Ashok Kumar Yadav v. State of NCT of Delhi

JUDGMENT ; SUNITA GUPTA, J. For detailed order see Crl.A.No. 191/2013. MAY 13, 2015 mb Crl.A.195/2013 Soirtih (SUNITA GUPTA) JUDGE IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofDecision; 13^''May,2015 +CRL.A. 191/2013 & Crl.M.B.No.lQ536/2014 BIJENDERSINGH@TITOO . Appellant • Through: Ms.ArundhatiKatjuwith Mr.Ali Choudhary, Advocates versus STATEOF (NCT)DELHI ' Respondent Through: Ms.Ritu Gauba, Additional Public Prosecutor for the State alongwith SI Neeraj Kumar from Police Station Mandawali Delhi. +CRL.A. 195/2013 & CrI.M.B.No.l0793/2Q14 ASHOKKUMARYADAV Appellant Through: Mr.AjitSharma,Advocate versus STATEOF (NCT)DELHI Respondent Through: Ms.Ritu Gauba, Additional Public Prosecutor for the State alongwith SI Neeraj Kumar from Police Station Mandawali Delhi. CORAM; HON'BLE MS. JUSTICE SUNITA GUPTA JUDGMENT : SUNITA GUPTA, J.

¶1The appellants Bijender Singh alias Titoo and Ashok Kumar Yadav CrI.A.191/2013&Crl.A.195/2013 Pagg j jg ]h challengesthe impugnedjudgmentand order on sentencedated 22.12.2012 and 07.01.2013 passed by learned AdditionalSessions Judge in Sessions • case No.51/2011 arising out of FIR No.571/2004u/s 363/365/34IPG vide whichthey were convictedunder Section365/34IPG and were sentencedto undergorigorousimprisonmentfor aperiodofthree years and to pay a fine of Rs.1000/-in default,to undergosimpleimprisonmentfor onemonth.

¶2Prosecution case, succinctly stated, is as follows. Anil Kumar (PW-2) made a complaintalleging inter alia that he is running a grocery shop at Shop No.302, Krislina Puri, Main Road, Mandawali,Delhi. On 28.10.2004at 1.00 pm, his son Aman aged abouttwo •"•v' and a halfyears was presentatthe shop. His nephewDeepakwho was also •runninga groceryshop nearby came to his shop and took Aman with hrni. Thereafter,Anil Kumar went to take lunch and when he returnedback he did not find his son Aman. He went to the shop of Deepakto enquirebutthe shutterof the shop was down. After sometimeDeepak came there and on enquiry from him about Aman, Deepak told him that Aman was not with him. He made a call on 100 number regarding missing of his son. He suspectedthathis son Amanhas beenkidnapped.

¶3Investigationof the case was conductedby PW-10 SI Swaraj Singh. He got the portraitof the suspectpreparedon the basis of descriptiongiven by the neighbours. On 02.11.2004,the InvestigatingOfficer received an information from Police Station Ginnore that a child belonging to Delhi has been recovered from there, as such, he alongwith complainant and other police officials went to Ginnor where Inspector Yogender Kumar (PW-11) met him and told that boy Aman was recovered from the possession of accused Bijender Singh. Bijender Singh was interrogated and the child was CrI.A.191/2013& Crl.A.195/2013 broughtto Delhi. On the interveningnight of 2-3.11.2004,accusedDeepak was apprehendedfrom his house. AccusedBijenderSinghwas also arrested on 25.07.2005. Accused Ashok suiTendered in the Court and was arrested. Aftercompletinginvestigation,chargesheetwas filed againstall the accused under Section 363/365 IPC.

¶4Initially the trial was conducted by the learned Metropolitan Magistrate,however, in view of the notificationdated 04.08.2010victim being minor at the time of incident and trial of offences concerning Protectionof Child Right Act, 2005 was to be conductedby a designated Court, as such, the case went to AdditionalSessionsJudge. Charge under Section 365/34 IPC was framed to which accused pleaded not guilty and claimed trial.

¶5In order to substantiate its' case, prosecution in all examined 11 witnesses. All the^ incriminatingevidence was put to the accused while recordingtheir statementunder Section313 Cr.P.Cwhereinthey deniedthe case of prosecutionand alleged false implicationin this case. Accused BijenderSinghtook the defencethat he was pickedup by U.P Police from his shop on 01.11.2004. Thereafterhe was falsely imphcated in a case under Section 307 IPC and 25 of Arms Act and thereafter in this case. He examined himself as DW-1 and proved the certified copy of the judgment ^ •Ex.DWl/Avide which he was acquittedfor offenceunder Section307 IPC and 25 of Arms Act. He also examined DW-2 Ashok Kumar in support of his case.

