Crl.A.Nos.32/2009 & 111/09 Page 1 of 30 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 15.05. 2009 Judgment delivered on: 20.05.2009 + CRL.A. No.32/2009 RITESH MITTAL @ SHAHI …Appellant Through : Mr. R.S.Malik, Advocate and Mr. Siddharth Ahlawat, Adovocate versus STATE …Respondent Through : Ms. Richa Kapoor, Advocate CRL.A. No.111/2009 NARENDER CHAUHAN @ GUDDU …Appellant Through : Mr. Dhanbir Singh, Advocate Mr. Deepinder Singh, Advocate versus STATE …Respondent Through : Ms. Richa Kapoor, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. Case of the prosecution may be noted, with reference to the investigation conducted. The police Crl.A.Nos.32/2009 & 111/09 Page 2 of 30 machinery was set into motion on 4.1.2002 at 7:05 PM, when on the telephonic call by Prem Mittal PW-1, ASI U.R.Khan PW- 10 recorded an entry Ex.PW-10/A, in the PCR Form that Milan, aged 9 years, son of the informant, was missing. The information was transmitted to the missing person’s squad from where it was forwarded to PP Pitampura; and as recorded vide DD No.41A, Ex.PW-20/A, at 7:35PM. SI Praveen Kumar PW-20, along with Const. Jasbir from PP Pitampura reached House No.UP-78 Pitampura i.e. the house of the complainant, as they were deputed to investigate the matter. Prem Mittal PW-1, the father of the missing child met them. His statement Ex.PW-1/A was recorded as per which he informed that his son Milan Mittal, aged 9 years, had left the house at 3:30 PM to attend tuition classes and had not returned home. That the child was wearing blue jeans and blue T-shirt and was carrying a school bag. SI Praveen Kumar made an endorsement Ex.PW- 2/B on the statement Ex.PW-1/A and sent Const. Jasbir to the police station for registration of an FIR at 8:30 PM. The FIR Ex.PW-3/A was registered for an offence punishable under Section 363 IPC by HC Suraj at 8:55 PM. 2. Two telephones (landline) having numbers 7220285 and 7417368 were installed in the house of Prem Mittal. The latter had a caller ID facility. The former did not have a caller Crl.A.Nos.32/2009 & 111/09 Page 3 of 30 ID facility. Gaurav PW-19, a cousin of Milan Mittal who was in the house of Prem Mittal attended a call at 9:26 PM on landline number 7220285. The caller informed him that Milan had been kidnapped and demanded ransom in sum of Rs.20 lacs to release Milan. The call got disconnected. Another call was received at the same number on 9:29 PM and the kidnapper warned against informing the police. The information of ransom call being received was passed on to SI Praveen Kumar and the case was converted to one under Section 364-A IPC. Prem Mittal handed over a photograph of his son Milan to SI Praveen Kumar as recorded in the memo Ex.PW-20/C. Since the caller demanding ransom was contacting the family of Milan on the landline number 7220285 inasmuch as said number did not have a caller ID facility and not the other number which has a caller ID facility around 10:00 PM, SI Praveen Kumar got activated a caller ID facility on the landline number 7220285. 3. The next day i.e. on 5.1.2002, Naresh Kumar PW-2 the uncle of Milan, who was in Delhi on 4.1.2002 and on said day had made a day’s visit to his native village at Haryana, returned to Delhi and learnt that Milan was missing. He informed SI Praveen Kumar that the previous day i.e. 4.1.2002 when he was standing near Jhulelal Temple, he saw his Crl.A.Nos.32/2009 & 111/09 Page 4 of 30 nephew Milan with a school bag coming through V.P.Block Park accompanied by a friend. The boy accompanying Milan parted company with Milan and Milan walked towards his house. On the way, someone sitting in a white Santro car which had tainted glasses, parked near the iron gate of the lane, stopped Milan and had a conversation. Milan sat in the front seat of the car and the car backed and went towards WP Block. He noted that the number plate of the car was broken and only the last numbers ‘1172’ were visible. Since Milan willingly sat in the car, he did not suspect any foul play and presumed that some acquaintance had given him a lift. Said facts were recorded in Naresh Kumar’s statement Ex.PW-2/DA. 4. Since information had been flashed to the missing person’s squad about Milan being missing and his photograph, which was handed over by Prem Mittal to SI Praveen Kumar had been circulated to the police personnel in Delhi, on 5.1.2002 at about 5:00 PM, upon information received from PS Bawana about the recovery of a dead body matching the description of Milan, SI Praveen Kumar along with Prem Mittal went to West Jamuna Canal Village Kankar Khera, Kalan Road; the place where the body was found. The body was found lying in a ditch on the bank of the canal with a muffler tied around it’s neck. The complainant i.e. Prem Mittal identified the said Crl.A.Nos.32/2009 & 111/09 Page 5 of 30 body as that of his son Milan. The body was seized and SI Umed Singh PW-9 of PS Bawana sent the dead body to Babu Jagjiwan Ram Memorial hospital for post-mortem. 