid on 24.12.05 to mortuary to get the postmortem of the dead body recovered conducted. He proved the seizure memo of the envelopes received from the hospital as Ex.PW10/A to PW10/D.
9. PW11 ASI Abdul Wahid after receiving DD No. 24A regarding lying of dead body on 16.12.05 in a drain at Gazipur, Subzi Mandi reached there. He proved the wireless message and hue & cry notice as Ex.PW11/A and PW11/B. PW12 HC Suresh, member of the crime team proved six photographs Ex.PW12/A to PW12/F and negatives as Ex.PW12/G-1 to PW12/G-6. PW13 Smt. Rakesh Devi is the mother of the deceased. PW14 HC Jagvir Singh accompanied SI Sansar Singh on 15.1.06 for investigation of this case. PW15 SI Sansar Singh is the initial IO of this case, he proved rukka Ex.PW15/A, handing over memo of DD No. 18A Ex.PW15/B, site plan Ex.PW15/X, the memo Ex.PW15/C vide which specimen handwriting of accused Raj Kumar @ Bhola were taken.
10. PW16 Retired ACP Rajeshwar Kumar did investigation of this case in the capacity of SHO PS Kalyan Puri. He proved DD No. 25A dated 6.12.05 as Ex.PW16/A, DD No. 24A Ex.PW16/D and inquest proceedings done by ASI Abdul Wahid as Ex.PW16/E and PW16/F, specimen signatures of accused Raj Kumar Ex.PW16/H-1 to PW16/H-3, the FSL result Ex.PW16/J. Statement of Bodhan Singh, owner of the house where accused Neetu and Mohan were residing as Ex.PW16/L, DNA report Ex.PW16/O and the application for placing the said report on record Ex.PW16/P, the seizure memo taking specimen handwriting of accused Raj Kumar @ Bhola in possession vide memo Ex.PW16/C. PW17 Ct. Yogender Singh on 23.2.06 took five exhibits of this case from MHC(M) to FSL, Rohini. PW18 Sh. Ajay Gupta, Addl. Senior Civil Judge, Karkardooma proved the TIP proceedings Ex.PW18/C. PW19 Dr. A.K. Srivastava, Assistant Director (Biology) DNA Unit FSL, Rohini proved DNA report Ex. PW19/A and identification form Ex.PW19/B and Ex.PW19/C. PW20 Sh. Devak Ram, Senior Scientific Officer (Documents), FSL Rohini,proved his report Ex.PW16/J and a dairy Ex PW20/A. PW21 ASI Rajender Prasad was working as duty officer on 15.01.06 at PS Kalyan Puri, he proved copyof DD No. 18 A which is already exhibited Ex PW15/B.PW22 Ms. Kavita Goyal, Senior Scientific Officer (Chemistry) FSL Rohini proved her report Ex.PW22/A.
11. Heard arguments of Ld. APP Sh. Mohd. Iqrar and Sh. Satya Narayan, Ld counsel for complainant, Sh. Abdul Sattar, Ld. Amicus Curiae for ac- cused Raj Kumar and Neetu, Sh. Jitender Prashar ld. Defence counsel for accused for Mohan and Sh. Pankaj Chauhan Ld. Counsel for accused Rakesh and perused case file.
12. Ld APP Sh. Mohd. Iqrar and Sh. Satya Narayan, Ld. Counsel for complainant submitted that it is a case of criminal conspiracy under which ac- cused Rakesh, Raj Kumar and Neetu killed Ashok @ Bunty and dropped three let- ters demanding ransom from PW5, father of the deceased. It is stated that conspira- cy is always hatched in secrecy and it is often difficult to get direct evidence on it and it has to be presumed from the surrounding circumstances. It is stated that there is no dispute regarding the identity of dead body as of Ashok @ Bunty, since DNA test is considered as conclusive evidence. It is further submitted that recovery of the dairy from the possession of accused Raj Kumar from which pages were taken to write ransom demands and FSL report regarding matching of questioned handwrit- ing on ransom demand with specimen handwriting of accused Raj Kumar clearly establish that all the accused acted in conspiracy to kidnap and then kill Ashok @ Bunty. Ld. Counsel for complainant did detailed arguments and also filed written submissions and bundle of judgments relied upon by him to support of his con- tentions. Perused the judgments and which are found relevant are discussed in the body of this judgement.
13. Sh. Abdul Sattar, Ld. Amicus Curiae for accused Raj Kumar and Neetu, Sh Pankaj Chauhan, Ld. Counsel for accused Rakesh, Sh. Jitender Prashar and ld counsel for accused Mohan did arguments. Ld. Defence Counsel Sh. Jitender Prashar for accused Mohan and Sh. Pankaj Chauhan Ld. Defence counsel for accused Rakesh also filed written submissions. The main contention raised by Ld. Defence counsels and Ld. Amicus Curieae are that prosecution has failed to establish that dead body recovered on 16.012.05 was of Ashok @ Bunty. It is stated that there are contradictions in the statements of witnesses regarding ap- prehension of accused Rakesh on 15.01.06 which shows that he was falsely impli- cated in this case. It is stated that against accused Raj Kumar, Neetu and Mohan, there are only disclosure statements either made by them or their co-accused which are hit by Section 25 of the Indian Evidence Act. It is further contended that at the time of alleged recovery of dairy on 15.01.06 from the room of accused Raj Kumar, no public witness was joined which further dents the prosecution case.
