Devesh Kumar vs State
2010 Latest Caselaw 766 Del

R-35 to 37
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision: 10th February, 2010

+      CRL. APPEAL NO.793/2004

       DEVESH KUMAR                                         ..... Appellant
                Through:                Mr.Bhupesh Narula, Advocate.

                      versus

       STATE                                           ..... Respondent
                      Through:          Mr.M.N.Dudeja, A.P.P.

       CRL. APPEAL NO.950/2004

       FIROZ KHAN                                           ..... Appellant
                Through:                Ms.Charu Verma, Advocate and
                                        Mr.Bhupesh Narula, Advocate.

                      versus
       STATE                                           ..... Respondent
                      Through:          Mr.M.N.Dudeja, A.P.P.

       CRL. APPEAL NO.75/2008

       JAIVEER                                        ....Appellant
                      Through:          Ms.Charu Verma, Advocate

                      versus
       STATE                                           ..... Respondent
                      Through:          Mr.M.N.Dudeja, A.P.P.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

    1. Whether the Reporters of local papers may be
       allowed to see the judgment?

    2. To be referred to the Reporter or not?                  Yes

    3. Whether the judgment should be reported in the
       Digest?                                   Yes


Crl.Appeals No.793/04, 950/04 & 75/08                      Page 1 of 21
 PRADEEP NANDRAJOG, J. (Oral)

1. Four persons, Firoz Khan, Jaiveer, Devesh Kumar

(the appellants) and Netrapal were charged for the offence

punishable under Section 364-A/34 IPC. Case of the

prosecution was that one Raju a juvenile (referred to before

the Juvenile Justice Board) enticed Master Rahul aged about 7

years when Rahul was playing on the street outside his house

and gave him a biscuit laced with a stupefying drug. Firoz

Khan, Jaiveer and Devesh Kumar as also Netrapal were the

architects. The child was taken to Agra and kept confined in

the house of Udaiveer PW-2 and upon the arrest of Devesh,

Firoz Khan and Jaiveer who came together to receive the

ransom; pursuant to they making the disclosure statements

Ex.PW-1/C, Ex.PW-1/D and Ex.PW-1/E led the raiding party

consisting of Insp.Neeraj Kumar PW-12 and Ct.Jagdish Raj PW-7

as also Ct.Vijay PW-8 to the house of Udaiveer, from which

house Master Rahul was recovered on 3.3.2002.

2. Vide impugned judgment and order dated 9.9.2004,

the learned Trial Judge has held that the prosecution has

successfully established the case against Firoz Khan, Jaiveer

and Devesh Kumar. Holding that there was no evidence

incriminating against Netrapal, he was acquitted.

3. The learned Trial Judge has returned a finding of

guilt against the appellants with reference to the testimony of

Indrasen PW-1, the father of Rahul as also the testimony of

Ct.Jagdish Raj PW-7 and Ct.Vijay PW-8 and lastly the testimony

of Insp.Neeraj Kumar PW-12 (the IO of the case), all of whom

deposed that on 3.3.2002 when the appellants came to receive

the ransom amount at the pre-designated place they were

apprehended and made disclosure statements informing that

Master Rahul was in the house of Udaiveer PW-2 from whose

house the child was recovered.

4. With reference to the testimony of Udaiveer PW-2,

the learned Trial Judge has held that the same establishes that

appellant Devesh was his brother-in-law and had brought

Rahul to his house informing him that Firoz and Jaiveer were

his friends and that Rahul was the nephew of Jaiveer. In a

nutshell, qua the testimony of Udaiveer, the learned Trial

Judge has held that the same establishes that the appellants

brought Rahul to his house on 27.2.2002 and that the child

was recovered from his house.

5. Rahul has been examined as PW-3 and with

reference to his testimony the learned Trial Judge has held

that the same establishes that Raju enticed Rahul from the

road outside his house, the bate was a biscuit having a

stupefying substance after consuming which Rahul became

unconscious and when he regained consciousness on the next

day he found himself in the company of the appellants in the

house of Udaiveer.

6. It is apparent that the fate of the instant appeal

would be decided on the testimony of PW-1, PW-2, PW-3, PW-

7, PW-8 and PW-12.

