Delhi District Court
State vs ) Dil Chand on 25 October, 2018
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE -04
EAST: KARKARDOOMA COURTS: DELHI
SC No.228/2016
FIR No. 201/2013
U/s. 364A/328/368/120B IPC
P.S Mandawali
In the matter of :
State
versus
1) Dil Chand
S/o Shri Timmu Mehra @
Ram Dev Mehra
R/o Village Magdam Pur,
PS Puraini Bazar,
Distt. Madhepura, Bihar.
2) Sanjay Ram
S/o Shri Suraj Ram,
R/o Village Lakhanpur,
PS Rupauli,
Distt. Purniya, Bihar.
3) Mintoo @ Mantoo Kumar,
S/o Shri Prithvi Mehra,
R/o Village Magdam Pur,
PS Puraini Bazar,
Distt. Madhepura, Bihar.
Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 1/35
Date of Institution : 19-08-2013
Date of reserving Judgment : 09-10-2018
Date of pronouncement : 25-10-2018
Appearances
For the State : Shri. Ajit Kumar
Shrivastava, Additional
Public Prosecutor.
For accused Mintoo : Shri R.P.Singh , Advocate.
@ Mantoo Kumar
For accused Dil Chand : Shri Yogesh Dhama, Advocate.
and Sanjay Ram
JUDGMENT
1. Three accused persons namely Dil Chand son of Shri Timmu Mehra @ Ram Dev Mehra, aged about 23 years; Sanjay Ram son of Suraj Ram, aged about 36 years and Mintoo @ Mantoo Kumar son of Prithvi Mehra, aged about 38 years, were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e charge-sheet, submitted on 05.07.2013 upon conclusion of investigation into First Information Report (FIR) no. 201/2013 of police station (PS) Mandawali for the offences punishable Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 2/35 under Section 364A/328/368/120B of the Indian Penal Code, 1860 (IPC).
Prosecution Version
2. The prosecution story, in brief, is that the accused persons entered into conspiracy and in pursuance thereof, accused Dil Chand kidnapped minor child of the complainant from his house and took him to Modi Nagar, UP. The accused Dil Chand also asked the complainant to pay ransom of Rs. 9000/-. The police mounted technical surveillance, traced the location of the accused Dil Chand, arrested all the three accused persons and recovered the kidnapped child.
3. As per the charge-sheet, the present FIR No.201/2013 under Section 364A/328/368/120B IPC was registered on 11-04-2013 on the complaint of Jhinku Rai, son of Birjan Rai, who stated in his complaint that he was living on rent with his family in a house situated at Saket Block, Mandwali, Delhi, and he was working as a private painter. The complainant stated that on 29.11.2012 one Santosh resident of Village Magdampur, PS Puraini Bazar, Distt. Madheypura, Bihar, had kidnapped his daughter Priyanka, aged 14 years, Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 3/35 and in this regard he had lodged an FIR No. 553/2012, u/s 363 IPC at PS Mandawali. Further, the complainant stated that Santosh and accused Dil Chand were living on rent at Mandawali in the house of Dharampal and he asked Dil Chand for help in tracing his daughter Priyanka as he was also resident of same village as that of Santosh. Further, the complainant stated that accused Dil Chand was having some dispute with Santosh at that time and accused Dil Chand had agreed to help him in search of his daughter on the condition that Rs. 300/- per day be given to him. Further, the complainant stated that accused Dil Chand helped him for 22 days in searching his daughter but she could not be traced out and as such total Rs. 6600/- was due to him with regard to the same but he failed to pay the money to accused Dil Chand. Further, the complainant stated that repeated demands for Rs.6600/- were made by accused Dil Chand but he expressed his inability to pay the same and on this accused Dil Chand threatened him to face dire consequences if the said amount was not given to him. Further, the complainant submitted that on 10.04.2013 he went for his work and at about 8.00 Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 4/35 pm his wife telephonically informed him that their son Ajay was missing from home. Further, the complainant stated that at about 9.00 pm he returned to his home and searched for his son Ajay in the neighbourhood but when he could not be traced out, he telephoned Dil Chand but he refused to give any information about their son. However, at about 10.00 pm he received a call from accused Dil Chand, who told to give Rs. 9000/- for safe return of Ajay, otherwise, he had no responsibility for any untoward incident with Ajay. Accused Dil Chand also let his son talk with him on telephone. Further complainant submitted that on 11.04.2013 at about 7 am accused Dil Chand from his mobile no. 9891869491 gave a missed call on his mobile no. 9810373496. Further, complainant stated that he called back on mobile number of Dil Chand and demanded back his son Ajay and on this accused Dil Chand demanded money and instructed him to give the money to the boy of his village, who was living in the house of Dharampal and doing work of courier and was having mobile no. 9716351265. Further, complainant stated that on phone he requested for some time from accused Dil Chand as Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 5/35 well as the courier boy. Further the complainant stated that he had apprehension about the life of his son and as such he approached police station Mandawali and he prayed for rescue of his son Ajay from accused Dil Chand.
