Delhi High Court
Vikas vs The State Nct Of Delhi on 2 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 09.04.2018
% Judgment delivered on: 02.07.2018
+ CRL.A. 959/2017
VIKAS ..... Appellant
Through: Mr.Sanjeev Panda, Mr.Neeraj Kant
Singh and Mr.Sumit Shukla,
Advocates.
versus
THE STATE NCT OF DELHI ..... Respondent
Through: Ms.Aashaa Tiwari, APP for the State
with SI Sonu PS S.P. Badli.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT BY THE COURT
1. The present appeal has been filed by the appellant-Vikas under
Section 374 Cr.P.C. against the judgment of conviction dated 03.07.2017
and order on sentence dated 07.07.2017 passed by learned Additional
Sessions Judge, North District, Rohini Court, Delhi whereby the appellant
has been convicted under Section 364A and 302 IPC and sentenced to
undergo rigorous imprisonment for life and fine of Rs.10,000/- and in
default of payment of fine, to further undergo simple imprisonment for one
year for the offence under Section 302 IPC; and to undergo life
imprisonment and fine of Rs.10,000/- and in default of payment of fine to
further undergo simple imprisonment for one year for the offence under
Section 364A IPC.
2. The factual matrix emerging from the record is that on 15.06.2012, the
complainant Rajbir came in the police station and got recorded his statement
that he was residing on rent at B-97, Gali No.2, Raja Vihar, Badli Industrial
Area, Delhi. On 14.06.2012, his son Raunak aged about 5 years went to the
park to play but did not return back to his house. He was wearing red
coloured vest, underwear and blue coloured slippers. Despite search, he
could not be traced and he raised suspicion that somebody had taken his son
away under allurement. On the basis of statement of the complainant, FIR
vide Ex. PW-15/B was registered under Section 363 IPC. Investigation of
the case was assigned to SI Ajay, who went to the house of the complainant
where Rukmini- sister of the missing child, met him and who informed that
a call was received on her father-Rajbir's mobile phone no.8512069677
from mobile phone no.9899705589. The caller told her that her brother
Raunak-the deceased, was with him and he had been kidnapped and the
caller demanded ransom of Rs.5,000/- to be delivered at Badli Railway
Station, else the child would be killed. Thereafter, SI Ajay along with police
staff in civil dress laid a trap near Badli Railway Station but nobody came
there. Penal Section 364A IPC was added in the case. IO obtained the Call
Detail Record of Rajbir's-PW5 mobile phone vide Ex.PW13/A. It was
revealed that on 15.06.2012, four calls were made from phone
no.9899705589 on mobile phone no.8512069677 at four different times: (i)
10:33:50 (ii) 11:12:40 (iii) 11:14:45 (iv) 12:26:15. The mobile phone
no.9899705589 was found switched off. The owner of the SIM
no.9899705589 was found to be one Ramji-PW7. It was revealed that the
owner of the mobile instrument which was used to call the number
8512069677 belonged to Ram Kumar-PW4 and it was taken from him at
10.30 a.m. by one Vikas, resident of the adjoining room. Statements of
Ramji-PW7 and Ram Kumar-PW4 were recorded. On enquiry, Ramji told
that the SIM of his mobile no.9899705589 was taken out by Vikas and he
inserted one rejected SIM in it, and that Vikas was resident of B-10, Raja
Vihar, Gali No.2, B.I.A., Delhi and his co-worker as a labour at Samaipur.
Raid was conducted at the residence of Vikas but he was found absconding.
3. On 22.06.2012, on the basis of a secret information, accused Vikas
was apprehended from Raja Vihar Park and on interrogation, he confessed
his guilt that he had kidnapped Raunak and committed his murder by
smothering him with a handkerchief and threw his dead body in a drain near
Sanjay Colony. He also disclosed that he can get recovered the part of a toy,
which the deceased child was carrying. Accused was arrested and his
disclosure statement was recorded. Penal Sections 302/201 IPC were added
in the case. The accused got recovered the dead body of the child vide
Ex.PW-5/B from the drain, who was identified by the complainant as that of
his son. Dead body of the deceased was seized and sent to the mortuary. In
pursuance of his disclosure statement, accused got recovered the toy vide
Ex. PW-3/A of the victim from his house which was seized in the presence
of the owner of the house-Krishan Kumar PW-3. The accused was got
medically examined and his blood sample was got preserved Ex. PW-21/D.
During police remand, accused disclosed that after kidnapping the child, he
took him to the shop of Surender PW-6 and got him a packet of biscuit. Toy
speedometer of the deceased was identified by the mother and sister of the
deceased during TIP proceedings. Blood sample of the accused, anal swab
and femur bone of the deceased and blood sample of the mother of the
deceased were got deposited in FSL Rohini. During investigation, crime
team report and photographs were obtained. Site plan was prepared. Call
details of the mobile phones were called. After completion of investigation,
charge sheet was filed in the Court.
