IN THE HIGH COURT OF DELHI AT NEW DELHI
CRIMINAL APPEAL NO. 645 OF 2004
06.12.2006
AJAY KUMAR TRIPATHI ..... Appellant
Through: Mr. R.S.Mishra, Advocate.
versus
STATE ..... Respondent
Through: Mr. Ravinder Chadha, APP
CORAM:
HON'BLE MR. JUSTICE R.S.SODHI
HON'BLE MR. JUSTICE P.K.BHASIN
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 the digest? [Yes]
J U D G M E N T
R.S. SODHI, J.(Oral):
1. Crl.A.No.645/2004 is directed against the judgment of Additional
Sessions Judge, Karkardooma, Delhi in Sessions Case No.77/2003 arising from FIR
No.59/2000 PS Bhajan Pura, whereby the learned Judge vide his order dated
9.7.2004 has held the appellant guilty of the offence under Section 364A IPC,
but acquitted him under Section 302/201 IPC and further by his order dated
13.7.2004 sentenced the appellant to life imprisonment together with find of
Rs.2,000/- and in default of payment of said fine, additional RI for two months
for an offence under Section 364 A IPC.
2. The facts of the case as have set out by the learned trial Judge in his
judgment are as under:-
?The brief facts of the case of the prosecution are that on dated
22.2.2000, one Suresh Kumar Gupta came to PS Bhajanpura and gave his statement
to the duty officer, on the basis of which FIR bearing No.59/00 for offence
under Section 363 IPC, copy of which is Ex. PW 2/A, was registered. As per said
statement of Suresh Kr. Gupta, he has been running a cloth shop at main market
Bhajanpura, and his maternal nephew Neeraj, S/o Rajeshwar Dayal, R/o B-20, Gali
No.4, Bhajanpura, Delhi, who was studying in Pandit Yaadram Public School,
Bhajanpura and whose school is over by 1.30 PM, had gone to school at about 7.30
AM, but had not yet returned from the school and his particulars/description are
as follows : aged about 11 years, height 3-1/2 feet, colour wheatish, round
face, and lean body, who is wearing brown shirt and coca cola colour trouser,
coat and socks, black leather shoes and having school bag. Since despite their
best efforts, he could not be traced out, hence he suspect that he has been
kidnapped and therefore, legal action be taken. On the basis of said statement
of Suresh Kr. Gupta, FIR under Section 363 IPC was registered and matter was
handed over to SI Tej Ram for investigation. During the course of
investigation, the accused Ajay Kr. Tripathi alongwith the ransom amount of
Rs.Three lacs was apprehended at Sheesh Ganj Gurudwara and therefore, at his
instance, dead body of Neeraj was recovered and on his pointing out, shoe and
school bag of deceased Neeraj were recovered and postmortem on the dead body of
Neeraj was got conducted in which cause of death was opined as ?asphyxia due to
smothering?. Site plan was prepared, photographs of the spot were taken and
statement of the witnesses were recorded and after the conclusion of the
investigation, ultimately charge sheet for offence under Section
363/364A/342/302/201 IPC was filed against accused Ajay Kr. Tripathi in the
court of concerned learned Metropolitan Magistrate and as offence under Section
364A/302 IPC are Sessions triable, after compliance of section 207 Cr.P.C.,
learned Metropolitan Magistrate was pleased to commit the matter to the court of
Sessions and the case was assigned to the court of Sh. K.S. Pal, Ld. ASJ,
Karkardooma Courts, Delhi and during the trial, matter was transferred to this
court.?
