Delhi District Court
State vs . Pintu @ Fantush on 6 July, 2012
1 FIR No. 13/2008
PS Uttam Nagar
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
Sessions Case No. 108/08
Unique I.D No. 02404R0013382008
State Vs. Pintu @ Fantush
S/o Sh. Devata Charan
R/o A25, Deep Enclave,
PartII, Vikas Nagar,
Uttam Nagar, New Delhi.
FIR No. : 13/2008
Police Station : Uttam Nagar
Under Sections : 363/364A/201 IPC
Date of committal to session court : 15.04.2008
Date on which judgment was reserved:
Date of which judgment announced:
1 of 31
2 FIR No. 13/2008
PS Uttam Nagar
JUDGMENT:
1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 09.01.2008 Smt. Neetu (PW2), lodged a missing report about his son Manish, aged about 8 years at Police Station Uttam Nagar, which was recorded as DD No. 59A dated 09.01.2008 at about 8.55 PM (Ext. PW6/A). The said DD was handed over to HC Satish Kumar (PW6) who after interrogation of Smt. Neetu (PW2), mother of the missing boy prepared a rukka (Ext. PW6/B) on the said DD and got registered the case and carried out the further investigation. During the course of investigation HC Satish Kumar interrogated a number of persons about the missing boy and recorded the statements of the witnesses but all in vain. On 19.01.2008 Sh. Ravinder Kumar Sinha (PW1) and Smt. Neetu (PW2), parents of the missing boy expressed their suspicion of kidnapping of their son on accused Pintu @ Fantush, who was residing in their house as a tenant and had demanded Rs. 50,000/. Thereafter, the investigation was handed over to SI Mamur Khan (PW7), who apprehended the accused Pintu @ Fantush and during interrogation accused Pintu @ Fantush had confessed 2 of 31 3 FIR No. 13/2008 PS Uttam Nagar his crime of having kidnapped child Manish and of the demand of ransom of Rs. 50,000/. He arrested the accused Pintu @ Fantush and his police remand was obtained and his disclosure statement was recorded and he kept on misleading the police about the kidnapped child. Application for his NarcoAnalysis test was also made. Despite best efforts kidnapped child Manish could not be recovered.
Upon completion of necessary further investigating challan was prepared against accused Pintu @ Fantush and was sent to the court for trial.
2. Since the offence u/s 364A IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C
4. Upon committal of the case to the Court of Session after hearing on charge, prima facie a case u/s 363/364A/201 IPC against accused Pintu @ Fantush was made out. Charge was framed accordingly which was read over and explained to the accused to which he pleaded not guilty and claimed trial.
3 of 31 4 FIR No. 13/2008 PS Uttam Nagar
5. In support of its case prosecution has examined eleven witnesses. PW1 Sh. Ravinder Kumar Sinha, , PW2 Smt. Neetu, W/o Sh. Ravinder, Kumar Sinha, PW3 Raj Kumar Nodal Officer, Reliance Communication, PW4 HC Lacchi Ram, PW5 SI Uday Singh, PW6 HC Satish Kumar, PW7 SI (Retd.) Mamur Khan, PW8 Udai Singh S/o Sh. Karo Singh, PW9 HC Rajender Singh, PW10 Sh. Rajeev Paswan and PW11 Suresh.
6. In brief the witnessography of the prosecution witnesses is as under: PW1 Sh. Ravinder Kumar Singh, who is the father of the kidnapped child Manish @ Ashu, who deposed regarding the incident and also proved the arrest memo and personal search memo of accused Pintu @ Fantush Ext. PW1/A and Ext. PW1/B, the disclosure statement dated 19.01.2008 of accused Pintu @ Fantush Ext. PW1/C and his complaint dated 14.01.2008 Ext. PW1/D. PW2 Smt. Neetu, who is the mother of the kidnapped child Manish @ Ashu who lodged the missing report vide DD No. 59A dated 09.01.2008 at 8.55 PM Ext. PW6/A and deposed regarding the incident.
