CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.1 of 21 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 03.10.2011 + 1. CRL.A. 1062/2010 RAJ KUMAR … Appellant versus THE STATE (NCT OF DELHI) ... Respondent AND + 2. CRL.A. 379/2011 RAJENDER KUMAR … Appellant versus THE STATE (NCT OF DELHI) ... Respondent AND + 3. CRL.A. 141/2011 MURARI … Appellant versus THE STATE (NCT OF DELHI) ... Respondent Advocates who appeared in this case: For the Appellant : Mr O.S. Soren in Crl.A.1062/2010 CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.2 of 21 Mr Sumer Kumar Sethi in Crl.A. 379/2011 Mr Sumeet Verma in Crl.A. 141/2011 For the Respondent : Mr Sanjay Lao, APP CORAM:- HON’BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MS JUSTICE VEENA BIRBAL 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes VEENA BIRBAL, J 1. These three appeals are filed against the judgment dated 3rd July, 2010 passed in Session’s case no.112/06 by the learned Addl. Sessions Judge North District, Delhi, arising out of FIR No.83/06 P.S. Ashok Vihar u/s 363-364-A/302 IPC wherein all the three appellants have been convicted u/s 364-A/302/34 IPC. The appeals are also directed against the order of sentence dated 24th July, 2010 wherein all the three appellants have been sentenced to imprisonment for life and to pay a fine of Rs.1000/- each u/s 364-A IPC and in default of payment of fine to undergo SI for one month. They are further sentenced to imprisonment for life and to pay a fine of Rs.1000/- each u/s 302/34 IPC and in default of payment of fine to undergo SI for one month. It is also ordered that both the sentences shall run consecutively. 2. The case of the prosecution is that on 05.02.2006 the complainant Avdesh lodged FIR No.83/06 Ex.PW5/A in police station Ashok Vihar CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.3 of 21 about his son Anuj @ Golu, aged about 10 years, having gone missing. It is alleged that on 4th February, 2006, Anuj @ Golu had gone out of the house at about 4 pm. When he did not return, complainant Avdesh (PW- 2) searched for the child with his relatives but could not find him and therefore he had lodged the aforesaid FIR Ex.PW5/A. SI Haroon Ahmed PW15 was assigned the investigation of this case. On 6th February, 2006 at about 10.00-11.00 AM, SI Haroon Ahmed PW15 was present at Wazir Pur Village with complainant Avdesh (PW-2) for investigation of the case. In the meantime, a call was received by complainant Avdesh (PW-2) on his mobile phone demanding a ransom of Rs.2 lakhs for release of his son. On inquiry, it was found that the phone call was made from a PCO in Seema Puri area. SI Haroon Ahmed PW15 along with other police staff reached at the PCO at C-485, Seema Puri from where the said call was made. The said PCO was run by one Mohan Lal. On inquiry, he could not tell the details of the caller. 3. On 11th February, 2006, complainant Avdesh (PW-2) informed SI Haroon Ahmad PW15 that his brother Amar Pal PW9 had received two ransom calls on his mobile phone at about 3 and 4.40 pm respectively from mobile phone no.9868584460. The complainant Avdesh (PW-2) further informed the police that he was called at Dadri near Ghaziabad and the caller had informed that the date and time to reach Dadri would be informed later. On inquiry, it was revealed that the aforesaid mobile was registered in the name of Tara Chand resident of A-800, Shastri Nagar, Delhi. SI Haroon Ahmed tried to contact Tara Chand but it was informed that he was working in Parmarth Mission Hospital, Shakti Nagar, Delhi. Tara Chand informed him that he never used the aforesaid CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.4 of 21 mobile number nor the same was got issued by him. The call details of the said mobile phone were collected and SI Haroon Ahmed PW15 contacted the persons who had made calls from their phone on the said mobile phone and it was revealed that the said mobile number was being used by Vaibhav Kumar PW14. SI Haroon Ahmed PW15 contacted Vaibhav Kumar PW14 who informed that his mobile phone was missing since 10th February, 2006 and he did not make any complaint in this regard. 