Delhi District Court
State vs . Rajesh Kumar S/O Baleshwar, on 20 August, 2010
1
IN THE COURT OF SHRI SANJEEV AGGARWAL: ASJ-V: OUTER:
ROHINI: DELHI
SC No. 102/08
FIR No.252/06
PS Sultan Puri
U/s 364A/34 IPC
ID No.02404R0208882006
State Vs. Rajesh Kumar S/o Baleshwar,
R/o V.&.P.O, Jhanjhar Pur,
Distt. Madhubani, Bihar.
Date of institution in Sessions Court : 03.07.2006
Date of transfer to this court: 01.12.2008
Date of Judgment : 12.08.2010
JUDGEMENT
1. In brief, the prosecution story is that on 19.02.2006, a DD No.3 was received at PP Prem Nagar, PS Sultan Puri, Delhi, where after ASI Kishan Kumar along with Ct. Anil reached at H.No. B-2/182, Bhagya Vihar, where complainant Ravinder Kumar met them and got recorded the following statement:-
"That he was running STD shop and his second St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 2 son Ravi @ Tinku, aged 18 years, having height of 5 feet 7 inches and the detailed description was also mentioned in his statement had left the house on 18.02.2006 at around 7:00 p.m, after telling him that he was going to meet his elder brother Raman, but said Raman returned home by 9:00 p.m. But Ravi @ Tinku did not turn up.
At around 10:15 p.m, a telephone call was received by him on his STD booth that his son Ravi @ Tinku was in the custody of caller and if he wanted to save him, he should pay Rs. 50,000/- to the caller at Mundka Phatak. Thereafter, he along with his five- seven neighbours went to Mundka Phatak, but nobody was found there.
Thereafter, another call was received at 11:20 p.m, that the money should be brought near Chanchal Hospital. Even there nobody was found. Thereafter, at 2:30 a.m (night), he made a call at 100 number, and he searched for his son Ravi @ Tinku and some unknown person had abducted him for the ransom, and he should be searched".
St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 3
2. On the said statement, endorsement was made by ASI Kishan Kumar and the rukka was sent to PS through Ct. Anil for registration of FIR. On the basis of said rukka, an FIR U/s 364A was registered.
3. Further investigation(s) were taken up by ASI Kishan Kumar, and on 19.02.2006 on the information of the secret informer it was known that the victim was confined in the H.No. B-360, Agar Nagar, Prem Nagar. A raid was conducted and from the said house, the victim Ravi @ Tinku was found in the custody of accused Dinesh and Rajesh. The victim was recovered and recovery memo was prepared. Both the accused persons were arrested and they disclosed that two other persons, namely, Chhotu and Raj were also involved in the said crime. However, the other two accused persons could not be arrested for want of incomplete particulars during the investigation(s).
During remand, one of the accused Dinesh was found to be juvenile. Consequently, his trial was separated and he was forwarded to Juvenile Justice Board, Kingsway Camp for inquiry under J.J. Act. St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 4
4. After completion of the investigation(s), a charge sheet U/s 364A/34 IPC was filed against the accused Rajesh Kumar.
5. Upon committal of the case to the court of session, a charge U/s 364A read with section 34 IPC was framed against the accused Rajesh vide order dt. 22.08.2006, to which he pleaded not guilty and claimed trial.
6. Thereafter, in support of its case, the prosecution has examined 12 witnesses. PW1 is Ravi @ Tinku, the victim and the star witness of the prosecution, PW2 is HC Kali Charan, the duty officer, who has proved the copy of the FIR as Ex.PW2/A, PW3 is Ravinder, the complainant and father of the victim, PW4 is Raman, brother of the victim, PW5 is Afroz Alam, who was running a PCO booth, having telephone No. 25185671 at Agar Nagar, Prem Nagar, PW6 is Arjun Jha, who was running a PCO near Chanchal Hospital, having telephone No.55220377, PW7 is Rahisa Khatoon, the wife of PW5, PW8 is Ct. Anil Kumar, who took some part in the investigation, PW9 is Ct. Kishan Kumar, who had handed over the DD No.3, Ex.PW9/A to St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 5 ASI Kishan Kumar on 19.02.2002, PW10 is HC Ram Mehar, who was working at Police Head Quarter and who had received the call, made by the complainant to the Police Control Room, who has proved the PCR form Ex.PW10/A, PW11 is HC Pawan Kumar, who took active part in the investigation(s), including the recovery of the victim on 19.02.2006, including the arrest of the accused Rajesh as well as Dinesh, PW12 is ASI Kishan Kumar, the I.O of this case, who has deposed, regarding the investigation(s), as were carried out by him during the course of present case.