3. The prosecution in order to establish its case examined as many as 27
witnesses. Of these important one being, PW-11 Rakesh Gupta, uncle of the
deceased, PW-2 Suresh Kumar Gupta, the complainant, Rajeshwar Dayal, father of
the deceased as PW-4 Smt.Santosh, mother of the deceased as PW-5 and SI Tej Ram
Meena as PW-27. The main witness of the prosecution is Rakesh Gupta PW-11, he
deposed in the court that on 22.2.2000 at about 2 PM, while he was sitting at
his shop at Bhajan Pura he was informed by his elder brother Rajeshwar Dayal
that his son Neeraj had not come back from school. Thereafter, they also
informed about the same to Suresh Gupta who is his brother in law and he
alongwith Pankaj, his elder nephew went in search of Neeraj, but Neeraj could
not be traced out despite their best efforts and thereafter they came back to
the house of their brother Rajeshwar Dayal and at about 7.15 PM he attended the
telephone call and the caller informed him that Neeraj is with him and demanded
for Rs. three lacs for his release and he informed about the said fact to the
family members and information was also given to the police in this regard and
he got installed tape recorder on the said telephone No.2171598 through his
friend Surender Arora and after sometime police also reached their house and was
informed in this regard. On the next day at about 7 PM , same person called by
phone on the same number and asked if money had been arranged and when he
replied that money could not be arranged he again asked for arranging the money
and will give call afterwards. At about 8.50 or 9 PM call was made by the same
person and when he stated that money had been arranged, he told him to give that
amount of Rs. three lacs ahead of Majnoo ka Tila at red light Gurudwara and turn
towards right side and near the wall of a garden where STD and ISD with two plus
is written and wall is to be climbed inside and on the tree on which there would
be the writing of 'YES' money bag is to be kept there and to leave the place.
The caller on the phone had also assured him that he will give proof of Neeraj
when he will go to that pointed place. Thereafter, he went to PS informed the
police and police asked him to reach the spot with money and police would follow
him. Thereafter, he along with the amount of Rs. three lacs keeping in a cloth
bag reached at the pointed place at 10 PM but as it was dark inside the park,
and he did not see anyone he returned back along with the bag. On the next day
morning at about 8.30/9 AM he received a phone call by the same person who asked
him as to why he did not bring cash yesterday and thereafter he asked him to
bring the cash amount at Sheeshganj Gurudwara and informed him that inside the
Gurudwara in the gents toilet he would found a token of 142 in a aala and in
return of said token 142 he will get the bag containing clothes and kara of
Neeraj from the Ghathari Ghar and after keeping the said bag he will place the
bag containing cash amount and said token is to be kept in the same aala and
after receipt of ransom amount Neeraj would reach their house. After attending
the said call, he went to PS and informed the police in this regard, on which a
raiding party was formed and police asked him to do as he was told to do on
phone and police team would be with him. Thereafter, he alongwith money bag
containing Rs. three lacs reached Sheeshganj Gurudwara where SI Meena and other
police party met him there and told him one Dilbag Singh Sardarji of the police
had been made to sit in the gathri ghar and he should not worry. Accordingly,
he went to the toilet at Gurudwara and took the token from the aala and
collected the gathri from the gathri ghar and in place of bag containing coat
and kara of Neeraj, he placed money bag containing Rs. three lacs and placed the
said token in the aala itself and hided himself in the side of Gurudwara. At
about 7.30 PM, he saw SI Meena along with other police officials apprehending
that person who was having the thaila in his hand and that person was Ajay Kumar
Tripathi who was known to him being neighbourer and was residing in the
neighbourhood as a tenant and the brother of said Ajay Kumar, Sanjay was friend
of Neeraj. On search of thaila which was in the hand of Ajay Tripathi Rs. three
lacs were recovered and from his pocket one map and Rs.15/-in cash were
recovered and said Ajay Tripathi is the accused present in the court. He also
added that said Ajay Tripathi had visited their house on the birthday and had
presented a gift which was earlier to this incident. The police seized the said
currency notes vide memo EXPW 10/G bearing his signature at point B and the map
recovered from the pocket of accused was seized vide memo EXPW 10/A and the said
map is EXPW 10/B. The kara and coat which were found in the bag were handed
over by him to the police which were seized vide memo EXPW 10/F. The accused
was arrested vide personal search memo EXPW 10/C. He informed about the
incident at his house to Suresh Gupta. He remained throughout with the police
and from there accused was taken near Gali No.9 at the corner at Thana road
where the accused led the police party and pointed out towards the lanter of the
nala. Meanwhile, Suresh Gupta also reached there and the accused got recovered
the dead body of his nephew Neeraj. Both hands and legs of Neeraj were found
tied.