4. Charge for the offence under Section 363, 364A, 302 and 201 IPC
was framed against the appellant, to which he pleaded not guilty and
claimed trial.
5. To prove its case, the prosecution examined 25 witnesses, including,
Smt.Mithlesh (PW1)-Mother of the deceased, Rakmani @ Kirti (PW2)-
Sister of the deceased, Krishan Kumar (PW3)-Landlord, Ram Kumar
(PW4)-Phone instrument owner, Rajbir (PW5)-Father of the deceased,
Ramji (PW7)-SIM owner(9899705589).
6. After completion of prosecution evidence, statement of the accused
under Section 313 Cr.P.C. was recorded, in which he claimed innocence and
denied the entire case of the prosecution. The appellant examined one
defence witness, namely, DW1-Rajdeep Mehto.
7. On appreciation of evidence and material brought on record, the trial
court convicted the appellant under Section 364A and 302 IPC vide
impugned judgment dated 03.07.2017 and order on sentence was passed on
07.07.2017. Feeling aggrieved of the same, the appellant has preferred the
instant appeal.
8. Learned counsel for the appellant has argued that the present case is
based upon circumstantial evidence and the prosecution has failed to prove
the complete chain of circumstances to establish that the same leads to only
one conclusion viz. of the guilt of the accused. Ld. counsel argues that there
is no eye witness to the taking away of the child by the appellant and that
there is no recovery of the handkerchief with which the deceased was
allegedly smothered. He submits that PW6, the shopkeeper, from whom the
appellant had allegedly bought a packet of biscuits for the deceased, has
turned hostile and not supported the case of the prosecution. Ld. counsel
further argued that there is no call record except the call records of the
mobile phone of the complainant to establish that any ransom call was made
by the appellant. He submitted that the mobile phone used to make ransom
calls was not recovered from the appellant, nor at his instance and the said
mobile phone was owned by PW4. He further argued that even the said
mobile phone was even produced in the Court in unsealed condition. Ld.
counsel submitted that the CDR of the mobile phone no.9899705589 is not
admissible in evidence without the certificate under Section 65-B of the
Indian Evidence Act. He argued that even PW2 had not deposed that the
voice of ransom caller was the same as that of the appellant. He further
argued that the secret information was not shared with the senior officers nor
it was reduced into writing. No public person was associated with the arrest
of the accused. With regard to the recovery of the toy, Ld. counsel
submitted that no public person was joined as a witness. He submits that
the story is not plausible that after committing the murder, the appellant
would keep the toy in his own house. further argued that the parents and
sister of the deceased were not called at the time of recovery of the dead
body, and no public witness was joined at the time of its recovery. He also
argued that PW8 had not signed the recovery memo of the dead body. A
dispute with regard to the place of recovery of dead body has also been
raised by the Ld. counsel for the appellant.
9. Per contra, learned APP for the State has argued that there is enough
evidence on record to connect the appellant with the kidnapping and murder
of the deceased. From the evidence brought on record, it is convincingly
proved that the appellant made the ransom call from the sim/ mobile number
of PW7, by using the phone/ mobile instrument of PW4 on the mobile phone
of Rajbir-the father of the deceased, which was picked up by PW2-Rukmani.
All the circumstances i.e. recovery of dead body of the deceased at the
instance of the appellant; recovery of the toy of the deceased from the house
of the appellant; and the Post- mortem report of the deceased conclusively
establishes the case of the prosecution beyond reasonable doubt against the
appellant.
10. We have heard the submissions advanced by learned counsels for the
parties. We have also gone through the evidence led by the parties and
given our thoughtful consideration to the matter.
11. PW1-Smt.Mishlesh is the mother of the deceased. She deposed that
on 14.06.2012, her son Raunak aged about 5 years had gone to play outside
the house in the evening but he did not return. He used to play in the park in
Raja Vihar which was near to their house. Her son was wearing red colour
vest and underwear. Raunak was carrying in his hand one broken toy, which
was having a motor and the toy used to give sound of "kir-kir" when it used
to be rolled. On the toy, some numbers were also written. She searched for
her son in the locality, but could not trace him. Her daughter Rukmani
informed PW1 next day that she received a phone call from someone on her
mobile and the caller told her that her brother Raunak was with the caller
and demanded Rs.5,000/- for the release of Raunak, else he would be killed.
The caller told to bring Rs.5,000/- at Badli railway station. PW1 along with
her husband went to the railway station in search of her son and the caller,
but the caller did not come. On the ninth day of the incident, dead body of
her son was recovered from a drain. She had identified the dead body vide
identification memo Ex.PW1/A. On 29.08.2012, she came to Rohini court
and before the Judge she identified the toy of her son with which he used to
play when he left the house as Ex.P1 and its garari (cogwheel) was rolled in
the Court which produced the sound of "kir-kir". PW1 identified her thumb
impression on TIP proceedings Ex.PW1/B. Witness identified the accused
as the one, who used to reside in the tenanted room in the same house in
which they were residing. She also identified the clothes of her son as
Ex.P2 as the same which the deceased was wearing when he went missing.