4. On 14th March, 2006, complainant Avdesh (PW-2) told SI Haroon Ahmed PW15 that he had received a call on his mobile phone and the caller had instructed him to come at the platform of ‘Kanpur’ Train, Railway Station, Delhi on 15th March, 2006 with ransom amount. It is alleged that the said call was from a PCO of Bharan Railway Station, Agra. On 15th March, 2006 Avdesh PW2 and the police reached at the spot as instructed by the caller but, nobody was found. The complainant Avdesh (PW-2) had suspected few persons of his locality including appellant Rajender @ Barka and Murari. The search was made for them but they could not be traced at their respective addresses. On 21st May, 2006, SI Haroon Ahmed PW15 received a secret information that appellant Rajender @ Barka was standing at Ghanta Ghar near Amba Cinema. On the said date, investigation was assigned to senior officer Inspector S.K.Sharma (PW 17). Inspector S.K.Sharma (PW 17) joined SI Haroon Ahmed PW15, Head Constable Jagdish PW11 and Constable Sudhir PW10 in the investigation and they all had reached near Amba Cinema at about 4 pm. At the instance of informer, appellant Rajender Kumar @ Barka who was standing in front of main gate of Amba CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.5 of 21 Cinema was apprehended. After interrogation, he was arrested vide memo Ex.PW 11/A and his personal search was taken vide memo Ex.PW 11/B. The disclosure statement of appellant Rajender @ Barka was recorded vide memo Ex.PW 11/C. He also disclosed that he could get the dead body of the child recovered. Pursuant to his disclosure statement, they reached Balaswa Jheel where one public person namely Ran Singh @ Rana (PW-4) was joined in the investigation. Appellant Rajinder pointed towards an overturned boat and at his instance the said boat was turned and police officials saw a decomposed dead body of a child without head lying in the water and the head was lying separately. The crime team was called at the spot. The dead body was taken out and the recovery memo was prepared in this regard. Other necessary formalities were completed there. The body was sent to the mortuary of BJRM Hospital. The dead body was preserved there as the father of deceased was out of station. The dead body was highly decomposed and was beyond recognition. Amar Pal PW9 had identified the same from clothes and shoes vide statement Ex.PW9/A on 23.05.2006. On 23.05.2006, at the instance of appellant Rajinder, appellants Raj Kumar and Murari were apprehended from Ashoka Park, Ashok Vihar. They were interrogated and arrested vide memos Ex.PW15/B and C respectively. Before arrest, their personal searches were conducted vide memos Ex.PW15/D & E. Pursuant to their disclosure statements, mobile phone make C-100, Samsung grey colour, was recovered from the possession of appellant Murari. It is alleged that the said mobile phone was used for making alleged ransom calls on 11.02.2006 to Amar Pal PW9. It is alleged that said mobile phone was having sim card (chip) no.8991685065502999934. The necessary formalities were done CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.6 of 21 for seizing the same and was seized vide Ex.PW 15/H. As per case of prosecution, appellant Raj Kumar disclosed that he had purchased said mobile phone from a “smackia” (drug addict) and mobile phone no. 9868323426 was in his name. 5. On 20th June, 2006, blood samples of parents of deceased were taken for DNA test and the same were seized vide memo Ex.PW15/L after completing necessary formalities. The exhibits were sent to CFSL for examination. After completion of necessary formalities a charge sheet was filed before the learned MM, Delhi who committed the case to the Session’s court. The learned ASJ framed charges against the appellants u/s 120B/363/364A IPC read with section 120B IPC and u/s 302/201/34 IPC. Appellants pleaded not guilty in respect of the charges framed against them and claimed trial. 6. The prosecution in all had examined 18 witnesses. Out of which Avdesh, PW-2 is the father of the deceased child and Amar Pal, PW-9 is his uncle. Ran Singh @ Rana, PW-4 is the public witness who is alleged to have accompanied the police officials at the time of the alleged recovery of dead body of the child. Vaibhav Kumar Singh, PW- 14 is the person who had lost his mobile no.9868584460 and case of the prosecution is that ransom calls on 11.02.2006 were made from said number. Gopal Sharma, PW-16 and R.D.Sharma, PW-1 are the witnesses from MTNL. Remaining witnesses relate to police and medical evidence. CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.7 of 21 7. Incriminating evidence was put to the appellants u/s 313 Cr.P.C. They had denied the same. Appellant Rajender had stated that he was lifted from Roshanara Marg at 11.30 am on 21st May, 2006 and he had come from Lucknow and his ticket was taken by the police officials and was taken to the police station where some blank papers were signed by him. The appellants had produced one witness each as defence witness in the trial. 