¶6After scrutinisingthe evidence led by the prosecution and the defence taken by the accused, vide impugned judgment dated 22.12.2012 accused Deepak was acquittedof the charges levelledagainst him. However, both CrI.A.191/2013&Crl.A.195/2013' 3^^5 the appellants were convicted under Section 365/34 IPG and sentenced, as mentioned hereinabove.

¶7Feeling aggrieved, separate appeals have been prefen^ed by the appellants.

¶8Assailingthe findings of the learnedTrial Court, learpedcounselfor appellant Bijender Singh alias Titoo submitted that the statement of complainantPW-2 Anil Kumar does not further the case of the prosecution in as much as his statement is confined to lodging report regarding missing of his son and that he saw Bijender at the police station. PW-3 Attar Singh is the only public witness who is not hostile. He does not mention anything against Bijender Singh but speaks about co-accused Ashok Kumar Yadav taking the child. The other two witnesses PW-4 and PW-5 did not support the case of prosecution. Further, prosecution case is that the child was recovered fromthe custody of accusedBijender. In order to substantiatethis case, three witnesses PW-6 Constable Chander Pal, PW-8 Constable Omkar Singh and PW-11 Inspector Yogender Singh were examined. Constable Omkar Singh did not support the case of prosecution whereas testimony of PW-6 and PW-11 suffers from various discrepancies. Furthermore, the appellant examined himself as DW-1 besides examining DW-2 both of whom deposed that appellant was falsely implicated in this case because he .refused to bribe U.P. police, however, no credence was given to the defence evidence. Furthermore, according to the prosecution case, accused Bijender Singhfired at the police officialsand weaponof offencewas recoveredfrom his possession,however, the same was not believedby the U.P Sessions Court and he was acquittedof the offence alleged against him. Once the incidentitselfwas found false then the factum ofrecoveryofchildfrom the Crl.A.191/2013&Crl.A.195/2013 possession of accused goes. Even assuming that the prosecution has proved that the child was recovered from the appellant even then offence under Section IPG is not made out. As such, accused is entitled to be acquitted.

¶9Challenging the findings of the learned Trial Court, learned counsel for the appellant Ashok Kumar Yadav submitted that the main accused was Deepak who has been acquitted by the learned Additional Sessions Judge. ,No recovery has been effected at the instance of this accused. The Trial Court has primarily relied upon the testimony of PW-3 for convicting the appellant as according to this witness, he had lastly seen the child with the accused. However, although this witness states that he informed the complainant about this accused taking child with him. but complainant nowhere deposed so. Moreover, according to this witness, he had seen the accused taking the child at 10.30 pm whereas according to the complainant, the child went missing at about

1.30 pm. Besides that, there is no incriminating evidence against this accused. No test identification of this accused was got conducted. Under the circumstances, the prosecution has failed to bring home the guilt of accused beyond reasonable doubt and accused is liable to be acquitted.

¶10Rebutting the submissions of learned counsel for the appellants, ^ learned AdditionalPublic Prosecutorfor the State submittedthat it was a case of kidnapping of a child of two and a half years but a case of kidnapping for ransom in substance was diluted due to fear of life of child by the complainant.The childwas rescuedfrom the lap ofaccusedBijender Singhwhiletryingto flee away on apprehendingarreston suspicionby U.P police at Girmor after firing at police party and hence onus under Section Crl.A.191/2013& Crl.A.I95/2013 •106 of Evidence Act lies on the accused which he has not duly discharged. Testimonyof last seen witness establishesthat the kidnapped child was last seen in the companyof both accusedand even the prosecutionwitnessesgot sketch of the accusedprepared.Recoveryof child from the custodyof both accusedby independentpolice of differentarea also establishesthe guilt of the accusedand as per Section114(e)of EvidenceAct, a presumptionarise that all officialacts are genuinelyperformed.It is further submittedthat the maximum sentence under Section 365 IPG is upto 7 years and the learned Trial Courthas alreadyexercisedgreatclem.encyand has awardedonlythree years imprisonmentwhich is liableto be enhanced.As such, the appealsbe dismissedand compensationbe awardedto the victimof the crime.

¶11Before consideringthe rival submissionsof learned counsels for the parties, it will be in fitness of things to have a brief narration of the testimonyof the materialwitnessesexaminedbythe prosecution.

¶12PW-2 Anil Kumar is the complainant and father of victim Master Aman. Histestimonyis confinedto the missingof his childon 28.10.2004at about 1-1.30 pm and thereafterrecovery of the child on 02.11.2004from Ginnor. He further deposedthat accusedBijender was apprehendedby the local police and he was informed that the child has been recovered from his possession.