14. The identity of the dead body recovered on 16.12.05 is strong- ly disputed by Ld Amicus Curiae as well as Ld. Defence counsels as of Ashok @ Bunty son of PW5. It is stated that neither age nor height nor feature of Ashok @ Bunty mentioned in the complaint Ex.PW5/A matches with dead body recovered by the police on 16.12.05 from the drain at Gajipur, Sabzi Mandi.
15. PW11 ASI Abdul Wahid along with PW10 Ct. Mahesh Kumar was first to reach at the spot after receiving DD No. 24A regarding lying of a dead body in the drain at Gajipur Sabzi Mandi. As per PW11, he reached at the spot and found a dead body lying in the drain which was taken out and inspected by him. He made efforts to get dead body identified and called crime team. He found thread on the right hand and neck, underwear and vest on dead body. He sent the dead body to mortuary, LBS Hospital and preserved it for 72 hours. He sent a wire- less message and also issued Hue and Cry notice. On 19.12.05, the postmortem on the dead body was got conducted and the cremation of the dead body was done at Sarai Kale khan Crematorium. PW10 Ct. Mahesh Kumar accompanied PW11 when dead body was taken out from the drain. As per him, one blue colour underwear, half sleeve vest, one wrist dori (thread) of red colour, one black colour dori ( having a locket of Ashta Dhatu having Om engraved on it) were handed over to him by the doctor in the mortuary stated to be recovered from the dead body.
16. PW5/A is the complaint made by PW5 Ram Kishan, father of the deceased wherein he has given age of his son as 19 years, height 5.6", colour wheatish and scar of old injuries above left eye. Ex. PW11/DB is the death report prepared by PW11 on Form No. 25.35(1)(b) wherein age of the deceased is men- tioned as 30-35 years and height is mentioned as 5.10". Ex.PW11/DA is report pre- pared by PW11 wherein it is mentioned that on checking no sign of injury was found on the body. It is mentioned in the report that there were blue colour underwear and brown colour of bainyan (vest) on the dead body. There was a red thread tied on the right hand, one thread was found tied around the neck with which Om made of white Metal was tied.
17. Ex. PW6/A is the postmortem report on which probable age of the unknown body is mentioned as 30-35 years and height is mentioned as 167cm. It is clear from the statements of PW10, PW11 and P/M report Ex.PW6/A that dead body was found in a decomposed state.
18. PW6A Dr. Mukta Rani, Assistant Professor (Forensic Medicine)Lady Harding Medical College & Hospital during her cross has stated that after 7-8 days of death, skin of dead body gets degloved. It is mentioned in the P/M report Ex.PW6/A that time since death was 6-7 days.
19. Being in decomposed state, PW11 was not in a position to ex- actly estimate the age and height of the dead body. He must have mentioned age and height on the basis of his rough estimate. In the P/M report Ex.PW6/A height of the dead body is mentioned as 167cm. Height matches with the height of Ashok @ Bunty mentioned by the complainant in his compliant Ex. PW5/A i.e. 5.6". Re- garding age of the dead body mentioned in P/M Report Ex.PW6/A, PW6A stated during her cross examination that age of the deceased might be 30-35 years as re- ported by the police. PW6A has not conducted any specific test to determine the exact age of the dead body and it is clear from her statement that whatever was mentioned by PW11 on the inquest papers that age was mentioned by PW6A on P/ M report Ex.PW6/A.
20. Now coming to the other contention raised by Ld. Defence counsels for the accused that there are contradictions if dead body was wearing T- Shirt or vest and different colours of the undergarments are given by different wit- nesses. As per PW10, underwear was of blue colour and vest was of half sleeve and as per PW11 vest was of white colour whereas as per Ex.PW11/DA, colour of vest is mentioned as brown. In P/M report Ex.PW6/A, dead body was found wearing white T-shirt and grey colour underwear. To my mind, these are minor contradic- tions in the statements of witnesses which do not in any manner create any doubt regarding the identity of the dead body. Such contradictions often occur in the state- ments of witnesses due to lapse of time and over much importance need not be giv- en to such contradictions.
21. Other contention raised by Ld Defenece counsels is that as per Ex.PW11/DA and Ex. PW11/DB, no injury was found on the dead body whereas list of injuries on the dead body were found mentioned in P/M report Ex.PW6/A. As already discussed, at the time of recovery, dead body was in decomposed condition with degloving and peeling of skin. As per P/M report Ex.PW6/A there are following external injuries on the dead body:-
1. Contused lacerated wound of 2.1 x .7cm x bone deep over right side of forehead placed, 3 cm above right eye brow.
2. Contused lacerated wounds of sizes .5 x .5 x .1 cm and .2 x .1 x .1 cm over right temporal region placed, .5 cm apart and 3cm outer to outer angle of right eye.
22. There is difference in the observation of injuries on dead body made by the police officials i.e. PW11 who has taken out the dead body from the drain and has prepared report at the spot and the observation made by Doctor con- ducting postmortem in the mortuary of the hospital. It is clear from the record that dead body was stained with black dried mud. Moreover, the dimension of external in- juries found on the dead body were not too big to have come on the notice of PW11.
23. Other contention raised by Ld. Defence counsels is that if dead body was of Ashok @ Bunty, it could have been easily identified by real brother PW3 Anil Kumar who was called by the police to identify it. As per PW3, on 16.12.05, along with some neighbourers he visited the plot from where dead body was recovered. Dead body was decomposed, he tried to identify the dead body but due to decomposition, he could not identify the dead body. This fact was told by him to his father. Ex. PW12/A to Ex. PW12/F are six photographs of the dead body taken by the crime team at the spot. These photographs shows degloving of the skin and decomposition of the dead body. The dead body being in such state, if PW3 real brother of the deceased was unable to identify it, there is no reason to be astonished about it. In my opinion, any one under such circumstances will fail to identify the dead body of his relative.