12. During cross-examination, PW1 stated that she and her husband were
working as labourers. Her daughter Rukmani was 10th pass and her sons
were not studying. She admitted that mobile phone no.8512069677 used to
remain at home with her daughter and whenever any call was made by
anyone, PW1 used to talk on the phone. She could not tell the numbers from
which the calls were received on her mobile. Both of her sons had gone to
play in the park together. PW1 had also gone to the park with her sons and
daughter Rukmani. She had left the park at 4.30 p.m. for her room, but she
did not find her son there. They were sitting on the benches and her sons
were playing in the nearby area. When they were about to leave for home,
they found Raunak missing. They searched for him till 12.00 midnight and
then they intimated the police. She further stated that she did not tell the
police that her son was wearing black clothes. She came to know on the 9th
day that her son had died, through police. Police visited her house and took
her to the police station and showed her the dead body of her son. She
admitted that in the premises Vikas and Ram Kumar were also residing.
They were not on visiting terms with the accused Vikas. Accused Vikas did
not come to their house. She denied that accused used to come to their
house as they were having good relations. She further denied that accused
used to talk to her daughter on phone. She further denied that as they did
not like the visits of accused to their house and having relations with their
daughter, they vacated the tenanted premises and shifted to other room. She
denied that police tutored her to identify the toy with the sound of "kir-kir"
in the Court. Only her family members had gone to the railway station in
search of the deceased. Police had also gone to the railway station with
them at about 5-6 p.m. She denied that her daughter was talking with the
accused frequently, or that accused has been falsely implicated with the
connivance of police and her husband.
13. PW2-Rukmani @ Kirti is the sister of the deceased child. She
deposed that the deceased Raunak was her youngest brother. On 14.06.2012
at about 4-4.30 p.m., Raunak went outside the house to play with other
children near Raja Park. His age was five years. When Raunak went to
play, he was carrying in his hand one broken toy, which was a having motor
and the toy used to make sound of "kir-kir", when it was rolled. They
searched for her brother in the locality but he could not be traced. PW2
further deposed that on 15.06.2012, she received a phone call on her mobile
phone no.8512069677, and the caller told her that Raunak was with the
caller and he wanted Rs.5,000/- for the release of Raunak or otherwise
Raunak would be killed. PW2 informed her father and mother about the call.
PW2 along with her parents and police went to the railway station in search
of her brother and the caller, but the caller did not come. Dead body of her
brother was recovered after nine days. She further deposed that on
29.08.2012, she came to Rohini Court and identified the toy of her brother.
She identified her signatures on the TIP proceedings vide Ex.PW1/B. She
further deposed that the mobile phone which she was using was in the name
of her father Rajbir. PW2 identified the accused Vikas in the Court. She
also identified the toy as Ex.P1 as that of her deceased brother with which he
used to play. She further identified the clothes of her brother as Ex.P2
which he was wearing when he went missing.
14. During cross-examination, PW2 stated that during the period of
incident, she used to remain at home. Raunak also used to remain at home.
Her parents did not know how to dial and use the phone. She did not know
Vikas and she never met him. She saw accused Vikas first time in the house
of the landlord-Krishan Kumar PW3 where her family and Vikas were
tenants. She used to see the accused occasionally by chance in the evening.
They used to sleep on the roof. Witness Ram Kumar and accused Vikas also
used to sleep on the roof. She did not know whose telephone number was
7897354209. She did not remember if she ever talked to the caller of
7897354209. She denied that she was aware of the caller of the phone
no.7897354209, as she used to talk to him frequently. She denied that she
used to talk to accused Vikas frequently on his mobile no.7897354209. Her
brothers used to play in the room and in the park located in front of the
house. On 14.06.2012, when her brother went to play in the park, PW2, her
other brother and her mother also accompanied him to the park. Raunak
went missing from the park and they searched for him but could not find
him. She did not see anybody taking Raunak from the park. At that time,
accused was standing in the gallery of the house of Krishan Kumar. She
denied having stated to the police that her brother was wearing black
clothes. She voluntarily stated that he was wearing the clothes having red
and matiyali strips. He was wearing underwear and vest. Police made
enquiries from her on three dates. A police person came at their house and
informed about the death of her brother. Dead body of her brother was
shown to them in the police station. She denied that she and Vikas were
having an affair which came to the knowledge of her father, due to which, he
snubbed Vikas. She further denied that she used to talk with accused in day
time and at night also. She further denied that she had relations with
accused Vikas and they used to visit his room. She further denied that the
police had already told her that a toy producing "kir-kir" sound shall be
shown to her in the Court and she had to identify that toy.