4. The star witness of the prosecution PW-2, Suresh Kumar Gupta has
testified that on 22.5.2000 at about 2.30 PM while he was present at his shop at
B-5, Bhajanpura, main market, dever of his sister and Pankaj, son of his sister
informed him that Neeraj younger son of his sister who had gone to school had
not returned. Thereafter, they went to search for Neeraj but he could not be
traced out despite their best efforts. He also went to PS Bhajanpura and lodged
a missing report in this regard, on the basis of which FIR was lodged and copy
of the same is EXPW 2/A which bears his signature at point A. He also added on
the same day at about 7 PM one telephone call was received by Rakesh, dever of
his sister at his sister's house and Rakesh told him that Neeraj was kidnapped
by some person and Rs. three lacs was demanded by the kidnapper and one the date
when he visited the house of his sister Rakesh informed him that he received a
telephone call and kidnapper had asked him to bring ransom amount at Majnoo ka
tila on 23.2.2000 and Rakesh went to that place, but kidnapper was not found
there. On the next day he went to the house of his sister. Rakesh again
informed him that a phone call was received by him on that day in the morning as
kidnapper had asked him to come to Sheesh Ganj Gurudwara, Chandni Chowk along
with ransom amount. At about 8/8.15 PM, they received a phone call from Rakesh
that Ajay Kumar Tripathi who has been residing in Bhajanpura was found lifting
the ransom amount and he was apprehended but till 12 night he received no
further information. Therefore, he went to PS Bhajanpura at about 12.50 in the
night and at the instance of duty officer, he went to gali No.9 Bhajanpura where
accused Ajay Kumar along with the police officials were found present. Accused
Ajay Kumar Tripathi pointed out the corner of the gali No.9 that dead body was
kept there and thereafter dead body of Neeraj was recovered from the drainage
and the pointing out memo in this respect is EXPW 2/B which bears his signature
at point A. He also added that on 25.2.2000 he had gone to mortuary GTB
Hospital and he identified the dead body of his bhanja Neeraj and his statement
in this regard is EXPW 2/C. In cross examination by the Ld. Defence counsel,
said PW 2 further added that on that day the police had gone to his sisters
house after lodging the FIR. He also added that on the next day of incident, he
was present at his sisters house when the ransom call was attended by Rakesh and
the call was to hand over the ransom money at Majnoo ka Tila. Again in the
morning of 24th the telephone call for ransom amount was attended by Rakesh and
Rakesh had informed about the call to the PS in the morning itself. He denied
the suggestion of Ld. Defence counsel that the dead body was not recovered in
his presence as the same was already recovered during the day time and accused
was falsely implicated at the instance of the police.
5. The testimony of PW-11 stands corroborated by that of PW-10, Harbans
Singh who is a public witness. Further Suresh Kumar Gupta, complainant lodged
an FIR which is exhibited PW 2/A. Rajeshwar Dayal PW-4 has deposed in the Court
that his son Neeraj was studying in 4th standard in Pandit Yaadram School, Tanki
Road, Bhajanpura and on 22.2.2000, Neeraj had gone to the school at about 7.30
A.M. but did not come back till 2 P.M. and thereafter they searched for Neeraj
and at about 4 P.M., he telephoned at 100 number regarding the missing of his
son but till 6 P.M. he could not get any clue and as such Suresh Gupta, who is
his brother in law (sala) went to PS Bhajanpura and lodged the missing report in
this regard. At about 7/7.15 PM, when he was along with his brother Rakesh
Gupta and brother in law Suresh Gupta were present at his house a telephone call
was received by his brother Rakesh Gupta who informed that neeraj had been
kidnapped and kidnapper has been demanding Rs.three lacs as ransom and therefore
a taping system of the phone was installed at his phone connection by one
Surender Arora. His brother in law Suresh Gupta went to PS and informed police
about the said telephone call on which police came to their residence and
recorded his statement. He also added that telephone number installed at his
house is 2171598. In the cross-examination by the Ld. defence counsel. He
further added that on the date of incident his son Neeraj had gone to school
from his house in his precence at about 7.30 AM and his son used to go on foot
and come back to his house on foot. On that day, when his son Pankaj came to
his shop and informed him that Neeraj had not returned from the school he
immediately called for his brother Rakesh and his brother in law Suresh Gupta.
He also added that Suresh Gupta his brother in law had gone alone in PS to lodge
the FIR. He also added that his statement was recorded by the police at about
8/8.15 PM on that very day i.e. on 22.2.2000 at his house. He also added that
information about the recovery of dead body of his son was received by him in
the night of 24.2.2000. He also added that the distance between the place of
recovery of his sons dead body i.e. corner of the gali No.9 and his house is
about a walking distance of 10 minutes. He denied the suggestion that he has
been deposing falsely.