24. Ld. APP and Ld. counsel for complainant have contended that DNA report is conclusive proof to establish the identity of the dead body and since DNA of the blood of the deceased matches with blood of PW5 and PW13( father and mother of Ashok @ Bunty) there remains no scope to doubt about the identify of the dead body. Ld. Defence counsels has contended that DNA is not conclusive proof and there is no law which states that DNA is a conclusive proof. Both PW5 and PW13 (father and mother of Ashok @ Bunty) have stated that their blood samples were taken at Rohini. Ex.PW19/A is the DNA report of blood sample of PW5 Ram Kishan and PW13 Rakesh Devi and blood sample on gauze piece of the deceased as collected in LBS Hospital. It is specifically mentioned in P/M report Ex. PW6/A that gauze piece of the blood and DNA report for matching was taken by PW6A while conducting postmortem. Conclusion given on Ex.PW19/A is as follows:-
"The DNA profiling STR ( analysis) performed on the exhibits provided is sufficient to conclude that the Exhibit 1 i.e.(Sh. Ram Kishan) & Exhibit 2( Smt Rakesh Devi) cannot be excluded from being the biological relation with the exhibit 3 (blood stained gauze piece of deceased said to be of Ashok @ Bunty)".
25. Ld. Amicus Curiae Sh. Abdul Sattar for accused Raj Kumar and Neetu has relied upon 2009(4)RCR ( Criminal) 186 case titled Premjibhai Bachubhai Khasiya Vs. State of Gujarat in support of his contention. In this case, it has been observed by Gujarat High Court that science of DNA is at developing stage and cannot be considered as conclusive proof of paternity, positive report can be of great significance where there is supporting evidence,however,such report cannot be accepted in isolation.
26. Law is settled that DNA test are conclusive unless proved that test so conducted by expert were perverse and were not keeping with standard sci- entific methodology. Reliance is placed upon State ( through CBI) Vs. Santosh Singh, 2007( Criminal Law Journal) 964.
27. Ex. PW8/C is the TIP proceeding conducted by PW18 Sh Ajay Gupta, Additional Senior Civil Judge while working as MM wherein PW5 father of the deceased has identified one chappal and pant recovered from the spot i.e. National Highway near Gajipur Sabzi Mandi at the instance of accused Raj Kumar on 15.01.06 vide seizure memo Ex.PW2/F. PW5 also identified Baniyan (vest), Tabiz with Om and underwear as of deceased in this TIP. This TIP report goes unchal- lenged.
28. The various contentions raised by Ld. Defence Counsels and Ld. Amicus Curiae disputing the identity of the accused as Ashok @ Bunty, in view of various reasons discussed above, are found to be misconceived and are not ac- cepted. From DNA report Ex.PW19/A and other reasons discussed above, identity of the dead body recovered on 16.12.05 from Gajipur Sabzi Mandi near National Highway stands established being of Ashok @ Bunty, son of the complainant PW5.
29. There is no direct evidence or any last seen evidence brought on record by prosecution to prove that deceased Ashok @ Bunty was last seen moving with accused Rakesh, Neetu or with any other accused. As already discussed, accused Rakesh was apprehended on 15.01.06 outside the house of complainant when he had come to throw third ransom letter at his door. During in- terrogation, accused Rakesh made disclosure statement and led the police to Village Bhoapur,District Ghaziabad, UP and from there he got accused Raj Kumar arrested. From the room where accused Raj Kumar was apprehended, a dairy with some pages missing used for writing the ransom/threatening letter was also recovered. Accused Raj Kumar during interrogation further made disclosure statement and named accused Neetu and Mohan as his associates. Both the accused Neetu and Mohan were apprehended on 17.01.06 from Village Nand Gram, District Ghaziabad. During interrogation, they also made disclosure statements admitting their involve- ment in this crime. In brief, this is entire evidence which prosecution has been able to bring against all the four accused persons on record to prove its case against them.
30. Ld. APP and Ld. Counsel for complainant has vehemently con- tended that all the accused entered into conspiracy and under this conspiracy, de- ceased Ashok @ Bunty was kidnapped from his house on 06.12.05 and taken to the spot i.e. Sabzi Mandi Gajipur near National Highway and there he was murdered and his body was dumped in the drain nearby. It is stated that it has come in the disclosure statements of accused Raj Kumar and Neetu that they had planned kid- napping of deceased with purpose to get ransom from his family. It is stated that conspiracy is always hatched in secrecy and it is impossible to adduce direct evi- dence on the same, the offence has to be proved from the inference drawn from that or illegal omission committed by conspirator. To support their contentions, Ld. Coun- sel has relied upon various judgments. In (2004)11SCC case titled Esher Singh Vs. State of A.P in para No. 35, Apex Court has observed as follows:-
" No doubt, in the case of conspiracy there cannot be any direct evi- dence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. There- fore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evi- dence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complic- ity of the accused".
31. The Apex Court in 2008 (Criminal Law Journal) 3872 case ti- tled Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra has discussed the basic ingredients of offence of criminal conspiracy which are as follows :-
(1) Meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal con-
spiracy.
(2) A conspiracy is always hatched in secrecy and it is impossi- ble to adduce direct evidence of the common intention of the conspirators- There- fore, the meeting of minds of the conspirators can be inferred from the circum- stances proved by prosecution, if such inference is possible.
