Chand Khan Alia Chand Mian vs State
2009 Latest Caselaw 5088 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment reserved on: November 09, 2009
                        Judgment delivered on: December 09, 2009


+      CRIMINAL APPEAL NO.244/1995


       CHAND KHAN ALIAS CHAND MIAN          ..... Appellant
                        Through: Mr.V.K. Tandon, Advocate with
                                 Mr. Ranjan Kumar Rai,
                                 Advocate
               Versus

       STATE                                       ..... Respondent
                              Through:   Mr. Pawan Sharma, APP

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE AJIT BHARIHOKE


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


AJIT BHARIHOKE, J.

1. Instant appeal is directed against the impugned judgment dated

27.9.1995 delivered by the Additional Sessions Judge in Sessions Case

No.52/91 arising out of FIR No.33/90, P.S. Karol Bagh, in terms of which

the appellant Chand Khan @ Chand Mian has been convicted for the

offence punishable under Section 302 IPC and the order on sentence

dated 30.9.1995 sentencing the appellant to undergo imprisonment for

life and to pay a fine of Rs.1,000/-, in default of payment of fine, to

undergo RI for further period of two months. We may note at this

stage that vide the impugned judgment, appellant's co-accused Kaley

Khan was also convicted for the offences punishable under Section

363/363A (1) IPC and sentenced accordingly. The other co-accused

persons who were sent for trial were acquitted vide the impugned

judgment.

2. At the outset, we may record, though the appellant was also

charged for the offences punishable under Sections

120-B/363/364/368/307/201/34/ IPC, the learned Trial Judge has not

returned any finding on the said charges in his judgment dated

27.9.1995. However, in the order of sentence dated 30.9.1995, while

awarding sentence under Section 302 IPC to the appellant, learned

Trial Judge has observed that no separate sentence is necessary for the

offences punishable under Sections 363/364/368/120-B and Section

307 IPC as the appellant has been convicted and sentenced for the

most aggravated offence under Section 302 IPC.

3. Briefly stated, case of the prosecution is that on 02.02.1990, two

minor children of the complainant Bhagwati Devi, PW11, Manoj aged 9

years and Jitender, aged 6 years did not return from the school.

Complainant Bhagwati visited the school at 1.00 p.m. and she was told

that her children had not attended the school on that day. She,

therefore, went to P.S. Karol Bagh and lodged a report about her

missing children, expressing her suspicion that her children might have

been kidnapped by some unknown persons. Her report was recorded

as DD No.19A dated 02.02.1990 (Ex.PW20/A). S.I. Rameshwar Singh

was entrusted with the job of carrying on the investigation. Efforts

were made by S.I. Rameshwar Singh as also the complainant to trace

the children. When the children could not be traced till 04.02.1990,

complainant Bhagwati Devi again visited the police station on that day,

where her statement Ex.PW11/B was recorded, wherein she expressed

a doubt that the children have been kidnapped. On the basis of the

said statement, a formal FIR was recorded at the police station, copy of

which is Ex.PW8/A.

4. On 5.2.1990, at around 8.30 p.m., one of the kidnapped children

Jitender was found naked and shivering at the bank of Hazara Canal,

Kasganj by one Prem Singh, PW4, who was returning back after the

supply of milk to his customers. A DD entry regarding recovery of the

child Ex.PW18/D was recorded at the police station Kasganj wherein it

was recorded that one boy aged six years, wearing green coloured

pyjama and white rubber shoes, who revealed his name as Jitender and

the names of his brother and mother as Manoj and Bhaggo

respectively, and his place of residence as Village Mehndipur or

Mahadevpur has been recovered and if any police station has any

information regarding him they should contact the police station

Kasganj. The custody of the child Jitender changed hands several

times and ultimately it was handed over to one Praveen Kumar

Aggarwal on 07.02.1990 and on 15.02.1990, the custody of the child

was given on superdari to one Nathu Ram Acharya vide DD No.34,

PW18/C.

5. On 19.02.1990, an application Ex.PW20/DB dated 16.02.1990 was

moved by the appellant Chand Khan for surrender in the Court. The

learned Magistrate sought a report from the police station for

20.02.1990. As per the reply, Ex.PW20/DA submitted by S.I. Raghubir

Singh, there was no evidence available to justify the arrest of the

appellant till then and as such, the said application was dismissed as

not maintainable.