4. The investigation of the case was handed over to Sub-Inspector (S.I.) Naveen Kumar, the Investigation Officer (I.O.). As per the instructions of the I.O., complainant remained in touch with accused Dil Chand on phone and handed over Rs.9000/- to accused Mintoo. As per call details, mobile location of accused Dil Chand was found to be at Modi Nagar Railway Station, Ghaziabad. Then I.O. alonwith Insp. Daya Sagar, other staff and complainant went to Modi Nagar Railway Station, where complainant contacted on phone with accused Dil Chand and thereafter complainant identified his son, who was coming with two persons, whose names during interrogation were revealed as Dil Chand and Sanjay Ram. Then I.O. alongwith his staff apprehended both accused and recovered child Ajay. Mobile phone make Nokia having IMEI No. 358615043937773 and mobile no. 9891869491, was recovered from accused Dil Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 6/35 Chand, which was used by him for demanding ransom from the complainant. Lateron, accused Mintoo was arrested from his tenanted house situated in Gali No. 13, Saket Block, and ransom money of Rs. 9000/- and mobile phone having no. 9716351265 were recovered from his possession.
5. On 14.04.2013 I.O. visited rented premises of accused Sanjay Ram near Modi Nagar Railway Station, Ghaziabad, where kidnapped child Ajay was kept and after making inquiry, recorded statement of landlady Smt. Kartari Devi @ Amma.
6. During the investigation, I.O. recorded the statement of the witnesses, prepared the site plan, obtained call details of accused Sanjay Ram and Dil Chand and got recorded the statement of kidnapped child Ajay under Section 164 Cr.P.C before the learned Metropolitan Magistrate.
7. After concluding the investigation, the I.O. came to a conclusion that sufficient evidence were collected against the accused Dil Chand, Sanjay Ram and Mintoo qua commission of offences under Section 364A/328/368/120B IPC and thereafter, he prepared charge-sheet and filed in the court on 05.07.2013.
Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 7/358. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Courts took cognizance of offences under Section 364-A/328/368/120B IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 02.08.2013 committed the case to the Court of Session for 19.08.2013.
Charge
9. On 26.10.2013, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused persons, charge was framed against all the three accused persons for commission of offences punishable under Section 364A/328/120B IPC. The charge so framed was read over and explained to all the three accused persons to which they did not plead guilty and claimed trial.
Prosecution Witnesses
10. To bring home the afore-mentioned charges to the accused, the prosecution got examined Vishal Gaurav (PW-1), Victim master Ajay (PW-2), HC Mahipal Singh (PW-3), complainant Jhinku Rai (PW-4), Pitam Singh (PW-5), Shishir Malhotra Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 8/35 (PW-6), Kartari Devi(PW-7), Amar Nath Singh (PW-8), Insp. Daya Sagar (PW-9), SI Naveen Kumar (PW-10), HC Rajeshwar (PW-11) and Ms. Babita Puniya - Ld. M.M. (PW-12).