(3) Meeting of minds of two or two more persons for doing an ille- gal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof.
(4) Offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement. (1980)2 SCC 465 and 1999(2) RCR(Crl.) 682 SC relied.
32. Before evaluating evidence which prosecution has been able to bring against each accused let us first see scientific evidence which has come on record. Ex.PW16/J is the report given by PW20 Devak Ram Scientific Officer (documents) FSL Rohini for comparison of questioned handwriting of three letters seized by memo Ex.PW5/C, PW5/E and Ex PW2/A with the specimen handwriting of the accused Raj Kumar. As per IO PW16 ACP Rajeshwar Kumar on 18.01.06 specimen handwriting of accused Raj Kumar @ Bhola was taken in the PS. As per this report Ex. P16/J, the person who wrote said enclosed writings and signatures stamped and marked S1 to S7 also wrote the red enclosed writing similarly stamped and marked Q1 to Q8. Q1 and Q7 are the three ransom letters. Q8 is an envelope. Ex.P6 is envelope bearing handwriting. Ld. Amicus Curiae for accused Raj Kumar @ Bhola has contended that specimen handwriting and signatures of the accused should have been taken with permission of the court or at least in the presence of a public witness but it was taken in arbitrary manner by the police in the police station. I find no reason to dispute the genuineness of specimen handwriting and signatures of the accused Raj Kumar because if accused wanted, he could have requested the court to take his fresh specimen and get it compared with questioned handwriting and signatures. From report Ex. PW16/ J, it thereby stands establish beyond doubt that three ransom letters which are Ex. PW5/H( dated 09.12.05) Ex. PW5/I( dated 12.12.05) and Ex. PW1( dated 15.01.06) are in the handwriting of accused Raj Kumar.
33. PW20 Devak Ram has specifically stated that pages bearing questioned writing mark Q1 to Q7 match with supplied diary mark P1, in size of paper, line of paper, glow of the paper and continuity of the dated of paper as well as location of thread hole/ torn position also match with the corresponding holes of the dairy mark P1 which indicates that paper bearing questioned writings mark Q1 to Q7 have been removed from the same dairy mark P1. Diary Ex. P1 was seized by PW15 SI Sansar Singh vide seizure memo Ex. PW2/G from the house of Bodhan, Village Bhoapur from where accused Raj Kumar was arrested. This seizure memo is witnessed by PW2 Jai Prakash and PW14 HC Jagbir Singh. FSL report Ex.PW16/J and seizure memo Ex. PW2/G vide which diary Ex. P1 was recovered from the possession of accused Raj Kumar clearly establishes that accused Raj Kumar was one of the active participants in the criminal conspiracy to kidnap and kill Ashok @ Bunty and had written three ransom letters to the family of the deceased.
34. Ex. PW5/H, Ex. PW5/I and Ex. P1 are the three ransom letters seized by the police in this case. The first two letters were found outside the house of PW5 on 09.12.05 and on 12.12.05 with jeans Jacket and checkdar shirt of the deceased. Both these articles were identified by PW5 father of the deceased in judicial TIP of case property vide Ex.PW18/C, whereas Ex.P1 is third ransom letter with which accused was apprehended on 15.01.06 when he had come to the house of PW5 to drop it. Perusal of these letters show continuity in the contents and time in which these were written. Ld. Defence counsels has contended that all these are planted by the police to solve unsolved case and during custody of accused persons these letters were fabricated. Ld. counsel has further contended that in the letter Ex.P1 which was allegedly seized on 15.01.06 it is found mentioned that man which was apprehended by the police is innocent and has no connection in this case. It is stated that it shows that police had already apprehended a person before 15.01.06 in this case which was let off due to extraneous consideration and subsequently all the accused persons were falsely implicated in this case. Prosecution case is silent if before 15.01.06 any person was apprehended in this case on the basis of suspicion. Why these lines appear in the third letter Ex. P1, is not required to be seriously pondered over by this court. Why accused Raj Kumar @ Bhola mentioned these lines in these letters only he is in a position to explain it. From these lines, certainly it cannot be presumed that the police had arrested the real culprits before 15.01.06 which was let off and accused persons thereby were falsely implicated in this case and were arrested accordingly.
35. The cause of death of Ashok @ Bunty is given by PW6A Dr. Mukta Rani after going through FSL Report No. 2006/C-0608 dated 25.05.06 and P/ M report Ex.PW6/A as cranio cerebral damage consequent upon blunt force/surface impact to the head. The internal examination of the dead body revealed following injuries:-
"on internal examination there was left effusion of blood with subscalpel, hematoma under the right frontal and temporal area of scalp, there was linear fracture over right frontotemporal bone of vault extending into anterior cranial fossa on the right side of base of skull below injury No.1 and 2. In the brain there was sub dural and sub archanoid haemorrage all over".
36. The viscera of the deceased was seized during P/M report and was sent to FSL for examination. In the FSL report dated 24.05.06 the presence of Ethyl Alcohol was found in the viscera. In reply to a specific question, PW6A has stated that this only shows that deceased had consumed alcohol before death. Ld. Defence counsels has raised contention that prosecution has nowhere explained that how Ethyl Alcohol came in the stomach of the deceased which shows that when he died, he had taken liquor and due to this reason, accidental death of the deceased cannot be ruled out. Though it remains unexplained that how the presence of Ethyl alcohol was found in the viscera of the deceased but in P/M report Ex. PW6/A and in FSL report dated 24.05.06 Dr Mukta Rani has clearly given opinion that death is due to cranio cerebral damage consequent upon blunt force/surface impact to the head.
