Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL (1) Criminal Appeal No. 106 of 2010 Rajesh S/o Ganpat, Resident of Chakferi, Police Station Pant Nagar, District Udham Singh Nagar. ……..Appellant. (In Jail) Versus State of Uttarakhand. …….Respondent Mr. Karan Pal Singh, with Mr. B.D. Pandey, Advocates present for the appellant. Mr. Amit Bhatt, Addl. G.A. present for the State/respondent. WITH (2) Criminal Appeal No. 111 of 2010 Dharmendra S/o Sri Dhruv Singh, Resident of Chakferi, Police Station Pant Nagar, District Udham Singh Nagar. ……..Appellant. (In Jail) Versus State of Uttarakhand. …….Respondent Mr. Sandeep Kothari, Advocate present for the appellant. Mr. Amit Bhatt, Addl. G.A. present for the State/respondent. Dated: April 18, 2011 Coram: Hon’ble Prafulla C. Pant, J. Hon’ble V.K. Bist, J. Delivered by :Hon’ble V.K. Bist, J. These appeals, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), are directed against a common judgment and order dated 30th April, 2010 passed by Addl. Sessions Judge/1st Fast 2 Track Court, Roorkee, District Haridwar in Sessions Trial No. 92 of 2008 ‘State vs. Dharmendra’, and in the connected Sessions Trial No. 138 of 2008 ‘State vs. Rajesh and another’ whereby appellants Rajesh and Dhermendra are convicted under Sections 302, 364-A and 201 of the Indian Penal Code, 1860 (for short I.P.C.). Each one of the appellants has been sentenced by the trial court to rigorous imprisonment for life under Section 302 I.P.C. with fine of ` 10,000/- and in default of payment of fine further rigorous imprisonment of one year, rigorous imprisonment for life under Section 364-A I.P.C. with fine of ` 5,000/- and in default of payment of fine further rigorous imprisonment of one year and rigorous imprisonment for a period of five years for the offence punishable under Section 201 I.P.C. with fine of ` 2,000/- and in default of payment of fine further rigorous imprisonment of six months. It is directed that all the sentences shall run concurrently. The other co-accused Sunil was acquitted by the trial Court. 2. Since in both these appeals there involves common set of facts, therefore, for the sake of convenience, both these appeals have been consolidated and are being decided by a common judgment. Criminal Appeal No. 106 of 2010 shall be the leading appeal. 3. Heard learned counsel for the parties and perused the Lower Court’s Record. 4. Prosecution story, in brief, is that on 21.10.2007 Ramashray Singh (PW1-informant) lodged a written report (Ext.A-1) at Kotwali, Roorkee to the effect that his son Dhananjay Singh (deceased) had gone out of 3 his home on 19.10.2007 at 7:00 a.m., but he did not return back till 3:00 p.m. on 20.10.2007. Dhananjay was 16 years old boy with height of 5’ 6”, long thin face, wearing white shirt blue striped and black striped trousers having Mobile No. 9410543314 (IMEI no. 356627001255777). On 20.10.2007 at 11:00 O’ clock, he talked with Dhananjay by that phone. Thereafter, no conversation could take place and his mobile was found diverted in his mother’s phone. On the basis of this written report, Chick Report (Ext. A-18) was prepared and a case crime no. 31/2007 was registered against unknown persons. On 24.10.2007 another written report (Ext. A-2) was lodged by the informant Ramashray Singh (PW-1) at the same Police Station with the averment that he lodged a missing report about his son on 21.10.2007 and now threatening calls are continuously coming in his wife’s mobile no. 9411121797 demanding ransom of ` 10,00,000/- and in case the same is not met, Dhananjay would be killed. The informant suspected that his son had been kidnapped for ransom. On the basis of the second written report (Ext. A-2), the case crime number was converted into 364-A I.P.C. and a crime no. 363 of 2007 was registered relating to offence punishable under Section 364-A I.P.C. An entry was made in the General Diary. Investigation of the case was entrusted to Sub Inspector Amarjeet Singh (PW-12), who started investigation. During investigation, it was found that Dhananjay (deceased) was last seen with accused Rajesh, Dharmendra and Sunil, roaming at Pant Nagar Airport. Thereafter, on receiving information through telephone on 26.10.2007 that a dead body is found lying in a sugarcane field in Pant Nagar farm, the Investigating Officer, after identification of the dead body in the 4 presence of the informant, recovered the dead body of deceased Dhananjay. Inquest Report of the dead body (Ext. A-3) was prepared. The Investigating Officer, on the pointing out of the witnesses, prepared site plan (Ext. A- 11). The dead body of the deceased, in a sealed condition, alongwith Inquest Report (Ext.A-3), Police Form No.13 (Ext.A-5), the sketch of dead body (Ext.A-6), letter to Chief Medical Officer, J.L.N., District Hospital, Rudrapur for conducting post mortem (Ext.A-7) and sample seal (Ext. A-8), was sent for post mortem examination. After the dead body of Dhananjay was recovered, Section 302 I.P.C. was also added to the crime no. 363 of 2007. On 26.10.2007 one rapper, in which DISPOVAN was written in English, was also recovered and a memo (Ext. A-9) was prepared by the I.O. On 23.12.2007, on the pointing out of the accused Rajesh, a syringe (in which for single use only, 1,2,3,4,5,6 ml. and DISPOVAN was written), used in the crime, concealed under soil, in front of his house, was also recovered at the corner of the wall of water tank. In this regard, a recovery memo (Ext.A-12) was prepared. On 18.01.2008, one purse, belonging to Dhananjay (deceased), was also recovered from the possession of Sunil S/o Ganpat and a recovery memo (Ext. A-13) was prepared. Dr. R.K. Bhatt, Medical Officer (P.W.7) conducted post mortem examination on the dead body of Dhananjay on 26.10.2007 and prepared autopsy report (Ext. A-10). He recorded two ante-mortem injuries on the person of the deceased in his report. The Medical Officer opined that the deceased had died of asphyxia due to strangulation. The Investigating Officer interrogated the witnesses, recorded their statements and thereafter filed Charge sheet (Ext.A-14) on 22.01.2008 against the accused/ appellant Dharmendra for his trial in respect of 5 offences punishable under Section 302/201 and 364-A I.P.C. On 08.03.2008, a supplementary Charge Sheet (Ext.A-15) was also submitted by the Investigating Officer against the accused/appellant Rajesh and another accused Sunil for their trial under the same offences. 5. It is revealed from the record that deceased Dhananjay was a student of Class XI studying at Roorkee. On the fateful day i.e. on 19.10.2007 it was a holiday in the school. On that day Dharmendra, who is son of the BUA (father’s sister) of PW-3 Smt. Saroj alongwith Rajesh came in the house of PW-3 Smt. Saroj. It is alleged that Rajesh is one of the friends of Dharmendra. Rajesh and Dharmendra were regular visitors in the house of the deceased. On that day, the accused/appellants told mother of the deceased that a Cricket match is going on at Pant Nagar. The deceased was fond of Cricket. The accused/appellants took Dhananjay from his home with them on 19.10.2007 at 7:00 a.m. to Pant Nagar. At that time Radhey Raman (PW-2) and one Narhari Singh also saw Dharmendra, Rajesh and deceased coming out of lane. Father of the deceased was out of station, who returned one day after the deceased left the home. Due to fear, mother of the deceased did not disclose him about allowing Dhananjay to go with the accused/appellants. At the time of leaving his home, Dhananjay was wearing a blue striped white shirt and black striped trousers. On 22.10.2007 mother of the deceased received telephonic call from accused Rajesh demanding a ransom of ` 10,00,000/- with the further threats that her son, who was in their captivity, will be killed, if she made it public. On 26.10.2007, dead body of deceased was found lying in a sugarcane field in Pant Nagar. On the dead body of the 6 deceased, the wears were the same, which the deceased had put on at the time he left his house. 6. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the Court of Sessions for trial. On 14.03.2008, learned Addl. Sessions Judge/ 1st F.T.C., Roorkee, after hearing the parties, framed charge of offences punishable under Section 364-A, 302, 201 I.P.C. against accused/appellant Dharmendra, who pleaded not guilty and claimed to be tried. On 07.07.2008, a separate charge of offences punishable under Section 364-A, 302, 201 I.P.C. was also framed against the accused/appellant Rajesh and another co-accused Sunil to which they pleaded not guilty and claimed to be tried. 7. The prosecution, in order to prove its case, got examined PW-1 Ramashray Singh (informant-father of the deceased), PW-2 Radhey Raman Singh (witness of last seen), PW-3 Smt. Saroj (mother of the deceased, in the presence of whom, the accused/appellants took the boy with them), PW-4 Bhim Singh (declared hostile), PW-5 Jitendra Singh (declared hostile), PW-6 Sub Inspector T.S. Khati, who prepared inquest report and sent the dead body of Dhananjay for post mortem examination, after preparing other necessary documents, PW-7 Dr. R.K. Bhatt, Medical Officer, who conducted post mortem on the dead body of the deceased, PW-8 S.H.O. Dinesh Singh Bhandari, who subsequently concluded the investigation, PW-9 Syed Qumar Shafiq, in whose presence the dead body of the deceased was found which was identified as the dead body of