5. Smt. Santosh PW-5, who is the mother of the deceased, deposed in the
Court that on 22.2.2000, at about 7.30 AM, her son Neeraj who was studying in
4th class at Pandit Yaadram School left from their house for the school and he
was in school uniform. He used to return at about 1.30 PM, but on that day he
did not return home and so she informed her husband through her son Pankaj. He
brother and devar were also called at home. One telephone call was received in
the evening at their phone No.2171598 which was attended by her devar but
informed that someone had kidnapped her son and asking for money for releasing
him. She also added that caller had demanded Rs.Three lacs for the release of
her son. In the cross-examination by the Ld. Defence counsel, he further added
that police had come to their house in the evening and she was present at the
house when the telephone call was attended by her devar. She denied the
suggestion that she had been deposing falsely.
6. The Investigating Officer, PW-27 has deposed to the steps taken by him
during investigation and states as that on 22.2.2000, while he was present in
the PS and was on emergency duty, duty Officer handed over him FIR of this case
copy of which is EX.PW 2/A for investigation. He added that thereafter, he went
to the house of Neeraj, the child who was missing in B Block Gali No.4,
Bhajanpura and recorded statement of his parents. On enquiry from school going
children he was informed that Neeraj had attended the school on 22.2.2000 and
after the school he went towards his house and school children had seem him upto
corner of Gali No.10, Bhajanpura. He had also interrogated the school teachers
to confirm that Neeraj had attended his school on 22.2.2000. In the meantime,
while he was present in the PS, Rakesh Gupta came and informed that he received
a telephone call at phone No.2171598 that Neeraj is in caller's custody and he
had demanded Rs.three lakhs as ransom for the release of the child. Thereafter,
he added Section 364A in this case and he along with SHO and other police staff
went to the house of Neeraj and interrogated his parents and confirm about the
telephone ransom call. Thereafter, telephone No.2171598 was kept under
observation from Dilshad Garden Telephone Exchange and they have deputed HC Ved
Prakash from telephone exchange for observation. In the evening on 23.2.2000,
Rakesh Gupta uncle of deceased came to the PS and informed that the kidnapper
again contacted him on phone and asked him to come with Rs.three lakhs at
Rashtriya Vigyan Park, Majnoo Ka Tila by giving the detail of location and to
place the money near a keekar tree in which the word 'Yes' would found written
inside the said park. Rakesh Gupta also informed him that they had connected
the said telephone with another telephone for recording the conversation, but he
could not operate the same. Thereafter, he contacted at the telephone exchange
Dilshad Garden and came to know that telephone call to phone No.2171598 was made
from a phone at 25 Khyber pass and owner of said phone is one Budhiraja. The
concerned employee had also disclosed about the telephone no. but he did not
remember the same. Thereafter, a raiding party was constituted consisting of
himself SHO Inspt. Ranvir Singh Khatri, SI Sanjeev Sharma and other staff and
Rakesh Gupta along with the ransom amount was proceeding ahead of them as per
their instruction and went at Rashtriya Vigyan Park, Majnoo Ka Tilla and they
hided themsleves outside but Rakesh Gupta was frightened and could not deliver
the ransom amount near the keekar tree and nobody was visible as it was dark at
that time. Thereafter, they went to 25 Khyber pass one Jagdish Ka dhaba where
one phone booth was also there inside it and one Jugal Kishore Budhiraja met
them and on inquiry as to who made telephone call to phone No.2171598, he
disclosed that one person aged about 25/26 years, wearing some dirty clothes and
he got extended the calls several times and he took the slips of the said
telephone bill and handed over to him which is already exhibited as Ex. X and
now exhibited as EX PW 27/A. The said bill was taken into possession vide memo
Ex.PW 12/A. he recorded the statement of said Jugal Kishore Budhiraja who
produced the bill and thereafter, they returned to the PS. On 24.2.2000, in the
morning while he was present in the PS along with SHO and other staff. Rakesh
Gupta uncle of the abuducted child came to the PS and told that kidnapper had
again telephoned asking him to bring money at Gurudwara Sheeshganj and narrated
about the details in this regard. On which the matter was discussed with the
SHO and Rakesh Gupta was asked to reach with money there. SHO along with SI
Sanjeev Sharma and Ct. Dilbagh Singh and other police officials met him there
and police officials were in civil clothes. Ct. Dilbagh Singh, driver of the
SHO was directed to sit with Sewadar in gathrighar and other police officials
also took their position in the Gurudwara. As per directions of the kidnapper,
Rakesh Gupta had taken token No.142 from toilet and received a polythene bag
from the gathri ghar against said token and said bag was found containing coat
and kara of Neeraj and thereafter, he replaced the bag containing Rs.3 lacs and
deposited the same into the gathri ghar and received back token No.142 and kept
said token at gents toilet as instructed by the kidnapper earlier. In the
meantime, one public person named Harbans Singh was requested to join the
proceedings and he agreed for the same. Ct. Dilbagh Singh was sitting in the
gathri ghar wearing the dress of Sewadar of Gurudwara. At about 7/7.30 PM, Ct.