Documentary Evidence
11. The prosecution also relied on following documents tendered into evidence i.e Customer Application Form (CAF) of mobile no. 9810373496 alongwith ID proof of Bhugeshwar Mandal i.e. election I-Card (Ex.PW-1/A), Call Detail Record (CDR) of mobile no. 9810373496 (Ex. PW1/B), Cell ID Chart regarding call details (Ex. PW1/C), certificate under section 65B of the Indian Evidence Act (Ex. PW1/D), statement U/S 164 Cr.P.C. of victim master Ajay (Ex. PW2/A), copy of FIR (Ex. PW3/A), endorsement of Duty Officer on rukka (Ex. PW3/B), complaint filed by complainant Jhinku Rai (Ex. PW4/A), recovery memo of victim Ajay (Ex. PW4/B), arrest memo of accused Dil Chand (Ex. PW4/C), personal search memo of accused Dil Chand (Ex. PW4/D), arrest memo of accused Sanjay Ram (Ex. PW4/E), personal search memo of accused Sanjay Ram (Ex. PW4/F), entry Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 9/35 with respect to admission of victim Ajay in MC Primary School (Ex. PW5/A), application of complainant for admission of victim Ajay in school (Ex. PW5/B), affidavit of complainant (Ex. PW5/C), certificate issued by school with respect to date of birth of victim Ajay (Ex. PW5/D), CDR of mobile no. 9716351265 (Ex. PW6/A), CAF of said mobile (Ex. PW6/B), copy of voter ID card (Ex. PW6/C), Cell ID location chart (Ex. PW6/D), certificate u/s 65B of Evidence Act (Ex. PW6/E), CAF of mobile no. 9891869491 (Ex. PW8/A), copy of Election ID card (Ex. PW8/B), certified copy of CDR of said number (Ex. PW8/C), certificate u/s 65B of Indian Evidence Act (Ex. PW8/D), rukka (Ex. PW10/A), disclosure statement of accused Dil Chand (Ex. PW10/B), disclosure statement of accused Sanjay Ram (Ex. PW10/C), arrest memo of accused Mintoo Kumar (Ex. PW10/D), personal search memo of accused Mintoo Kumar (Ex. PW10/E), seizure memo of mobile from accused Mintoo Kumar (Ex. PW10/F), disclosure statement of accused Mintoo Kumar (Ex. PW10/G), seizure memo of recovery of ransom money i.e. Rs. 9,000/- (Ex. PW10/H), application moved before Ld. M.M. Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 10/35 by IO/SI Naveen Kumar for recording statement u/s 164 Cr.P.C. of victim Master Ajay (Ex. PW12/A) and application filed by IO for copy of statement u/s 164 Cr.P.C. (Ex. PW12/B).
Statement of Accused
12. After conclusion of prosecution evidence, on 25.04.2018, statements of all the three accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were falsely implicated in the present case.
13. Accused Dil Chand stated that he has been falsely implicated in this case and rather he had helped the complainant when complainant had gone to Bihar with him. Accused Sanjay Ram stated that he has been falsely implicated in this case and he was arrested as he had gone to see off accused Dil Chand and victim at Modi Nagar Railway Station. Accused Mintoo @ Mantoo Kumar stated that on 11.04.2013 Jhinku Rai came to him and requested to accept the money but he refused. Thereafter, on 12.04.2013 at about 08.00 am Jhinku Rai alongwith other person known to them came and they Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 11/35 pressurized him to accept the money. Thereafter, he asked complainant to dial number of accused Dil Chand and he asked accused Dil Chand to release the boy to which he refused and thereafter he did not accept the money from the complainant. However, in the evening of 12.04.2013 the complainant came with the police and got him arrested.
The accused Dil Chand did not lead any evidence in defence. However, accused Mintoo @ Mantoo Kumar examined Sh. Iqbal Malik (DW1) in his defence. Accused Sanjay Ram examined Sh. Nirmal Kumar Chandervanshi (DW2) and Virender Ram (DW3) in his defence.
Final Arguments
14. I heard the arguments advanced by Sh. Ajit Kumar Shrivastava, learned Additional Public Prosecutor for the State, Sh. Yogesh Dhama, learned counsel for the accused Sanjay Ram & Dil Chand and Shri R.P. Singh, learned Counsel for accused Mintoo @ Mantoo Kumar. I also perused the entire material available on record.
15. During the course of arguments, learned Additional Public Prosecutor for State submitted Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 12/35 that all the accused persons conspired together and kidnapped the minor child namely Master Ajay of the complainant. After kidnapping the child, accused Dil Chand took him to the room of accused Sanjay Ram where the kidnapped child was kept. Accused Dil Chand then made a telephone call to the complainant demanding ransom for releasing Master Ajay. Accused Dil Chand also asked the complainant to hand over the ransom amount to accused Mintoo @ Mantoo, which he did and the ransom amount was recovered from the possession of accused Mintoo @ Mantoo. Ld. Prosecutor further argued that both accused Dil Chand and Sanjay Ram also made Master Ajay drink juice with some stupefying substance, which made him unconscious. The testimony of Master Ajay (PW2) and Jhinku Rai (PW4) remained uncontroverted. There are no material contradictions in the testimonies of prosecution witnesses and therefore, prosecution succeeded in proving its case against all the accused persons beyond reasonable doubts.