5. Further investigation was handed over to Insp. B.R.Mann PW-25 as the offence had assumed serious proportion i.e. the offence of murder. 6. On 6.1.2002, Dr.R.K.Punia PW-21 conducted the post-mortem of the deceased. In the post-mortem report Ex.PW-21/A, the cause of death was opined to be asphyxia due to ligature strangulation. As recorded in the post-mortem report Ex.PW-21/A, the post-mortem commenced at 9:30 AM on 6.1.2002. While giving the opinion qua the cause of the death of Master Milan, it was opined that the approximate time of death was 36 hours to 48 hours prior to the post-mortem. It is thus apparent that Master Milan had been murdered somewhere around the early part of the intervening night of 4th and 5th January 2002 or may be late evening of 4th January 2002. 7. On 6.1.2002 Satbir Singh PW-13, a tea vendor, saw a bag with some books and notebooks lying on the Khera road. A telephone number was written on them. He contacted at the said number, which needless to state was installed at the residence of Prem Mittal, and passed on the said information. Crl.A.Nos.32/2009 & 111/09 Page 6 of 30 Inspector B.R.Mann seized the school bag and six notebooks Ex.P-6/1-6 and five books Ex.P-5/1-5 as recorded in the seizure memo Ex.PW-20/D. 8. Since the telephone exchange i.e. exchange 722 pertaining to the telephone No.7220285 was an electronic exchange and it was possible to know from the telephone exchange the details of the last few calls received, it came within the knowledge of the Investigating Officer that the ransom calls were made through mobile No.9811587365. Inspector Sukhvinder Singh PW-17 went to the service provider of said mobile number being Ex.PW-17/A which reveal that a handset bearing IMEI No.445199456405630 was used on the SIM card pertaining to the number 9811587365, as also the fact that the SIM card was got activated on the same day i.e. 4.1.2002. It was further revealed that prior thereto, the said handset was used on the SIM card pertaining to mobile number 9811485780. 9. Since the investigating officer, as per information provided by Naresh Kumar, had knowledge that Milan was last seen leaving in a white coloured Santro car and that the last four digits of the registration number thereof were 1172; with reference to the record of the registration authority under the Motor Vehicles Act 1988, the ownership of a white Santro car Crl.A.Nos.32/2009 & 111/09 Page 7 of 30 bearing No.DL 4CN 1172, Ex.P-10, got traced to Raj Kumar R/o House No.KP-188, Pitampura Delhi, from where the car was seized on 9.1.2002, as recorded in the seizure memo Ex.PW- 20/F. Jitender PW-7, brother of Raj informed, as recorded in his statement Ex.PW-7/DA, that on 4.1.2002 he had borrowed the Santro car from his brother and Ritesh Mittal and Narender Chauhan met him at the dhaba (eatery) of Narender Chauhan and told him to lend the Santro car for some time and in return offered to lend him a Matiz car. Accordingly, he temporarily exchanged the Santro car with the Matiz and that around 8:00 PM he was told by them over the telephone to reach Oasis Hotel so that the cars could be exchanged. He went to Oasis Hotel and returned the Matiz car and took possession of the Santro car and at that time he noted that the rear number plate of the Santro car was missing. 10. Appellants, accordingly, became suspects. The police kept a watch out. On 9.1.2002 itself, appellants Ritesh Mittal and Narender Chauhan were arrested from J.P.Market Pitampura. From the personal search of Narender, a mobile phone Ex.P-18 having IMEI number 445199456405630 as also a slip Ex.P-19 of Bank of Baroda, Maurya Enclave having name of Ratish Mittal and phone numbers 7220285, 7417368, 9868142408 and 9811587365 written thereon were recovered Crl.A.Nos.32/2009 & 111/09 Page 8 of 30 from the pocket of his pant as recorded in the seizure memo Ex.PW-20/M. No incriminating recovery was made from the person of Ritesh Mittal. 