37. In view of the entire evidence brought on record by the prosecution, discussed in above paras, let us sum up what legally sustainable evidence has come on record against each of the accused establishing his involvement in this case.
RAKESH
38. He was first person to be apprehended on 15.01.06 by PW2 outside his house where he has come to throw ransom letter Ex.P1. This accused was chargesheeted with accused Raj Kumar @ Bhola and Neetu @ Pravender for entering into criminal conspiracy for kidnapping Ashok @ Bunty for ransom, in execution of this conspiracy killing him and for disappearance of evidence. Ex.PW2/ B is his disclosure statement on the basis of which he led to the police party to the arrest of accused Raj Kumar @ Bhola from Village Bhoapur, District Ghaziabad, UP. As per this disclosure statement, this accused was friend of accused Raj Kumar, he was told all the facts by accused Raj Kumar and was given third ransom letter Ex.P1 to be thrown at the house of deceased for consideration of Rs.15,000/-. Ex.PW2/C is the disclosure statement of accused Raj Kumar @ Bhola and Ex.PW8/ B is the disclosure statement of accused Neetu wherein also exactly similar role have been assigned to this accused. As already discussed, to establish charges of criminal conspiracy prosecution is required to establish meeting of mind of this accused with other accused persons facing trial in this case for kidnapping or killing of Ashok @ Bunty. As discussed above, law is settled that since conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence, the meeting of the minds of conspirators can be inferred from the circumstances proved by prosecution, if such inference is possible.
39. But except the apprehension of accused on 15.01.06 from outside the house of PW5 with third ransom letter Ex.P1 and his disclosure statement, in pursuant to which accused Raj Kumar was apprehended from village Bhoapur, District Ghaziabad, there is absolutely no evidence against this accused. Moreover, as already discussed, even accused Raj Kumar and Neetu in their disclosure statements has not assigned any different role to this accused as stated by him in his own disclosure statement Ex. PW2/B. When this accused joined Raj Kumar, by that time, Ashok @ Bunty has already been kidnapped and killed and his body was thrown in the drain near Gajipur Sabzi Mandi. Disclosure statement Ex. PW2/B is admissible in evidence under Section 27 of the Indian Evidence Act as it led to the apprehension of accused Raj Kumar from village Bhoapur, District Ghaziabad,UP whose handwriting and signatures match with ransom letters and from whom possession diary on the pages of which ransom letters were written was recovered.
40. Ld. Defence counsels has further contended some contradictions regarding the manner of apprehension of this accused from outside the house of PW2 on 15.01.06 and how information was received in the Police Station. To my mind, various contradictions pointed out by Ld. Defence counsels are minor and insignificant and does not go to the root of the matter. Reliance is placed upon JT 1999(9) SC 43 State of H.P.Vs. Lekhraj and another wherein Hon,ble Supreme Court has observed as under:-.
" In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to laps of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
41. Other contention raised by Ld. Defence counsel is that while apprehending this accused and seizure of ransom letter Ex. P1, no effort was made by the police to join public witness which puts shadow of doubt on its authenticity. Law is settled that prosecution story cannot be thrown out on the ground that an independent witness had not been examined. The civilized people are generally insensitive when a crime is committed even in their presence. Reliance is placed upon AIR 1988 SC 696.
42. In view of aforesaid discussions, prosecution has failed to bring any circumstantial evidence on record to establish that this accused acted in conspiracy and was in agreement with accused Raj Kumar @ Bhola and his associates prior to 06.12.05 when deceased Ashok @ Bunty was kidnapped. As already discussed, as per the evidence which has come on record, this accused joined accused Raj Kumar @ Bhola subsequently and at the instance of accused Raj Kumar @ Bhola, knowing all the facts, went to throw third ransom letter Ex. P1 outside the house of PW2. The only offence which stands proved against this accused is punishable under Section 387 IPC.
RAJ KUMAR @ BHOLA
43. Ex. PW2/C is the disclosure statement of this accused as per which after passing 8th class he started residing with his parents at village Gajipur, Delhi. There accused Neetu and Mohan who were residents of Bhoapur met him, he and Neetu at the instance of Neetu entered into conspiracy to kidnap deceased Ashok @ Bunty, resident of Gajipur. On 06.12.05 he took Ashok @ Bunty to Subzi Mandi, Gajipur at a secluded place and there Neetu met him. It was dark and at secluded place, accused Neetu hit Ashok @ Bunty with a big stone as result of which he fell down. Neetu again hit Ashok @ Bunty on his head with stone. Ashok @ Bunty died there and they both took his body to nearby heap of earth. Thereafter they went to Theka Gajipur and took liquor. Again at 10.30 PM, they returned at the spot. Clothes worn by him ( Ashok @ Bunty) were removed only undergarments remained on the body and his body was thrown in the drain nearby. On 08.12.05 in the dark, they went again at the spot and took jeans pant and shirt from there. Then there is disclosure statement about writing of two letters on 09.12.05 and 12.12.05. Accused Mohan kept on guiding them. He gave third ransom letter to accused Rakesh to be thrown at the house of the deceased.
44. In pursuant to his disclosure statement, this accused led the police party to the spot i.e. Gajipur Subzi Mandi near National Highway and his pointing memo Ex.PW2/H was prepared and he got recovered bloodstained stones. Accused also led to the recovery of khakhi colour of pant, a pair of grey colour chappal worn by deceased which was seized by police vide seizure memo Ex.PW2/ F. Both these articles were identified by PW5 father of the deceased in judicial TIP vide Ex.PW18/C.