7. But before noting the same we note that the

process of law pertaining to the instant case commenced when

Indrasen went to the local police station Sangam Vihar on

22.1.2002 and made the statement Ex.PW-1/A informing that

his son Rahul was missing since 3:00 PM on 21.1.2002 and

inspite of making best efforts Rahul could not be found. After

a few days he went to the investigating officer who had got

registered the FIR relatable to the offence of kidnapping and

handed over to him a letter Ex.PW-1/A which was seized by SI

Sanjeev Kumar vide Ex.PW-1/B, as per which letter a written

demand for ransom to release Rahul was made. The offence

of kidnapping for ransom was added in the FIR.

8. As deposed to by SI Sanjeev Kumar PW-11, he had

to hand over the investigation to another officer as he

proceeded on leave.

9. The contours of the further investigation as claimed

by the prosecution stand revealed in the testimony of

Insp.Neeraj Kumar PW-12. We would be soon noting the same.

We now proceed to note the testimony of PW-1, PW-2, PW-3,

PW-4, PW-5, PW-6, PW-7, PW-8, PW-11 and PW-12.

10. Indrasen PW-1 deposed that the statement Ex.PW-

1/A was made by him on the day next after Rahul went

missing and that after 10 days he received the letter Ex.PW-

1/A which he handed over to the police as recorded in the

memo Ex.PW-1/B and that after about a week or 10 days

thereafter he received a telephone call through a STD booth in

front of his house and the caller Firoz Khan demanded Rs.3

lakhs for released of Rahul. He i.e. Indrasen took a mobile

phone having No.9811106207 from his tenant and gave the

same to the caller. (It is important to note at this stage

itself as to wherefrom Indrasen deposed that the caller

was accused Firoz Khan has remained a mystery.). He

further deposed that he received a call at the afore-noted

mobile number informing that the ransom had to be paid at

Agra on the 100 feet wide road at Kalindi Vihar. He gave said

information to the police and went to Agra "with pre-

arranged money". He went to the place fixed by the caller

and appellants came to collect the money. After he handed

over the money to Firoz Khan and gave pre-fixed signal to the

police, all appellants were apprehended and they made

disclosure statements Ex.PW-1/C, Ex.PW-1/D and Ex.PW-1/E.

They led the police to a house near a STD booth where his son

was recovered as noted in the memo Ex.PW-1/F. He deposed

that the 5 packets each having two currency notes in sum of

Rs.100/-, one each at the top and bottom which were seized

vide memo Ex.PW-1/G were the ones which were shown to him

in the Court being Ex.PW-7/1 to Ex.PW-7/5.

11. On being cross-examined, Indrasen stated that

along with the police personnel he left for Agra on 28.2.2003

but did not remember as to where they first went on reaching

Agra and that he did not remember how many days they

stayed at Agra. He stated that he did not remember the

distance between the STD booth near which the appellants

were apprehended and the house wherefrom his son was

recovered. He said he could not even remember whether the

distance was 10 paces, 20 paces, 50 paces, 1/2 km or 1 km.

He reiterated that the call received by him at the STD booth

near his house 10 days after his son was missing was made by

the accused Firoz Khan. On being questioned where did he

and the police personnel stayed in Agra, he replied: "we use

to remain in the vehicle itself".

12. Ct.Jagdish Raj PW-7 deposed that he joined

investigation on 28.2.2002 and on that day left Delhi for Agra

and reached Agra in the night hours and remained in Agra for

about 2 to 3 days and that when in Agra, Indrasen received a

call on his mobile phone demanding ransom in sum of

Rs.2,50,000/- and as directed by the caller they reached near

STD booth on 100 feet road by Kalindi Vihar at Agra at 7:00

PM. 5 packets of currency notes i.e. the ransom amount

payable were arranged having a genuine note each at the top

and bottom of the packet in denomination of Rs.100/- and in

between plain papers were kept. That the police personnel hid

and when the complainant gave pre-fixed signal the police

party apprehended appellants and on interrogation made the

statements Ex.PW-1/C, Ex.PW-1/D and Ex.PW-1/E and

thereafter led the police to the house of Udaiveer wherefrom

Rahul was recovered as recorded in the memo Ex.PW-1/F and

that the arrest memos Ex.PW-7/A, Ex.PW-7/B and Ex.PW-7/C of

the accused were prepared.