15. Father of the deceased child is Rajbir (PW5), who deposed that on
14.06.2012, his son Raunak aged about five years had gone to play outside
the house in the evening but did not return. He used to play in the park in
Raja Vihar which was near to his house. His son was wearing T-shirt,
underwear and blue colour slippers. Raunak was carrying one broken toy in
his hand and the toy used to give the sound of "kir-kir" when it was rolled.
They searched for his son in the locality but he could not be traced. He went
to the police station on 15.06.2012 and lodged the report. His statement
Ex.PW5/A was recorded. At the time of the incident, he was having mobile
no.8512069677 and the said mobile was with his daughter, Rukmani- sister
of the deceased. Rukmani informed him that she received a call from
someone and that the caller was telling that Raunak was with the caller and
demanded Rs.5,000/- for the release of Raunak, else he would be killed.
That call was received from mobile no.9899705589. His daughter received
phone calls from the same number four times. The caller demanded that
Rs.5,000/- be brought to the Badli railway station. PW5 along with his wife,
daughter and police went to the railway station in search of his son and the
caller but the caller did not come there. On 22.06.2012, PW5 was called by
the police and he reached Sanjay Colony drain near CNG pump, from where
the dead body of his son was recovered. The same was taken into
possession vide memo Ex.PW5/B. PW5 identified his photograph on the
Customer Application Form (CAF) of Idea mobile phone no.8512069677
vide Ex.PW5/D and his documents along with the CAF. He identified the
accused Vikas in the Court. PW5 further deposed that accused Vikas used
to reside in the house on rent near to his house. Witness identified his
mobile phone make Micromax X116 as Ex.P3 and clothes of his deceased
son as Ex.P2 which he was wearing at the time of his missing. PW5 was
cross-examined at length.
16. PW3-Krishan Kumar deposed that he was the owner of House No.B-
10, Raja Vihar and some rooms of the house were given on rent. In one
room, Vikas used to reside with his brother and father. In another room,
Rajbir used to reside with his family. In the month of June, 2012, he came
to know that his tenant Vikas had killed the son of other tenant Rajbir.
Police brought Vikas to the house of PW3. PW3 also reached there.
Accused Vikas got recovered one broken piece of toy which was a
speedometer of some toy car which was seized vide memo Ex.PW3/A
bearing his signatures. PW3 identified the said toy as Ex.P1. During cross-
examination, PW3 stated that he did not remember the date and month of the
year 2012 when accused Vikas was inducted as a tenant. Rajbir started
residing in his house in the month of May. Rajbir used to reside with his
wife, two daughters and two sons, including the deceased. PW3 used to
reside at B-71, Raja Vihar and his house B-10 was at a distance of 500-600
feet from B-71. Room of Vikas was in front of the room of Rajbir. He
denied that Rukmani had developed intimacy with accused Vikas and Rajbir
had objection to their relation, or that, for this reason, Rajbir had left the
house of PW3. He denied that he knew about the quarrel between Rajbir
and Vikas. PW3 further stated that the police called him at house no.B-10
after completion of proceedings and obtained his signatures on some papers.
He did not know the description or title of those papers. One tenant Ram
Kumar was sent by the police to call him.
17. PW4-Ram Kumar deposed that he was having a mobile phone
no.8130637898. He was having a mobile in which two SIM cards could be
inserted. He knew the accused Vikas, who used to reside in one of the
rooms of Krishan. On 15.06.2012, accused borrowed his mobile phone at
about 10.30 a.m. and told that he had to make a call. Accused returned his
mobile SIM card. Accused inserted his SIM card in the mobile phone of
PW4 and had a long conversation. Accused returned his mobile handset
after about an hour. Police came to him and inquired about his mobile
phone. His mobile phone and SIM card were seized by the police vide
seizure memo Ex.PW4/A. He identified his mobile phone as Ex.P3. During
cross-examination, PW4 stated that he knew the accused as he was also
residing in a rented room in the same house. The mobile set was of his
brother, Phool Singh. Accused Vikas had taken his mobile phone 5-7 times.
He knew the accused 1- 1½ months prior to the incident. The room of the
accused was in front of his room after a gap of 4-5 rooms. He denied that he
had not given his phone to accused Vikas, or that accused never took his
phone for his use.
18. PW7-Ramji deposed that he used work in the area of Samaipur. He
knew accused Vikas who also used to work as labour with them at
Samaipur. In the year 2012, accused Vikas took the mobile phone of PW7
and after sometime, returned the phone saying that it was not working. PW7
checked his mobile and found that the SIM of the mobile phone was
removed by the accused. Police came to him in June, 2012 and recorded his
statement. He had handed over his mobile phone make Nokia with battery
and rejected SIM to the IO which were seized vide seizure memo
Ex.PW7/A. He identified his mobile phone as Ex.P4 with mobile number
9899705589. During cross-examination, PW7 stated that he knew the
accused. Accused used to use the mobile phone of PW7 daily to make calls
to his wife. Accused had taken his mobile phone in April, 2012 and did not
return the same. Accused had removed the SIM and left the tenanted room.