16. Per contra, Sh. Yogesh Dhama, learned Counsel for accused Dil Chand and Sanjay Ram argued that accused Dil Chand had not kidnapped Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 13/35 Master Ajay and infact he had accompanied him to visit fair (Mela). Further, accused Dil Chand did not demand any ransom from the complainant and he demanded only his outstanding dues pending with the complainant. Both the accused persons have been falsely implicated by the complainant in order to avoid making the aforesaid payment. Besides there are many contradictions pertaining to the demand of ransom in the testimonies of prosecution witnesses. No site plan of the place of recovery of Master Ajay was prepared by the IO, which raises doubt on the prosecution version.
17. Sh. R.P.Singh, ld. Counsel for accused Mintoo @ Mantoo argued that accused Mintoo @ Mantoo was not concerned in any manner with the commission of offences in the present case. He has not been named in any statement by the complainant and it is evident from the deposition of complainant that accused Mintoo was forced to take the money by the complainant. There is no evidence to indicate if accused Mintoo ever conspired with the other co-accused persons. The learned Defence Counsel also relied upon Nadeem v. State, 2010 (4) JCC 2842 in support of his Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 14/35 contentions. Ld. Counsel for accused persons lastly argued that the prosecution failed to establish its case beyond all reasonable doubts and all the accused persons deserve acquittal.
18. I have given my thoughtful consideration to the submissions of both sides.
Points for Determination
19. In view of the above-mentioned provisions of law and the submissions advanced on both sides, following points for determination are emerging in the present case :-
1. Whether the accused persons entered into a criminal conspiracy to commit an offence?
2. Whether, in pursuance of said conspiracy, accused Dil Chand took the minor child Ajay out of the keeping of lawful guardianship without the consent of the complainant ?
3. Whether accused Dil Chand administered any stupefying or intoxicating drug etc. to minor child Ajay with intent to facilitate commission of an offence?
4. Whether the accused persons, by their conduct, had given rise to a reasonable apprehension in the mind of the complainant, Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 15/35 father of the child that the child may be put to death or hurt may be caused to him ?
5. Whether the accused persons kidnapped the child Ajay in order to compel the complainant to pay the ransom amount of Rs.9000/-?
Testimonies of Prosecution Witnesses In all, 12 witnesses were got examined by the prosecution. For the sake of convenience, the testimonies of all the prosecution witnesses are referred in a tabular form hereunder:
S.No Name of PW Nature of Testimony Documentary Evidence of PW PW-1 Vishal Gaurav Produced CAF, CDR, Cell ID Ex.PW-1/A, (Nodal Officer Chart and certificate u/s 65B Ex.PW1/B, Ex. PW1/C Bharti Airtel Ltd.) of the Evidence Act in respect and Ex. PW1/D. of mobile no. 9810373496, in the name of Bhugeshwar Mandal.
PW-2 Master Ajay Deposed about his kidnapping Ex.PW-2/A and statement u/s 164 Cr.P.C.
PW-3 HC Mahipal Singh Deposed about registration of Ex.PW-3/A & (Duty Officer) FIR and endorsement on Ex.PW-3/B rukka.
PW-4 Jhinku Rai Deposed about the kidnapping Ex. PW-4/A, Ex.
(Complainant) of his son and demand of PW4/B, Ex. PW4/C,
ransom by the accused Ex. PW4/D, Ex.
persons. PW4/E and Ex. PW4/F
PW-5 Pitam Singh Deposed about the admission Ex.PW-5/A, Ex.
(Principal of of Master Ajay in the school PW5/B, Ex. PW5/C
Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 16/35
Primary School) and his date of birth. and Ex. PW5/D
PW-6 Sh. Shishir Malhotra Deposed about CAF, CDR, Ex.PW-6/A, Ex.
(Nodal Officer of Cell ID and certificate u/s 65B PW6/B, Ex. PW6/C,
Aircel Ltd.) of Evidence Act in respect of Ex. PW6/D and Ex.
mobile no. 9716351265. PW6/E.
PW-7 Kartari Devi Deposed about letting room to ---
(Landlady of accused Sanjay Ram and
accused Sanjay presence of one boy in his
Ram) room.
PW-8 Amarnath Singh Deposed about CAF, CDR, Ex.PW-8/A,Ex.PW-
(Nodal Officer Idea Cell ID and certificate u/s 65B 8/B, Ex. PW8/C and
Cellular Ltd.) of Evidence Act in respect of Ex. PW8/D.
mobile no. 9891869491 in the
name of Dil Chand Rai.
PW-9 Insp. Daya Sagar Deposed about the arrest of -
accused Dil Chand and Sanjay
Ram and recovery of the
child.