7. Thereafter, statement of the accused was recorded U/s 313 Cr. PC, in which all the incriminating facts, which had come in the evidence of the Pws stated above were put to him, and he stated that he had been falsely implicated in this case by the police to solve this case somehow and the original culprits, who may have been involved in this case seems to have been let off by the police for the reasons best known to them. However, he did not chose to lead any defence evidence.
St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 6
8. I have head Ld. Amicus Ms. Sadhna Bhatiya and Sh. G.S. Guraya, LD. Adl. PP for the state.
9. The Ld. Amicus has argued that there are lot of discripancies in the testimony of PW1 Ravi @ Tinku as well as in the testimony of his father PW Ravinder, which makes their testimonies unreliable and she has further argued that there is no evidence on the record that accused ever made any ransom call to PW3, which fact had been admitted by PW5, PW6 & PW7, who were the owners of the PCO booth, from where the alleged ransom calls were made, as none of them had identified the accused as the person, who had made those ransom calls.
10. She has further argued that no voice recording of the accused was taken or was sent to forensic lab, so as to pin point the accused as the person, who had abducted and had demanded ransom for the release of PW1 Ravi @ Tinku. She has further argued that the testimony of PW1 Ravi @ Tinku that he was abducted by the accused Rajesh along with three other accused St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 7 persons from the Rani Khera bus stand also does not inspire confidence, as it does not stand to reason that a well grown up boy of 18 years of age could be abducted in the clear public view, without raising any alarm or without inviting the attention of the public persons, who were present near the said bus stand and none of them surprisingly made any call to the police on seeing the said occurrence. Consequently, she has argued that accused deserves acquittal.
11. On the other hand Ld. Addl. PP for the state has argued that from the testimony of PW1 Ravi @ Tinku, it clear that accused was the person, who along with his three other co-accused persons had abducted the victim Ravi @ Tinku from the Rani Khera bus stand on 18.02.2006 and thereafter he and other accused persons had confined him in a room from where he was ultimately recovered/rescued by the police on 19.02.2006 and at that time the victim was found in the custody of the accused Rajesh Kumar and another accused Dinesh (facing trial before juvenile court). He has St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 8 further argued that from the testimony of I.O PW12 ASI Kishan Kumar and also from the testimony of PW11 HC Pawan Kumar and also from the testimony of PW3 Ravinder, it was clear that the victim was recovered from the custody of accused Rajesh and Dinesh from a room, situated at Agar Nagar, Prem Nagar on 19.02.2006 and the PW1 had also clearly identified the present accused as the person, who had abducted him and had demanded ransom from his father along with his three other co-accused persons.
12. He has further argued that it may be that the PCO operators may have not identified the accused, as the person, who actually made the ransom call from their PCO, but from the testimony of PW1, the principle of agency i.e. of common intention U/s 34 IPC would clear apply and consequently there is crystal clear evidence on the record, regarding the culpability of the accused in this case. Therefore, he prays that accused deserves conviction U/s 364A IPC.
13. I have gone through the rival contentions.
14. To make out a case U/s 364A IPC the prosecution has to prove St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 9 the following ingredients:
(1) The accused must have kidnapped, abducted or detained any person;
(2) He must have kept such person under custody or detention; and (3) Kidnapping, abduction or detention must have been for ransom.
(4) Such acts have been done to compel-
(a) the Government or any foreign State or international inter-governmental organization; or
(b) any other person,
(i) either to do or abstain from doing any act, or
(ii) to pay ransom.