6. The investigation was taken over by S.I. Rajinder Singh, PW19 on

24.02.1990. He arrested the appellant Chand Khan on 25.02.1990 and

conducted his personal search vide memo Ex.PW18/A. On the same

day, appellant Chand Khan is stated to have made a disclosure

statement Ex.PW14/A wherein he confessed that he had kidnapped

said two children of the complainant in the morning of 02.02.1990 at

around 9.00 a.m. and thereafter he took them to the house of his sister

Salma at Shastri Nagar in a three wheeler scooter. Salma and her

husband Afaq were present there and he left both the children with

them. He also told them that they should leave the bags of Manoj and

Jitender at the house of one Nagina, resident of Shastri Nagar.

Thereafter he went to the factory of his friend Nabo Kumar Bengali at

Inderlok, where he met Raj Kumar, younger brother of his friend, who

told him that his friend Nabo Kumar had gone to Jaipur. He told Raj

Kumar that a relation of his had died giving birth to a child, leaving

behind her two sons and he requested Raj Kumar to keep those

children for some time. Raj Kumar agreed to help him out. Thereafter,

he along with Raj Kumar came to his sister's house at Shastri Nagar

and from there, he sent both the children in a TSR with Raj Kumar. On

03.02.1990, he again went to the house of his friend in the evening and

from there, he fetched Jitender and Manoj and took them to ISBT and at

night at around 10.00 pm, he took a bus to Kasganj. In the morning,

they reached Kasganj and from there he took both the children in a

rickshaw to the village of his 'fufa' and narrated the facts to him.

Thereafter they concealed the children in a 'kothari' of the house of

Hamid. He disclosed that he could get those children recovered from

the house of Hamid.

7. On 26.2.1990, the co-accused Salma was arrested by the

Investigating Officer. She is stated to have made the disclosure

statement Ex.PW11/D and pursuant to that, she got recovered three

note books having name of Manoj on the covers and two pencils from

under the bedding in her house, which were seized vide memo

Ex.PW11/E. On the same day, the Investigating Officer also got

recovered one note book belonging to Jitender from a box lying in the

house of co-accused Nagina at her instance, which was seized vide

memo Ex.PW11/G.

8. Co-accused Kaley Khan was also arrested by the police and on

interrogation, he made a disclosure statement Ex.PW11/H. Pursuant to

the said disclosure statement, Kaley Khan got recovered an identity

card of child Manoj Kumar of Class IV, purported to have been issued

by Adarsh Vidyalaya , 18, Biden Pura, Karol Bagh, which was seized

vide memo Ex.PW11/K. It is further the case of the prosecution that co-

accused Mehraj Begum also got recovered a school bag from a steel

box lying in her house, which was seized vide memo Ex.PW11/L.

9. SI Mahipal Singh, PW18, along with the police party was sent to

Kasganj, District Etah, where on the basis of the disclosure made by

the appellant, Wahidullah Khan was arrested. Thereafter, the appellant

led the police party to 'Hazara Canal' and pointed out the exact place

where he threw the children in the canal. A rough site plan of the place

of occurrence was prepared. During investigation, statements of

witnesses were recorded. An application was moved for recording

statement of child Jitender in the court of Metropolitan Magistrate and

the concerned Magistrate recorded his statement (Ex.PW13/B) under

Section 164 Cr.P.C. On completion of investigation, charge sheet was

filed against the appellant and his co-accused persons. They were

charged under Sections 120-B IPC, 363/34 IPC, 364/120B/34 IPC, 368

IPC, 302/34/120B IPC, 307/34/120B IPC, 201/34/120B IPC. Accused

persons pleaded not guilty and claimed trial.

10. On conclusion of trial, learned Additional Sessions Judge

convicted the appellant Chand Khan for the offence punishable under

Section 302 IPC and co-appellant Kaley Khan for the offences

punishable under Section 363 and Section 363A(1) IPC. The other co-

accused persons were acquitted of all the charges.