8. Learned trial court relying upon the evidence of recovery of dead body of Anuj @ Golu at the instance of appellant Rajinder and recovery of mobile phone/sim card Ex.P4 and call details Ex.PW1/C and PW16/C held appellants guilty of the offences and convicted them u/s 364A/302/34 IPC vide impugned judgment dated 3rd July, 2010 and sentenced them to undergo life imprisonment vide order of sentence dated 24th July, 2010 as is stated above. 9. Learned counsel appearing on behalf of the appellant Rajinder has contended that case of the prosecution is that appellant Rajinder had the motive to extract money from complainant PW2, father of victim as he knew that he had earned huge amount of money by selling slips of MCD for substituted plots against demolished jhuggis in Bhagat Ram colony, and for that reason, Anuj @ Golu was kidnapped for ransom. It is contended that there is no evidence to show that Avdesh PW2 had earned huge amount from the MCD as is alleged. There is no evidence to show that appellant Rajinder was facing any financial constraints as is alleged. It is contended that there is no evidence led by prosecution to establish the alleged motive. It is contended that as regards evidence CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.8 of 21 against appellant Rajinder that he had got the dead body of victim recovered on 21.05.2006 from Balaswa lake pursuant to his disclosure statement Ex.PW11/C in the presence of police officials and an independent witness Ran Singh PW-4, the same is doubtful. It is contended that reading the evidence, it cannot be said that alleged recovery stands fully established. It is contended that there are variations of material nature in the deposition of PWs in this regard which makes the alleged recovery doubtful. It is further contended that evidence about arrest of appellant Rajinder is also doubtful. As such, prosecution has failed to prove any case against the appellant Rajinder. 10. It is contended that as regards appellant Murari, the only evidence against him is the recovery of Samsung mobile phone make C-100 grey colour having IMEI No. 35236400589419 with sim card of MTNL bearing no. 8991685065502999934 having mobile no. 9868323426 (Ex.P4). It is contended that the evidence about alleged recovery of mobile phone/sim card Ex.P-4 is doubtful. As per evidence led by the prosecution the appellant Murari had produced the mobile phone/sim card Ex.P-4 by taking out the same from the pocket of his shirt after his arrest. It is contended that prior to his arrest, the personal search of Murari was conducted vide memo Ex. PW15/D wherein no such article was found in his possession. Under these circumstances, the evidence that appellant Murari had produced the mobile phone/sim card Ex.P-4 from his possession is not believable. It is further contended that even the call details of mobile phone no.9868584460 Ex.PW16/C are fabricated. It is contended that the same have not been proved by following the mandatory conditions as are laid down in Section 65(B)(2) CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.9 of 21 of the Indian Evidence Act. It is further contended that the case of the prosecution is that when mobile phone/sim card Ex.P4 was seized from appellant Murari, it had the sim card with phone number 9868323426. It is not the case of prosecution that said phone number was used for making the alleged ransom calls on 11.02.2006 to Amar Pal PW9. It is contended that as per prosecution case, mobile phone number 9868323426 has nothing to do with the occurrence of this case. In these circumstances, the alleged recovery of sim card having phone no. 9868323426 from Murari and which is subscribed in the name of appellant Raj Kumar is meaningless as the same is not connected in any manner with the alleged occurrence. It is contended that all the appellants have been falsely implicated in the present case and in any event they deserve to be given benefit of doubt and be acquitted in the present case. 11. On the other hand, learned APP has contended that the recovery of dead body of Anuj @ Golu at the instance of the appellant Rajinder stands established beyond reasonable doubt on the basis of evidence on record. It is further contended that call records relied upon by the prosecution i.e., Ex. PW16/C and Ex.PW1/A have been proved in accordance with law and same establish that the appellants have made the ransom calls to Amar Pal PW-9, uncle of the deceased on 11.02.2006. It is further contended that the recovery of mobile phone/sim card Ex.P-4 also stands established from the appellant Murari. The documents of ownership of sim card pertaining to Raj Kumar are also proved by the evidence of Sh. R.D. Sharma PW-1. It is contended that the recovery of mobile phone, sim card and call details CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.10 of 21 coupled with the recovery of dead body at the instance of appellant Rajinder clearly proves the case of the prosecution beyond reasonable doubt and they have been rightly convicted by the learned Addl District and Sessions Judge, Delhi. 