11. Insp. B.R.Mann interrogated the appellants and recorded the disclosure statement Ex.PW-20/G of appellant Narender Kumar as per which he stated that he could get recovered the number plate of the Santro car used in the commission of the crime, as also a plastic bag which was meant to be used by the accused persons to dispose of the dead body and the school bag and notebooks of the deceased. He also interrogated appellant Ritesh Mittal who made a disclosure statement Ex.PW-20/H inter alia stating that he could get recovered the broken number plate of the Santro car used in the commission of the crime and the bag and the books of deceased Milan. 12. As per the record of investigation, appellant Ritesh Mittal led Insp. B.R.Mann to Shiv Shankar Dharam Kanta at Khera Kalan Road, and from a place near the Dharam Kanta, got recovered a book Ex.P-5/6 and a notebook Ex.P-6/7 of Milan which were seized vide seizure memo Ex.PW-20/X. 13. Narender Kumar led the investigating officer to a park called Vaishali Park at Pitampura and pointed out a yellow Crl.A.Nos.32/2009 & 111/09 Page 9 of 30 plastic bag Ex.P-20 which was seized vide seizure memo Ex.PW-20/Y. 14. The record of investigation does not reveal as to how co-accused Zaffar Abbas (acquitted by the learned Trial Court), became a suspect. Nonetheless, the record of investigation shows that Zaffar Abbas was arrested on 9.1.2002 and on interrogation made a statement Ex.PW-20/S informing the investigating officer that he could get recovered the broken number plate of the Santro car; the bag and notebooks of the deceased and the plastic bag which was meant to dispose of the body of the deceased. He led Insp. B.R.Mann to a dustbin in RU Block, Pitampura and got recovered a broken number plate having written thereon the number 1172, as recorded in the seizure memo Ex.PW-20/T. 15. The investigating officer, Insp. B.R.Mann, tracked down Hardeep Singh PW-8 who was the original owner of the handset having IMEI No.445199456405630 and had also been the subscriber of the mobile number 9811485780. He informed that he had sold the telephone with the SIM card to one Shanty, who, further sold the same to Narender Chauhan in his presence. The investigating officer also tracked Manpreet Singh PW-5 who informed him that he had sold the Crl.A.Nos.32/2009 & 111/09 Page 10 of 30 SIM card pertaining to mobile No.9811587365 to a customer on 4.1.2002. 16. The charge sheet was filed against the appellants and co-accused Zaffar Abbas for having entered into a conspiracy to kidnap Master Milan and demand ransom for his release. They were charged for having kidnapped Master Milan and demanded ransom for his release and also for having murdered him. Needless to state, the prosecution intended to establish, through the testimony of Naresh Kumar PW-2 that Milan had made a friendly entry at 5:00 PM on 4.1.2002 in the Santro car, the last four digits whereof, in the broken number plate at the rear of the car, were 1172 and that was the last time the unfortunate child was seen alive. Through the testimony of Jitender PW-7, the prosecution intended to establish that the said Santro car was handed over by him to the appellants at around 12:00 noon and that the appellants had returned the car to him at around 8:00 PM and that when the car was returned, the rear number plate was broken. In this manner, the prosecution sought to connect the testimony of the two witnesses to establish that they had made Milan to sit in the Santro car. The recovery of the handset Ex.P-18 having IMEI No.445199456405630 from the side pocket of appellant Narender was intended to be Crl.A.Nos.32/2009 & 111/09 Page 11 of 30 connected with the call details provided by the service provider pertaining to mobile No.9811485780 and mobile No.9811587365 as also the testimony of Manpreet Singh PW-5 and Hardeep Singh PW-8 to connect the ransom calls being made to the landline number 7220285 installed in the house of Prem Mittal; all cumulatively pointing out to the fact that Narender had a hand in the kidnapping of the child. Further, through the means of the recovery of the slip Ex.P-19 containing the landline numbers at the residence of Prem Mittal; recovery being from the pant of accused Narender, the prosecution sought to corroborate incriminating evidence against accused Narender. Needless to state the recoveries effected pursuant to the disclosure statement of the appellants were intended to reinforce the participation in the crime by the appellants. Against Zaffar Abbas, the recovery of broken number plate having No.1172 pertaining to the Santro car, was sought to be used as evidence of his involvement. 