4 of 31 5 FIR No. 13/2008 PS Uttam Nagar PW3 Raj Kumar, Nodal Officer, Reliance Communication, who proved the call record of cell phone no. 9313147139 running in three pages Ext. PW3/A and the mandatory certificate u/s 65B of Indian Evidence Act Ext. PW3/B signed by him at PointA. PW4 HC Lacchi Ram, who deposed that he was working as Duty Officer and proved the copy of FIR Ext. PW4/A and also proved his endorsement at MarkX signed by him at pointB mentioning Kaymi DD No. 37B.
PW5 Uady Singh, who deposed that on 09.01.2008 he working as Nodal Officer at PS Binda Pur, SubDivision Tilak Nagar and had collected the call details of phone number 931347139 from the Computer Section situated at ACP Office Punjabi Bagh and proved the call details as Ext. PW5/A (running in nine pages).
PW6 HC Satish Kumar, who is the initial IO of the case, who proved the rukka Ext. PW6/B and deposed on the investigational aspects.
5 of 31 6 FIR No. 13/2008 PS Uttam Nagar PW7 SI (Retd.) Mamur Khan, who is the subsequent IO of the case and proved the arrest memo Ext. PW1/A, personal search memo Ext. PW1/B of accused Pintu @ Fantush, his disclosure statement Ext. PW1/C, pointing out memo Ext. PW7/A and further disclosure statements dated 20.01.2008 and 25.01.2008 Ext. PW7/B and Ext. PW7/C respectively.
PW8 Uday Singh, who is the neighbour of PW1 Sh. Ravinder Kumar Sinha and PW2 Smt. Neetu and who deposed that in the January, 2008 son of Ravinder (PW1) was missing and the wife of Ravinder (PW1) came to his house and informed about the missing of her son. He made a call at no. 100. He further deposed that he knows accused Pintu present in the court as he was residing in the house of PW1 Ravinder as tenant.
PW9 HC Rajinder Singh, who deposed that he joined investigation with SI (Retd.) Mamur Khan and deposed on the investigational aspects and also proved the memos as are reflected in the deposition of PW11 SI (Retd.) Mamur Khan.
PW10 Sh. Rajeev Paswan, who deposed that he was working in the Patti Factory of one Aggarwal. Mahesh was also working in the factory 6 of 31 7 FIR No. 13/2008 PS Uttam Nagar where he was working. Accused Pintu @ Fantush present in the court, was also working in the same factory and fivesix days before his statement was recorded i.e on 11.01.2008 accused Pintu came to the factory and told them his intention to kidnap the child of the owner of the house where he was residing and also asked them to keep the kidnapped child in their room and in the bargain accused Pintu will give them Rs. 50,000/ but they did not agree to his request and asked him to go from the factory.
PW11 Suresh, who has deposed that accused Pintu came to his room about one week before 11.01.2008 and told him and Vijay that his landlord was residing at Gujarat and only his wife and children was residing in the house where he was residing as a tenant and he has planned to kidnap the child of his house owner and asked him to keep the kidnapped child for 2/3 days and he will demand ransom amount for Rs. 50,000/ and when he will bring Rs. 50,000/ then the child of the owner will be released and the amount of Rs. 50,000/ will be distributed among themselves i.e he Pintu and Vijay.
The testimonies of the prosecution witnesses shall be dealt with details during the course of the appreciation of the evidence.
7 of 31 8 FIR No. 13/2008 PS Uttam Nagar
7. It is to be mentioned that as a matter of prudence in order to avoid any little alteration in the spirit and essence of the depositions of some of the material witnesses, during the process of appreciation of evidence, at some places there part of depositions have been reproduced in the interest of justice.
8. Statement of accused Pintu @ Fantush was recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication. He did not opt to lead any defence evidence.
