Delhi High Court
Ritesh Mittal @ Shahi vs State on 20 May, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Judgment reserved on : 15.05. 2009
Judgment delivered on: 20.05.2009
+ CRL.A. No.32/2009
RITESH MITTAL @ SHAHI ...Appellant
Through : Mr. R.S.Malik, Advocate and
Mr. Siddharth Ahlawat, Adovocate
versus
STATE ...Respondent
Through : Ms. Richa Kapoor, Advocate
CRL.A. No.111/2009
NARENDER CHAUHAN @ GUDDU ...Appellant
Through : Mr. Dhanbir Singh, Advocate
Mr. Deepinder Singh, Advocate
versus
STATE ...Respondent
Through : Ms. Richa Kapoor, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether judgment should be reported in Digest? Yes
: PRADEEP NANDRAJOG, J.
1. Case of the prosecution may be noted, with
reference to the investigation conducted. The police
machinery was set into motion on 4.1.2002 at 7:05 PM, when
on the telephonic call by Prem Mittal PW-1, ASI U.R.Khan PW-
10 recorded an entry Ex.PW-10/A, in the PCR Form that Milan,
aged 9 years, son of the informant, was missing. The
information was transmitted to the missing person's squad
from where it was forwarded to PP Pitampura; and as recorded
vide DD No.41A, Ex.PW-20/A, at 7:35PM. SI Praveen Kumar
PW-20, along with Const. Jasbir from PP Pitampura reached
House No.UP-78 Pitampura i.e. the house of the complainant,
as they were deputed to investigate the matter. Prem Mittal
PW-1, the father of the missing child met them. His statement
Ex.PW-1/A was recorded as per which he informed that his son
Milan Mittal, aged 9 years, had left the house at 3:30 PM to
attend tuition classes and had not returned home. That the
child was wearing blue jeans and blue T-shirt and was carrying
a school bag. SI Praveen Kumar made an endorsement Ex.PW-
2/B on the statement Ex.PW-1/A and sent Const. Jasbir to the
police station for registration of an FIR at 8:30 PM. The FIR
Ex.PW-3/A was registered for an offence punishable under
Section 363 IPC by HC Suraj at 8:55 PM.
2. Two telephones (landline) having numbers 7220285
and 7417368 were installed in the house of Prem Mittal. The
latter had a caller ID facility. The former did not have a caller
ID facility. Gaurav PW-19, a cousin of Milan Mittal who was in
the house of Prem Mittal attended a call at 9:26 PM on landline
number 7220285. The caller informed him that Milan had
been kidnapped and demanded ransom in sum of Rs.20 lacs to
release Milan. The call got disconnected. Another call was
received at the same number on 9:29 PM and the kidnapper
warned against informing the police. The information of
ransom call being received was passed on to SI Praveen Kumar
and the case was converted to one under Section 364-A IPC.
Prem Mittal handed over a photograph of his son Milan to SI
Praveen Kumar as recorded in the memo Ex.PW-20/C. Since
the caller demanding ransom was contacting the family of
Milan on the landline number 7220285 inasmuch as said
number did not have a caller ID facility and not the other
number which has a caller ID facility around 10:00 PM, SI
Praveen Kumar got activated a caller ID facility on the landline
number 7220285.
3. The next day i.e. on 5.1.2002, Naresh Kumar PW-2
the uncle of Milan, who was in Delhi on 4.1.2002 and on said
day had made a day's visit to his native village at Haryana,
returned to Delhi and learnt that Milan was missing. He
informed SI Praveen Kumar that the previous day i.e. 4.1.2002
when he was standing near Jhulelal Temple, he saw his
nephew Milan with a school bag coming through V.P.Block Park
accompanied by a friend. The boy accompanying Milan parted
company with Milan and Milan walked towards his house. On
the way, someone sitting in a white Santro car which had
tainted glasses, parked near the iron gate of the lane, stopped
Milan and had a conversation. Milan sat in the front seat of the
car and the car backed and went towards WP Block. He noted
that the number plate of the car was broken and only the last
numbers '1172' were visible. Since Milan willingly sat in the
car, he did not suspect any foul play and presumed that some
acquaintance had given him a lift. Said facts were recorded in
Naresh Kumar's statement Ex.PW-2/DA.