45. Ex.PW16/X & Y is the report of Senior Scientific Assistant (Biology) FSL, Delhi. As per which on the jacket and on the shirt of deceased, bloodstained gauze cloth and two cemented blocks seized from the spot blood of A group was detected. Ex. PW2/E is the seizure memo vide which two stones/cement blocks were seized by PW11 from the spot. As disclosed by this accused, the blood of deceased Ashok @ Bunty had fallen on these stones. As per P/M report Ex. PW6/A blood of the deceased was taken on gauze piece.
46. In addition to all this, as already discussed it stands established that three ransom letters Ex.PW5/H, Ex.PW5/I and Ex. P1 were in the handwriting of this accused. It also stands proved that diary Ex.P4 which was recovered from the possession of this accused was the same from which pages were taken to write all three ransom letters.
47. Sufficient evidence has come on record to nail this accused for all the offences with which he has been charged. In disclosure statement exactly similar role has been assigned by this accused to accused accused Neetu, rather it is mentioned in this disclosure statement that the idea of kidnapping Ashok @ Bunty was organically conceived by accused Neetu. The disclosure statement of this accused is admissible in evidence under Section 27 of the Indian Evidence Act as it led to the recovery of clothes of the deceased and the place where dead body was thrown. The dead body was recovered by PW11 ASI Abdul Wahid on 16.12.06 from the same spot. No doubt, act of killing of Ashok @ Bunty was not handiwork of only this accused. He must have acted in conspiracy with one or more associates. Whether sufficient evidence has come against accused Neetu and Mohan to nail them in this case will be discussed in subsequent paras. The only inference which emerges from the evidence which has come on record against this accused is that he was one of the conspirator and in execution of this conspiracy, he kidnapped Ashok @Bunty, murdered him and threw his body in the drain.
48. Ld. Amicus Curiae and Ld. defence counsels have pointed out that during his cross, PW15 SI Sansar Singh has admitted that on 11.01.06 with other staff he visited village of accused Raj Kumar @ Bhola and village of Neetu and Mohan for investigation but their whereabouts were not found. It is stated that as per the prosecution case, this case for the first time was cracked on 15.01.06 when accused Rakesh was apprehended from outside the house of deceased while throwing third ransom letter. It is stated that as per prosecution case, accused Rakesh disclosed the name of accused Raj Kumar @ Bhola and it was Raj Kumar @ Bhola who disclosed the name of Neetu as his co conspirator and active participant in the commission of crime. It is stated that if names of Raj Kumar @ Bhola, Neetu and Mohan figured in the investigation after the arrest of accused Rakesh on 15.01.06 then how PW16 SI Sansar Singh who was investigating officer visited the village of all these three accused persons for investigation of this case on 11/01/06, which shows that this evidence brought on record by prosecution is not trustworthy and is full of doubts and benefit of this needs to be given to the accused persons.
49. To ascertain truth, case diaries on police file dated 11.01.06, were perused. Wherein it is mentioned by PW15 SI Sansar Singh that from the secret informer he came to know that since the day of missing of Ashok @ Bunty, a boy named Raj Kumar@ Bhola S/o. Sh. Hargovind who also lives in Gajipur is missing and there is possibility that he might be involved in this kidnapping. Accused Raj Kumar @ Bhola was searched at Ghaziabad and Bijnaur but he could not be found there. During investigation Sh Hargovind father of Raj Kumar @ Bhola told PW15 that Neetu and Mohan used to meet his son frequently and are friends of his son. Thereafter efforts were made to trace Raj Kumar @ Bhola, Neetu and Mohan but they could not be found.
50. No evidence has come on record to establish that accused Raj Kumar @ Bhola was residing in Gajipur near to the house of deceased and accused Neetu and Mohan were his friends. There is also no evidence to this effect that accused Raj Kumar @ Bhola, Neetu and Mohan also went missing since the day when deceased Ashok @ Bunty went missing. This type of evidence could have been thrown more light on the conspiracy angle among this accused and other accused involved in the commission of this crime but prosecution has failed to bring any such evidence on record. However, from case dairies show that police had some suspicion primarily on accused Raj Kumar @ Bhola and it has also come to the knowledge of the police that accused Neetu and Mohan are friends of accused Raj Kumar @ Bhola with whom he used to meet frequently. Merely on this ground the contention raised by Ld. Defence counsels cannot be accepted that this accused was falsely implicated by the police in this case to solve unsolved case.
51. Taking into consideration the totality of the circumstances discussed in above paras, the facts established are incapable of any explanation or any reasonable hypothesis other than guilt of accused. It thereby stands established that this accused acting under the criminal conspiracy with his associates kidnapped Ashok @ Bunty on 06.12.05 for ransom, then killed him at Subzi Mandi Gajipur near National Highway and for causing disappearance of evidence dumped the dead body in the drain nearby.
NEETU
52. This accused has been charged for hatching criminal conspiracy for kidnapping Ashok @ Bunty, killing and disposing his body in the drain. Ex.PW8/B, the disclosure statement of this accused, is exactly similar to disclosure statement Ex. PW2/C of accused Raj Kumar @ Bhola. In addition to that, it is mentioned that accused Mohan was told all the facts regarding kidnapping of Ashok @ Bunty on 07.12.05. Accused Mohan was given assurance to pay some money out of ransom demand and he started helping them.