13. On being cross-examined as to where they first

reported on reaching Agra and where they stayed overnight in

Agra, he stated that after leaving Delhi at around 4:00 PM they

reached Agra at 10:00 PM and reported directly at the police

station in Agra and during their stay in Agra they spent the

night in the police station.

14. Ct.Vijay PW-8 deposed that even he joined the

investigation on 28.2.2002 and on 2.3.2002 Indrasen received

a call on his telephone demanding ransom. As directed by the

caller they reached the 100 feet road at Kalindi Vihar, Agra

near the STD booth. He corrected himself that they went to

Agra on 28.2.2002. That on 3.3.2002 the accused came to the

telephone booth and demanded money. Bundles having

genuine notes on both sides were handed over and at that

point of time Indrasen gave the pre-designated signal and all

the accused were apprehended. They were interrogated and

made disclosure statements Ex.PW-1/C, Ex.PW-1/D and Ex.PW-

1/E and led the investigating officer to the house of Udaiveer

wherefrom the kidnapped child was recovered and that the

packets Ex.PW-7/1 to Ex.PW-7/5 were the ones which were

seized as recorded in the memo Ex.PW-1/G.

15. On being cross-examined he stated that as far as

he remembers, no written proceedings were carried out after

the accused were apprehended at the STD booth in Agra.

16. Insp.Neeraj Kumar PW-12 deposed that he took

over the investigation on 20.2.2002 and Indrasen told him that

he had received a telephone call at the STD booth in front of

his house and the caller had instructed him to arrange a

separate phone to listen to further calls which they would be

making and hence through the tenant of Indrasen he arranged

mobile phone bearing No.9811106207, on which number a call

was received from Agra on 28.2.2002 demanding ransom. He

arranged the raiding party and left for Agra in a Tata Sumo.

They reached Agra at about 11:00 PM and first of all went to

the telephone exchange Agra to trace the address of the

telephone booth from which the ransom call was received. It

took about 2 days to trace the location of the STD booth from

where ransom calls were being made, during which period

Indrasen constantly received telephone calls from the

kidnappers. On 3.3.2002 after preparing 5 packets containing

Rs.100/- each on the top and bottom, they stationed

themselves near STD booth on the 100 feet road at Kalindi

Vihar, Agra. 3 persons came near the STD booth to collect

ransom. Indrasen gave the pre-fixed signal. Appellants were

apprehended. He interrogated them. They informed that the

victim was in the house of Udaiveer. He went to the house of

Udaiveer as pointed out by the accused and recovered Rahul

as recorded in the memo Ex.PW-1/F. He recovered the ransom

money as noted in the seizure memo Ex.PW-1/G. Accused

were arrested as recorded in the memos Ex.PW-7/C, Ex.PW-7/D

and Ex.PW-7/E. Pertaining to the place where the disclosure

statements Ex.PW-1/C, Ex.PW-1/D and Ex.PW-1/E of the

accused were recorded he deposed: "On 3.3.2002 accused

persons, namely, Jaiveer, Firoz and Devesh made disclosure

statement Ex.PW-1/C, Ex.PW-1/D and Ex.PW-1/E at police post

H-Block Sangam Vihar". He further deposed that he obtained

the call details Ex.PW-12/B of the mobile No.9811106207 and

moved an application for recording Udaiveer‟s statement

under Section 164 Cr.P.C. before Shri Chandrashekhar,

Metropolitan Magistrate. The statement Ex.PW-2/A was

recorded by the learned Magistrate. He further deposed that

the packets Ex.PW-7/1 to Ex.PW-7/5 being the ransom money

was recovered by him and as recorded in memo Ex.PW-1/G.