4. Since information had been flashed to the missing
person's squad about Milan being missing and his photograph,
which was handed over by Prem Mittal to SI Praveen Kumar
had been circulated to the police personnel in Delhi, on
5.1.2002 at about 5:00 PM, upon information received from PS
Bawana about the recovery of a dead body matching the
description of Milan, SI Praveen Kumar along with Prem Mittal
went to West Jamuna Canal Village Kankar Khera, Kalan Road;
the place where the body was found. The body was found lying
in a ditch on the bank of the canal with a muffler tied around
it's neck. The complainant i.e. Prem Mittal identified the said
body as that of his son Milan. The body was seized and SI
Umed Singh PW-9 of PS Bawana sent the dead body to Babu
Jagjiwan Ram Memorial hospital for post-mortem.
5. Further investigation was handed over to Insp.
B.R.Mann PW-25 as the offence had assumed serious
proportion i.e. the offence of murder.
6. On 6.1.2002, Dr.R.K.Punia PW-21 conducted the
post-mortem of the deceased. In the post-mortem report
Ex.PW-21/A, the cause of death was opined to be asphyxia due
to ligature strangulation. As recorded in the post-mortem
report Ex.PW-21/A, the post-mortem commenced at 9:30 AM
on 6.1.2002. While giving the opinion qua the cause of the
death of Master Milan, it was opined that the approximate time
of death was 36 hours to 48 hours prior to the post-mortem. It
is thus apparent that Master Milan had been murdered
somewhere around the early part of the intervening night of
4th and 5th January 2002 or may be late evening of 4th January
2002.
7. On 6.1.2002 Satbir Singh PW-13, a tea vendor, saw
a bag with some books and notebooks lying on the Khera road.
A telephone number was written on them. He contacted at the
said number, which needless to state was installed at the
residence of Prem Mittal, and passed on the said information.
Inspector B.R.Mann seized the school bag and six notebooks
Ex.P-6/1-6 and five books Ex.P-5/1-5 as recorded in the seizure
memo Ex.PW-20/D.
8. Since the telephone exchange i.e. exchange 722
pertaining to the telephone No.7220285 was an electronic
exchange and it was possible to know from the telephone
exchange the details of the last few calls received, it came
within the knowledge of the Investigating Officer that the
ransom calls were made through mobile No.9811587365.
Inspector Sukhvinder Singh PW-17 went to the service provider
of said mobile number being Ex.PW-17/A which reveal that a
handset bearing IMEI No.445199456405630 was used on the
SIM card pertaining to the number 9811587365, as also the
fact that the SIM card was got activated on the same day i.e.
4.1.2002. It was further revealed that prior thereto, the said
handset was used on the SIM card pertaining to mobile
number 9811485780.
9. Since the investigating officer, as per information
provided by Naresh Kumar, had knowledge that Milan was last
seen leaving in a white coloured Santro car and that the last
four digits of the registration number thereof were 1172; with
reference to the record of the registration authority under the
Motor Vehicles Act 1988, the ownership of a white Santro car
bearing No.DL 4CN 1172, Ex.P-10, got traced to Raj Kumar R/o
House No.KP-188, Pitampura Delhi, from where the car was
seized on 9.1.2002, as recorded in the seizure memo Ex.PW-
20/F. Jitender PW-7, brother of Raj informed, as recorded in his
statement Ex.PW-7/DA, that on 4.1.2002 he had borrowed the
Santro car from his brother and Ritesh Mittal and Narender
Chauhan met him at the dhaba (eatery) of Narender Chauhan
and told him to lend the Santro car for some time and in return
offered to lend him a Matiz car. Accordingly, he temporarily
exchanged the Santro car with the Matiz and that around 8:00
PM he was told by them over the telephone to reach Oasis
Hotel so that the cars could be exchanged. He went to Oasis
Hotel and returned the Matiz car and took possession of the
Santro car and at that time he noted that the rear number
plate of the Santro car was missing.
10. Appellants, accordingly, became suspects. The
police kept a watch out. On 9.1.2002 itself, appellants Ritesh
Mittal and Narender Chauhan were arrested from J.P.Market
Pitampura. From the personal search of Narender, a mobile
phone Ex.P-18 having IMEI number 445199456405630 as also
a slip Ex.P-19 of Bank of Baroda, Maurya Enclave having name
of Ratish Mittal and phone numbers 7220285, 7417368,
9868142408 and 9811587365 written thereon were recovered
from the pocket of his pant as recorded in the seizure memo
Ex.PW-20/M. No incriminating recovery was made from the
person of Ritesh Mittal.