12. We have heard the learned counsel for the parties and perused the entire material on record. 13. As per the prosecution case, the son of the complainant Avdesh PW2 was missing from his residence on 04.02.2006. When his son was not found, Avdesh PW2 lodged FIR Ex. PW5/A on 05.02.2006. On 06.02.2006 a call was received on the mobile phone of Avdesh PW2 from Seema Puri area from a PCO at 10-11 AM wherein the caller had demanded ` 2 lakhs for the release of his son Anuj Kumar @ Golu. On 11.02.2006, his brother Amar Pal PW9 had received two calls from mobile phone no. 9868584460 wherein the caller had again demanded ` 2 lakhs for the release of his son. On the same day, at about 4 pm Avdesh PW2 had received a call from the same mobile number wherein demand of ` 2 lakhs as ransom money was made. Thereafter on 14.03.2006, Avdesh PW2 again received a call on his mobile number and the caller instructed him to come at platform of Kanpur Train, Railway Station, Delhi on 15.03.2006 with ransom amount. The said phone was from a PCO of Bharon Railway Station, Agra. The complainant Avdesh PW2 suspected the appellant Rajender @ Barka and Murari and few persons of his locality. The search was made for them. The appellant Rajender @ Barka and Murari could not be traced. It is stated that on 21.05.2006, SI Haroon Ahmed PW-15 received a CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.11 of 21 secret information that Rajender was standing at Ghanta Ghar near Amba Cinema. On that day, investigation was assigned to Inspector S.K. Sharma PW-17. Inspector S.K. Sharma PW17 had joined SI Haroon Ahmed PW15, HC Jagdish PW 11 and Constable Sudhir Kumar PW-10 in the investigation and they all had reached near Amba Cinema. According to the prosecution, the accused Rajender was apprehended by the IO PW17 in the presence of aforesaid witnesses on the pointing out by a secret informer. Appellant Rajinder was interrogated by IO PW17 and thereafter was arrested vide arrest memo Ex. PW 11/A. His personal search was conducted vide memo Ex. PW 11/B. He had also made a disclosure statement Ex. PW 11/C. As per evidence of SI Haroon Ahmed PW15, on getting the secret information he had left the police station with Insp. S.K. Sharma PW17, HC Jagdish PW11 and Ct. Sudhir PW10 at 4.00 p.m. for apprehending Rajinder. He has deposed that writing work i.e., disclosure statement Ex. PW11/C of appellant Rajinder was recorded at the place of arrest. Only police officials had gone from Police Station to Amba Cinema. The other witness of arrest and recording of disclosure statement Ex.PW11/C of appellant Rajinder is HC Jagdish PW-11. According to him, the secret informer had accompanied them to Amba Cinema from police station. As per prosecution case, he is a witness to recording of disclosure statement Ex.PW11/C of Rajinder also. In cross-examination he has stated that he did not know as to who had scribed the disclosure statement Ex.PW11/C of Rajinder. On further cross examination, he has stated that the same may be in the hand writing of IO and IO had taken 20 minutes in recording the same. On the other hand, SI Haroon Ahmed PW-15, has deposed in the cross examination that the disclosure statement Ex. PW CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.12 of 21 11/C of Rajinder was written by him on the instructions of the IO. The other witness to arrest and recording disclosure statement of appellant Rajinder is Constable Sudhir Kumar PW-10. As per his evidence all the documents were prepared at Balaswa Jheel i.e., place of alleged recovery. According to him, after interrogation appellant Rajinder was taken to Balaswa Jheel where all the documents were prepared. He has also deposed that he cannot say as to who had prepared the memos of arrest/personal search, etc. concerning the appellant Rajinder. There are variations of material nature in the statements of aforesaid PWs, as to who all had gone to the alleged place of arrest. There is also variation as to who had scribed the disclosure statement Ex.PW-11/C of appellant Rajinder and at which place the same was recorded. In his statement under Section 313 Cr.P.C. the appellant has denied his arrest from Amba Cinema on 21.05.2006 at 4.00 p.m. and has denied having made disclosure statement Ex.PW-11/C. The stand of the appellant is that he was lifted from Roshanara Park at about 11.30 am on that day. He had come from Lucknow and his railway ticket was taken by the police officials and was forced to sign certain blank papers. In view of the variations of material nature in the evidence of aforesaid prosecution witnesses as are noted above, it will not be appropriate to rely on the prosecution story as put forth through aforesaid witnesses about arrest and disclosure of appellant Rajinder. 