Dilbagh Singh had signaled him by pointing out towards the accused as the person
who had taken the bag containing Rs.3 lacs against token No.142 and thereafter,
accused was apprehended at the gate of gurudwara and found carrying the said
cloth bag which Rakesh Gupta had placed against token No.142. He further added
that on interrogation the accused confesses his guilt and told that he had
kidnapped the boy and had committed his murder on the same day and he hided the
dead body beneath, the pulia of nala in gali No.9, Bhajanpura. Accused was
arrested and his personal search was taken vide memo Ex. PW 10/C and from his
search the site plan prepared on a plain paper indicating site of Majnoo ka tila
and on the back side of the same, some writing was there and the said writing
and the site plan were matching with the information which the kidnapper had
given earlier for handing over the ransom money near keeker tree in Rashtriya
Vigyan Park near Majnoo ka tila and the same was taken into possession vide
recovery memo Ex. PW 10/A and said site plan is Ex. PW 10/B. The bag with
accused was found carrying containing the amount of Rs.3 lacs which were wrapped
in a newspaper and after verifying the said notes were again wrapped in a
newspaper and put in the same cloth bag and sealed with the sale of TRM and was
taken into possession vide memo Ex. PW 10/G and the disclosure statement of
accused is Ex. PW 10/E and at the request of public witness Harbans Singh,
thereafter he was discharged. Thereafter, the accused had taken them in gali
No.9, Bhajanpura and pointed out towards the nala at the corner of the gali and
stated that he had placed the dead body of child Neeraj in the nala beneath the
lanter and thereafter, his dead body was taken out from the said nala. The
photographer was called who took the photographs of the dead body at his
instance. The hands and feet of the deceased boy were tied with a plastic type
polythene and the dead body was identified by Rakesh Gupta and dead body was
sent through Constable in the mortuary at GTB Hospital. Thereafter, the accused
pointed his house bearing No.246, Gali No.10, Bhajanpura where he stated to have
killed the boy in the room of the house and pointing out memo in this regard is
Ex. PW 21/A. Thereafter, they returned to the PS and accused was put behind
the bar and case property was deposited in the malkhana. He also added that he
had prepared the site plan of the house as pointed out by the accused and the
said site plan is Ex. PW 27/B. He had also prepared the site plan from where
the dead body of the deceased boy was recovered and the same is Ex. PW 27/C. He
also added that in the morning of 25.2.2000, Rakesh Gupta, uncle of the deceased
and other relatives met him and their identification statement was recorded and
the same is Ex. PW 11/A and Ex. PW 2/C and after postmortem accused was taken
out from the lock up and on interrogation the accused disclosed that he had
placed the school bag and shoes of the boy near Majnoo ka Tila as he had reached
there for satisfaction of the parents of the deceased for delivering of the
ransom amount there and his disclosure statement in this regard is Ex. PW 25/A.
Thereafter, the accused after being produced before the Ld. MM was granted two
days police custody remand. He also added that they went at the house of
deceased boy where Rakesh Gupta and Suresh Gupta met him and was handed over a
telephone instrument and the cassette which was taken into possession vide memo
Ex. PW 11/C. Thereafter, he recorded statement of Surender Kumar Gupta, who
had given the instrument. Thereafter, he recorded statement of Shivdutt Sharma,
S/o Pandit Yadram, who is the owner of house No.246, Gali No.10, Bhajanpura and
stated to have given a room of the said house to accused Ajay Kumar Tripathi on
rent. He also added that on the next day, i.e., on 26.2.2000, he joined Ct.