11. Insp. B.R.Mann interrogated the appellants and
recorded the disclosure statement Ex.PW-20/G of appellant
Narender Kumar as per which he stated that he could get
recovered the number plate of the Santro car used in the
commission of the crime, as also a plastic bag which was
meant to be used by the accused persons to dispose of the
dead body and the school bag and notebooks of the deceased.
He also interrogated appellant Ritesh Mittal who made a
disclosure statement Ex.PW-20/H inter alia stating that he
could get recovered the broken number plate of the Santro car
used in the commission of the crime and the bag and the
books of deceased Milan.
12. As per the record of investigation, appellant Ritesh
Mittal led Insp. B.R.Mann to Shiv Shankar Dharam Kanta at
Khera Kalan Road, and from a place near the Dharam Kanta,
got recovered a book Ex.P-5/6 and a notebook Ex.P-6/7 of
Milan which were seized vide seizure memo Ex.PW-20/X.
13. Narender Kumar led the investigating officer to a
park called Vaishali Park at Pitampura and pointed out a yellow
plastic bag Ex.P-20 which was seized vide seizure memo
Ex.PW-20/Y.
14. The record of investigation does not reveal as to
how co-accused Zaffar Abbas (acquitted by the learned Trial
Court), became a suspect. Nonetheless, the record of
investigation shows that Zaffar Abbas was arrested on
9.1.2002 and on interrogation made a statement Ex.PW-20/S
informing the investigating officer that he could get recovered
the broken number plate of the Santro car; the bag and
notebooks of the deceased and the plastic bag which was
meant to dispose of the body of the deceased. He led Insp.
B.R.Mann to a dustbin in RU Block, Pitampura and got
recovered a broken number plate having written thereon the
number 1172, as recorded in the seizure memo Ex.PW-20/T.
15. The investigating officer, Insp. B.R.Mann, tracked
down Hardeep Singh PW-8 who was the original owner of the
handset having IMEI No.445199456405630 and had also been
the subscriber of the mobile number 9811485780. He
informed that he had sold the telephone with the SIM card to
one Shanty, who, further sold the same to Narender Chauhan
in his presence. The investigating officer also tracked
Manpreet Singh PW-5 who informed him that he had sold the
SIM card pertaining to mobile No.9811587365 to a customer
on 4.1.2002.
16. The charge sheet was filed against the appellants
and co-accused Zaffar Abbas for having entered into a
conspiracy to kidnap Master Milan and demand ransom for his
release. They were charged for having kidnapped Master
Milan and demanded ransom for his release and also for
having murdered him. Needless to state, the prosecution
intended to establish, through the testimony of Naresh Kumar
PW-2 that Milan had made a friendly entry at 5:00 PM on
4.1.2002 in the Santro car, the last four digits whereof, in the
broken number plate at the rear of the car, were 1172 and that
was the last time the unfortunate child was seen alive.
Through the testimony of Jitender PW-7, the prosecution
intended to establish that the said Santro car was handed over
by him to the appellants at around 12:00 noon and that the
appellants had returned the car to him at around 8:00 PM and
that when the car was returned, the rear number plate was
broken. In this manner, the prosecution sought to connect the
testimony of the two witnesses to establish that they had
made Milan to sit in the Santro car. The recovery of the
handset Ex.P-18 having IMEI No.445199456405630 from the
side pocket of appellant Narender was intended to be
connected with the call details provided by the service
provider pertaining to mobile No.9811485780 and mobile
No.9811587365 as also the testimony of Manpreet Singh PW-5
and Hardeep Singh PW-8 to connect the ransom calls being
made to the landline number 7220285 installed in the house of
Prem Mittal; all cumulatively pointing out to the fact that
Narender had a hand in the kidnapping of the child. Further,
through the means of the recovery of the slip Ex.P-19
containing the landline numbers at the residence of Prem
Mittal; recovery being from the pant of accused Narender, the
prosecution sought to corroborate incriminating evidence
against accused Narender. Needless to state the recoveries
effected pursuant to the disclosure statement of the appellants
were intended to reinforce the participation in the crime by the
appellants. Against Zaffar Abbas, the recovery of broken
number plate having No.1172 pertaining to the Santro car, was
sought to be used as evidence of his involvement.