14. The further case of the prosecution is that after the arrest of Rajinder from Amba Cinema, the appellant Rajinder had led them to Balaswa Jheel. On the way, one public witness Ran Singh PW-4 was CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.13 of 21 also joined in the investigation by IO PW17. It is alleged that at Balaswa Jheel, appellant Rajinder got a decomposed headless body recovered. The further case is that the head was lying separately. Both were seized by the IO PW-17 vide memo Ex. PW 4/A. The witnesses to the alleged recovery are SI Haroon Ahmed PW-15, HC Jagdish PW-11, public witness Ran Singh PW-4. As per the evidence of SI Haroon Ahmed PW-15, appellant Rajinder had pointed out an over-turned boat and the said boat was up-turned and they saw a decomposed headless body lying there. The decomposed head of the dead body was also lying there. He has deposed having signed memo Ex. PW4/A. In cross- examination he has deposed that at about 5 pm they had all reached Balaswa Jheel. He has deposed that the boat was over-turned by them. The other witness HC Jagdish PW-11 has deposed that the boat was over-turned by Ran Singh PW-4 who had brought a balli and he had turned the boat and then decomposed body was seen. As per his deposition, the head was searched and thereafter it was found in the water. In cross-examination, he has deposed that he along with Constable Sudhir PW-10 and Ran Singh PW-4 had pulled out the dead body. Constable Sudhir PW-10 has also deposed that a headless dead body was found under the boat and they had made search for the head which was found lying in the water. Ran Singh PW-4, an independent witness to the alleged recovery of dead body, has not stated on which date, month, year the dead body was got recovered. He has also not stated the place from where the alleged recovery was made. He has also not stated that the body was upturned by him by a ‘balli’, as is stated by CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.14 of 21 the other two PWs. He has also not stated the condition in which the body was allegedly recovered i.e. whether it was decomposed or the head was lying separate, as is stated by other PWs. The IO PW-17 has deposed that pursuant to disclosure statement Ex.PW17/C of appellant Rajinder, they had reached Balaswa Jheel and PW-4 was joined as public witness in the investigation. There the appellant Rajinder had pointed out an over-turned boat. At his instance, the boat was upturned and a headless body of a child was seen and head was lying near the body. The same were taken out. In cross-examination, he deposed that Ran Singh PW-4 with the help of police officials had over-turned the body. Constable Dalbir Singh PW-3 who had taken photographs has stated that the head of the body got separated in the process of taking out the dead body. He has also stated in his cross-examination that dead body was taken out by the IO with the help of some labourers. Reading the entire evidence of alleged recovery of dead body, it is seen that there are variations of material nature in the statements of prosecution witnesses as to the manner in which the dead body was lying. There are also variations as to who had over-turned the upturned boat underneath which it is alleged that the body was lying. SI Haroon Ahmed PW-15 has stated that the boat was upturned by them. He has further deposed that the head was lying separately near the dead body. HC Jagdish PW-11 has deposed that Ran Singh PW-4 has brought a balli and the boat was upturned by him. He has deposed that the head was searched in the water and thereafter it was found. According to crime team, witness Dalveer Singh DW-3 the head was separated in the process of taking out the dead body. CRL. A. Nos.1062/2010, 379/2011 & 141/2011 Page No.15 of 21 There is also no cogent evidence that appellant Rajinder had led them to the alleged place of recovery. As per Constable Dalbir Singh, PW-10, the police official along