11. Kaley Khan also preferred an appeal against the impugned

conviction and order on sentence. He, however, died during the

pendency of appeal, as such his appeal stood abated.

12. On perusal of the impugned judgment, it transpires that the

conviction of the appellant is based upon the eye witness account

given by one of the kidnapped children Jitender (PW10) and

circumstantial evidence, the material witnesses to prove the

incriminating circumstances against the appellant inter alia the

complainant, PW11 Smt. Bhagwati Devi and taxi driver Dhan Pal, PW3

as also PW7 Israr Ahmed, who allegedly travelled in the taxi of PW3 in

which the appellant is also stated to have travelled along with them

from the crossing of Village 4 to Kasganj.

13. PW3 Dhan Pal has stated that he used to carry newspapers from

Agra to Tundla, Etah, Sikandrabad, Kasganj, Sahra and Sehwar on daily

basis in his car. On 05.02.90, when he was getting ready to return

back to Agra after delivering the newspapers at Sehwar the last

destination of his route, at around 6:00 am, two persons whom he

identified in the court as the appellant Chand Khan and his co-accused

Kaley Khan, came along with two children and requested him to take

them to Kasganj in his car. The children were aged about 5 to 6 years

and 9 to 10 years respectively and both of them were wearing green

pant with Jersy. He also deposed that two newly married couples were

also sitting in his car as they wanted to go to Agra. The appellant

Kaley Khan and said two children got down at Agra. The witness

identified the photograph Ex.P-1 as that of the said two children, who

had travelled in his car with the appellant and his co-accused. In his

cross-examination, the witness could not tell as to who travelled in his

car from Sehwar to Agra on 20.10.92. When asked how he could tell

the names of the appellant and his co-accused Kaley Khan to the

police, he explained that the incident was fresh in his mind as his

statement was recorded on 03.02.90, i.e., the very next day on which

the appellant and his co-accused travelled in his car. He denied the

suggestion that the appellant and his co-accused along with two

children never travelled in his car from Sehwar to Kasganj. PW7 Israr

Ahmed, who as per prosecution, also travelled in the car of PW3 from

Sehwar to Agra along with his wife has not supported the prosecution

case inasmuch as he did not identify the appellant or Kaley Khan as the

persons who travelled in the car from Sehwar to Kasganj. Further, he

stated that actually one man, who had covered his face and body with

a rug, travelled in the car with two or three children. Out of them, one

boy sat on the front seat and two children sat on the rear seat and the

age of those children ranged between 9 to 11 years. PW7 was cross-

examined at length by learned APP, but nothing material to support

case of prosecution could be elicited.

14. Further, PW10 Jitender, as per the details recorded by the court,

was about 7 years when his statement was recorded in the court. He

stated that about a year prior to recording of his statement in the court

while he and his brother Manoj were going to the school, appellant

Chand Khan, whom they called uncle, met them. He took them to his

sister's house in a three-wheeler scooter. Later on, they were taken in

a train to some place and after getting down from the train, he took

them in a rickshaw to a place where water was flowing and thereafter,

he made them remove their shirts. Initially, he threw Manoj in the

canal and thereafter, the appellant threw the witness in the canal.

PW10 Jiitender further stated that he somehow managed to catch hold

of a branch of tree and came out of the canal and there he met two

cyclists, who took him to their house and served him with food. He

also stated that his statement under Section 164 Cr.P.C. was recorded

by the Magistrate to whom he narrated the entire story. We may note

at this juncture that the statement of PW10 Jitender recorded by the

Metropolitan Magistrate is a one liner wherein the witness stated that

Chand Khan had taken away him and his brother Manoj and he threw

them in the water. As per the certificate given by the Metropolitan

Magistrate at the bottom of the statement under Section 164 Cr.P.C.,

Jitender was aged about six years when his statement was recorded by

the Metropolitan Magistrate on 03.03.90.

