Rakesh Kumar vs State
2010 Latest Caselaw 2374 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Decision : 4th May, 2010

+                            Crl. A. 895/2008

        RAKESH KUMAR                              ..... Appellant
                 Through:         Mr.Rahul Gupta, Mr.Shekhar Dasi,
                                  Mr.Rajnish Mishra and
                                  Mr.Madhur Seth, Advocate.

                      versus

        THE STATE OF DELHI          ..... Respondent

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

+                            Crl. A. 112/2009

        KAILASH                                    ..... Appellant
                      Through:    Mr.Sunil Bharti, Advocate.

                      versus

        THE STATE OF DELHI          ..... 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 Reporter or not?

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

PRADEEP NANDRAJOG, J.(Oral)

1. 4 accused, namely, Rakesh @Vinod, Ram Sewak,

Kailash and Maya Shanker were charged for the offence of

having kidnapped Master Aryan Victor at 11:00 AM on

30.4.2005 from near his house at Railway Colony, Kishanganj.

They were further charged with the offence of demanding

ransom in sum of Rs.15 lakhs under threat of causing death or

hurt to the child i.e. the offence punishable under Section 364-

A IPC. Needless to state, all accused were charged of having

acted in concert and thus Section 34 IPC was stated to be

attracted.

2. At the end of the trial, no incriminating evidence

surfaced against accused Ram Sewak and Maya Shanker.

Thus, vide impugned judgment dated 1.10.2008 they have

been acquitted. Appellants Rakesh and Kailash have been

convicted.

3. From a perusal of the impugned decision, we find

that Kailash has been convicted on the testimony of Inspector

Santosh Kumar Singh PW-12 as per whom Kailash was arrested

when he was having custody of the kidnapped child Master

Aryan Victor. Appellant Rakesh has been convicted in view of

the testimony of Const.Dilbagh PW-8, Insp.Dayanand PW-9 and

SI Sanjay Bhardwaj PW-11.

4. It may be noted that Master Aryan Victor aged 5½

years when he was kidnapped has not been produced as a

witness.

5. Case of the prosecution is that Master Aryan Victor

aged 5½ years, son of the complainant Bhaskar Victor PW-2,

was detected to be missing at 11:00 AM on 30.4.2005 from

outside house No.113/10 Railway Colony, Kishanganj. A

missing person's complaint was lodged by Bhaskar Victor in

which he suspected none for having kidnapped his son. On

16.5.2004 he informed the police that he had received a

ransom call on his mobile No.9899031080 from a mobile

No.9839030127 and that the caller has demanded ransom in

sum of Rs.15 lakhs. The money had to be paid, as per the

demand of the caller, in the town of Bareilly in the State of

Uttar Pradesh on 19.5.2005 and thus a raiding party consisting

of Insp.Dayanand, SI Sanjay Bhardwaj and Const.Dilbagh was

constituted who went along with Bhaskar Victor to handover

the ransom amounts; and to cheat upon the extortionist,

bundles of fake currency were created some having a currency

in denomination of Rs.1,000/- and some having a currency in

denomination of Rs.500/-. The 3 police officers and Bhaskar

Victor proceeded to Bareilly Railway Station on 19.5.2005 and

laid in wait for somebody to come and receive ransom amount,

hoping that when this would happen the said person would be

apprehended.

6. Const.Dilbagh PW-8, Insp.Dayanand PW-9 and SI

Sanjay Bhardwaj PW-11 have deposed in unison that when

Bhaskar Victor went to pay the ransom amount the caller

repeatedly contacted him and made him go from place to

place and finally directed that money should be paid on the

left side of the railway track near Bagul Nadi. Bhaskar Victor

walked on the track, as directed. He made a gesture to them.

They saw a man running on the other side of the track. They

chased him and recovered a bag containing the dummy notes.

They also seized a mobile phone from the said person, whom

they identified as Rakesh in the Court when they deposed.

7. The seizure memo pertaining to the bag containing

the dummy notes is Ex.PW-8/B. The seizure memo pertaining

to the recovery of the handset from Rakesh is Ex.PW-8/C which

records that a Nokia mobile phone having IMEI

No.354309005048134 was recovered having SIM card

No.89911 50000 28150 16723.

8. In direct variation to the testimony of the 3 police

officers, Bhaskar Victor PW-2 deposed that as directed by the

caller when he and the police team reached Bareilly Railway

Station a call was received by him on his mobile number

directing him to reach Bilpur Railway Station. He proceeded to

Bilpur Railway Station where he received another call directing

him to follow the railway track. He was talking to the caller

and in the meanwhile saw that the police had caught hold of

Rakesh. He denied having witnessed any recovery from

Rakesh.

9. SI Risal Singh PW-6 deposed that the WT message

Form Ex.PW-6/A was filled up by him to obtain the printout of

mobile phone and that print out Ex.PW-6/B collectively of the

mobile phone was obtained by him.

10. Ex.PW-6/B is the call print out detail purportedly

generated through a computer pertaining to various mobile

numbers, the first of which is mobile No.9811959940 followed

by call details of mobile No.9838586341, the No.9838573405,

the No.9838692407 and finally the mobile No.9839412834.