9. Ld. Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt and the accused person has been falsely implicated in this case. He further submitted that as per PW2, "My mobile phone No. 9313147139 was being used by Pintoo" and this shows that when Pintoo was searching the kidnapped child with her, the phone was with her. He further submitted that the accused being covillager was helping in searching the child and his intention was only to recover the child without any harm to the child as the kidnapper had demanded Rs. 50,000/ and in lodging any police report to kidnapper might be caused harm to the child. He further submitted that as per PW1, "There I saw accused Pintoo 8 of 31 9 FIR No. 13/2008 PS Uttam Nagar present in the court today coming there from front side". Which shows that being innocent the accused did not tried to run away on seeing the police or hide himself. He further submitted that the police did not investigate the case properly and there is no report of Narco Analysis Test as in the cross PW7 stated that, "Narco Analysis Test report was not taken by me". All this shows innocence of the accused and prayed for acquittal of the accused.
10. While the Ld. Addl. PP for the state on the other hand submitted that prosecution has proved its case beyond reasonable doubt against the accused.
11. I have heard the Ld. Addl. PP for the state and the Ld. Counsel for the accused and have also carefully perused the entire record.
12. Section 6 of Indian Evidence Act, 1872 provides for relevancy of facts forming part of same transaction.
It reads as:
6. Relevancy of facts forming part of same transaction.Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
9 of 31 10 FIR No. 13/2008 PS Uttam Nagar Illustrations (a) appended to Section 6 of Indian Evidence Act, 1872 reads as :
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
Section 8 of Indian Evidence Act, 1872 provides for motive, preparation and previous or subsequent conduct.
It reads as :
8. Motive, preparation and previous or subsequent conduct. Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceedings in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1. The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2. When the conduct of any person is relevant, any statement made to him or in his resence and hearing, which affects such conduct, is relevant.
Illustrations (e) and (i) appended to Section 8 of Indian Evidence Act, 1872 10 of 31 11 FIR No. 13/2008 PS Uttam Nagar reads as
(e). A is accused of a crime.
The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant, to conceal things which were might have been used in committing it, are relevant.
13. PW2 Smt. Neetu, mother of kidnapped child has specifically deposed that on 09.01.2008 her youngest son Manish @ Ashu, aged about 8 years went missing. She lodged his missing report same day and her tenant Pintoo accompanied her for lodging the missing report. On the way to Police Station Pintoo told her for not lodging the missing report and further told her that he had received a telephone call that if they pay Rs. 50,000/ they will get Manish back. Pintoo helped her in searching her son Manish but later on 11 of 31 12 FIR No. 13/2008 PS Uttam Nagar he also went missing. It is pertinent to reproduce the examinationinchief of PW2 Smt. Neetu, which reads as under.
"I reside at above address (A25, Gali No. 6, Deep Enclave, Part2, Vikas Nagar, Uttam Nagar, New Delhi). I was having 3 children and my youngest son Manish @ Ashu aged about 8 years went missing on 09.01.08. I lodged his missing report same day and my tenant Pintoo accompanied me for lodging the missing report. On the way to PS, Pintoo told me for not lodging the missing report and further told me that he had received a telephone call that if we pay Rs. 50,000/ we will get Manish back. I asked Pintoo to tell that who is demanding Rs. 50,000/ and who will got to pay Rs. 50,000/. Pintoo replied that the kidnappers had called him to bring Rs. 50,000/ and asked me to give Rs. 50,000/ to him and ensured me that he will bring my son Manish back and further told me that none will accompany him. I told Pintoo that I am not having Rs. 50,000/ and when my husband will come, he will arrange the amount as such I passed this information to my husband telephonically. Pintoo accused present in the court today (correctly identified) was residing in our house as a tenant for last 8 or 9 months. Pintoo hails from my inlaws village and as such we used to treat him a a family member. My mobile phone no. 9313147139 was being used by Pintoo. Initially (first day) Pintoo helped me in searching my son Manish but later on he also went missing. Pintoo did not receive any telephone call in my presence and he was insisting for not reporting the matter to the police as such I am having all the suspicion that Pintoo had kidnapped my son Manish @ Ashu for demanding of Rs. 50,000/ as a ransom."