15. Learned counsel for the appellant has submitted that the

prosecution case rests mainly on the eye witness account given by one

of the kidnapped child Jitender, PW10 which is sought to be

corroborated by the testimony of Dhan Pal, PW3 and Israr Ahmed PW7,

who have been examined by the prosecution to establish that the

appellant and his co-accused Kaley Khan had travelled along with the

kidnapped children in the newspapers delivery taxi of PW3 from

Sehwar to Kasganj, in which PW7 Israr Ahmed and his wife were also

the co-passengers as they were going to Agra. It was contended by

learned counsel for the appellant that PW10 Jitender is a child witness

who was about seven years old when examined in the court and his

testimony is not free from blemish and a possibility of tutoring of the

witness cannot be ruled out. It was further submitted that even the

testimony of PW3 Dhan Pal is not free from doubt, firstly, because it

does not find corroboration from the testimony of PW7 Israr Ahmed,

who deposed that one person along with three children instead of two

persons along with two children travelled in the taxi. PW3 Dhan Pal

named the appellant and his co-accused as the persons who travelled

in his taxi in his examination-in-chief. When he was asked to explain

as to how he was aware of their names, he stated in his cross-

examination that he could give the names of Chand Khan and Kaley

Khan to the police because his statement was recorded by the police

on 03.02.90 i.e. the day after the alleged travel by the appellant and

his co-accused in the taxi of Dhan Pal. Aforesaid version, it was

submitted by learned counsel, is belied by the fact that on 20.02.90 a

report Ex.PW20/DA was submitted in the court of Metropolitan

Magistrate by SI Raghubir Singh wherein it was stated that the police

was not planning to arrest the appellant Chand Khan as till then there

was no material against him, which version if correct, definitely rules

out any possibility of PW3 Dhan Pal having made any statement to the

police on 03.02.90 and, if it is otherwise, then it reflects upon the

fairness of the investigation. Thus, learned counsel for the appellant

has urged us to disbelieve the above witnesses.

16. On the other hand, learned counsel for the State has argued in

support of the impugned judgment. He has submitted that there is no

reason to disbelieve PW10 Master Jitender or PW3 Dhan Pal because

there is nothing on the record to suggest that they had any axe to

grind with the appellant or his co-accused Kaley Khan. Thus, he has

argued that the learned Trial Court has rightly relied upon the evidence

of PW10 Jitender and PW3 Dhan Pal to arrive at a finding of guilt of the

appellant.

17. We have considered the submissions made on behalf of the

respective parties and we find merit in the submissions made on behalf

of the appellant. Perusal of the record shows that as per the case of

prosecution, sons of the complainant Bhagwati Devi, PW11 went

missing on 02.02.90 and a missing persons report was lodged by her in

the P.S. Karol Bagh, which was recorded as DD No.19A (Exbt. PW20/A).

PW11 Bhagwati Devi did suspect that her sons were kidnapped, but

she did not express her suspicion against the appellant or his co-

accused. On 04.02.90, the complainant again visited the police station

where her statement Ex.PW11/B was recorded, on the basis of which

formal FIR Ex.PW8/A was registered. Even in the said statement, the

complainant did not express any suspicion against the appellant or his

co-accused. On 16.02.90, an application Ex.PW20/DB was moved by

the appellant Chand Khan for surrender in the court of Metropolitan

Magistrate and on 20.02.90 SI Raghuvir Singh submitted a report

Ex.PW20/DA in the court stating that till that day, there was no

evidence on record which could justify the arrest of the appellant

Chand Khan. On 24.02.90, the investigation was taken over by SI

Rajender Singh, PW19 and on the very next day, he came to know that

the child Jitender had already been recovered at the P.S. Kasganj and

suddenly every piece of puzzle started falling in the place and the case

was solved within a span of few days.

18. The above sequence of events casts a doubt upon the fairness

and correctness of the investigation. The aforesaid doubt gets

strengthened from the fact that according to PW3 Dhan Pal, his

statement was recorded by the police on 03.02.90, which is not the

case of the prosecution. Another aspect of the matter is that

admittedly the appellant and his co-accused as well as the two children

were chance passengers in the taxi of PW3 Dhan Pal and they were not

previously known to him. Therefore it is highly improbable that Dhan

Pal could have identified those persons in the court. Dhan Pal stated in

his cross-examination that he had seen the appellant and his co-

accused Kaley Khan after 02.02.90 in the court only. No identification

parade was conducted by the investigating agency to fix the identity of

the appellant or his co-accused. Therefore, also we find it unsafe to

rely upon the identification of the appellant done by PW3 Dhan Pal in

the court after a lapse of more than two and a half years.