11. What is the relevance of the call details of the

aforesaid 5 mobile numbers has remained a mystery. Indeed,

Mr.M.N.Dudeja, learned counsel for the State, on instructions

from SI R.B.Joshi PW-10 who prepared the charge-sheet which

was signed by the SHO and filed in Court, is unable to explain

the relevance of filing and proving Ex.PW-6/B. That apart, we

are surprised at the fact that the learned Trial Judge has

exhibited mobile call details of 5 telephone numbers without

the same being proved as required by the mandate of Section

65B of the Evidence Act.

12. That apart, what has left us wondering is as to why

the handset of Bhaskar Victor was not seized, for the reason it

would have been incriminating evidence if linked to the

handset purportedly recovered from appellant Rakesh. We

have been equally left wondering as to why call details of his

mobile number were not obtained and filed at the trial for the

same could have linked his mobile number to the handset

recovered from appellant Rakesh. We are further surprised to

note that neither call details of mobile No.9899031080 nor of

the mobile No.9839030127 obtained.

13. The result is that there is no proof that appellant

Rakesh was in contact with Bhaskar Victor through the

medium of any mobile telephone.

14. We have on record the testimony of the 3 police

officers, as noted above and the testimony of the complainant,

as noted above, which testimonies are contrary to each other.

15. Bhaskar Victor, the person who had to hand over

the bag containing the dummy currency does not say that he

handed over the bag to Rakesh and thus Rakesh would be

entitled to the benefit of doubt, more so for the reason

Bhaskar Victor states that while he was still speaking to the

caller he saw that the police persons had already apprehended

Rakesh. He denied witnessing any recovery from Rakesh.

16. As regards appellant Kailash, as noted above, the

stated incriminating evidence used by the learned Trial Judge

against him is the recovery of the kidnapped child from his

custody. There is only one witness to the same. He is

Insp.Santosh Kumar Singh PW-12.

17. Let us see what he deposes. He states that he was

posted as SI in the Special Protection Group, Etawah, U.P. on

19.5.2005 and he received a telephonic message that the

kidnapped child would be travelling on Kalka Express Train

from New Delhi to Howrah and would be disembarking at

Etawah. Accordingly, he and his team took position at Railway

Station Etawah. The train reached the station at around 3:00

PM. His further testimony needs to be noted verbatim. It is as

follows: "After that the passenger started coming out from the

main gate of the railway station a person wearing Jamuni

colour shirt and Jeans pant was going towards cycle stand and

scooter stand in suspicious condition and a boy aged about

five and a half years was following him. That boy was wearing

green colour half T shirt and blue jeans pant. That person was

walking and standing, walking and standing in suspicious

condition. On his activity I wanted to inquire from him and

tried to stop him. On this he tried to run away but I and the

remaining police officers of the raiding party had apprehended

him while running and using police force."

18. He further deposed that the said person was

accused Kailash.

19. Relevant would it be to note that as per

Insp.Santosh Kumar Singh information received by him was

that the kidnapper with the kidnapped child would be reaching

Etawah in Kalka Express Train. He states that he was on the

lookout for a man and a child and saw Kailash walking

suspiciously with the boy following him.

20. It seems strange to us that a child who is kidnapped

would be permitted to walk callously behind the person who

had kidnapped the child. The least precaution which a

kidnapper would take would be to hold the child by the hand,

lest the child slips away. It is also important to note that the

child was missing since 30.4.2005 and by 19.5.2005 would be

fairly traumatized in the captivity of his tormentors.

21. The quality of the testimony of Insp.Santosh Kumar

Singh PW-12 leaves much to be desired and since this is the

only incriminating evidence against Kailash, we are of the

opinion that Kailash would be entitled to the benefit of doubt.

22. Thus, both appeals are allowed.

23. The appellants are acquitted of the charges framed

against them.

24. The sentence imposed upon the appellants is set

aside.

25. Since the appellants are still in jail we direct the

Superintendent, Central Jail Tihar, to release the appellants

forthwith unless they are required in some other case.

26. Before finally signing off, we must express our

anguish at the manner in which the investigating officer has

filed the challan and the manner in which the investigating

officer has gone about collecting incriminating evidence.

Ignoring that he had to obtain the call printout details of the

mobile number of the complainant and that of the alleged

handset recovered from the possession of Rakesh with further

proof in the form of the SIM card number recovered from

Rakesh being linked to a mobile number, nothing of the sort

has been done and as against that, useless call details have

been proved after obtaining the printouts from the service

provider. The learned Public Prosecutor has also been

oblivious to Section 65B of the Evidence Act. So is the learned

Trial Judge who has exhibited the same forgetting the mandate

of Section 65B of the Evidence Act. Computer generated

printouts cannot be exhibited on being tendered by a police

officer with the simple statement that "Exhibit so and so" are

the call details which he has received.

27. It is apparent that the investigating officer, the

Public Prosecutor as well as the learned Trial Judge have done

a most shoddy job and the result is a crime of kidnapping for

ransom going unpunished, but we cannot help it.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE May 04, 2010 dk