17. On being cross-examined he admitted (1) that he

did not record the statement of the owner of the STD booth

from where ransom calls were made. (2) That he did not

record the statement of the owner of the mobile phone who

was the tenant of the complainant and who gave the same to

the complainant. (3) That he did not attach any document to

prove that they left Delhi. (4) That he did not inform the arrival

of the police team from Delhi at the police station in Agra and

during the entire duration of the stay at Agra, never informed

the local police. (5) That he did not record the statement of

any official of the telephone department at Agra pertaining to

address of the STD booth wherefrom stated ransom calls were

being made. (6) He did not associate the local police while

organizing the naaka (raid). (7) They did not stay in a hotel or

a guest house in Agra and that everybody used to sleep in the

vehicle itself during they stay of Agra. (8) That the STD booth

adjoining where accused were arrested was open but he did

not join the owner thereof as a witness (9) That the distance of

the house of Udaiveer from the STD booth was 50 paces. (10)

That he did not mention the place of arrest or the time of the

arrest of the accused in the arrest memo. (11) That the wife of

Udaiveer was present in the house from where Rahul was

recovered but he did not record her statement. (12) That he

did not put the date on the recovery memo Ex.PW-1/F.

18. Relevant would it be to note that the disclosure

statements Ex.PW-1/C made by appellant Jaiveer, Ex.PW-1/D

made by appellant Firoz Khan and Ex.PW-1/E made by

appellant Devesh are complete confessional statements

recording events in the past tense including the fact that when

the statement was made the child had already been

recovered.

19. Udaiveer PW-2 stated that he used to reside at

Kalindi Vihar, Agra and Devesh was his brother-in-law, being

the cousin of his wife and on 27.2.2002 the appellants brought

Rahul to his house in the night and stayed in his house.

Devesh told him that Rahul was the nephew of Jaiveer and that

on 3.3.2002, the three accused got recovered the child from

his house whose custody was taken over by the police and that

the recovery memo Ex.PW-1/F was drawn in his presence and

thumb impression at point „B‟ was his. On being cross-

examined by the learned APP he stated that his wife told him

that Netrapal used to come to his house.

20. Rahul PW-3 deposed that when he was playing

„gulli-danda‟ outside his house. Raju gave him a biscuit to eat

and he lost consciousness. Before eating biscuit he saw

Netrapal sitting at a wall about 2/3 feet and he got

consciousness the next day. He saw appellants Firoz and

Jaiveer near him. They told him that his father had left him.

He was taken to a house where Devesh was also present. Firoz

used to beat him. Firoz and Devesh made him bald.

Whenever he demanded to be left in the house of his parents

he used to be beaten and at one point of time Jaiveer took him

to a pond and threw him in the pond. He was rescued from

Agra.

21. On being cross-examined whether the pond in

which he had claimed to having been thrown had water, he

said „yes‟ but said that it was not a deep pond and he was

drowned up to his neck.

22. Having perused the confessional statements, styled

by the prosecution as disclosure statements, of the appellants

i.e. Ex.PW-1/C, Ex.PW-1/D and Ex.PW-1/E it is apparent, that as

admitted by the scribe of the statement Insp.Neeraj Kumar

PW-12, the said statements were recorded by him at the police

post Sangam Vihar (in Delhi). That is, after the kidnapped

child had already been recovered. As noted herein above,

Ct.Vijay PW-8 had admitted that no written proceedings were

carried out after the accused were apprehended, meaning

thereby, their disclosure statements were never recorded

immediately after the appellants were apprehended.

23. That apart, we translate the relevant extract from

disclosure statement Ex.PW-1/D of appellant Firoz (noting that

the relevant part of the disclosure statements of the other two

appellants are near pari material). It stands recorded

(translated): "From the STD booth we all informed Indrasen

that he should bring Rs.2.5 lakhs at 7:00 AM on 3.3.2002

should come near the STD booth adjoining 100 feet road

Kalindi Vihar. Pursuant whereto, accompanied by you Indrasen

reached the STD booth on time and Indrasen handed over

money to us and at that point of time you arrested us.

Netrapal, Govind and Satish managed to flee the house due to

it being dark and on the pointing out of myself, Jaiveer and

Devesh from the house of the brother-in-law of Devesh

recovered Rahul on being identified by Indrasen. I do not

know the address of Govind and Satish".

24. It is apparent that the learned Trial Judge has not

read the disclosure statements Ex.PW-1/C, Ex.PW-1/D and

Ex.PW-1/E which are narratives of past events. Obviously, no

recovery has been made pursuant to any disclosure statement

made by the appellant.