Dhananjay, PW-10 Bajrangi Yadav, who 7 first of all sent information about the dead body lying in sugarcane field, PW-11 Fulendra Singh Rawat, who prepared recovery memo of the dead body lying in the sugarcane field, PW-12 Sub Inspector Amarjeet Singh, who started investigation and PW-13 Head Constable Sohan Pal Singh, who made entries in the General Diary about the missing of Dhananjay. The oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which, they alleged the same to be false. In defence, D.W.1 Jagdish was got examined. After hearing the learned counsel for the parties, the trial Court convicted the accused/ appellants Rajesh and Dharmendra under Sections 302, 364-A and 201 I.P.C. Each one of the appellants has been sentenced by the trial court to rigorous imprisonment for life under Section 302 I.P.C. with fine of ` 10,000/- and in default of payment of fine further rigorous imprisonment of one year, rigorous imprisonment for life under Section 364-A I.P.C. with fine of ` 5,000/- and in default of payment of fine further rigorous imprisonment of one year and rigorous imprisonment for a period of five years for the offence punishable under Section 201 I.P.C. with fine of ` 2,000/- and in default of payment of fine further rigorous imprisonment of six months each. It was directed that all the sentences will run concurrently. However, other co- accused Sunil was acquitted by the trial Court of the charge against him. Being aggrieved by the impugned judgment and order dated 30.04.2010 passed by the Addl. Sessions Judge/ 1st F.T.C., Roorkee the accused/ appellants have preferred these appeals. 8. From a bare perusal of the evidence on record, it is clear that the case is based entirely upon 8 circumstantial evidence, as no one had seen committing murder of the minor boy (Dhananjay). Now this Court has to see as to whether the accused/appellants have committed the crime, as alleged against them and whether the prosecution has succeeded in completing the chain of evidence consistent with the guilt of the accused/appellants, which may encircle the accused/ appellants for the commission of said heinous crime. In this regard, first of all, we take the oral evidence produced by the prosecution. 9. P.W.1- Ramashray Singh (father of the deceased/informant), in his examination-in-chief, has stated that the incident was of 19.10.2007. He had gone Lucknow for some work, from where he returned on 20.10.2007. He did not find his son Dhananjay, at home. His wife told that Dhananjay had gone somewhere. In the evening also, he did not find his child at home. He enquired from his wife. At this, she told him that their son has gone to a nearby place and for which he has not to worry. At the late night, when his child did not return, he got worried. Again his wife told him that his son might be at his friend’s place and would come back. After waiting till 9:00 p.m., he wrote a report about missing of his child. He lodged the report at Police Station on 21.10.2007. This witness proved written report (Ext. A-1). He further stated that his wife told him that Dhananjay was wearing black striped Jeans and blue striped white shirt. On 19.10.2007, in the intervening period of 8:00 p.m. to 10:00 p.m., he received a call of his son, from mobile no. 9410543314, in his mobile no. 9412714746, who enquired about his coming back at home. Thereafter, the call was cut and no contact could be made. He was kept on making search for 9 his son. This witness has further stated that on 22.10.2007, his younger daughter told him that her mother is weeping and calling him. Thereafter, his wife narrated him that on 19.10.2007 Dhananjay had gone to Pant Nagar, with his maternal uncle-Dharmendra and one Rajesh, to play Cricket. On his asking that why she did not disclose earlier, she replied that she was afraid that he (Ramashray Singh) would scold her. His wife told that a phone call was received on her mobile from his son’s mobile number asking to pay a ransom of ` 10,00,000/- as the accused/appellants have kidnapped Dhananjay with further threats if the matter is reported to Police or to anyone else, their son would be killed. This witness has further stated that he was toiling in search of his son. Thereafter, on 22.10.2007, he alongwith his brother-in- law Narhari Singh, Radhey Raman Singh and Markandey Singh went Pant Nagar and made efforts to search his son. He also went to his relatives but could not find his son. He returned back to Roorkee on 23.10.2007 and, thereafter on 24.10.2007 he lodged another report (Ext. A-2) at the Police Station. This witness has proved the written report (Ext.A-2). After lodging said report, when this witness tried to make search of his child at Pant Nagar, then on 26.10.2007, he was informed that a dead body of an unknown person was found lying at Pant Nagar, Haldi Road, near Dilip Industries, and he was called there. When he reached at the site, he identified the body of his son. Before the Court also, the clothes of the deceased, sealed in a bundle, were opened and this witness identified the same as the one belonging to the deceased, which he had put on at the time leaving his home. He proved bundle of clothes (Ext.