17. At the trial, various witnesses were examined. But
we note the testimony of only such witnesses as would be
relevant for discussion of the admissible evidence led and the
contentions urged in appeal; noting at the outset that the
appellants have not disputed that the dead body of Milan was
discovered on 5.1.2002.
18. Prem Mittal PW-1 deposed that his son Milan Mittal
used to attend tuition classes with a friend from 3:30 PM to
5:00 PM everyday after returning from school. On 4.1.2002 at
about 5:30 PM he received a phone call from his wife who told
him that his son Milan had not returned home after tuition.
Milan was wearing brown shoes, blue T-shirt and blue jeans
that day and was carrying a school bag containing notebooks
wherein his name and telephone number were mentioned.
They kept searching for the child for about 1½ hours and
thereafter the police was informed. Police from Police Post
Pitampura came and recorded his statement Ex.PW-1/A. At
about 9:25 PM Gaurav PW-19 attended a call on the landline
number 7220285 installed on the first floor of the house. The
caller informed him that Milan had been kidnapped and
demanded a ransom in sum of Rs.20 Lacs. Soon thereafter
another call was received from the kidnappers and the caller
again confirmed that Milan was in their captivity and
threatened that the police should not be informed. At about
10:00 PM the same day, the police installed a caller ID on
phone No.7220285 on which the ransom calls were received
but no call was received on the number after the installation of
the caller ID. That the other telephone connection in his house
having No.7417368 had a caller ID facility.
19. In cross examination, Prem Mittal stated that Ritesh
was the real son of his elder brother Mahavir and used to
reside about 20 steps away from their house. He stated that
till he was arrested Ritesh used to come to their house for
short durations and that on 4.1.2002 he was present in his
house at 9:30 PM and that he remained in their house till
10:00 PM when the caller ID was installed on the second
telephone line.
20. Smt. Surekha Khanna PW-23, deposed that Milan
used to visit her house for tuitions after school and that on
4.1.2002, Milan came to her house for tuition at 3:30 PM and
left with another boy named Hitesh at 5:00 PM.
21. Naresh Kumar PW-2 deposed that on 4.1.2002, at
about 5:00 PM he had gone to a barber's shop to get a shave,
but since there were already a few customers at the shop, he
came outside and went to a plot nearby to ease himself where
a car of Santro make was already parked. He saw his nephew
Milan Mittal crossing the park along with a friend, who, after
crossing the park parted company with Milan and went
towards a gali. Milan stood near the parked Santro car and
started talking with a person sitting inside the car. He could
not see the person sitting inside the car since the glasses of
the car were tainted. Thereafter Milan sat on the seat adjacent
to the driver's seat in the car and the car sped past him at a
speed. He noted that the number written on the broken rear
number plate of the car was 1172 and the car had a scenery
sticker affixed on the doors. He went to his native village in
Haryana for a day and on his return the next day at about
11/12 noon when he visited the house of Prem Mittal he was
informed that Milan had been kidnapped. He informed
aforesaid facts to the police which were recorded in his
statement Ex.PW-2/DA and that the car Ex.P-10 was the one in
which he had seen Milan leave the place.
22. Jitender PW-7, deposed that on the day of the
incident, at about 12:00 noon he drove down to the dhaba of
accused Narender Chauhan @ Guddu in the Santro car No.DL-
4CN-1172 Ex.P-10 belonging to his brother. Accused Ritesh
Mittal met him at the dhaba and asked him to lend his Santro
car for a few hours and in return gave his Matiz car bearing
No.8825. Thereafter, accused Ritesh Mittal left the dhaba
along with accused Narender Chauhan and accused Zaffar
Abbas in the Santro car. At about 8:00 PM, the same day,
when accused and Ritesh Mittal along with other accused met
him in front of the Oasis Hotel to return the Santro car, he
noted that the rear number plate of the car was broken and
the stepney of the car had been replaced. When he questioned
accused Ritesh Mittal about the broken number plate he gave
a vague reply saying that some children must have broken the
number plate.
23. Manpreet Singh PW-5 deposed that he had sold the
SIM card pertaining to mobile No.9811587365 to a customer
on 4.1.2002.
24. Hardeep Singh PW-8, deposed that he owned a
mobile handset of Seimens make together with a SIM card of
mobile No.9811485780 in the year 2001. He had sold the
same to one Shanty, who had further sold it to appellant
Narender Chauhan in his presence.