¶13PW-3 Attar Singh was running a building material shop at Krishna Puri. According to him, on 28.10.2004 at about 10.30 am he saw accused Ashok taking away a child in a cycle rickshaw. The child was crying and on •his questioning,the accused told him that the child usually cry.^ When he returnedback to his house at about 1-1.30pm then he came to know that the child of Anil Kumar, his neighbour,was missing.He informedAnilKumar Cr..A.191/2013&CrI.A.195/2013 that he had seen the child with Ashok Kumar whom he loiew by face as he used to sell Golgappasand used to purchasegoods from the shop of Anil Kumar. He gave the descriptionof the said accusedand got the portraitof the suspect prepared.

¶14pw-4 Ashok Kumar merely deposedthat all the three accusedwere Icnownto him as Deepakwas runninga groceryshop. AccusedAshok was sellingGolgappasin the areawhile accusedBijendersellspotatoes.

¶15Testimonyof PW-5 Rawat Singh is confinedto the fact that he went alongwith the complainant to police station for lodging the complaint regarding missing of his son.

¶16PW-11 Inspector Yogender Singh, then SHO, PS Ginnore, Distt. Badayunhas deposedthat on 02.11.2004he alongwithhis.staffreached at Indra Chowk, BabralaChowk for searchingcriminals.On receiptof secret informationthat two persons who kidnapped one child were sitting near Bhola Crasherat Dhanariroad, they reachedthere. On seeingthem, one of the accusedran awaywhilethe otherwho was holdinga babyinhis lap fired upon them with the intention to kill them. They saved themselves and apprehendedaccused Bijender. One countrymadepistol of .315 bore was recoveredfrom right hand of accusedand baby was recoveredfrom left side lap of accused. On formal search of accused, two live cartridges were recovered from right pocket of his pant and one empty cartridge was found in the chamber of countrymade pistol. Accused disclosed the name of other accused who ran away from there as Ashok Kumar Yadav. He also disclosed that he, accusedAshok and his associateshad broughtthe childfrom Delhi. He got FIR under Section307 IPG and 25 ofArms Act registeredat police station Ginnor. He also informed police station Mandawali. Concerned Crl.A.191/2013&Crl.A.195/2013 " ^ rage 7 of 15 —J 9^^ investigating officer alongwith the complainant came to pohce station Ginnor. After completing all legal formalities custody of the child was handed over to his father.

¶17PW-6 Constable Chander Pal was accompanying PW-11 at the time of incident and has corroborated the testimony of PW-11.

¶18PW-8, retired driver Constable Omkar Singh was also accompanying PW-11 and PW-6. He deposedthat at Indra Chowk, SHO receiveda phone call thereafter they reached at Bhola Crasher. After some time he heard noise of fire. Thereafter SHO and other staff members came back to the vehicle alongwith one person and one small child. However, he did not deposeaboutthe allegedincidentof firingby accusedBijenderand recovery of child from his possession, as such, was declaredhostile.

¶19So far as accused Ashok Kumar Yadav is concerned, the prosecution case rest^on the testimonyof PW-3. Attar Singh who, as seen above, has deposed that he saw accused Ashok taking a child in a cycle rickshaw at about 10.30 am and thereafter on coming to know that child of Anil Kumar is missing,he informedhim that he had seen the child with.Ashok Kumar who used to sell Golgappasand used to purchasegoods from the shop of Anil Kumar. Except for the testimony of this witness, there is no other incriminating evidence against Ashok Kumar Yadav. A minute scrutiny of of testimony of this witness goes to show that the same is not sufficient to establish the guilt of the accused beyond reasonable doubt in as much as according to the complainant,the child went missing at about 1.30 pm whereasaccordingto this witness,he had seen accusedAshoktakinga child at about 10.30 am. Moreover,he nowhere deposedthat the child who was being taken by Ashok Kumar Yadav was the child of the complainant. CrI.A.191/2013& CrI.A.195/2013 Furthermore,accordingto him, on comingto knowthat childof AnilKumar was missing, he informed Anil Kumar that he had seen accused Ashok Kumar who used to sell Golgappas with him. However, testimony of complainantis conspicuouslysilentregardingany such informationgivento him by PW-3 Attar Singh. Not only that, ifthe testimonyofthis witness is believed as correct that on the very day of missing of the child i.e.,