17. At the trial, various witnesses were examined. But we note the testimony of only such witnesses as would be relevant for discussion of the admissible evidence led and the contentions urged in appeal; noting at the outset that the appellants have not disputed that the dead body of Milan was discovered on 5.1.2002. Crl.A.Nos.32/2009 & 111/09 Page 12 of 30 18. Prem Mittal PW-1 deposed that his son Milan Mittal used to attend tuition classes with a friend from 3:30 PM to 5:00 PM everyday after returning from school. On 4.1.2002 at about 5:30 PM he received a phone call from his wife who told him that his son Milan had not returned home after tuition. Milan was wearing brown shoes, blue T-shirt and blue jeans that day and was carrying a school bag containing notebooks wherein his name and telephone number were mentioned. They kept searching for the child for about 1½ hours and thereafter the police was informed. Police from Police Post Pitampura came and recorded his statement Ex.PW-1/A. At about 9:25 PM Gaurav PW-19 attended a call on the landline number 7220285 installed on the first floor of the house. The caller informed him that Milan had been kidnapped and demanded a ransom in sum of Rs.20 Lacs. Soon thereafter another call was received from the kidnappers and the caller again confirmed that Milan was in their captivity and threatened that the police should not be informed. At about 10:00 PM the same day, the police installed a caller ID on phone No.7220285 on which the ransom calls were received but no call was received on the number after the installation of the caller ID. That the other telephone connection in his house having No.7417368 had a caller ID facility. Crl.A.Nos.32/2009 & 111/09 Page 13 of 30 19. In cross examination, Prem Mittal stated that Ritesh was the real son of his elder brother Mahavir and used to reside about 20 steps away from their house. He stated that till he was arrested Ritesh used to come to their house for short durations and that on 4.1.2002 he was present in his house at 9:30 PM and that he remained in their house till 10:00 PM when the caller ID was installed on the second telephone line. 20. Smt. Surekha Khanna PW-23, deposed that Milan used to visit her house for tuitions after school and that on 4.1.2002, Milan came to her house for tuition at 3:30 PM and left with another boy named Hitesh at 5:00 PM. 21. Naresh Kumar PW-2 deposed that on 4.1.2002, at about 5:00 PM he had gone to a barber’s shop to get a shave, but since there were already a few customers at the shop, he came outside and went to a plot nearby to ease himself where a car of Santro make was already parked. He saw his nephew Milan Mittal crossing the park along with a friend, who, after crossing the park parted company with Milan and went towards a gali. Milan stood near the parked Santro car and started talking with a person sitting inside the car. He could not see the person sitting inside the car since the glasses of the car were tainted. Thereafter Milan sat on the seat adjacent Crl.A.Nos.32/2009 & 111/09 Page 14 of 30 to the driver’s seat in the car and the car sped past him at a speed. He noted that the number written on the broken rear number plate of the car was 1172 and the car had a scenery sticker affixed on the doors. He went to his native village in Haryana for a day and on his return the next day at about 11/12 noon when he visited the house of Prem Mittal he was informed that Milan had been kidnapped. He informed aforesaid facts to the police which were recorded in his statement Ex.PW-2/DA and that the car Ex.P-10 was the one in which he had seen Milan leave the place. 22. Jitender PW-7, deposed that on the day of the incident, at about 12:00 noon he drove down to the dhaba of accused Narender Chauhan @ Guddu in the Santro car No.DL- 4CN-1172 Ex.P-10 belonging to his brother. Accused Ritesh Mittal met him at the dhaba and asked him to lend his Santro car for a few hours and in return gave his Matiz car bearing No.8825. Thereafter, accused Ritesh Mittal left the dhaba along with accused Narender Chauhan and accused Zaffar Abbas in the Santro car. At about 8:00 PM, the same day, when accused and Ritesh Mittal along with other accused met him in front of the Oasis Hotel to return the Santro car, he noted that the rear number plate of the car was broken and the stepney of the car had been replaced. When he questioned Crl.A.Nos.32/2009 & 111/09 Page 15 of 30 accused Ritesh Mittal about the broken number plate he gave a vague reply saying that some children must have broken the number plate. 23. Manpreet Singh PW-5 deposed that he had sold the SIM card pertaining to mobile No.9811587365 to a customer on 4.1.2002. 