25. Satbir Singh PW-13, deposed that he was a tea
vendor and that he found an abandoned school bag on Khera
road. It contained books as well as notebook. On opening the
bag he found name of Mittal scribed there with a telephone
number mentioned. He rang up the said number. The police
came and he handed over the school bag to them.
26. Gaurav PW-19, deposed that the deceased was his
cousin (bua's son) and he learnt on 4.1.2002 at about 8:15 PM
that Milan was missing. He was present in the house of his
bua at 9:15 PM and at about 9:25 PM a call was received at
phone No.7220285. He had responded to the call. The caller
demanded Rs.20 lacs and told him that the police should not
be contacted. There was disturbance in the phone. After 2 or
3 minutes the bell rang again. The caller repeated the ransom
demand of Rs.20 lacs. The police was informed.
27. Deepak Gupta PW-16, Deputy Manager Legal and
Regulatory, Hutch Essar Telecom deposed that Major Gurpreet
Singh was working him and left the company on 13.11.2003.
That he had brought the record with details of mobile
No.9811485780 for the month of November 2001 and the
mobile details of the number 9811587365 for the month of
January 2002 and that the same were Ex.PW-16/A and Ex.PW-
16/B.
28. We may note at this stage that the print out of the
two call details is available at page No.619 and 621 of the Trial
Court Record, but without any exhibit mark thereon. It
appears that during testimony the call records proved by the
witness were inadvertently not identified by recording thereon
the exhibit mark.
29. Insp. B.R.Mann PW-25 the investigating officer
deposed that he was handed over the investigation of the case
after the recovery of the body of Milan Mittal. He narrated the
sequence of events in the investigation of the case as noted
above. He deposed that the disclosure statement of accused
Zaffar Abbas was recorded subsequent to the disclosure
statements of the other two accused. Subsequent to his
disclosure statements accused Zaffar Abbas had got recovered
a broken number plate of the car from the dustbin of RU Block
Market Pitam Pura. On being cross-examined the witness
admitted that he had recorded the statement of Narender
Chauhan first. SI Praveen Kumar PW-20 deposed the facts qua
the investigation conducted by him i.e. the facts noted in para
1 and 2 above.
30. Vide impugned judgment and order dated
21.11.2008, the learned Trial Judge has acquitted accused
Zaffar Abbas, holding that the alleged recovery of the broken
number plate of the Santro car having No.1172 written thereon
does not inspire any confidence inasmuch as the evidence was
not clear, whether, when the car was returned, as claimed by
Jitender PW-7, the full number plate or a broken number plate
was affixed at the rear of the car. Secondly, the learned Trial
Judge had noted that the appellants who were arrested prior
had already made a disclosure statement that they can get
recovered the broken number plate of the car. Lastly, the
learned Trial Judge has noted that in his statement recorded
by the police under Section 161 Cr.P.C., Jitender PW-7 had not
stated that when he took back the Santro car at 8:00 PM, even
Zaffar Abbas was present with the other co-accused. The
learned Trial Judge has noted that Jitender PW-7 has improved
upon his statement recorded by the police as regards the
involvement of Zaffar Abbas.
31. Qua the appellants, the learned Trial Judge has held
that Ex.PW-16/B i.e. the call details of the mobile number
9811587365 showed 3 calls made to the landline number 722
0285 between 9:25 PM to 9:29 PM. The same showed that the
handset used was having IMEI No.445199456405630. This
document corroborated the testimony of PW-19 Gaurav that
he had responded to ransom calls between 9:25 PM and 9:20
PM on 4.1.2002. The recovery of the handset having IMEI No.