-1), T-shirt and trousers (Ext.-2 and 3 respectively), belt, undershirt and 10 underwear (Ext. 4,5 and 6 respectively). This witness was cross-examined by the defence counsel, at length, but nothing has come out in his evidence, which may create any doubt. The evidence of this witness, on each and every point of the prosecution story, is reliable, believable and trustworthy. 10. Now we come to other circumstances completing the chain of evidence against the two accused/ appellants, by which the prosecution has proved the charges to encircle the accused/appellants. PW-2 Radhey Raman Singh states that Dhananjay was his nephew. On 19.10.2007 he had gone to meet his sister Saroj (PW-3) at her residence situated at Jadugar Road, Roorkee. His brother Narhari Singh was also with him. Outside of the lane, the accused/appellants Dharmendra, Rajesh and Dhananjay met them at about 7:00 am. When he enquired Dhananjay as to where he was going early in the morning, he told that he was going with Dharmendra MAMA (maternal uncle) and Rajesh to Pant Nagar to play Cricket. Then he got confirmation of the statement of his nephew from accused Dharmendra. At that time, Dhananjay was wearing a white T-shirt bearing blue stripes and trousers bearing black stripes. From that day, Dhananjay did not return to home. When he tried to contact Dhananjay (deceased) on his phone, the same got connected with his (Dhananjay’s) mother’s phone. On 22.10.2007, a call was received in mobile phone of Saroj (mother of the deceased) demanding ransom of ` 10,00,000/- with threat not to disclose the incident to anyone, otherwise the boy would be killed. On 26.10.2007, dead body of Dhananjay was recovered from sugarcane field situated at eastern side of Haldi Road. He 11 saw the dead body of Dhananjay, which was identified. This witness has identified his signatures in the inquest report (Ext.A-3). If we assess the evidence of PW-2 Radhey Raman Singh, we find that this witness is a natural witness. This witness was cross-examined by the defence counsel, at length, but nothing has come out in his evidence, which may create any reasonable doubt in his testimony. 11. Statement of PW-1 and PW-2 is fully corroborated by the evidence of PW-3 Smt. Saroj (mother of the deceased), who is one of the main witnesses produced by the prosecution in order to complete the chain of evidence consistent with the guilt of accused/appellants. This witness has stated that the incident occurred about one year ago. Dhananjay was his son, who was studying in XI standard at Roorkee. The accused Dharmendra and Rajesh came to her house. The accused Dharmendra is son of her father’s real sister (BUA’s son). Dharmendra was working in the Sugar Factory. Rajesh was one of the friends of Dharmendra. The accused/appellants often used to come to her house. They requested her to help them in getting job. On her request, her husband got them provided some job. On the day of incident, when the accused/ appellants came to her house, they told that a Cricket match is going on at Pant Nagar. Her son was fond of Cricket. It was about 7:00 a.m. on 19.10.2007, when she sent her son Dhananjay with the accused/appellants for Pant Nagar. At that point of time, his brother Radhey Raman (PW-2) and Narhari Singh had come to her house, who had asked her as to why she had sent Dhananjay with Dharmendra and Rajesh. She replied that they intend to play. Her husband 12 was not present at home because he had gone Lucknow two days earlier and returned back one day after the incident. Her son did not return back till then. When her husband returned back, she did not disclose anything to him due to fear. She further stated that as she and her family was unknown in the city, her husband was not permitting their son to go with anyone. At the time of leaving his home, Dhananjay was wearing a white shirt bearing blue stripes and gray coloured trousers bearing black stripe. On seeing Dharmendra and Rajesh in the Court room, this witness identified them as the accused, who took her son Dhananjay from her house. This witness has further stated that first of all, she thought that Dhananjay had gone to play Cricket and will return soon. She received a telephonic call