1. Regarding the first ingredient the word abduction has been defined in Section 362 IPC as: Whoever by force compels or by any deceitful means induces, any person to go from any place, is said to abduct that person.
2. Regarding the first ingredient PW1 Ravi @ Tinku has been examined by the prosecution, who has stated that on 18.2.06 his St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 10 brother Raman went to Rani Khera, Delhi for collection of some payment. He did not return for some time. Therefore, he went to Rani Khera to look for him. It was about 8.30p.m when he was returning from Rani Khera, he was encircled by 4 boys at Rani Khera bus stand. They asked his name and details of his family. Thereafter, they took him to a room at Agar Nagar. They asked his telephone number and then demanded Rs. 50,000/- as ransom for his release from his parents. He was detained in the said room for entire night. His parents were initially called up at 10.30p.m and directed to bring the money at Guru Sukhjain Public School, Rani Khera, Delhi and in the morning he was woken up and one of the accused persons kicked him on his face and the accused Rajesh was one of the four persons.
3. PW3 Sh. Ravinder, the father of the victim PW1 Ravi @ Tinku has corroborated the testimony of PW1, as he has also stated that he was running an STD/PCO shop and on 18.2.06 his second son namely Ravi @ Tinku aged about 18 years left the house at about St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 11 7.00p.m saying that he was going to his brother Raman. Raman returned at home at about 9 p.m but Ravi did not. Similarly, PW4 Raman has also deposed that on 18.2.06 he returned to his house at about 9p.m and his father asked him as to where was Ravi. He stated that he did not know as Ravi had never come to him and they kept waiting for Ravi for some time. At about 10p.m, his father attended a phone call, where the caller told him that Ravi was in his custody and had demanded Rs. 50,000/- for his release.
4. Ld. Defence counsel has assailed the testimony of PW1 Ravi on the ground that the testimony of PW1 is highly improbable as PW1 has himself admitted that the place from where he was abducted by the accused persons, was surrounded by permanent shops and certain Rehari(s) and bus stop was also near the place where weekly market is held in Rani Khera. Therefore, the ld. Defence counsel has argued that it is highly improbable that the victim PW1 was abducted from such a busy crowded place in full public view and he has also argued that the place was near bus St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 12 stand of Rani Khera, which is always frequented by number of passengers waiting for the bus and it is highly unlikely that from such a crowded place any person could be abducted in full public view that too on foot which has been stated by PW1 Ravi, that he had been taken to the place, where he was detained on foot.
5. However, said argument of Ld. Defence counsel though attractive, is not tenable as PW1 Ravi in his cross-examination has also stated that at that time i.e. at about 8.30p.m the shops were closed and he also stated that the spot near the bus stop was not crowded and there were no passengers at that time. In view of the explanation given by PW1 Ravi in his cross-examination that at that time when he was abducted by the accused persons, the shops were closed and there were no passengers also near the bus stop, the possibility of the accused persons who were four in numbers, having abducted the victim PW1 from the said place can not be ruled out, as said place from where the victim was abducted was a village not a busy city centre and judicial notice can be taken this St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 13 fact that in the villages at the night time, very few people are available unlike in city, where there is hustle and bustle through out the night.
6. Consequently, as stated by PW1 Ravi, since the market and the bus stop was not frequented by any person at that time, therefore, the chances of the accused persons taking him away by compelling him to a place where he was kept confined can not be ruled out, especially it was a night time and nobody would have noticed them taking the victim to the said room.
7. Further the age of the victim as per his father PW3 was only 18 years at that time. Therefore, a young boy of 18 years of age being intimidated by the four accused persons in the night time, at a secluded place, so as to accompany with them cannot be said to be unnatural. The testimony of PW1 that he had gone to look for his brother Raman, who had not returned home on that day is well corroborated by the testimony of PW3 Ravinder and PW4 Raman, who have also stated that PW1 had left the house at around St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 14 8.30p.m on 18.2.06 and had not returned, despite the fact that Raman PW4 had returned back by about 9p.m.
8. PW1 Ravi has also categorically identified the accused Rajesh Kumar as one of the person, who had abducted him from near the Rani Khera bus stand. Therefore, it has been proved by the prosecution by positive evidence of PW1 that the present accused Rajesh in connivance with the three other accused persons, one of whom is facing trial before the Juvenile Court, had abducted PW1 Ravi on the night of 18.2.06.