PW-10 SI Naveen Kumar Deposed about the arrest of Ex.PW-10/A, Ex.
(Investigation accused Dil Chand, Sanjay PW10/B, Ex. PW10/C,
Officer) Ram and Mintoo @ Mantoo Ex. PW10/D, Ex.
as well as recovery of the PW10/E, Ex. PW10/F, child and ransom amount. Ex. PW10/G and Ex.
PW10/H. PW-11 HC Rajeshwar Deposed about the arrest of -
accused Dil Chand and Sanjay Ram and recovery of the child.
PW-12 Ms. Babita Punia, Deposed about the recording Ex.PW-12/A & Ld. M.M. of statement u/s 164 Cr.P.C. of Ex.PW-12/B Master Ajay.
Testimony of Defence witnesses
20. Accused Mintoo @ Mantoo got examined Iqbal Malik (DW1) in his defence, who deposed Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 17/35 that on 11.04.2013 at about 10.30 - 11.00 pm complainant Jhinku Rai had come to him and told that he had gone to give Rs. 10,000/-to accused Mintoo, which he did not accept. The complainant asked him to accompany him to the house of accused Mantoo, which he refused. He also deposed that on 12.04.2013 complainant Jhinku Rai had again come to him at about 07.00 or 08.00 am and then he accompanied him to the house of accused Mintoo, where DW1 asked accused Mintoo to accept the money offered by the complainant so as to serve the purpose of complainant but accused Mintoo refused. On refusal DW1 kept sum of Rs. 10,000/- on his bed and went away. DW1 also assured accused Mintoo that in case of any wrong, he would stand by him.
21. Accused Sanjay Ram got examined Nirmal Kumar Chandravanshi (DW2) in his defence, who deposed that on 10.04.2013 accused Dil Chand had brought one child to the house of Ammaji Ka Makan and on asking, accused Dil Chand told him that the said child was son of a tenant, residing near his house, who had come to see the fair. Next morning accused Sanjay could not accompany Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 18/35 DW2 to work as he had to see off accused Dil Chand.
22. Accused Sanjay Ram also got examined Virender Ram (DW3), who deposed that on 10 th of a month, accused Sanjay Ram and his brother-in- law (Sala) namely accused Dil Chand met him in the evening. Accused Dil Chand had brought one small boy with him and on inquiry he told that the boy was the child of a tenant, living in the same house wherein accused Dil Chand would reside. After two days accused Sanjay Ram had gone to see off accused Dil Chand and the said child to the Railway Station of Modi Nagar.
ANALYSIS :
23. All the accused persons have been charged with commission of offences punishable u/s 120B IPC, u/s 364A r/w Sec. 120B IPC and section 328 r/w Sec. 120B IPC. Section 120-B IPC provides punishment for criminal conspiracy as defined u/s 120A IPC, which is as under :
120-A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,-
(1) an illegal act, or
Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 19/35
(2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incident to that object.
24. Further section 328 IPC is reproduced as under for ready reference :
328. Causing hurt by means of poison, etc., with intent to commit an offence.- Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
25. Similarly, Section 364A IPC is also reproduced as under for ready reference:
364A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 20/35 cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or (any foreign State or international inter-governmental organisation or any other person) to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
26. It is also useful to extract the definition of 'kidnapping' as defined under Section 361 IPC which is as under:
361. Kidnapping from lawful guardianship.-
Whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, wihtout the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
27. As is clear from the above-mentioned provision, for commission of offence under Section 364A IPC, following are the essential ingredients:
Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 21/35(i) Kidnapping or abduction or keeping the person in detention after such kidnapping or abduction and
(ii) Threat to cause death or hurt ( of such person) or (accused) by conduct, gives rise to reasonable apprehension that such person may be put to death or hurt or hurt or death is caused to such person
(iii) in order to compel the Government or foreign State or international, inter-
governmental organizations or any other person to do or, abstain from doing any act or, to pay a ransom.
28. On perusal of the testimony of Master Ajay (PW2) it is evident that he deposed about accused Dil Chand, his neighbourer, taking him on 10.04.2014 on the pretext of buying new clothes. PW2 also deposed that accused Dil Chand had given him juice to drink and on his refusal, he made him drink it. Thereafter, accused Dil Chand took him in Metro and bus. PW2 became unconscious while going in the bus and regained consciousness near a temple at Modi Nagar, where an ice-cream vendor, who was brother-in-law (Jija) of accused Dil Chand i.e. accused Sanjay Ram was present.
Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 22/35PW2 further deposed that he was given an ice- cream and accused Sanjay Ram asked accused Dil Chand to take PW2 to his house. Further, next day father of PW2 called on the mobile phone of accused Dil Chand and accused Dil Chand told his father to give Rs. 10,000/- otherwise he would make him (PW2) work to release Rs. 10,000/-. Next day, both accused Dil Chand and Sanjay Ram took him (PW2) to a Mela (fair). PW2 further deposed that when he was being brought to his house, on the way police alongwith his father apprehended the accused. Afterwards PW2 was produced in the court and his statement was recorded by Judge. PW2 identified his signatures on statement Ex. PW2/A.
29. In cross-examination PW2 stated that he used to visit room of accused Dil Chand whenever he would call him. The place where accused Dil Chand had given him a glass of juice was near their room and accused Dil Chand had not poured anything in the juice in his presence. PW2 further stated that both accused Dil Chand and Sanjay did not tie his hands nor had put any cloth on his eyes Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 23/35 nor had given any threat to him at the room of accused Sanjay.
30. Complainant Jhinku Rai (PW4) deposed that on 10.04.2013 his wife told him on phone about missing of their son Ajay upon which PW4 reached at his house at about 8.00 pm. Thereafter, PW4 made a call on the mobile phone of accused Dil Chand and asked him if his son Ajay was with him. Accused Dil Chand refused, however, after an hour accused Dil Chand called him on his mobile phone and told that his son Ajay was with him. Accused Dil Chand also made a demand of Rs. 6600/- for releasing his son. PW4 further deposed that at about 12.00 mid night accused Dil Chand again made a call and made him talk with his son. Thereafter, accused Dil Chand called him and made a demand of Rs. 9000/- for releasing his son and also threatened that anything can happen with his son. Further, when PW4 asked accused Dil Chand where the said amount is to be delivered, he told him to hand over the demanded amount to one courier person namely Mintoo, who was residing in a gali nearby their house. PW4 further deposed that on 12.04.2013 he had gone to the room of said Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 24/35 Mintoo i.e. accused Mintoo @ Mantoo Kumar and asked him to take Rs. 9,000/- as directed by accused Dil Chand. Accused Mintoo refused to take the said amount of Rs. 9,000/- and accepted the same only on the request of PW4. Further, PW4 deposed that accused Mintoo called accused Dil Chand on his mobile phone and informed him about receiving Rs. 9000/-. Accused Dil Chand then told accused Mintoo that the child Ajay would be released after the amount of Rs. 9000/- is received by his mother. PW4 further deposed that after handing over the said amount, his son was not released by accused Dil Chand and therefore he reported the matter to police on 12.04.2013 and again on 13.04.2013. PW4 was asked to talk with accused Dil Chand by the police and thereafter PW4 alongwith six police officials reached at Modi Nagar Railway Station where accused Dil Chand and his Jija namely Sanjay Ram met them with his son Ajay, who were apprehended. PW4 proved his complaint Ex. PW4/A in this regard.
31. PW4 was also cross-examined by the Ld. Prosecutor after taking permission from the court during which PW4 stated that accused Dil Chand Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 25/35 had earlier helped him in searching for his daughter and in this regard a sum of Rs. 6600/- became due on him which he was unable to pay to accused Dil Chand despite his several requests in this regard. PW4 further stated that in the intervening night of 10/11.04.2013 he had called accused Dil Chand on his mobile no. 9891869491 from his mobile number 9810373496 and then accused Dil Chand had demanded Rs. 9,000/- from him for releasing his son. PW4 also stated that accused Dil Chand had given him mobile number 9716351265 belonging to accused Mintoo and he had called accused Mintoo and requested him to give some time for arranging the amount.
32. In cross-examination by ld. Defence counsel PW4 reiterated about taking help from accused Dil Chand in searching for his daughter. He further admitted that he had not paid the amount to accused Dil Chand which was due on him. On further cross-examination PW4 stated that he had met with accused Mintoo next day at 8.00 pm when his son went missing. PW4 stated in categorical terms that accused Mintoo did not take the money at the first instance and also asked him why was he giving the Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 26/35 money. Even when PW4 told accused Mintoo that accused Dil Chand had asked him to give money to you, he refused to take the same. PW4 admitted that he forced accused Mintoo to take the money.