25. Thus, the most incriminating evidence sought to be

proved by the prosecution as fallen. We have to hold that the

prosecution miserably failed to prove that Rahul was

recovered pursuant to the disclosure statements made by the

appellants and upon the appellants leading the police to the

house wherefrom the child was recovered. We also note that

there are no pointing out memos drawn to show that the

appellants pointed out the house of Udaiveer.

26. The testimony of PW-2 Udaiveer has thus lost its

sting.

27. We shall be commenting upon the testimony of

Udaiveer a little later.

28. From the admissions made by Insp.Neeraj Kumar as

also the fact that PW-1 has stated that during their stay at

Agra from 28.2.2002 to 3.3.2002 they slept in the vehicle in

which they had left Delhi, it would be doubtful whether any

reasonable prudent person would accept the fact that apart

from the driver of the vehicle, 3 police officers and the father

of the child spent 3 nights and 3 days in the vehicle. Where

did they go to answer the calls of nature or bath etc?

Everything remains a mystery. That Insp.Neeraj Kumar had no

proof of ever having left Delhi or reaching Agra suggests that

nobody left to Agra. The fact that law requires police officers

to make DD entries when they leave the police station

disclosing therein the purpose of leaving the police station and

make DD entries when they return to the police station as also

the fact that there is just about nothing to show that anybody

reached Agra are serious lapses wherefrom a doubt is cast

whether at all the child was recovered from Agra. It would be

difficult to accept that the police team from Delhi remained

stationed at Agra for 3 days without informing their

counterparts in Agra about their stay in Agra and the purpose

thereof.

29. It assumes importance that neither the time nor the

place wherefrom the accused were apprehended by

Insp.Neeraj Kumar has been entered or recorded in the arrest

memo.

30. In this connection it assumes significance that as

per Insp.Neeraj Kumar the house of Udaiveer from where

Rahul was recovered was at a distance of about 50 paces from

the STD booth near which the appellants were apprehended

and Indrasen PW-1 could not even broadly state that distance

between the two spots; he could not even say whether the

distance varied between 10 paces to 1 km.

31. We find it strange that Insp.Neeraj Kumar claims to

have obtained the call detail records Ex.PW-12/B from the

service provider without recording the statement of the person

who handed over the same to him. The fact that Insp.Neeraj

Kumar did not record the statement of any person from the

telephone exchange in Agra pertaining to the location of any

particular STD booth suggests that location of no booth was

obtained from anybody. The fact that Insp.Neeraj Kumar

admits that the STD booth near which the accused were

apprehended was open and his not associating the owner of

the telephone booth further renders discreditworthy the

actions and investigation of Insp.Neeraj Kumar.

32. At this stage, we would like to comment upon the

lack of the knowledge of the investigating officer, the learned

APP and even the learned Trial Judge as to how electronic

record has to be proved. The decision reported as 2003 IV AD

(Cr.) 205 State vs. Mohd.Afzal & Ors., which was delivered in

the month of October 2003 clarified the law by explaining

Section 65-B of the Evidence Act as to how electronic record

has to be proved.

33. Inspite thereof, certain sheets of paper, styled as

computer generated call detail printouts were permitted to be

exhibited on the statement of Insp.Neeraj Kumar that he went

to the company and obtained the same. Neither a certification

from a responsible officer of the company having control over

the computer or authorized to generate a print out from the

computer was proved nor was anybody from the company

examined to state that the computer generated sheets were

generated through the computers storing the information and

the information generated was stored in the ordinary course of

business of the service provider.

34. We cannot look to the computer generated sheets

Ex.PW-12/B for the reason the same have not been proved to

be electronic record generated on sheets.

35. We are repeatedly noticing that learned Additional

Sessions Judges are exhibiting computer generated printouts

on mere statements of the investigating officer that he

obtained the same from a particular source, without complying

with the mandate of Section 65-B of the Evidence Act as

explained in Mohd.Afzal‟s case (supra).

36. In view of the aforenoted deficiencies in the case of

the prosecution it becomes doubtful whether at all the

appellants were apprehended near the telephone booth at

Kalindi Vihar Agra as claimed by the prosecution.