PW7 and accused were at the work place till 5.00 p.m., when the accused
removed his SIM. He denied that the SIM did not belong to him. He stated
that he never called Rukmani. He further denied that he used to talk to
Rukmani, by using the phone number which was handed over to the police.
19. PW8-Rajiv and PW9-Suraj are the witnesses to the recovery of the
dead body of the deceased. PW8 deposed that on 22.06.2012, police took
out a dead body of one 4-5 years old boy from a drain near Sanjay Colony at
the instance of the accused Vikas. Dead body was wearing a red colour vest
and an underwear. The condition of the dead body had deteriorated and it
was identified by the relatives and parents of the deceased. He identified the
accused in the Court. Similarly, PW9 deposed that on 22.06.2012, a dead
body of 4-5 years male child was recovered by the police from the drain,
Sanjay Colony. At that time, the dead body was identified by the relatives
of the deceased at the place of recovery.
20. PW13-Sh.Pawan Singh, Nodal Officer, Idea Cellular Limited had
proved the ownership of mobile phone no.8512069677. He deposed that the
said mobile number was issued in the name of Rajveer and documents in
that regard were proved as Ex.PW5/D, Ex.PW5/E. He proved the call
details for the period from 10.06.2012 to 20.06.2012 as Ex.PW13/A,
certificate under Section 65B of the Evidence Act as Ex.PW13/B and cell ID
chart as Ex.PW13/C.
21. PW14-Sh.Israr Babu, Alternate Nodal Officer, Vodafone Mobile
Service Limited had proved the ownership of mobile phone no.9899705589.
He deposed that the said mobile number was issued in the name of Ramji.
He proved the documents as Ex.PW14/A and Ex.PW14/B. The call details
for the period 10.06.2012 to 16.06.2012 was proved as Ex.PW14/C, and
Ex.PW14/D and certificate under Section 65B of the Evidence Act as
Ex.PW14/E and Ex.PW14/F. He also proved the Cell ID chart as
Ex.PW14/G.
22. PW17-Dr.V.K. Jha, conducted postmortem over the dead body of the
deceased, Raunak aged 5 years. As per PW17, the cause of death of the
deceased was "asphyxia as a result of manual smothering to ward off cries."
Time since the death was approximately 10 days. The clothes of the
deceased, left femur and anal swab of the deceased were preserved and
handed over to the IO. He proved the postmortem report as Ex.PW17/A.
23. PW16-Dr.Brajesh Narayan Singh deposed that on 28.08.2012, one
patient Mithlesh- mother of the deceased, was brought by SI Ajay Kumar for
collection and preservation of blood sample for the purpose of matching of
DNA profile. Blood sample of the patient was collected and preserved. He
prepared the MLC Ex.PW16/A.
24. PW20-Sh.Sandeep Gupta, the then learned Metropolitan Magistrate,
proved the TIP proceedings conducted on 29.08.2012. He proved the
application of the IO as Ex.PW20/A, TIP proceedings as Ex.PW1/B, and
certificate given as Ex.PW20/B.
25. PW24-Ms.Monika Chakravarty, Sr.Scientific Assistant, FSL Rohini
had proved the report of Biological Analysis/DNA examination as
Ex.PW24/A. PW24 also proved the Annexure-I i.e. date on the basis of
which the report was prepared, as Ex.PW24/B.
26. The present case is based upon circumstantial evidence as there is no
direct evidence of taking away of the deceased by the accused and
commission of his murder by the accused. The circumstances brought on
record by the prosecution to connect the accused with the commission of the
offence are: (i) ransom call made by the accused by using the mobile sim
card of PW7 and the mobile phone instrument of PW4, on the mobile phone
of PW5- the father of the deceased, attended to by PW2-the sister of the
deceased; (ii) recovery of dead body at the instance of the accused, and; (iii)
recovery of toy of the deceased child from the house of the accused.
27. So far as the first circumstance i.e. making of ransom call by the
accused is concerned, PW2-Rukmani, inter alia, deposed that her deceased
brother Raunak went missing from 14.06.2012 when he went to play in the
park. On 15.06.2012, she received a phone call on her mobile phone
no.8512069677, asking for a ransom of Rs.5,000/- for release of Raunak,
else he would be killed. As per the testimony of PW5-father of the
deceased, the mobile phone no.8512069677 was in his name vide customer
application form Ex.PW5/D. PW5 identified his photograph on the said
form and proved the copy of the voter ID card which was annexed with the
application form. The call detail of the said mobile phone was proved on
record as Ex.PW13/A for the period 10.06.2012 to 20.06.2012. As per call
details, calls were received on the said mobile phone at 10:33:50, 11:12:40,
11:14:45 and 12:26:15 hours from the mobile phone no.9899705589. As per
the customer application form Ex.PW14/A of the mobile phone
no.9899705589, the said number was issued in the name of Ramji (PW7).