12 of 31 13 FIR No. 13/2008 PS Uttam Nagar During her crossexamination PW2 Smt. Neetu has deposed that "I was knowing Pintoo from his childhood after my marriage and I was married about 2025 years ago. I do not remember the exact date & month when Pintoo started residing in our house as tenant. No rent agreement was executed as Pintoo was my covillager. I had not informed the police when Pintoo was inducted as a tenant in my house. Despite my asking Pintoo did not tell me the telephone no. from which he had received the alleged ransom call. I asked one of my neighbourer to see the said telephone on which Pintoo allegedly received the call and to tell me about the number from which the call was received but my neighbour informed me that there is no incoming call on the said telephone. The name of my said neighbour is Uday. I do not remember the house number of Uday. I had shown the said telephone to the police on 09.01.2008. I can use the cell phone. Pintoo told me regarding the telephonic call regarding ransom of Rs. 50,000/ on 09.01.08. I informed my husband telephonically on 09.01.08 itself after lodging the missing report at about 9.00 PM. Police visited my house in the night of 9/10.01.08. I do not know if the police officials had inquired my neighbourers or not as I was weeping and was very nervous due to the missing of my son. I do not remember if police obtained any signature on any document. My statement was recorded at the PS. In my presence the statement of any other witness was not recorded.
It is wrong to suggest that I am deposing falsely or that I never permitted the Pintoo to use my cell phone or that Pintoo was falsely implicated in this case."
Inspite of incisive crossexamination of PW2 Smt. Neetu, 13 of 31 14 FIR No. 13/2008 PS Uttam Nagar nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout.
Her testimony is clear, cogent, convincing, trustworthy and inspires confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate him in the case.
In view of the categorical testimony of PW2 Smt. Neetu as reproduced hereinabove, coupled with the conduct of the accused Pintu, asked PW2 Smt. Neetu not to lodge the missing report of her son, on the way to the police station, his insistence upon PW2 Smt. Neetu to pay Rs. 50,000/ under the garb of ransom call of the kidnappers, who had asked him (accused Pintu) to bring Rs. 50,000/ and his (accused Pintu) assurance to bring Manish (kidnapped child) back on payment of Rs. 50,000/ to him and none to accompany him (accused Pintu) after ransom money of Rs. 50,000/ is paid, his (accused Pintu) initial drama of providing help to her (PW2 Smt. Neetu) in searching her son Manish but later on went missing clearly proves that it was none else but the accused Pintu, who had kidnapped Manish @ Ashu, aged 8 years, son of PW1 Ravinder Kumar Sinha and PW2 Smt. 14 of 31 15 FIR No. 13/2008 PS Uttam Nagar Neetu as is indicated by the testimony of PW2 Smt. Neetu, which reads as under.
"........on the way to PS, Pintoo told me for not lodging the missing report and further told me that he had received a telephone call that if we pay Rs. 50,000/ we will get Manish back. I asked Pintoo to tell that who is demanding Rs. 50,000/ and who will got to pay Rs. 50,000/. Pintoo replied that the kidnappers had called him to bring Rs. 50,000/ and asked me to give Rs. 50,000/ to him and ensured me that he will bring my son Manish back and further told me that none will accompany him".
14. The testimony of PW2 Smt. Neetu is also corroborated in material particulars by PW1 Sh. Ravinder Kumar Sinha to whom PW1 Smt. Neetu has disclosed the facts relating to mission of son Manish @ Ashu and of assurance of accused Pintu to bring Manish back after the amount of Rs. 50,000/ is paid to him; shortly after the incident, being relevant Under Section 6 and 8 of Indian Evidence Act, 1872, reproduced herein above.