19. Coming to the testimony of the child witness PW10 Jitender. His

statement Ex.PW13/B under Section 164 Cr.P.C. was recorded by the

Metropolitan Magistrate on 03.03.90. In the said statement, he gave

his age around six years. He was examined in the court as PW10 on

13.08.93 wherein also his age was recorded by the concerned trial

Judge as seven years. This implies that PW10 Jitender, when examined

in the court, was about seven to nine years. Be that as it may, he was

a child of tender age of not more than seven years at the time of the

incident. Therefore, prudence demands that his testimony should be

approached with greater care and caution. PW10 Jitender stated in the

court that he and his brother Manoj were taken away by the appellant

Chand Khan in the morning of 02.02.90 when both of them were going

to the school. Thereafter, Chand Khan took them to the house of his

sister in a three-wheeler and from there, they were taken in a train to

some place. After boarding down from the train, he took them in a

rickshaw to a canal and he threw both of them in the canal after

removing their shirts. Aforesaid version of PW10 Jitender obviously is

an improvement over his earlier statement Ex.PW13/B recorded under

Section 164 Cr.P.C., where he did not give the details and only stated

that he and his brother were thrown by Chand Khan in the water. It is

pertinent to note that as per the DD report Ex.PW18/D recorded at the

P.S. Kasganj on 05.02.90, child Jitender aged about six years was

recovered on 05.02.90 and at the police station, he disclosed his name

as well as name of his brother and mother as Manoj and Bhaggo

respectively. He also gave the name of his uncle Onkar and said that

he was resident of either village Mehdipur or Mahadev Pur. If the

prosecution version that the appellant Chand Khan had thrown PW10

Jitender and his brother Manoj in the canal and with the grace of God,

Jitender somehow caught hold of a branch of tree which saved his life,

is taken to be true, then under the natural course of circumstances it

was expected of witness Jitender to tell the police at Kasganj that he

had been thrown into canal by the appellant and that he was brought

by the appellant from Delhi. This, however, is not the case and the

only plausible inference from the aforesaid factual matrix could be that

either the appellant Chand Khan was not involved in the crime or that

the child Jitender because of his young age was not having the mental

capacity to understand as to what had happened with him. We may

note that PW10 Jitender in his entire testimony in the court is silent

about having travelled along with the appellant and Kaley Khan in the

taxi of Dhan Pal from Sehwar to Kasganj. As a matter of fact, he has

not stated about having travelled with the appellant his co-accused in a

car after they were taken from one place to other. In view of the

aforesaid infirmities in the evidence, we do not find it safe to rely upon

the testimony of PW10 Jitender.

20. PW10 Jitender in his cross-examination also stated that he met

his mother three days after he was taken away by the appellant Chand

Khan. If aforesaid version is to be believed, then PW10 met his mother

on 05.02.90, which incidentally is the date on which the DD Report

Ex.PW18/D was recorded regarding the recovery of the child Jitender at

P.S. Kasganj. This circumstance casts a strong doubt on the fairness of

the investigation and a possibility cannot be ruled that the

investigating agency was aware of the recovery of child Jitender at

Kasganj since 05.02.90, which fact was not recorded in the case diary.

Otherwise, there was no occasion for SI Rajinder Singh to submit the

report Ex.PW20/DA in the court of Metropolitan Magistrate stating that

by that date, they had no evidence to justify arrest of the appellant.

21. In view of the discussion above, we are of the view that the

evidence produced against the appellant is not beyond suspicion and

the prosecution has failed to establish the guilt of the appellant beyond

the shadow of reasonable doubt. Thus, we are unable to sustain the

conviction of appellant Chand Khan.

22. The appeal is allowed and the appellant is acquitted, giving him

benefit of doubt.

23. Appellant is on bail. His personal bond and surety bond stand

discharged.

AJIT BHARIHOKE, J.

DECEMBER 09, 2009                                SANJAY KISHAN KAUL, J.
gm/pst