9. Regarding the second, third and fourth ingredient(s), they are taken up together, as they are interconnected with each other. PW1 Ravi, in his testimony has also stated that after abducting him, those four persons confined him to a room at Agar Nagar, where they asked his telephone number and then demanding Rs. 50,000/- as ransom for his release, from his parents. He was detained in the said room for entire night. In his cross-examination carried out by the Ld. Addl. PP, he stated that it was correct that St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 15 accused Dinesh and Chhotu left the room saying that they will demand ransom of Rs. 50,000/- from his parents and he also admitted as correct that accused Rajesh and Raj had stayed back in the said room and that after one hour, accused Dinesh had sent Rajesh and Raj to give a telephone call and it was further correct that at about 7.30a.m Dinesh and Chhotu again went to give a telephone call and returned after some time and at around 11.30a.m on 19.2.06 Raj and Chhotu left the place by saying that they were going to Rani Khera.
10. From the direct testimony of PW1 Ravi @ Tinku, it is clear that accused Rajesh in furtherance of his common intention alongwith the other accused persons confined and detained PW1 Rajesh against his wishes in a room at Agar Nagar, where he was taken after being abducted from Rani Khera bus stand.
11. PW12 ASI Krishan Kumar, who is the IO of this case has also deposed that on 19.2.06 he received a DD No. 3 Ex.PW9/A and thereafter he alongwith constable Anil reached H.No. B-2/182, St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 16 Bhagya Vihar, Mubarakpur Dabas, Delhi, where complainant met him and he got recorded his statement and thereafter he got the FIR lodged and made a search for the culprits, and at about 7a.m, the complainant again received a ransom call, whereby the caller had demanded Rs. 50,000/- and after receiving the call number, he called back on the same, from where it was known that the call had been made from a PCO situated at Agar Nagar, Prem Nagar-III and thereafter he called constable Pawan deputed in the beat of Agar Nagar, Prem Nagar-III and he was instructed to make efforts for search of the culprits. He alongwith constable Anil and complainant went towards Rani Khera side for searching the culprits.
12. In the noon time, he received a call from Constable Pawan that he had received some secret information regarding the culprits of this case. Accordingly, they reached B-Block, Agar Nagar, Prem Nagar-III and they reached the back side gali of Balwan Pradhan and on the pointing out of the secret informer, they knocked the door of H.No. B-360, one boy opened the door, whose name was St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 17 revealed as Dinesh (who is facing trial before the Juvenile Court). He was over powered by constable Pawan. He entered the room and there another boy and victim were found. The name of the other boy was revealed as Rajesh, who was the accused present in the court, who was also interrogated and arrested and he also made a disclosure statement and he also identified the place of occurrence and that of STD/PCO, from where he had made a ransom call the complainant.
13. The testimony of PW12 ASI Krishan Kumar regarding the recovery of accused from a house at Agar Nagar Prem Nagar is duly corroborated by the testimony of PW11 HC Pawan Kumar in material particulars and also by the testimony of PW8 Constable Anil Kumar
14. Though the aforesaid recovery witnesses in their cross- examination have admitted that no neighbour was joined in the recovery proceedings and the house from where the victim and the accused were apprehended was surrounded by other residential St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 18 houses and the IO did explain in his cross-examination that he had asked some neighbours to join the investigation(s), but none agreed despite their requests. This explanation of IO can not be said to be unreasonable, as the apathy of the public persons in joining the police investigation(s) these days is well known, especially in these sorts of serious cases no public person would dare to join the investigation(s) for various assorted reasons, as he would fear that he would have to depose lateron in the court infront of hardened criminals. Therefore, non-joining of any public witnesses at the time of recovery is not fatal to the case of prosecution. In any case, the testimony of the aforesaid police officials regarding the recovery is well corroborated by the testimony of PW1 Ravi @ Tinku, who has also deposed that on 19.2.06 at around 2.30p.m some police official had come to the room and rescued him and accused Rajesh and Dinesh were apprehended from the spot and remaining two had run away before the police had reached. There is no reason why would PW1 Ravi St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 19 would depose falsely against the accused and would concoct a false story of rescue, as has been corroborated by the police officials discussed above.