It is pertinent to reproduce the relevant part of crossexamination of PW1 Sh. Ravinder Kumar Sinha which reads as under:
"I am working on a lath machine in PSL Ltd. Village Barsana, District Bhuj, Gujarat since 3.7.07. My family is residing at the abovesaid
15 of 31 16 FIR No. 13/2008 PS Uttam Nagar house of Deep Enclave since 1986 owned by me. There are three rooms, two on the ground floor and one on the first floor in my said house. The accused Pintoo hails from my village situated at District Gaya, Bihar as such the family of accused Pintoo well known to me and I had brought him to Delhi about 34 years prior to the present incident. No rent agreement was executed between me and accused Pintoo as he was my covillager. Accused used to work as a tailor and we had good relations to the extent that the accused was allowed to use my telephone. When I had called Pintoo again he had told me that he will call me on the next morning. When I cam to Delhi on 11.1.08 at about 8/8.30 am, on enquiry my wife told that accused was missing for last about 23 days. Thereafter, I went to police station at about 10.30 am. Thereafter neither me nor my wife received any phone call regarding demand of ransom for release of my son Manish. In my presence the police officials visited my house firstly on 19.1.08. And they had made equiries from neighbourer regarding missing of Manish. In my presence statement of those neighbourer not recorded by the police. When I visited the house of Uday Singh alongwith police his other family members were also present however, I did not go inside this house and the police officials had made enquiries from him but I am not aware whether statement was recorded or not. Even prior to 19.1.08, Uday Singh had helped me in search of my son. In my presence, no person present near the place from where accused Pintoo was arrested, was informed regarding the reason of his arrest. In my presence, accused had not named Arjun, Suresh and Vijay. I cannot tell the number of said scooty. I had signed some documents but the exact number of documents signed by me I cannot tell. I had not signed blank papers. I put my signatures on the documents but I had not gone through the contents. In my presence, no statement of any other witness was recorded. It is incorrect to suggest that I am deposing falsely or that I never joined the investigation of the present case or that the accused was named by me falsely 16 of 31 17 FIR No. 13/2008 PS Uttam Nagar due to enmity or that accused never had talked with me telephonically." 5 The testimony of PW2 Smt. Neetu is further been corroborated in material particulars by PW8 Udai Singh.
There is nothing in the crossexamination of PW1 Sh. Ravinder Kumar Sinha and PW8 Udai Singh so as to impeach their creditworthiness.
6. In Vishwanath Gupta v State of Uttaranchal 2007 (11) SCC 633 the Hon'ble Supreme Court held that for the prosecution to prove the offence u/s 364A IPC, three facts have to be established. It was held that "According to Section 364A, whoever kidnaps or abducts any person and keeps him in detention and threatens to cause death or hurt to such person and by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, and claims a ransom and if death is caused then in that case the accused can be punished with death or imprisonment for life and also liable to pay fine."
6. The important ingredient of Section 364A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not made then the victim is likely to be put to death and in the event death is caused, the offence of Section 364A is complete. There are three stages in this Section, 17 of 31 18 FIR No. 13/2008 PS Uttam Nagar one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not made, then causing death. If the three ingredients are available, that will constitute the offence under Section 364A of the Indian Penal Code. Any of the three ingredients can take place at one place or at different places....."
7. On careful perusal and analysis of the testimonies of PW1 Sh. Ravinder Kumar Sinha and PW2 Smt. Neetu, it stands established on record that on 9.1.2008 their son Manish @ Ashu, aged 8 year was kidnapped by accused Pintu. Although there was communication of demand of ransom of Rs. 50,000/ to PW1 Ravinder Kumar Sinha and PW2 Smt. Neetu but there is total absence of evidence in regard to any threat to cause death or hurt to the kidnapped child and also lack of evidence in regard to the accused conducting himself in a way that could raise a reasonable apprehension that the child would be put to death or hurt; the ransom demand simplicitor cannot bring the offence within the ambit of Section 364A IPC.