53. As per PW16 Rajeshwar Kumar, ACP in pursuant to his disclosure statement, this accused pointed out the spot where Ashok @ Bunty was murdered and memo to this effect Ex.PW8/G was prepared. By that time, this place was already known to the police. No new fact was discovered on the basis of disclosure statement of this accused.
54. Though accused Raj Kumar @ Bhola who has been held guilty for the offences charged, in his disclosure statement Ex. PW2/C has implicated this accused as the main mastermind for the commission of the offences of kidnapping, killing and disposing of dead body in the drain and this has some relevancy under Section 30 of the Indian Evidence Act but disclosure statement of accused Raj Kumar @ Bhola implicating this accused is not substantive evidence on the strength of which this accused can be held guilty for the offences charged.
MOHAN
55. This accused was charged for the commission of offence punishable under Section 386 read with section 120B and 202 IPC. Ex. PW8/A is his disclosure statement, contents of which are similar to the contents of Ex. PW8/B of accused Neetu. As per disclosure statement of this accused, as well as disclosure statement Ex. PW2/C and Ex. PW8/A of Raj Kumar @ Bhola and Neetu, this accused is not a conspirator and committor of this crime with them. As per disclosure statement of accused Raj Kumar @ Bhola and Neetu, this accused came to know all the facts only on 07.12.05 and thereafter only because of lure of money he joined them and started helping them. Except disclosure statement, there is absolutely no evidence on record against him.
56. In view of the aforesaid reason, I hold that prosecution has been able to prove guilt of accused Raj Kumar @ Bhola beyond reasonable doubt for the commission of offence punishable under Section 364A read with Section 120B IPC, under Section 302 read with Section 120B IPC and under Section 201 read with Section 120B IPC. Against accused Rakesh, prosecution has been able to prove guilt only for the commission of offence punishable under Section 387 IPC. He is acquitted from other charges. Accused Rakesh and Raj Kumar @ Bhola are convicted accordingly.
57. However, prosecution has failed to prove any charge against accused Neetu and Mohan and both are acquitted accordingly.
File be consigned to the Record Room.
Announced in the open Court ( SANJAY GARG )
on 14th January, 2011. Addl. Sessions Judge (East)
FTC, E- Court Karkardooma Courts:
Delhi
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST):
FTC: KARKARDOOMA COURT: DELHI Session Case No. 141/10 FIR No. 624/05 Under Sections 364A/302/120B /201 IPC PS. Kalyan Puri S/V. Raj Kumar @ Bhola S/o. Sh. Hargovind, R/o. Village-Roop Pur, PS- Seohara, Bijnour, UP.
ORDER ON QUANTUM
1. I have heard Sh. Mohd. Iqrar Ld. Addl. PP for the State and Sh. Satya Narayan Ld. Counsel for complainant and Sh. Abdul Sattar Ld. Amicus Curiae for convict Raj Kumar @ Bhola on quantum.
2. Ld. APP and ld. Counsel for complainant submits that it is a fit case to be awarded capital punishment. It is stated that victim was of very young age and was getting married very soon. It is stated that offence was committed in a barbaric manner. In support of his contention, Ld. Counsel for complainant relied upon (2010) 3 Supreme Court Cases 56, Vikram Singh & others Vs. State of Punjab.
3. Ld. Amicus Curiae for convict submits that the convict is first offender, not involved in other criminal case. It is stated that he is 20 years of age. It is stated that he has a family constituting his parents, his younger brother and sister. It is stated that this case does not fall in the category of the rarest of rare cases, hence, the question of capital punishment does not arise. It is stated that minimum punishment as per law be awarded to the accused.
4. Even at the cost of brevity it is mentioned here that the victim Ashok @ Bunty in this case was a young boy of 19 years, under criminal conspiracy with unknown associates this accused has kidnapped him for ransom and killed him same day at Subzi Mandi Gajipur near National Highway. Thereafter three ransom letters dated 09.12.05, 12.12.05 and 15.01.06 were delivered at the house of the victim.
5. In Vikram Singh(supra) a young boy of 16 years son of a goldsmith was kidnapped from school and later murdered by injecting him with Chloroform and fortwin. Some public witness had seen the accused person taking away the deceased with them. The Apex Court after drawing the balance sheet of mitigating and aggravating circumstances and considering plight and predicament of hapless victim upheld the death sentence awarded by Trial Court. The para 68 of this judgment runs as follows:-
" We must also emphasise that in this tragic scenario and in the drawing up of the balance sheet, the plight of the hapless victim, and the abject terror that he must have undergone while in the grip of his kidnappers, is often ignored. Take this very case. Abhi Verma was only 16 years of age, and has been picked up by Vikram Singh who was known to him but had soon realised the predicament that he faced and had shouted for help. His terror can further be visualised when he would have heard the threatening calls to his father and seen the preparations to do away with him, which included the taping of his mouth and the administration of an overdose of dangerous drugs. The horror, distress and the devastation felt in the family on the loss of an only son,can also be imagined."
6. Ld. Counsel for complainant submits that section 364A was introduced in the Penal Court by virtue of Amendment Act 42 of 1993 to curb the incidents of kidnapping by the terrorist for ransom. It is stated that for the offence punishable under Section 364A IPC and 302 IPC provision for providing death penalty is there.