33. Smt. Kartari Devi (PW7) deposed about accused Sanjay Ram residing in her house on rent for the last 12-13 years. She also stated that one boy, aged about 10-11 years, had come at the room of accused Sanjay Ram and remained there for about 1 ½ days. On inquiry, accused Sanjay Ram told her that the boy had come from Delhi to see Mela (Fair).
34. A conjoint reading of testimonies of aforementioned prosecution witnesses would show that it was accused Dil Chand, who had taken the child Ajay with him without the consent of PW4, father of the child Ajay. After taking the child Ajay out of custody of PW4, accused Dil Chand had taken him to the house of accused Sanjay, his brother-in-law, where the child remained for 1 ½ days. As per the testimony of PW2 it was accused Dil Chand, who had allured him to come with him for purchasing new clothes and had taken him to Modi Nagar near a temple where accused Sanjay Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 27/35 Ram, an ice-cream vendor, was present who also gave an ice-cream to him.
35. As far as the telephonic conversation stated to be between PW4 Jhinku Rai and accused Dil Chand are concerned, the testimony of PW4 assumes significance wherein he stated that he had called accused Dil Chand on his mobile number 9891869491 from his mobile number 9810373496 and then accused Dil Chand demanded Rs. 9000/- for releasing his son.
36. The prosecution got examined Vishal Gaurav (PW1), Nodal Officer - Bharti Airtel Ltd., who produced the original CAF regarding mobile number 9810373496 to be in the name of one Bhugeshwar Mandal. He also produced one election card Ex. PW1/A as well as CDR of the said mobile number for the period 05.04.2013 to 13.04.2013 (Ex. PW1/B), PW1 also produced one certificate u/s 65B of the Evidence Act, Ex. PW1/D, and Cell ID chart Ex. PW1/C. It is therefore clear that the mobile number 9810373496 which PW4 claimed to belong to him and on which accused Dil Chand had made a call, was subscribed in the name of Bhugeshwar Mandal. No person by the name of Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 28/35 Bhugeshwar Mandal could be joined by the IO of the case in investigation nor any such person could be cited as a witness by the prosecution. PW4 also did not depose how he came in possession of a mobile no. 9810373496 subscribed in the name of said Bhugeshwar Mandal. In my considered opinion, it was a solemn duty on the part of the prosecution to establish this vital link as all the telephonic conversations between accused Dil Chand and the complainant PW4 had allegedly taken place on the said mobile number. However, the prosecution miserably failed to establish how mobile number 9810373496 subscribed in the name of Bhugeshwar Mandal came in possession of PW4.
37. In his statement recorded u/s 313 Cr.P.C. accused Dil Chand admitted that a sum of Rs. 6600/- was due on the complainant which he could not pay to him, he (accused Dil Chand) had taken the child Ajay to Modi Nagar to the house of accused Sanjay Ram and kept him in the said room for about 1½ days but accused Dil Chand categorically denied about making any mobile call to mobile no. 9810373496 to demand a sum of Rs.6600/- or Rs. 9,000/-.
Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 29/3538. As observed earlier Vishal Gaurav (PW1) produced the CDR of mobile no. 9810373496 for the period 05.04.2013 to 13.04.2013 Ex. PW1/B. The prosecution also got examined Amarnath Singh (PW8) Nodal Officer, Idea Cellular Ltd., in respect of CAF Ex. PW8/A pertaining to mobile number 98918 69491 belonging to accused Dil Chand and CDR Ex. PW8/C for the period 09.04.2013 to 13.04.2013. Similarly, Shishir Malhotra (PW6), Nodal Officer, Aircel Ltd., produced the CAF Ex. PW6/B in respect of mobile no. 97163 51265 alongwith its CDR Ex. PW6/A for the period 05.04.2013 to 13.04.2013. The aforesaid mobile number belonged to accused Mintoo. There is no telephonic conversation record in respect of accused Sanjay Ram.
39. A close scrutiny of the aforementioned CDRs would reveal that there were no conversations held between accused Dil Chand and accused Mintoo. As observed earlier, there is no evidence to link mobile number 98103 73496 with the complainant PW4. Besides the CDRs there is no evidence available on record to indicate if the accused persons had met earlier or had any meeting of mind Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 30/35 in order to commit an offence. As is clear from the testimony of PW4 himself, accused Mintoo had flatly refused to take a sum of Rs.9000/- and on persistent request of PW4 did he only accept the same. Even when PW4 informed accused Mintoo that he had been asked by him to give money to accused Mintoo, he had refused to take the same. This fact also stands corroborated by the testimony of Iqbal Malik (DW1), whose credit worthiness could not be impeached.