8. Further the fact that accused Pintu had intention to kidnap son of PW1 Sh. Ravinder Kumar Sinha for a ransom of Rs. 50,000/ has been proved by PW10 Rajeev Paswan and PW11 Suresh.
18 of 31 19 FIR No. 13/2008 PS Uttam Nagar PW10 Rajeev Paswan in his examinationinchief has specifically deposed that "Accused Pintu @ Fantush present in the court was also working the same factory. 56 days before my statement was recorded i.e on 11.1.2008 accused Pintu came to our factory and told us about his intention to kidnap the child of the owner of the house where he was residing. He also stated to us that you both keep the kidnapped child in our room and in the bargain the accused Pintu will give us Rs. 50,000/but we did not agree to his request and asked him to go from the factory and knock the door of someone else but he requested again and again but we denied to join with him in this illegal act. Thereafter, he left the factory and thereafter, I did not know when he had kidnapped the child and where he had kept that child."
PW11 Suresh in his examination in chief has deposed that "Pintu accused came to my room about one week before from dated 11.1.2008 . Pintu told me and Vijay that his landlord was residing at Gujrat and only his wife and a children was residing in the house where he was residing as a tenant. He further stated that he has planned to kidnap the child of his owner of the house and I kept the kidnap child for 23 days and I will demand ransom amount of Rs. 50,000/ and when he will bring Rs. 50,000/ then the child of the owner will be released and the amount of Rs. 50,000/ will be distributed the said amount among ourselves i.e me, Pintu and Vijay. I and Vijay did not agree to his above illegal act and we asked him not to come again for this purpose."
19 of 31 20 FIR No. 13/2008 PS Uttam Nagar Inspite of incisive crossexamination of PW10 Rajeev Paswan and PW11 Suresh, nothing material has been brought out on the record so as to impeach their creditworthiness.
9. PW1 Ravinder Kumar Sinha has deposed that accused Pintu was arrested on 19.01.2008 at his instance and proved his arrest and personal search memos Ext. PW1/A and Ext. PW1/B respectively. He also proved disclosure statement Ext. PW1/C. His testimony is corroborated by PW7 SI (Retd.) Mamur Khan and PW9 HC Rajender Singh.
During the crossexamination of PW9 HC Rajender Singh has deposed that "Accused was arrested at about 3.00 PM"
He was also suggested that accused was arrested at 5.30 PM which was negated by PW9 HC Rajender Singh. It clearly indicates that factum of arrest of accused has not been denied by the defence.
The fact that accused Pintu done its best to mislead the investigating agency on the whereabouts of kidnapped child Manish @ Ashuis clear from the testimonies of PW1 Ravinder Kumar Sinha and PW9 20 of 31 21 FIR No. 13/2008 PS Uttam Nagar HC Rajender Singh.
PW1 Ravinder Kumar Sinha in his examinationinchief has deposed that "On interrogation, the accused Pintoo revealed that he had kidnapped Manish for money and thereafter he killed him by strangulating and had thrown his dead body in the bushes near Nala. The bushes nearby the said Nala were searched in the presence of SHO but nothing was recovered from there. On sustained interrogation, accused further disclosed that he had handed over the Manish to a gang of kidnappers."
PW7 SI (Retd.) Mamur Khan in his examinationinchief has deposed that "Disclosure statement Ext. PW1/C was also recorded signed by me at point B. The accused also pointed out the place where he has committed murder of Manish after strangulating his neck. Pointing out memo is Ex. PW7/A, signed by me at point A. I informed the fact to the SHO who also arrived at the spot with police force. We again try to search the kidnapped boy extensively but all our efforts are in vain. Accused was got medically examined from DDU Hospital and after returning to police station he was sent to lock up. We also procured P/C remand from concerned court but no incriminating evidence was come forward as he was changing his disclosure statement again and again. The disclosure statement of dated 20.01.2008 and 25.01.2008 are Ex. PW7/B and PW7/C respectively signed by me."