37. We have reserved our comments on the testimony

of Udaiveer and hence we pen down the same.

38. As deposed to by Udaiveer he used to ply a three-

wheeler scooter. Persons in low place jobs and in the

unorganized sector are most vulnerable and can be

manipulated by the police. Udaiveer seems to have been

manipulated.

39. We hasten to add that no cogent explanation has

been given as to on what basis the investigating officer gave a

clean chit to Udaiveer, the person from whose house the

kidnapped child was recovered.

40. As per Udaiveer he kept Rahul in his house because

Devesh told him that Rahul was the nephew of Jaiveer. Rahul

claims that Firoz used to beat him. What business did Firoz

have to beat Rahul? If he did so, why did the eyebrows of

Udaiveer not rise to suspect that something was amiss? It is

apparent that the testimony of Udaiveer and Rahul are not

only not in sync but are contradicting each other on a material

aspect i.e. the conduct of Udaiveer and the facts stated by

Rahul.

41. If we analyze the testimony of Master Rahul there

are traces of the child being tutored as also fantasizing. We

have noted above that according to Rahul when he was in the

house of Udaiveer accused Firoz used to beat him. According

to Rahul a lady used to be in the house. Insp.Neeraj Kumar

PW-12 has admitted on cross examination that Udaiveer‟s wife

was present in the house. Rahul has stated that he was taken

by Jaiveer and thrown in a pond.

42. That Rahul has deposed falsely is evident from the

fact that he claims Jaiveer took him to a pond and threw him in

the pond. Why would Jaiveer take Rahul and expose himself

and the child in public, clearly to be spotted by someone when

he would be throwing Rahul in a pond?

43. That Rahul is intelligent enough to clothe his lies is

apparent when he stated that the pond was not deep and that

he was drowned up to his neck.

44. It is settled law that where the case of the

prosecution had substantially fallen, remnants of what is

perceived to be not tainted is not sufficient to sustain a

conviction, for the reason it may be difficult for the defence to

demolish each and every piece of evidence led by the

prosecution.

45. When the main pillars of the case of the prosecution

have fallen, it would be futile to look to the pillars which stand

and try and ascertain whether the structure can be salvaged.

46. As noted hereinabove, the manner in which the

disclosure statement of the accused have been recorded and

the fact that as admitted by Insp.Neeraj Kumar he recorded

the disclosure statements of the accused at the police picket

Sangam Vihar, a place in Delhi it is apparent that the same

were recorded much after everything was over.

47. As noted hereinabove, the script in the disclosure

statement is not a pre-script but is a post-script of events

which had already transpired. Thus, the question of a new fact

not being in the knowledge of the police being discovered by

the police for the first time after the disclosure statements

were recorded does not arise. No part of the disclosure

statements is admissible under Section 27 of the Evidence Act.

48. The appellants have earned their freedom.

49. Placing on record our sense of appreciation for the

learned counsel for the accused who have, as Amicus Curiae at

the asking of the Court, pointed out the afore-noted lacunas in

the case of the prosecution we allow the appeals by setting

aside the impugned judgment and order dated 9.9.2004. The

appellants are acquitted of the charge punishable under

Section 364-A IPC for having kidnapped Master Rahul for

ransom.

50. Noting that appellants Devesh and Jaiveer are in jail

we direct their release if not required in any other case.

Noting that appellant Firoz Khan had jumped interim bail in

respect whereof steps are being taken to apprehend him and

realize the surety amount furnished by the sureties, we direct

that action as contemplated by law be taken against Firoz

Khan in jumping interim bail but as far as his conviction is

concerned in the instant case he shall be treated as having

been acquitted.

51. A copy of this order is directed to be sent to the

Superintendent Central Jail Tihar for implementation qua

Devesh and Jaiveer who shall be set free if not required in any

other case.

52. We also direct the Registry to send a copy of this

order to the District and Sessions Judge Delhi with a covering

letter that the same should be circulated to all the Additional

Sessions Judges in Delhi drawing their attention to paras 32 to

35 of the present order cautioning them as to how electronic

record has to be proved.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

FEBRUARY 10, 2010 dkb