445199456405630 from the right side pant pocket of accused
Narender together with the testimony of PW-5 and PW-8,
established that Narender was in possession of the said
handset and that previously the handset was used on their
mobile number 9811485780 and on 4.1.2002, for the first time
it was used on mobile No.9811587365. The learned Trial
Judge has held that this evidence establishes the involvement
of Narender in the crime. With reference to the testimony of
Naresh Kumar PW-2 and Jitender PW-7, the learned Trial Judge
has held that the testimony of Naresh Kumar establish that
Ritesh was last seen entering the Santro car, possession
whereof was taken by the appellants from Jitender at 12:00
noon and returned to him at 8:00 PM i.e. the appellants
remained in possession of the car in which Milan was
kidnapped. The recovery of the slip Ex.P-19 from the pocket of
Narender having written thereon telephone No.7220285, the
landline number in the house of the kidnapped child, a number
qua which Narender had no concern, has also been held to be
incriminating piece of evidence against Narender. Qua
appellant Ritesh, besides accepting the testimony of PW-2 and
PW-7, the learned Trial Judge has held that the fact that no
ransom call was made on landline number 7417368 which had
a caller ID facility and that no calls were made on the number
7220285 after 10:00 PM when caller ID facility was activated
on said number, coupled with the fact that Ritesh was the
cousin of the deceased and as per testimony of PW-1 was
present in the house when caller ID was activated on said
number showed that the kidnappers were aware of what was
going on in the house of the kidnapped child and said
knowledge could be only through appellant Ritesh.
32. We note that the recovery of the book Ex.P-5/6 and
the notebook Ex.P-6/7 at the instance of Ritesh and the
recovery of a yellow plastic bag Ex.P-20 at the instance of
Narender have been negated by the learned Trial Judge as
incriminating evidence because Satbir Singh PW-13 had
categorically deposed that he had picked up the bag
containing the books and notebooks of Milan when he saw an
abandoned bag on Khera road and that he had handed over
the same to the police. Obviously, Ex.P-5/6 and Ex.P-6/7 could
be planted. Qua the yellow coloured bag Ex.P-20, the same
was not linked to the crime and hence had no evidentiary
value.
33. During argument of the appeal, learned counsel for
appellant Ritesh argued that the testimony of Naresh Kumar
PW-2 did not inspire any confidence because had he seen
Milan sit inside the car which sped of, it should have alarmed
him, and since he was related to Milan, his normal conduct
ought to have been to immediately inform the parents of Milan
that their child had gone in a car with a stranger. Counsel
argued that it is not normal human conduct to note down the
number of a car, unless one finds a car to be moving in a
suspicious manner or there is something which compels the
mind to note the number of the car, and that something had to
be a suspicion. Counsel argued that obviously Naresh Kumar
felt nothing suspicious, for had he felt so, he would have
informed the parents of Milan that their child had left in a car.
It was urged that as per Naresh Kumar he was present near
the car where the Santro car was parked as he had gone to a
barber's shop. Counsel urged that nobody was examined from
the barber's shop to prove said fact. Counsel further urged
that the Matiz car allegedly exchanged by the appellants with
PW-7 was not seized. Counsel further urged that the
incriminating evidence pertaining to the slip Ex.P-19 was not
put to Ritesh when he was examined under Section 313 Cr.P.C.
Learned counsel urged that the Santro car did not belong to
Jitender PW-7. It admittedly belong to his brother Raj Kumar
who took possession of the car on superdari and while moving
the application for release of the car, did not state that on
4.1.2002 he had handed over the car to Jitender.
34. Learned counsel for accused Narender questioned
the conduct of PW-2 on the same reasoning as was pressed
into aid by learned counsel for Ritesh. It was additionally
urged that PW-2 was obviously lying when he deposed that he
had seen the rear number plate of the car broken and had
noted the last digits 1172 for the reason in his statement
under Section 161 Cr.P.C., PW-7 had stated that when the car
was returned to him, the rear number plate was completely
missing; counsel urged that PW-2 had improved upon said
statement while deposing in Court and stated that the number
plate was broken with the last 4 digits intact. Counsel urged
that for this reason, co-accused Zaffar Abbas had been given
the benefit of doubt and the same benefit had to be extended
in favour of his client. Questioning the recovery of the mobile
phone Ex.P-18, learned counsel urged that the possibility of
the same being planted on Narender Chauhan cannot be ruled
out.