21 of 31 22 FIR No. 13/2008 PS Uttam Nagar PW9 HC Rajender Singh in his examinationinchief has deposed that "Disclosure statement of accused was recorded and the same is Ex. PW1/C signed by me at PointB. In the meantime, SHO also arrived at the spot and as per disclosure statement Manish was tried to trace out at the instance of accused but all our efforts are in vain and accused later on stated that Manish has been sent to his native place. On the next day at the instance of accused as he has given another statement Ex. PW7/B and tried to search the kidnapped boy inside the bushes near the nala but he was also not found inside he bushes."
The aforesaid narration of the said PWs although clearly and loudly speaks volume about his subsequent conduct to the offence of kidnapping of child Manish @ Ashu but there is no iota of evidence on record to indicate his of causing disappearance of evidence of offence of kidnapping of child Manish @ Ashu.
10. PW3 Raj Kumar, Nodal Officer, Reliance Communication has proved the call record of cell phone no. 9313147139 running in pages as Ext.
22 of 31 23 FIR No. 13/2008 PS Uttam Nagar PW3/A and the mandatory certificate u/s 65B of Indian Evidence Act as Ext. PW3/B signed by him at Point 'A'.
PW5 SI Uday Singh has deposed that "On 09.01.2008 I was posted at PS Binda Pur Sub Division Tilak Nagar. I was working as Nodal Officer of the above Sub division. I have collected the call details of the phone number 9313147139 from the Computer Section situated at ACP office Punjabi Bagh. The copy of the call details is Ex. PW5/A running into 9 pages. The same were handed over to me through ACP Tilak Nagar."
PW2 Smt. Neetu in her examinationinchief has deposed that "My mobile phone no. 9313147139 was being used by Pintoo."
"Pintoo did not receive any telephone call in my presence and he was insisting for not reporting the matter to the police as such I am having all the suspicion that Pintoo had kidnapped my son Manish @ Ashu for demanding of Rs. 50,000/ as a ransom."
During her crossexamination, it was suggested to PW2 Smt. Neetu that she never permitted the Pintoo to use her cell phone, but it was negated by PW2 Smt. Neetu.
23 of 31 24 FIR No. 13/2008 PS Uttam Nagar The perusal of call details of mobile phone no. 9313147139 Ext. PW3/A of 9.1.2008 and 10.1.2008 indicates that a massive incoming phone call being reflected therein of various durations. Prosecution has discharged its initial burden of proving that the mobile phone no. 9313147139 of PW2 Smt. Neetu was used for massive incoming calls for various duration on 9.1.2008 and 10.1.2008 Ext. PW3/A accused Pintu was under an obligation to explain, how and under what circumstances, it was put to massive incoming calls, his complete denial becomes additional link in prosecution case and the absence of an explanation both in the Section 313 Cr.P.C statement by accused and his omission to lead any evidence in this case has an adverse impact on his plea.
11. In view of above, I am of the considered opinion that prosecution has thus categorically proved beyond shadows of all reasonable doubt that Manish @ Ashu, a child of about 8 years of age, was kidnapped by accused Pintu @ Fantush, from his lawful guardianship, without consent of his guardians, PW1 Ravinder Kumar Sinha and Smt. Neetu. However, prosecution has failed to prove that such kidnapping by accused Pintu was for ransom and accused Pintu caused disappearance of evidence of offence 24 of 31 25 FIR No. 13/2008 PS Uttam Nagar of kidnapping of child Manish @ Ashu.
I, accordingly, hold accused Pintu @ Fantush guilty for the offences punishable u/s 363 IPC and convict him thereunder. However, accused Pintu @ Fantush is acquitted for the offences punishable u/s 364A/201 IPC.
12. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Pintu @ Fantush in the commission of the offence u/s 363 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Pintu @ Fantush beyond reasonable doubt and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Pintu @ Fantush guilty for the offence punishable u/s 363 IPC and convict him thereunder. However, accused Pintu @ Fantush is acquitted for the offences punishable u/s 364A/201 IPC.
Announced in the open Court today on 25 of 31 26 FIR No. 13/2008 PS Uttam Nagar (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
26 of 31 27 FIR No. 13/2008 PS Uttam Nagar IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI Sessions Case No. 108/08 Unique I.D No. 02404R0013382008 State Vs. Pintu @ Fantush S/o Sh. Devata Charan R/o A25, Deep Enclave, PartII, Vikas Nagar, Uttam Nagar, New Delhi.
FIR No. : 13/2008 Police Station : Uttam Nagar Under Sections : 363/364A/201 IPC ORDER ON SENTENCE :
1. Vide my separate detailed judgment dated 05.07.2012 accused Pintu @ Fantush has been convicted for the offence punishable u/s
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2. Sh. J. S. Kushwaha, Ld. Counsel for convict Pintu @ Fantush submitted that the convict Pintu @ Fantush is aged about 30 years and is unmarried and was working as a tailor and is having the aged father and his mother has expired and is having the three elder brothers who are married and are doing private job. He further submitted that he is a poor person and is not a previous convict and is running in JC since 26.01.2008. He further submitted that he has clean antecedents and is a victim of circumstances and prayed for leniency and for his release on the period already undergone by him.
3. On the other hand, Ld. Addl. PP for state submitted that convict be dealt with strictly and severest punishment be given to deter him from committing the same offence in future and no leniency be shown to him. He further submitted that he has committed very serious and grave offence of kidnapping of a child of about 8 years of age for the purpose of ransom and till date the kidnapped child has not been recovered.
4. I have heard the Ld. APP for the state and the Ld. Counsel for the convict Pintu @ Fantush at length on the quantum of 28 of 31 29 FIR No. 13/2008 PS Uttam Nagar sentence. Manish @ Ashu a child of about eight years of age was kidnapped by accused Pintu @ Fantush from his lawful guardianship without consent of his guardians PW1 Ravinder Kumar Sinha and PW2 Smt. Neetu and had also accompanied PW2 Smt. Neetu at the time when she was going to lodge the complaint with the police and had insisted upon her not to lodge the police complaint and to pay him Rs. 50,000/ under the garb of ransom call of the kidnappers and assured her to bring Manish @ Ashu back on the payment of Rs. 50,000/ to him and thereafter, he vanished.
5. It has been held by the Hon'ble Apex Court in Sahdev Vs. Jaibar @ Jai Dev & Ors. 2009 V AD (S.C.) 515 that: "After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task".
6. It has been held in State of Karnataka Vs. Murlidhar 2009 IV AD (S.C.) 1 that: 29 of 31 30 FIR No. 13/2008 PS Uttam Nagar "The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
7. In Mulla and another Vs. State of Uttar Pradesh (2010) 3 SCC 508, after considering various earlier decision, the Hon'ble Supreme Court held as under: "It is settled legal position that the punishment must fit the crime. It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to improse such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate be fitting the crime".
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8. Having regard to all the facts and circumstances of the case coupled with the submissions made on behalf of the convict, I am of the considered opinion that the ends of justice can be met by sentencing convict Pintu @ Fantush to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs. 20,000/ in default thereof to further undergo Rigorous Imprisonment for a period of twenty months u/s 363 IPC. The period already undergone by the convict Pintu @ Fantush during the inquiry/investigation/trial of this case shall be set off under section 428 Cr.P.C.
A copy of judgment as well as that of order on sentence be given to the convict free of costs.
Announced in the open Court today on 6th Day of month of July, 2012.
(MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer Distt.
Rohini/Delhi.
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