PW7 has categorically deposed that in the year 2012, accused Vikas had
taken his mobile phone and removed his SIM from the same and thereafter
the phone was returned by the accused. Police seized the said mobile phone
vide seizure memo Ex.PW7/A. The IMEI number of the said mobile phone
was 354303040709530.
28. As per the testimony of PW4-Ram Kumar, accused Vikas took his
mobile phone on 15.06.2012 at about 10.30 a.m. on the pretext of making
call and talked on the same by inserting his SIM card. The said mobile
phone Ex.P3 was seized by the police. The call details of the mobile phone
no.9899705589 for the period 10.06.2012 to 16.06.2012 was proved as
Ex.PW14/D and according to the same, the said mobile number was used in
the dual SIM phone having IMEI Nos. 910001501096380 and
910001501296385. PW2-Rukmani categorically stated that she had received
the ransom call from the mobile no.9899705589. From a combined reading
of the testimony of PW2-Rukmani, PW4-Ram Kumar and PW7-Ramji, it is
conclusively established on record that the mobile phone No. of PW7
(9899705589) was used by the accused in the mobile instrument of PW4 at
the relevant time and period, for making a ransom call on the mobile phone
of the complainant, PW-5, which was received by PW2-Rukmani.
29. Learned counsel for the appellant has argued that the mobile phones
were produced in unsealed condition. PW4-Ram Kumar identified the
mobile phone as Ex.P3, but PW5-Rajbir identified the same phone which
was identified by PW7-Ramji as Ex.P4. It is also argued that the
certification under Section 65B of the Evidence Act proved by PW14 was
not reliable, as it was not duly proved. So far this plea of the appellant is
concerned, it is not in dispute that the mobile phone no.8512069677 was
issued in the name of PW5-Rajbir, father of the deceased, which fact has
also been established from customer application form Ex.PW5/D. As per
the testimony of PW5, the said mobile phone used to remain with his
daughter Rukmani (PW2) all the time. So far the mobile phone/ SIM
no.9899705589 is concerned, it has been proved on record that the same was
issued in the name of Ramji (PW7). As per the testimony of PW7, accused
took the mobile phone of PW7 and his SIM card was removed by the
accused. The mobile phone Ex.P4 of PW7-Ramji was seized. As per the
call details record Ex.PW14/D, the mobile SIM no.9899705589 was used in
the mobile phone having IMEI No.354303040709530 till 11.06.2012, and
the said IMEI number was of the mobile phone Ex.P4 belonging to PW7-
Ramji.
30. The customer application form Ex.PW14/A of the mobile phone
no.9899705589 shows that the said mobile phone was issued in the name of
PW7-Ramji. The call detail record Ex.PW14/D of the said mobile phone,
shows that on 14.06.2012, it was used in the phone having IMEI
No.910001501096380, which was the IMEI number of the mobile
instrument of PW4-Ram Kumar. From the evidence produced on record, it
is established that the SIM of mobile phone no.9899705589, which was
earlier used by PW7-Ramji in his mobile phone, was used from 14.06.2012
in the mobile phone of PW4-Ram Kumar. As per the evidence brought on
record, the call from mobile phone no.9899705589 was made on the mobile
phone no.8512069677 only on 15.06.2012, and not before that. Thus, from
the totality of the evidence discussed, we are of the view that during the
relevant time and period, the appellant used the mobile phone
no.9899705589 in making calls on the mobile phone no.8512069677
belonging to PW5-Rajbir, which was in use of PW2-Rukmani who
specifically deposed that she had received ransom call on her mobile phone
from the mobile phone no.9899705589.
31. So far the contention of the appellant regarding non-proving of the
certificate under Section 65-B of the Indian Evidence Act, Ex.PW14/E is
concerned, the same is unfounded and without any basis as the same has
duly been proved by PW14 while entering into the witness box. Even
otherwise, as per the decision in the case of Anwar P.V. v. P.K. Basheer
(2014) 10 SCC 473, the said certificate is duly admissible in evidence. In
the said decision, it was observed as under :
"The evidence relating to electronic record, as noted herein
before, being a special provision, the general law on secondary
evidence under Section 63 read with Section 65 of the Evidence
Act shall yield to the same. Generalia specialibus non derogant,
special law will always prevail over the general law. It
appears, the court omitted to take note of Sections
59 and 65A dealing with the admissibility of electronic
record. Sections 63 and 65 have no application in the case of
secondary evidence by way of electronic record; the same is
wholly governed by Sections 65A and 65B. To that extent, the
statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this court in Navjot
Sandhu case (supra), does not lay down the correct legal
position. It requires to be overruled and we do so. An electronic
record by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 65B are
satisfied. Thus, in the case of CD, VCD, chip, etc., the same
shall be accompanied by the certificate in terms of Section
65B obtained at the time of taking the document, without which,
the secondary evidence pertaining to that electronic record, is
inadmissible."