on 22.10.2007 from accused Rajesh for a ransom of ` 10,00,000/- telling her that her son was in his captivity and threatened her not to disclose the same to Police, otherwise her son would be killed. This witness has further stated that thereafter she told this fact to her husband. She further told that parents of accused Dharmendra and Rajesh lived in Pant Nagar. This witness identified the clothes in the Court, after a bundle containing the clothes was opened. This witness was also cross-examined, at length, by the defence counsel. In her cross examination, she stated that earlier also accused Dharmendra and Rajesh took Dhananjay 2-3 times with them for playing cricket and came back same day. She did not disclose this fact to her husband as he never permitted Dhananjay to go with anyone. She further stated that Dhananjay was a boy, was fond of cricket and since accused Dhamendra was a relative, she allowed her son to go with the accused. In her cross-examination nothing is found which shakes the testimony given by the witness in 13 her examination-in-chief as well as in cross-examination. Evidence of this witness is also natural, reliable and trustworthy. 12. From the evidence of PW-2 & 3, as narrated above, it is established on record that on 19.10.2007 at 7:00 a.m. the accused/appellants took Dhananjay with them under the pretext to play Cricket at Pant Nagar. These are the two witnesses, who have proved that Dhananjay was taken by the accused/appellants from his home and thereafter, Dhananjay did not return back alive. Other witnesses have proved that the dead body of Dhananjay was recovered at H-division in Pant Nagar in a sugarcane field. Evidence of PW-1 (informant) is corroborated from the evidence of PW-3, who has categorically stated that her husband was not at home on the date of incident and he had gone Lucknow. In respect of demand of ransom of ` 10,00,000/- by the accused Rajesh, the prosecution examined two witnesses. One of whom is PW-1 Ramashray Singh and other is PW-3 Smt. Saroj. PW-3 Smt. Saroj has categorically stated, on oath, that on 22.10.2007 a telephonic call was received from accused Rajesh for a ransom of ` 10,00,000/- informing her that her son was in his captivity and threatened her not to disclose the same to Police otherwise her son would be killed. In this regard PW.1 Ramashray (informant) has also stated that on 22.10.2007, his younger daughter told him that her mother was calling him with tears in her eyes. Thereafter, his wife narrated everything to him. Accused Rajesh used to come to house of the deceased and Smt. Saroj knew him very well. Her statement, that Rajesh telephoned her asking ransom of Rs. Ten lacs from her, cannot be disbelieved, as she recognized voice of her 14 relative-accused Rajesh. Now we come to the other circumstance of the case, in order to complete the chain of evidence to encircle the accused/appellants, which has been brought on record by the prosecution. In this regard, (PW-2) Radhey Raman Singh has stated that he saw Dhananjay going out of his house with the accused on 19.10.2007. Thus, Dhananjay’s going out with the accused/appellants on 19.10.2007 and six days after his dead body being recovered from Pant Nagar read with the fact that ransom was demanded by accused Rajesh, is sufficient to hold the accused/appellants guilty of the charge levelled against them. Another circumstantial evidence, on the record, is of the statement of PW-6 Sub Inspector T.S. Khati, who has stated that at the time of recovery of dead body of Dhananjay, he recovered a rapper of DISPOVAN and prepared memo (Ext.A-12) in the presence of the witnesses. Before the trial Court also, the same was produced as material exhibit no.-9. On the pointing out of accused Rajesh, on 26.10.2007 one rapper, in which DISPOVAN was written in English was also recovered and a memo (Ext. A-12) was prepared by the I.O. On 23.12.2007, on the pointing out of the accused Rajesh, a syringe (in which for single use only, 1,2,3,4,5,6 ml. and DISPOVAN was written), used in the crime, in front of his house concealed under soil, was also recovered at the corner of the wall of water tank. 13. The learned counsel for the accused/ appellants submitted that no motive is assigned to the accused/ appellants for commission of said crime. We think that in the cases where demand of ransom is made and if the accused takes shelter of absence of motive in commission of the crime, the same cannot be accepted 15 and should be rejected at the threshold. It is further argued that there are laches and omissions on the part of Investigating Officer, as no call detail of the mobile phone of accused Rajesh, by which he made demand for ransom from the