40. Accused Sanjay Ram got examined Nirmal Kumar Chandravanshi (DW2) and Virender Ram (DW3) in his defence and both the DWs deposed that accused Sanjay had gone to see accused Dil Chand off to the Modi Nagar Railway Station. In cross-examination DW2 did not dispute the suggestion put by the Ld. Prosecutor that accused Dil Chand had kidnapped the child from Delhi though DW3 expressed his ignorance in this regard.
41. Except the statement of PW2 that accused Dil Chand made him drink juice and thereafter he became unconscious while travelling in the bus, there is no evidence available on record to establish if accused Dil Chand administered any stupefying Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 31/35 or intoxicating substance to PW2 in order to commit or facilitate the commission of any offence.
42. As far as the testimonies of Insp. Daya Sagar (PW9), SI Naveen Kumar (PW10) and HC Rajeshwar (PW11) regarding arrest of accused Dil Chand and accused Sanjay Ram from the Railway Station, Modi Nagar, UP, and recovery of child Ajay from their possession and subsequently arrest of accused Mintoo @ Mantoo Kumar, are concerned, no material contradictions could be brought forth by the Ld. Defence counsel in cross- examination. The testimonies of aforesaid prosecution witnesses could not be controverted and are reliable.
CONCLUSION :
43. In the afore-discussed facts and circumstances, in my considered opinion, there is no evidence available on record to establish if all the three accused persons entered into any criminal conspiracy for kidnapping the child Ajay. Similarly, there is no evidence at all to establish that any of the accused persons administered any stupefying or intoxicating substance to the child Ajay. Hence, the necessary ingredients of the offences u/s 120B IPC Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 32/35 and u/s 328 IPC are lacking in all material aspects in the present case. Since the prosecution miserably failed to establish conclusively that the mobile no. 98103 73496 was being used by the complainant PW4 on which the telephonic conversations are stated to have taken place, the most vital link for commission of offence u/s 364A IPC i.e. threat to cause hurt to the child and demand of ransom, could not be established by the prosecution. Here it is pertinent to take note of the judgment titled as Munna Saxena v. State, 2016 SCC OnLine, Del 2569 wherein it was laid down that section 364A IPC must receive a strict interpretation because the consequences are severe, the punishment prescribed being either death or imprisonment for life.
44. As observed earlier, there is no evidence available to establish that accused Sanjay Ram and accused Mintoo @ Mantoo Kumar were part of conspiracy for kidnapping for ransom. The fact that accused Dil Chand took the child to the room of accused Sanjay Ram, his relative, where they remained for one & half day, is not sufficient to prove complicity of accused Sanjay in the commission of offence. Undoubtedly, the child was Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 33/35 treated well by both accused Dil Chand and Sanjay Ram, who also took him to a fair. Accused Mintoo @ Mantoo Kumar, on the other hand, had flatly refused to accept money offered by the complainant and took the same only on the insistence of the complainant, in order to help him. The conduct of accused Mintoo @ Mantoo Kumar, by no stretch of imagination, can be said to be of a conspirator, involved in offence of kidnapping for ransom.
45. In the light of afore-discussed facts and circumstances, in my considered opinion, accused persons namely Dil Chand, Sanjay Ram and Mintoo @ Mantoo Kumar deserve to be acquitted of the charges for the commission of offences punishable u/s 120-B IPC, u/s 364A IPC r/w Section 120B IPC and u/s 328 r/w Section 120B IPC and are accordingly, acquitted.
46. However, there are sufficient evidence available on record to establish that accused Dil Chand had taken the minor child Ajay out of the keeping of lawful guardianship of the complainant, his father, without his consent and thereby committed an offence punishable u/s 363 IPC. Accused Dil Chand is accordingly held guilty for Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 34/35 commission of offence punishable u/s 363 IPC and is convicted.
47. Points for determination no. 1 to 5 are decided accordingly.
48. Let the convict Dil Chand be heard on the point of sentence.
judgment KULDEEP Digitally signed by KULDEEP NARAYAN NARAYAN Location: East District Karkardooma Courts, Delhi Date: 2018.10.26 11:55:41 +0530 (Pronounced in the open (Kuldeep Narayan) Court on 25.10.2018 ). Addl. Sessions Judge - 04 (East) Court No. 10: Karkardooma Courts Delhi Sessions CaseNo.228/2016 FIR No. 201/2013, PS Mandawali State v. Dil Chand & Others Page 35/35