15. Rather, the truthfulness of the testimony of PW1 Ravi, the victim, is borne out from the fact that he in his cross-examination by the Ld. Addl. PP has stated that when he was rescued by the police, his father was not present there, which fact PW3 Ravinder, has also admitted in his cross-examination that at the time of recovery of his child he was sitting in the police post and IO went and recovered the child. Therefore, from the aforesaid discussion, it appears that the IO in his anxiety to fortify the case of the prosecution, had introduced the father of the victim PW1 Ravi as a witness to the recovery, but that in no way dilutes or falsify the entire case of the prosecution, rather, the testimony of IO has to be seen dehors the prosecution case as PW1 has categorically stated that he was rescued by the police officials, this testimony of PW1 Ravi shows that he was a truthful witness and he was deposing as St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 20 per the actual sequence of events, which actually took place and not at the behest of the IO.
16. No doubt in the present case, the IO in his over zeal to strengthen the case of the prosecution has made certain embellishments in the story of the prosecution, but even dehors such embellishments, the case of the prosecution is otherwise cogent and trust worthy.
17. It has been held in judgment Paras Yadav Vs. State of Bihar AIR 1999 SC 644 that:
"It is true that there is negligence on the part of investigating Officer. On occasions, such negligence or omission may give rise to reasonable doubt which would obviously go in favour of the accused. But, in the present case, the evidence of prosecution witnesses clearly establishes beyond reasonable doubt that the deceased was conscious and he was removed to the hospital by bus. All the witnesses deposed that the deceased was in a fit state of health to St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 21 make the statements on the date of incident. He expired only after more than 24 hours. No justifiable reason is pointed out to disbelieve the evidence of number of witnesses who rushed to the scene of offence at Ghogha Chowk. Their evidence does not suffer from any infirmity which would render the dying declarations as doubtful or unworthy of the evidence. In such a situation, the lapse on the part of the Investigating officer should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this court from the case of Ram Bihari Yadav Vs. State of Bihar and Others, 1998(2)RCR(Crl.)403: J.T.1998(3) SC 290:
"In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 22 otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice".
32. Further it has been held in judgment Ram Bihari Yadav Vs. State of Bihar AIR 1998 that:
"Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by brining on record Ex. 5/4 and GD entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 23 for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
33. It has also been held in judgment AIR 1988 SC 1998 State of U.P Vs. Anil Singh that:
"Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 24 independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject that prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The privy Council had an occasion to observe this. In Bankim Chander Vs. Matangini, 24 C.W.N 626 PC, the Privy Council had this to St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 25 say:
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence".
"In Abdul Gani Vs. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.
Further in Para 15 it has been held that:
"It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 26 Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
34. In view of the aforesaid preposition(s) of law laid down by the Hon'ble Supreme Court, in above referred Judgments, it is clear that the lapses and omissions on the part of the investigating officer in this case are not fatal to the entire case of the prosecution, as the prosecution evidence is required to be evaluated and examined dehors such omissions and embellishments to find out, whether such evidence is reliable or not and it is an important duty of a judge who presides over the trial that a guilty man does not escape, as it is his duty to see that no innocent man is punished.
35.In view of the afore settled law and aforesaid discussion, the evidence produced on the record by the prosecution has been found to be trustworthy, reliable and cogent for the reasons given above and there is no reason to discard the testimony of the prosecution witnesses, merely because the IO has made certain St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 27 embellishments/omissions in the prosecution case, in order to strengthen it and, therefore the said lapses and omissions on the part of the IO does not effect the case of the prosecution as they are not very material in nature and does not go to the root of the prosecution case.
36. In view of the aforesaid judgment, merely the fact that the IO had in his anxiety to fortify the case of the prosecution had introduced PW3 Ravinder, the father of the victim as recovery witness, does not in any way dilutes the prosecution story regarding the recovery of victim PW1 Ravi on 19.2.06 from the clutches of accused Rajesh and Dinesh, as the entire prosecution evidence has to be seen in totality and not in isolation and looking into the prosecution evidence on the recovery aspect in totality, same is found to be truthful and trustworthy.