35. Qua the testimony of Naresh Kumar PW-2, it has to
be noted at the outset that his statement under Section 161
Cr.P.C. was recorded the very next day i.e. on 5.1.2002. He
informed, as per said statement, that he had seen Milan sit
inside a white coloured Santro car, the rear number plate
whereof was broken and the last four digits of the registration
number were 1172. PW-7 could be tracked by the
investigating officer after a few days and his statement under
Section 161 Cr.P.C. was recorded on 9.1.2002. Naresh Kumar
has not been proved, by the defence, to be having any
connection with PW-7. This lends assurance to the
truthfulness of the testimony of Naresh Kumar that he had
seen Milan enter a white Santro car after talking with
somebody inside the car; the last four digits of the number
whereof, as per the rear number plate, was 1172. That Naresh
Kumar did not immediately inform Milan's parents that their
son had left with somebody in a car, is no ground to suspect
the testimony of Naresh Kumar, for we see no reason for him
to have gone running to the house of Milan. As per his
testimony, Milan had a conversation with somebody in the car
and thereafter Milan entered the car. The friendly entry into
the car by Milan would obviously raise no alarm in the mind of
Naresh Kumar compelling him or necessitating his informing
the parents of Milan that their son had left in a car with
somebody. The mere use of the expression that the car sped
away, while deposing in Court, does not lead to any inference
of a circumstance where from further inference has to be
drawn that the said event ought to have raised an alarm in the
mind of Naresh Kumar. It could well be an inappropriate
expression used! How on earth could Naresh Kumar ever
conceive of the fact that there exists a Santro car, white in
colour, the last four digits whereof are 1172; a trinity of facts
admittedly proved at the trial. This strange coincidence, if it is
so, inspires confidence qua the truthfulness of the testimony of
Naresh Kumar. The fact that the car Ex.P-10 i.e. the white
coloured Santro car in which Milan made a friendly entry at
around 5:00 PM was in the possession of the appellants stand
established through the testimony of PW-7. The blemish in his
testimony of deposing that when the car was returned to him
at 8:00 PM even Zafar Abbas was with the appellants, is not so
fundamental or fatal as to destroy the worth of his entire
deposition, even qua the appellants. That a benefit of doubt
has been given to Zafar Abbas on said limited point does not
require the same logic to be extended to give the benefit of
doubt to the appellants, who, as per the testimony of PW-7
were known to him. Zafar Abbas was not known to the witness
and was identified by him for the first time in court. The twin
effect of the testimony of PW-2 and PW-7 is the proof that the
appellants were in possession of the Santro car from 12:00
noon to 8:00 PM and that Master Milan had been kidnapped in
the said car at 5:00 PM.
36. Ex.PW-16/A and Ex.PW-16/B are proof that the
handset having IMEI No.445199456405630 was used till
4.1.2002 on the SIM card pertaining to mobile No.9811485780
and that on 4.1.2002 it was used on the SIM card pertaining to
the mobile No.9811587365 on 4.1.2002. Ex.PW-16/B further
establishes that the said handset was used through mobile
No.9811587365 to contact landline No.7220285, which as per
the testimony of PW-1 and PW-19 was installed in the house of
the father of the kidnapped child. The testimony of PW-5 and
PW-8 establish the fact that the handset and the SIM cards of
both mobile numbers were with Narender Chauhan. Thus, in
the absence of any satisfactory explanation by Narender
Chauhan, the only presumption required to be drawn is that
either Narender Chauhan himself or somebody else, at his
instance or in association with him, used the handset to
contact the family of Milan through mobile No.9811587365.
The testimony of PW-19 that he responded to two calls around
9:25 PM on mobile No.7220285 also stands corroborated
through the call details of the said mobile number. The
testimony of PW-19 establishes that ransom calls were raised.
37. It assumes significance that no ransom call was
made on the landline No.7417368 since it had a caller ID
facility. It assumes significance that ransom calls were made
on landline number 7220285, which did not have a caller ID
facility. It assumes significance that a caller ID facility was
activated on said number at around 10:00 PM and thereafter
no ransom call was received even on said number. It assumes
significance that appellant Ritesh is the son of the elder
brother of PW-1, the father of Milan and has been proved to be
present in the house at around 9:30 PM till 10:15 PM; having
knowledge of what was going inside the house. The fact that
Milan made a friendly entry in the Santro car also establishes
that somebody known to Master Milan was sitting in the car
and that is why the innocent child willingly sat inside the car.
38. What is the quality of circumstantial evidence
wherefrom a presumption of guilt can be raised? The normal
expression used in the decisions is that the circumstantial
evidence should bring out a chain of circumstances, so
complete, that an inference of guilt can be inferred from the
said chain of circumstances. But, we would prefer to put it a
little differently. Where the quality of circumstantial evidence
is such that any logical mind is led to the irresistible conclusion
that unless the accused explains, he or they, must admit the
guilt, said evidence would be good evidence to sustain a
conviction, for the reason it can be said that said evidence
forms a complete chain of circumstances wherefrom guilt can
be inferred. The plea that the mobile phone number has been
planted on Narender Chauhan is without any factual basis for
the reason no such suggestion of planting was given to the
investigating officer Inspector B.R.Mann PW-25. Further, the
mobile phone had a distinctive IMEI number which is unique to
every mobile handset. Before such a unique distinctive
handset could be planted by the police, there has to be
evidence that the police could have possessed the same.