Virender, photographer Michal Bosco and Driver /Ct. Dilbagh Singh in the
investigation of the case and accused was taken out from the lock up and he
pointed out Rashtriya Vigyan Park and pointed out the wall where he had made
sign of plus and STD/ISD is written on the wall and pointed out the bushes and
got recovered school bag of the boy and the bag was checked and found containing
shoes, books and some note books of the boy and photographs of the same were
also obtained and thereafter the same were sealed in a parcel and taken into
possession. He also added that Ct. Ashok and HC Dharampal who were on
petrolling duty met them and they were joined in the proceedings there. He also
added that the parcel was taken into possession vide memo Ex. PW 16/A. He also
added that he prepared the site plan of the place of recovery of the school bag
and the same is Ex. PW 27/F. He claimed to have recorded the statement of Ct.
Ashok Kumar, HC Dharampal of PS Timarpur and of photographer Michal Bosco. He
also added in his deposition that thereafter, the accused took them to Jagdish
Ka Dhaba, 25 Khyber Pass, on the STD booth and pointed out the same and told
that on the night of 23.2.2000 at about 8.50 PM, he made telephone call from
that STD booth to phone No.2171598 and Jugal Kishore Budhiraja, present at that
time had identified the accused and told that he is the same person who had made
the phone call on 23.2.2000 at about 8.50 PM for which he had already handed
over the phone bills to the police and his pointing out memo is Ex. PW 12/B. He
also recorded the statement of Jugal Kishore Budhiraja and Ct. Virender Singh in
this regard and thereafter they returned to PS. He also added that on 3.3.2000,
the print out of the telephone No.2171598 which was received from telephone
exchange which are collectively Ex. PW 21/C. He also added that on 13.3.2000,
he called the draftsman from police deptt. and on his pointing out, he prepared
rough notes and prepared scaled site plan which is Ex. PW 20/A. He also added
that during the course of investigation, he collected the scaled site plan and
photographs which were taken at the time of recovery of the dead body and at the
time when accused had pointed the site at Rashtriya Vigyan Park and where school
bag and shoe of the deceased were recovered. The photographs of the same are
Ex. PW 15/1 to 5 and photographs about the recovery of the shoe, school bag are
Ex. PW 17/1 to 17/9 and negatives are Ex. PW 17/10 to 17/18. He also added that
during the course of investigation, he collected the postmortem report Ex. PW
1/A. He also added in his deposition that in the TIP, the father of the
deceased Rajeshwar Dayal has duly identified the school bag, books, note books
and shoe of the deceased boy before the concerned link MM. He also added that
he had correctly recorded the statement of witnesses and filed the challan in
the court. He identified the telephone instrument as Ex. P-1 and cassette as
Ex. P-2 which were handed over to him by Rakesh Gupta. He had also identified
the thaila containing the currency notes as Ex. P-3 and currency notes of Rs.3
lacs collectively as ExP 5 and piece of newspaper in which the currency notes
were wrapped as ExP 4. He also identified the brown coat as ExP 6 kara as ExP 7
and polythene as Ex P 8 as the same which were handed over to him by Rakesh
Gupta which accused had placed in the gathri ghar against token No.142. He had
also identified the school bag as Ex.P 9 and pair of shoe as ExP 10 and the
books and the note books bearing the name of Neeraj Gupta collectively as P 11,
which were found in the said school bag. He also identified the pant, sweater,
tie, belt and shirt which were found wearing on the dead body at the time of
recovery and are collectively ExP 12. In the cross examination by the Ld.
Defence Counsel, further added that they had received copy of FIR for
investigation of this case in the evening after 6 PM. He also added that the
distance between the house of victim and the rented room of the accused were he
was living in 4/5 minutes waking distance. He denied the suggestion that the
accused was in his custody since 23.2.2000. He also added that till the arrest
of the accused from the Gurudwara he did not disclose the fact of the case to
the authority of Gurudwara. He also added that accused had made disclosure
statement at Gurudwara Sheeshganj after his arrest after 7.30 PM. He denied the
suggestion that the accused has been falsely implicated in this case or that he
has prepared the memos falsely. He also denied the suggestion of Ld. Defence
counsel that nothing was recovered from the possession of the accused in
Gurudwara or that accused had not made any disclosure statement in Gurudwara or
that dead body of the victim was not recovered at the instance of the accused.