37. It has been held in judgment Suman Sood v. State of Rajasthan (2007)5 SCC 634, that the term "ransom" has not been defined in the Code, stated simply, "ransom" is a sum of money to St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 28 be demanded to be paid for releasing a captive, prisoner or detenu. Kidnapping for ransom is an offence of unlawfully seizing a person and then confining the person usually in a secret place, while attempting to extort ransom. This grave crime is sometimes made a capital offence. In addition to the abductor a person who acts as a go-between to collect the ransom is generally considered guilty of the crime.
38. Regarding the ransom part, PW1 Ravi has deposed as discussed above that those abductors had asked his telephone number and then demanded Rs. 50,000/- as ransom for his release from his parents and they left in group of two from the room where he was detained saying that they would demand Rs. 50,000/- from his parents and when they left, the other pair of the accused persons stayed back.
39. In this regard, the testimony of PW3 Ravinder is relevant, as he has stated that at about 10.15p.m on 18.2.06 he received a phone call on his STD/PCO that his son Ravi @ Tinku was in the custody St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 29 of the caller and he could be released on payment of Rs. 50,000/- as ransom. He was directed to reach Mundka Railway crossing alongwith the amount. He alongwith some neighbours went to Mundka Railway crossing but could not find any one. Thereafter, at about 11.20p.m, he received another phone call to reach Chanchal Nursing Home alongwith the amount. He reached Chanchal Nursing Home, but again he did not find any person. Then he returned home at about 2 a.m. At 2.30a.m he made a phone call to the PCR.
40. Next morning at about 7.30a.m, he received another phone call from telephone number 25185671 to reach near Chanchal Nursing Home alongwith the amount of Rs. 50,000/- and he gave the telephone number of the caller to Daroga who traced the same to be installed at a house in Agar Nagar. Then he alongwith Daroga and Constable Pawan reached the said house where his son Tinku was found in the custody of accused Rajesh Kumar and one more person.
St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 30
41. PW4 Raman, another son of PW3 has also stated that at around 10.00p.m on 18.2.06 his father attended a phone call, where the caller told him that Ravi was in his custody and had demanded Rs. 50,000/- for his release. Another phone call was received at about 11.30p.m, thereafter his father made a phone call to the police.
42. Regarding the fourth ingredient, from the aforesaid testimony of PW3 Ravinder and PW4 Raman, it is clear that the caller who made a phone call on the STD/PCO booth of PW3 compelled by force PW3 to think about paying ransom to the abductors for the release of his son Ravi @ Tinku PW1. What is material is whether PW3 was compelled to pay ransom and it is not material whether the ransom was actually paid to the accused persons.
43. From the aforesaid testimony, it can also be safely deduced that the said ransom call received by PW3 on his STD/PCO booth caused a reasonable apprehension in his mind that the abductors, who had demanded ransom from him may cause hurt to his son, St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 31 thereby actuating him perforce to think about paying the ransom as demanded by the said abductors.
44. Though, none of the PCO owners PW5 Afroz Aalam, PW6 Arjun and PW7 Rahisa Khatoon in their deposition/cross- examination have identified the accused Rajesh, as the person who had made a telephone call from their PCO Booth(s) either on 18.2.06 or on 19.2.06. But, from the cogent and consistent testimony of PW1 Ravi that accused Rajesh was one of the person, who after abducting him and after he was confined to a room at Agar Nagar had demanded his telephone number and demanding Rs. 50,000/- as ransom for his release from his parents and they had left in pair of two to make a ransom call, while the other two accused persons stayed back turn by turn and coupled with the testimony of PW3 Ravinder, the father of the victim PW1 Ravi that he had received three ransom calls, two on 18.2.06, one at 10.15p.m and another at 11.20p.m and another one at 7.30a.m on 19.2.06, whereby he was directed to bring an amount of Rs. St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 32 50,000/- as ransom for the release of his child clearly shows that the accused Rajesh had demanded ransom of Rs. 50,000/- for release of Ravi @ Tinku in furtherance of his common intention alongwith his other three co-accused persons.