32. As discussed above, the prosecution has successfully established the
circumstance that ransom call was made by the appellant on the mobile
phone of the complainant which, at the relevant period was used by PW2-
Rukmani.
33. Next circumstance brought on record by the prosecution is the
recovery of dead body of the deceased from a drain at the instance of the
appellant. The case of the prosecution is that the dead body of the deceased
was recovered at the instance of the accused from a drain near Sanjay
Colony. The dead body of the deceased was recovered on 22.06.2012 and
the witnesses PW5-Rajbir, PW8-Rajiv, PW9-Suraj, PW18-Ct.H. Raju and
PW22-SI Ajay Kumar have established the recovery of dead body at the
instance of the accused, and its identity.
34. To prove this circumstance, PW18-Ct.H. Raju deposed that on
22.06.2012, accused was apprehended and arrested vide arrest memo
Ex.PW18/A and his disclosure statement Ex.PW18/C. In pursuance of his
disclosure statement, accused Vikas pointed towards ganda nala in Sanjay
Colony, behind CNG pump as the place where he threw Raunak. The dead
body was recovered and Rajbir identified the dead body to be of his son
Raunak. Rajbir also identified the clothes worn by the dead body to be of
his son. A recovery memo Ex.PW5/B was prepared in this regard. Similar
deposition has been made by PW22-Insp.Ajay Kumar with regard to
recovery of dead body of the accused at the instance of the accused.
35. PW8-Rajiv is the independent witness to the recovery of the dead
body. He deposed that on 22.06.2012, police took out dead body of one 4-5
years boy from the ganda nala near Sanjay Colony at the instance of the
accused Vikas. Dead body was wearing red colour baniyan and underwear
at the time of recovery and condition of the dead body was deteriorated and
it was identified by the relatives and parents of the deceased. He identified
the accused Vikas in the Court. During cross-examination, PW8 stated that
at about 4 p.m., police officials reached his shop and thereafter he was
joined in the investigation and then he was taken to the drain. There were
three police officials and one of them was Ajay and accused was in their
custody. He admitted that the body was in a decomposed condition. He
denied that he was tutored or that he was deposing falsely at the instance of
SI Ajay.
36. PW5-Rajbir also deposed that the dead body of his son was
recovered from the drain on the pointing out of the accused. He duly
identified the dead body of his son. The presence of parents of the deceased
at the spot of recovery of dead body has also been established from the
testimony of PW8 and PW9.
37. The recovery of dead body by the accused establishes the fact that the
accused was aware of its location. He has not explained when, how, and
under what circumstances he learnt of the same if, as claimed by him, he did
not dump it there. The identity of the deceased was conclusively established
by the clothes found on the said body which had been described by the
parents of the deceased at the time of making the initial complaint, and also
by the DNA profiling. It is matter of record that the blood sample of
Smt.Mithilesh was taken vide MLC Ex.PW16/A for the purpose of isolating
the DNA to get it matched with the DNA profiling of the deceased. As per
the report Ex.PW24/A of the DNA Expert, Smt.Mithilesh is the biological
mother of the deceased, which rules out any doubt that the dead body
recovered was of the son of Raunak and none else. The testimony of
witnesses, who remained associated with the recovery of dead body and its
identification by the parents of the deceased remained unchallenged and
uncontroverted. Thus, this circumstance was also established beyond any
reasonable doubt.
38. From the testimony of PW17-Dr.V.K. Jha and the postmortem report
Ex.PW17/A, it is apparent that the death of the deceased was a homicidal
death. As per the report Ex.PW17/A, the cause of death of the deceased was
asphyxia as a result of manual smothering.
39. Next circumstance brought on record was the recovery of toy of the
deceased by the accused from his house. Learned counsel for the appellant
disputed the recovery of any such toy at the instance of the appellant. He
submitted that the said recovery was a planted one. Ld. counsel further
submitted that there is no independent public witness to the recovery of toy.
Ld. counsel also submitted that the witnesses identified the said toy in the
Court at the instance of the police officials.
40. From the testimony of Smt.Mithlesh (PW1), Rukmani @ Kirti (PW2)
and Rajbir (PW5)- who are the mother, sister and father of the deceased
respectively, it has been well established that the toy Ex.P1 which they
identified during their testimony, was the same toy with which the deceased
used to play and the same used to make"kir-kir" sound when it used to be
rolled/played. There is no cross-examination of these witnesses to suggest
that the toy Ex.P1 was not the toy with which the deceased used to play. So
far as the contention of the appellant that the witnesses identified the toy
Ex.P1 at the instance of the police is concerned, this fact is negated from the
judicial TIP proceedings Ex.PW1/B of the toy. Ex.PW1/B shows that the
witness identified the toy as that of the deceased when it was mixed with
several other toys.
41. Ct.H. Raju (PW18) and Insp. Ajay Kumar (PW22) have deposed that
the toy Ex.P1 was got recovered by the accused from his room. PW3-
Krishan Kumar is the owner of the room where the accused used to reside.