7. The relevant question to be considered is whether this case falls in the category of " rarest of the rare cases" as the principle laid by Constitution Bench of Apex Court in Bachan Singh Vs. State of Punjab, (1980) 2SCC 684 or not. Reliance is placed upon Santosh Kumar and Satish Bhushan Vs. State of Maharashtra, 2009 (6) SCC 498 where in para Nos. 71 and 72, Apex Court has observed as follows:-
"71.It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of crime index. There may be other factors which may not have been recorded.
72.We must also point out, in this context, that there is no consensus in the court on the use of "social necessity' as a sole justification in death punishment matters. The test which emanates from Bachan Singh (supra) in clear teams is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigor and fairness are given primacy over sentiments and emotions."
8. Reliance is also placed upon Mohd. Chaman Vs. State of NCT of Delhi,2001, Criminal Law Journal 725 wherein the Apex Court has summed up the law relating to the death sentence in the murder case and has observed as follows:-
"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
(v) The number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of "rarest of the rare cases". The courts must keep in view the nature of the crime, the brutality with which it was executed, the antecedents of the criminal, the weapon used etc. It is neither possible nor desirable to catalogue all such factors and they depend upon case to case.
(vi) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance :
(vii) When the house of the victim is set aflame with the end in view to roast him alive in the house.
(viii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(ix) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. AIR 1980 SC 898, 1997 (1) RCR (Crl. ) 359 (SC) and 1994 (2) RCR (Crl.) 40 (SC) relied."
9. While drawing balance sheet of aggravating and mitigating circumstances as observed by Apex Court in Mod. Chaman ( Supra), aggravating circumstances in the present case are - age of the victim, the victim was killed same day by this accused in the company of his associates and thereafter sending three ransom letters to the family of the victim. The victim was killed in a cold blooded manner without having any animosity with the accused. Whether aggravating circumstances discussed above are sufficient to take this case to the category of rarest of the rare cases is pertinent point to be considered. As discussed by Apex Court in Mohd. Chaman ( Supra), murder should be committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arose intense and extreme indignation of the community to qualify for capital punishment. As discussed in this case the victim was neither set aflame to roast him live nor his body was cut into pieces or dismembered. The mitigating factors weighing in favour of the convict are - (I). There is no previous criminal record of the convict. (II) The victim was kidnapped for ransom under criminal conspiracy,which as per evidence discussed in the judgment, was primarily hatched by co accused Neetu ( since acquitted due to lack of evidence). (III) The victim was killed same day immediately after kidnapping after he was hit twice with a stone by accused Neetu ( since acquitted due to lack of evidence) .
10. In Aloke Nath Dutt Vs. State of West Bengal, 2006(13) SCALE 467, the Apex Court has observed that death sentence was not to be awarded in all cases of circumstantial evidence. It is also mentioned that it is not an absolute rule but it should be normally followed.
11. In my opinion, keeping in view of various aggravating and mitigating circumstances, discussed above, this case does not fall in the category of rarest of the rare cases and capital punishment is not the punishment commensurate to the crime committed by the convict. Recently, Apex court in Swamy Shardanand Vs. State of Karnataka, 2008 AIR, SC 3040 has observed after summing up law on death sentence that where death sentence is substituted with life imprisonment, life imprisonment means life imprisonment for the entire life and does not mean either for 14 years or 20 years. It is further observed that in terms of section 53 read with section 45 of IPC, life imprisonment meant imprisonment for rest of life.
12. In view of the aforesaid reasons, the convict is sentenced as under:-
For the offence punishable u/s.364A IPC read with Section 120B IPC he is sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs.2,000/- in default to undergo SI for three months. For the offence punishable u/s. 302 IPC read with Section 120B IPC he is sentenced to undergo life imprisonment and shall also be liable to pay fine of Rs.2,000/- in default to undergo SI for three months. For the offence punishable u/s. 201 IPC read with Section 120B IPC he is sentenced to undergo RI for five years and shall also be liable to pay fine of Rs.1000/- in default to undergo SI for one and half month. All the sentences to run concurrently.
4. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 19th day of January, 2010 Addl. Sessions Judge (East)
FTC, E- Court Karkardooma
Courts, Delhi
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST):
FTC: KARKARDOOMA COURT: DELHI Session Case No. 141/10 FIR No. 624/05 Under Section 387 IPC PS Kalyan Puri S/V. Rakesh S/o Sh. Keshav, R/o. Village-Roop Pur, PS- Seohara, Bijnour, UP.
ORDER ON QUANTUM
1. I have heard Sh. Mohd. Iqrar Ld. Addl. PP for the State and Sh Satya Narayan, Ld. counsel for complainant and Sh. Pankaj Chauhan, Ld. Defence Counsel for convict Rakesh on quantum.
2. Ld. APP submits that keeping in view gravity of the offences maximum punishment be awarded to the accused. Ld. Defence Counsel for convict submits that the convict is first offender, not involved in other criminal case. It is stated that he is 25 years of age. It is stated that he has a family constituting his parents, a younger brother and a younger sister to look after. It is stated that he had spent more than five years as under-trial in this case. It is submitted that he be released on the period of imprisonment already undergone by him as under-trial of this case.
3. As per record, this accused is in J/C since 15.01.06. He has spent compete five years as an under trail in this case. The maximum imprisonment provided under Section 387 IPC is up to seven years and fine. In view of the facts and circumstances of this case, he is sentenced to the period of imprisonment already undergone by him as an undertrial in this case after giving him the benefit of doubt under Section 428 Cr.P.C.
File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 19th day of January, 2010 Addl. Sessions Judge (East)
FTC, E- Court Karkardooma
Courts, Delhi