45. Nothing material has come out in the cross-examination of either PW1 Ravi or PW3 Ravinder on this aspect. Though, PW3 in his cross-examination has admitted that the IO did not record the statement of his neighbours, who had accompanied him for the search of his son. However, the same is not fatal to the case of the prosecution, as it was not the fault of the PW3 that the IO did not record the statement of those neighbours who had accompanied him to the Chanchal Nursing Home as well as to Mundka Railway crossing and it is settled law that the case of the prosecution can not suffer due to faulty investigation on the part of the IO. In any case, the quality of investigation(s) in this case has to be appreciated in the light, that it was conducted by an officer of the rank of Asstt. Sub Inspector, though, normally such serious St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 33 offence(s) are investigated by an officer of the rank of Inspector.
46. Therefore, non recording of the statement(s) of the neighbours of PW3 Ravinder has to be seen in this light. In any case, as per settled law the prosecution case can not suffer due to faulty investigation(s), which is otherwise found to be truthful and consistent. Though, none of the PCO owners identified the accused Rajesh as the person who had made a telephone call from their PCO(s), yet PW1 Ravi has categorically stated that accused was one of the person, who had demanded his telephone number and then demanded Rs. 50,000/- as ransom for his release from his parents, and that accused Rajesh and Raj had once left, while the other accused Dinesh and Chhotu remained in the room alongwith him to make a telephone call and nothing has come out in his cross-examination, which could shake his testimony in this regard. The testimony of his father regarding the receipt of ransom calls has also been found to be consistent and trustworthy and there is no reason to discard the same.
St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 34
47. The accused in his statement U/s 313 Cr.P.C has stated that he had been falsely implicated in this case, by the police to solve this case somehow and original culprits had been let off. However, the said defence taken by the accused in his statement U/s 313 Cr.P.C is very weak in nature, as it is not the case of the accused that he had any personal enmity either with PW1 Ravi or PW3 Ravinder, so that they would have falsely implicated him in this case in connivance with the police officials. The accused has also failed to give any explanation how he has been falsely implicated and in what manner no explanation in this regard has been furnished by the accused in his statement U/s 313 Cr.P.C, when all the incriminating facts were put to the accused. Therefore, the said defence of false implication taken by the accused in his statement U/s 313 Cr.P.C is a bald plea.
48. Regarding the common intention, U/s 34 of the IPC, it has been held in judgment Babu Lal Bhagwan Khandare Vs. State of Maharashtra AIR 2005, Supreme Court 1460. Ashok Kumar Vs. St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 35 State of Punjab AIR 1977 Supreme Court 109 that:
"If two or more persons intentionally do an act jointly, the position of law, just the same as if each of them done individually by himself. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identical similar. The acts may be different in character but must have been actuated by one or the same common intention Section 34 is applicable even if no injury has been caused by particular accused himself for applying the Section 34 it is not necessary to show some over act on the part of the accused."
47. In the present case, it has clearly come in the testimony of PW1 that the accused Rajesh alongwith three other persons had abducted him on the night of 18.2.06 from near Rani Khera bus stand and after abducting him they detained him in a room at Agar Nagar. They also asked his telephone number and then demanded St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 36 Rs. 50,000/- for his release from his parents and at the time of recovery of the victim PW1 accused Rajesh was found in the said room alongwith another accused (who is facing trial before the Juvenile Court) and PW1 also stated that accused was one of the person who left alongwith another accused for making a ransom call to his parents for demanding Rs. 50,000/-.
48. Regarding the argument of the ld. Amicus Curiae, that there is no evidence that the above accused ever demanded ransom, which fact has also been admitted by all the PCO owners, who have been examined by the prosecution, the said argument is without any substance, as in the present case in view of the clear cut direct testimony of PW1 Ravi, the victim, as discussed above in the preceeding para(s), it has been clearly established by the prosecution that accused Rajesh alongwith his co-accused persons had abducted the victim PW1 from near Rani Khera bus stand for the purpose of demanding a ransom of Rs. 50,000/- from his parents. Therefore, the principle of agency, as contained in Section St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 37 34 of the Indian Penal Code would clearly apply.