He is an independent witness. PW3 also deposed that, the accused got
recovered the toy from his room, in his presence and he also signed the
seizure memo Ex.PW3/A. PW3 also established the fact that the accused
was living as tenant in the said room. Thus, the prosecution has duly
established the recovery of toy Ex.P1 belonging to the deceased from the
room and at the instance of the accused.
42. The toy Ex. P1 was recovered from the custody of the accused. It was
for him to explain how he got it from the deceased, or when he found the
same. He has failed to give any explanation for the same. This recovery
shows that the deceased was with the accused after he went missing and
before he died, as he had gone missing with the toy Ex.P1.
43. The defence taken by the accused is that he has been falsely roped in
the present case since he was in love with the daughter of the complainant.
He has also taken the plea that at the time of the incident, he was at his work
place and to substantiate the said plea, he had examined DW1-Rajdeep
Mehto. DW1 deposed that the accused Vikas is son of his sala (brother-in-
law) and that he worked with DW1 in Yadav Nagar, Badli from 11.06.2012
to 16.06.2012.
44. PW2 has denied having an affair with the accused. If they had an
affair, as claimed by the accused, like the four calls made by him on the
fateful day, there would have been other calls from the same or some other
number, but he has not set up any such plea, or led any other evidence on
this aspect. This defence is not probabilised also on account of the fact that
several independent witnesses have deposed against the appellant, including
PW4 and PW7. They had no axe to grind against the accused.
45. So far as the plea of alibi is concerned, apart from the testimony of
DW1, the accused has not produced any evidence on record, either of his
employer, or the employment record to show that he was working at the
place as deposed by DW1. Even otherwise, no time has been given by DW1
during which, the accused remained at the work place. No evidence had
been produced by the accused which could make his presence near the place
of incident- from where the deceased went missing, doubtful. He had not
produced any material on record to show that it was almost impossible for
him to be present at the place of incident at the relevant time. So, in our
considered view, there is no basis in the plea of alibi taken by the appellant/
accused.
46. We do not find any force in the appellants submission with regard to
the non-recovery of the handkerchief used by the appellant to smother the
deceased and that the case of the prosecution is undermined on account of
PW6-the shopkeeper tuning hostile. So far as the non-recovery of the
handkerchief is concerned, it was only in the disclosure statement of the
accused that he is alleged to have claimed that he had used a handkerchief to
smother the minor victim. This is a fact which was known only to him. It is
not that the prosecution cited any other eye witness who claims to have seen
the accused smother the child with a handkerchief. Therefore, non-recovery
of the handkerchief is not fitted to the case of the prosecution.
47. So far as the shopkeeper PW6 is concerned, his turning hostile is
neither here nor there. Whether or not the accused bought a packet of biscuit
from the shop of PW6 is not an essential part of the chain of circumstances
relevant for the purpose of establishing the charge against the accused.
Pertinently, there is no statement to this effect made by the accused in his
disclosure statement.
48. From the above discussion, it is clear that all the incriminating
circumstances have been proved by the prosecution, which implicates the
appellant/ accused. These circumstances complete the chain and lead to
only one conclusion i.e., of the guilt of the accused in the commission of the
offence of kidnapping for ransom and of the murder of the deceased child.
The accused was a neighbor, residing in the room opposite where the
deceased resided with his family. He had the occasion to kidnap the said
child. He used the sim card of PW7 and the mobile instrument of PW4 to
make the ransom calls on four occasions. On 15.06.2012 i.e., the day
following the deceased child going missing, why would anybody take the
sim card of one neighbor, insert in the mobile instrument of the other, and
then make a call. This itself raises suspicion. Both PW4 and PW7 are
independent witnesses and have clearly implicated the accused. The accused
also got recovered the dead body of the deceased in the presence of
independent witnesses after nine days of the deceased going missing. He
has not explained as to why he was aware of the fact that the missing child
was dead and that his dead body was lying at a particular spot in the ganda
nala. The failure of the accused to explain the aforesaid circumstance leads
to one and only one conclusion that it is the accused who had kidnapped the
deceased for ransom and killed him. Pertinently, this was a threat issued by
him through his ransom call on 15.06.2012 which was attended to by the
sister of the deceased PW2 and the same was also reported to the police.
49. This is an extremely serious and damning circumstance. The accused
also got recovered the toy of the deceased with which he was playing at the
time when he went missing. The same was recovered from his possession in
his room. He has not explained as to why he came into the possession of the
same.
50. These circumstances, in our view, sufficiently and conclusively nail
the accused. Thus, we agree with the finding of the Trial Court that the
accused is guilty of, firstly, kidnapping of the deceased child for ransom
and, secondly, of committing his murder.
51. Consequently, we find no merit in the present appeal and we dismiss
the same.
(VIPIN SANGHI) (P.S. TEJI)
JUDGE JUDGE
JULY 02, 2018