Ex.PW-16/B, the mobile call details pertaining to the SIM card
of mobile No.9811587365 conclusively establish that the said
handset was with the person who had purchased the SIM card
of the mobile No.9811587365 and that calls were made using
the said handset, through the said mobile number to the
landline number 7220285 in the house of Master Milan. There
is no evidence that the police had possession or had access to
the said handset at any point of time till it was seized upon the
arrest of accused Narender Chauhan.
39. Qua appellant Narender, he has rendered no
explanation of who made the telephone calls from the handset
having IMEI No.445199456405630 recovered from the right
side pant pocket at the time of his arrest as per recovery
memo Ex.PW-20/M. The fact that from this handset, using SIM
card of mobile No.9811587365, calls were made at the
landline number 7220285 at the house of the deceased,
coupled with appellant Narender along with appellant Ritesh
being proved to be in possession of the Santro car Ex.P-10
between 12:00 noon and 8:00 PM on 4.1.2002, in which car
Master Milan was abducted at around 5:00 PM, is sufficient
evidence wherefrom any logical mind would reach the
irresistible conclusion qua the guilt of Narender. Qua Ritesh
the evidence of his being in possession of the Santro car
between 12:00 noon and 8:30 PM on 4.1.2002 and Master
Milan being abducted in the said car at around 5:00 PM with
further evidence that Ritesh and Milan were cousins and that
Milan made a friendly entry in the car are sufficient evidence
wherefrom any logical mind would reach the irresistible
conclusion qua the guilt of Ritesh. The fact that no ransom call
was made at the landline number which had a caller ID facility
and that when the caller ID facility was activated on the other
landline number, when Ritesh was present in the house of
Master Milan, no further calls were received lends assurance to
the involvement of Ritesh in the crime. Further, for the
reasons noted in para 6 above, it is apparent that Master Milan
was murdered either in late evening of 4.1.2002 or during
early hours of the intervening night of 4th and 5th January 2002.
There is proximity of time between the deceased last seen
alive in the company of the appellants and the death. In the
absence of any satisfactory explanations by the appellants of
the time and place on/at which they parted company with the
deceased another link to the chain of incriminating
circumstances can safely be added against the appellants.
40. The submissions that nobody was examined from
the barber's shop to corroborate the presence of Naresh
Kumar and that no evidence has been led qua the ownership
of the Matiz car has hardly impressed us, for the reason, the
prosecution has to lead evidence to prove its case and not all
and sundry evidence. Similarly, it hardly matter whether Raj
Kumar, brother of Jitender PW-7 was examined or not, for the
reason, Raj Kumar was not the witness to the exchange of
Santro car with the Matiz car.
41. We ignore the evidentiary value of the slip Ex.P-19
recovered from the pocket of Narender on which the landline
number 7220285 as also two more mobile numbers were
written for the reason the evidentiary worth of said evidence is
near minimal.
42. But, we note that there is no evidence to prove any
conspiracy save and except the confessional statements of the
accused. The only evidence is the commission of the crime by
the appellants who abducted Master Milan and were last seen
with him at 5:00 PM on 4.1.2002. The dead body of Master
Milan was noted by somebody who informed the police on
5.1.2002. The appellants have not rendered any explanation
as to when and where did they part company with Master
Milan. The circumstance of Master Milan being missing in the
company of the appellants and his being found dead is of a
nature wherefrom the only inference possible is that the
appellants had committed the crime of not only abducting
Master Milan but even murdering him. It appears to be a case
of appellant Ritesh, an immature criminal, panicking and since
he would obviously be identified by Milan, being compelled to
do away with a witness.
43. The appeals are accordingly partially allowed. The
conviction of the appellants for the offence of conspiracy is set
aside. The conviction of the appellants for the offence
punishable under Section 364-A and 302/34 IPC as also the
offence punishable under Section 201/34 IPC and the sentence
imposed qua said offences is upheld.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
May 20, 2009
mm/Dharmender