49. Regarding the next argument of Ld. Amicus Curiae that no voice recording has been proved by the prosecution, that the accused demanded any ransom, the said argument is also without any substance, as the said voice recording could have been an additional corroborative piece of evidence to lend assurance to the testimony of PW1 Ravi, the victim. As discussed in the aforesaid preceeding para(s), the testimony of PW1 has been found to be trustworthy even otherwise, and there is no reason why would PW1 Ravi depose falsely against the accused and PW1 has categorically stated that accused was one of the accused persons, who had abducted him from Rani Khera bus stand and thereafter, they asked his telephone number and demanding Rs. 50,000/- as ransom from his parents and the accused also left once alongwith another co-accused to give a telephone call to his parents when he was detained at a room at Agar Nagar.
50. From the affirmative and positive evidence of PW1 Ravi, the St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 38 common intention as defined U/s 34 of the IPC can be clearly inferred, as there was common meeting of mind between all the accused persons to abduct the victim PW1 and thereafter to demand a ransom from his parents to release him.
51. Consequently, the net result of the aforesaid discussion is that prosecution has been able to make out a case U/s 364A/34 IPC against the accused , as the prosecution has been able to prove all the ingredients necessary to establish or prove the said offence. Consequently, the accused stands convicted U/s 364A/34 IPC. Now, to come up for hearing on the point of sentence on 17.8.10. Announced in the open court (Sanjeev Aggarwal) on dt. 12.08.2010. Addl. Sessions Judge:
Rohini Courts: Delhi.
St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 39 IN THE COURT OF SHRI SANJEEV AGGARWAL: ASJ-V: OUTER:
ROHINI: DELHI SC No. 102/08 FIR No.252/06 PS Sultan Puri U/s 364A IPC State Vs. Rajesh Kumar S/o Baleshwar, R/o V.&.P.O, Jhanjhar Pur, Distt. Madhubani, Bihar.
Order on the point of sentence:
20.8.2010.
Present: Sh. G.S. Guraya, Ld. Addl. PP for the state.
Convict is produced from J.C. with Ld. Amicus Curiae Ms. Sadhna Bhatia.
It is submitted by ld. Amicus Curiae, that the convict is a first time offender and he has not been convicted in any other case and no other case is pending against him. It is also stated that the convict is having clean antecedents and is aged around 23 years at present and he is the only bread winner of his family and he has old mother, one sister and two other young brothers to look after. Therefore, it is prayed that lenient view be taken against him. St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 40 On the other hand Ld. Addl. PP for the state submits that strict punishment should be awarded to this convict, as he had abducted a young boy of 18 years of age in order to demand ransom from his father in connivance with his other co-accused persons, which shows he has no fear of law or of the police and it also shows his desperation and he further submits such kind of criminals are menace to the society.
I have gone through the rival contentions. In the present case, the afore convict in connivance with his three other co-accused persons had abducted a young boy of 18 years of age from a public place and there after demanded a ransom of Rs. 50,000/- from his father. These kind of crimes for ransom are increasing at a alarming rate, which are of serious concern to the society and therefore, accused deserves a strict punishment, so that a message should go to the society and other intending accused persons that such kind of crimes do not pay and would be dealt with sternly. Consequently, I am of the considered opinion that the interest of justice shall be met, if St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri 41 the convict is sentenced to rigorous imprisonment for life U/s 364A IPC. He is further sentenced to pay a fine of Rs. 2,000/- U/s 364A IPC, in default of payment of fine the convict shall further undergo SI for 3 months.
The Ld. Amicus Ms. Sadhna Bhatia is discharged with words of appreciation, for the able assistance rendered by her during the trial of this case. Copy of the judgment and order on the point of sentence be provided to the convict free of cost. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
on dt. 20.8.10 Addl. Sessions Judge:
Rohini Courts: Delhi.
St. Vs. Rajesh Kumar FIR No. 252/06 P.S. Sultan Puri