7. Another important witness to which reference may be made is PW-12,
Jugal Kishore Budhiraja who states that he deposed in the court that he has been
running a dhaba at 25, Khyber Pass and inside dhaba there is a telephone booth
and telephone number of said STD is 2921009.. He also added that on 23.2.2000,
at about 8.45 PM, one boy came to the booth for making a call and he made three
calls continuously and bill of the said phone was handed over to the police by
him which was seized by the police vide memo Ex. PW 12/A bearing his signature
at point A. The number mentioned in the said bill is Ex. X and point A is the
number where call was made. He also added in his deposition that the accused
person present in the court is the same boy who had come to his shop on
23.2.2000 to make the aforesaid call. He also added that on 26.2.2000, police
officials came to his booth at about 4 PM and one boy was with them and he is
the accused present in the court today and on asking by the police he identified
the said boy before the police as the same boy who had made calls from his booth
on 23.2.2000. The pointing out memo of the accused is Ex. PW 12/B in respect of
the booth bears his signature at point A. In the cross-examination by the Ld.
Defence counsel, said PW-12 added that police had come after an hour of the
phone on the same day and at that time accused present in the court was not with
them and he had handed over the bill on 23.2.2000 itself and police had obtained
his signature on seizure memo. Thereafter, when police came on 26.2.2000,
stayed with him about half an hour. He denied the suggestion of Ld. Defence
counsel that the bill Ex.-X does not belong to his STD booth or that he has been
deposing falsely at the instance of the police.
8. In 313 statement the accused denied the allegations of the prosecution
and claimed that he has been falsely implicated, but choose not to lead any
evidence. Counsel for the appellant vehemently argues that prosecution has not
been able to show that deceased was kidnapped by the appellant and or killed,
therefore his case does not fall under Section 364A IPC.
9. We have heard learned counsel for the parties and with the assistance
gone through the material placed on record. We find from analysis of
depositions of witnesses that there is ample material on record to show that
appellant was caught red-handed with the ransom amount. There is also evidence
on record that the appellant made calls for ransom and there is evidence on
record to show that the appellant got recovered the dead body of Neeraj. There
is also medical evidence of Dr.Gaurav Aggarwal, PW-1 that the deceased died due
to ?asphyxia due to smothering?.
10. In that view of the matter, we find that the trial court has rightly
held the appellant guilty under Section 364A IPC. However, we also find that
the trial court went wrong in acquitting the appellant for an offence under
Section 302 and 201 IPC. The material on record sufficiently links the
appellant with the kidnapping. Having once kidnapped the child and given a
ransom call, the appellant received the ransom amount and thereafter led to the
recovery of the dead body of the deceased, is sufficient indication as to what
happened to the child, when he was in the custody of the appellant. The
explanation of the appellant would not automatically render him innocent of the
act of murder unless it is substantiated by evidence. On the contrary, chain of
circumstances adduced by the prosecution so read together satisfy the test of
the only probability that it was appellant who has caused death of Neeraj and
thereafter disposed his body in the nallaha adjacent to Gali No.9.
11. In that view of the matter, we feel it necessary to exercise power
under Section 386(3) and alter the finding by making an amendment in the
judgment by holding the appellant guilty for an offence under Section 302 read
with 201 IPC. However, we find from the facts and circumstances of the case
that sentence awarded in this case commensurate with the crime committed and
needs no change. In that view, the reasoning of the trial court to arrive at
the conclusion that the appellant has committed an offence under Section 364A
appeals to us and we find no reason to interfere with the same. For the offence
under Section 302 IPC, we sentence the appellant to life imprisonment and fine
of Rs.2,000/- and in default of payment of said fine, additional RI for two
months. For an offence under Section 201 IPC, we sentence appellant to 7 years
RI and fine of Rs.500/- and in default of payment of fine, additional RI for one
month. Sentence of imprisonment and fine are directed to run concurrently.
Consequently, while holding the appellant guilty under Section 302, 201 and
364A, we disposed of Crl.Appeal No.645/2004
[R.S. SODHI]
JUDGE
[P.K.BHASIN]
JUDGE
DECEMBER 06, 2006
da