24. Hardeep Singh PW-8, deposed that he owned a mobile handset of Seimens make together with a SIM card of mobile No.9811485780 in the year 2001. He had sold the same to one Shanty, who had further sold it to appellant Narender Chauhan in his presence. 25. Satbir Singh PW-13, deposed that he was a tea vendor and that he found an abandoned school bag on Khera road. It contained books as well as notebook. On opening the bag he found name of Mittal scribed there with a telephone number mentioned. He rang up the said number. The police came and he handed over the school bag to them. 26. Gaurav PW-19, deposed that the deceased was his cousin (bua’s son) and he learnt on 4.1.2002 at about 8:15 PM that Milan was missing. He was present in the house of his bua at 9:15 PM and at about 9:25 PM a call was received at phone No.7220285. He had responded to the call. The caller demanded Rs.20 lacs and told him that the police should not Crl.A.Nos.32/2009 & 111/09 Page 16 of 30 be contacted. There was disturbance in the phone. After 2 or 3 minutes the bell rang again. The caller repeated the ransom demand of Rs.20 lacs. The police was informed. 27. Deepak Gupta PW-16, Deputy Manager Legal and Regulatory, Hutch Essar Telecom deposed that Major Gurpreet Singh was working him and left the company on 13.11.2003. That he had brought the record with details of mobile No.9811485780 for the month of November 2001 and the mobile details of the number 9811587365 for the month of January 2002 and that the same were Ex.PW-16/A and Ex.PW- 16/B. 28. We may note at this stage that the print out of the two call details is available at page No.619 and 621 of the Trial Court Record, but without any exhibit mark thereon. It appears that during testimony the call records proved by the witness were inadvertently not identified by recording thereon the exhibit mark. 29. Insp. B.R.Mann PW-25 the investigating officer deposed that he was handed over the investigation of the case after the recovery of the body of Milan Mittal. He narrated the sequence of events in the investigation of the case as noted above. He deposed that the disclosure statement of accused Zaffar Abbas was recorded subsequent to the disclosure Crl.A.Nos.32/2009 & 111/09 Page 17 of 30 statements of the other two accused. Subsequent to his disclosure statements accused Zaffar Abbas had got recovered a broken number plate of the car from the dustbin of RU Block Market Pitam Pura. On being cross-examined the witness admitted that he had recorded the statement of Narender Chauhan first. SI Praveen Kumar PW-20 deposed the facts qua the investigation conducted by him i.e. the facts noted in para 1 and 2 above. 30. Vide impugned judgment and order dated 21.11.2008, the learned Trial Judge has acquitted accused Zaffar Abbas, holding that the alleged recovery of the broken number plate of the Santro car having No.1172 written thereon does not inspire any confidence inasmuch as the evidence was not clear, whether, when the car was returned, as claimed by Jitender PW-7, the full number plate or a broken number plate was affixed at the rear of the car. Secondly, the learned Trial Judge had noted that the appellants who were arrested prior had already made a disclosure statement that they can get recovered the broken number plate of the car. Lastly, the learned Trial Judge has noted that in his statement recorded by the police under Section 161 Cr.P.C., Jitender PW-7 had not stated that when he took back the Santro car at 8:00 PM, even Zaffar Abbas was present with the other co-accused. The Crl.A.Nos.32/2009 & 111/09 Page 18 of 30 learned Trial Judge has noted that Jitender PW-7 has improved upon his statement recorded by the police as regards the involvement of Zaffar Abbas. 31. Qua the appellants, the learned Trial Judge has held that Ex.PW-16/B i.e. the call details of the mobile number 9811587365 showed 3 calls made to the landline number 722 0285 between 9:25 PM to 9:29 PM. The same showed that the handset used was having IMEI No.445199456405630. This document corroborated the testimony of PW-19 Gaurav that he had responded to ransom calls between 9:25 PM and 9:20 PM on 4.1.2002. The recovery of the handset having IMEI No. 445199456405630 from the right side pant pocket of accused Narender together with the testimony of PW-5 and PW-8, established that Narender was in possession of the said handset and that previously the handset was used on their mobile number 9811485780 and on 4.1.2002, for the first time it was used on mobile