28.10.2004,he had informedthe complainantregardingtaking away of his childby Ashok Kumar then as per ruldca only an informationwas given by the complainantregardingmissing of his child, on the basis of which DD No.25A was recorded. Thereafter, on 29.10.2004 the complainant went to police stationand gave a statementregardingmissingof his child by some personon whichthe FIR was registeredat 10.45 pm. Had PW-3 AttarSingh informedthe complainantas deposedby him then there.was no occasionfor the complainantnot to mention the name of Ashok Kumar Yadav in the , initial complaintEx.PW-l/A.Not only that, even in his depositionbefore the Court he nowhere deposed so. Furthermore, there is material improvementin the testimonyofthis witnessthatAshokKumarYadavused to sell Golgappasin the area and also used to purchasegoods from the shop of Anil Kumar whereas no such statement was made by him under Section 161 Cr.P.C. Besides that the complainant did not even identify Ashok Kumar Yadav in the Court. He only identified accused Deepak since he was his nephew and Bijender who met him at'the police station. Under the circumstances,his sole testimony implicating accused Ashok Kumar Yadav which does not find corroboration from any other material on record is not sufficient to establish beyond reasonable doubt that this accused kidnapped the child belonging to Anil Kumar. That being so, findings of learned Crl.A.191/2013&Crl.A.195/2013 Page9gf jg AdditionalSessionsJudge quathis accusedcannotbe sustained.

¶20As regards accused Bijender Singh is concerned, the material witnessesare PW-6, PW-8 and PW-11. It has come in their testimonythat, on the basis of secretinformationthat two personswho kidnappedone child were sittingnear Bhola Crasherat Dhanari Road, the police party reached the spot where on seeingthem, one ofthe accusedran away while accused BijenderSinghwho was holdinga baby inhis lap fired atthe policeofficials however he was apprehendedand countrymadepistol was also recovered from him. Slight discrepancieshave appearedin their testimony,however, the same do not go to the substratumof the case. Moreover,it is to be kept in mind that the incidenttook place on 02.11.2004whereasthese witnesses came to depose in the Court in the year 2012 i.e. after a lapse of about 8 years. Human memory is bound to lapse due to passage of time and some concession has to be given which occurs due to this passage of time. Moreover, there are catena of decisions to the effect that minor discrepanciesand inconsistenciescannot be given undue importance.The Court has to see whether inconsistenciesgo to the root of the matter and affect the truthfulness of the witnesses while keeping in view that discrepanciesare inevitablein case of evidence of witnesses, who speak .thereafter long lapse of time.

¶21Hon'ble SupremeCourt in GangabhavanivRayapati VenkatReddy andOrslOUiW) SCALE 132 held: "9. In State of U.P. v. Naresh (2011) 4 SCC 324, this Court after consideringa large nunnber of its earlier judgnnents held: In all criminal cases, normal discrepancie.sare bound to occur in the depositions of witnessesdue to normalerrors of observation,namely,errors of memorydue , to lapse of time or due to mental dispositionsuch as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a Crl.A.191/2013 & Crl.A.195/2013 serious doubt about the truthfulnessof the witness and other witnessesalso make materialimprovementwhile deposingin the court,such evidencecannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishmentsor improvementson trivialmatterswhich do notaffectthe core of the prosecutioncase, shouldnot be made agroundon which the evidence can be rejectedin its entirety. The court has to form its opinion about the credibMityof the witness and record a finding as to whether his deposition inspires confidence. Exaggerationsperse do not renderthe evidencebrittle.Butit can be one ofthe factorsto testcredibilityof the prosecutionversion,when the entireevidenceis putin acruciblefor beingtestedon the touchstoneofcredibility. Therefore,mere marginalvariationsin the statementsof a witnesscannotbe dubbed as improvementsas the same may be elaborationsof the statement made by the witnessearlier. The omissionswhich amountto contradictionsin materialparticularsi.e. go to the root of the case/materiallyaffectthe trialor. core of the prosecution'scase, renderthe testimonyof the witnessliable to be discredited. Asimilarview has been reiteratedby this Court in TehsHdorSingh and Anr. v. State of U.P. AIR 1959 SC 1012;Pudhu Raja and Anr. v. State,Rep. by Inspectorof Police JT2012 (9) SC 252; andLai Bahadurv. State(NCIofDelhi)

(2013) 4 see 557).

¶10Thus, it is evidentthat in case there are minor contradictionsin the depositionsofthe witnessesthe same are boundto be ignoredas the same cannot be dubbed as improvements and it is likely to be so as the statementin the court is recordedafter an inordinatedelay. In case the-contradictionsare so materialthat the same go to the root of the case, materiallyaffectthe trialor core oftheprosecutioncase, the courthas to form its opinionabout the credibilityofthe witnessesandfind out as to whethertheirdepositionsinspireconfidence."

¶22Similarview was taken in Sidhan v. State of Kerala, 1988 Cr.L.J. 470; KrishnaFilial v. State ofKerala, AIR 1981 SC 1237; Kurai and Anr. v. State of Rajasthan (2012) 10 SCC 433; Sohrob v. State of Madhya Pradesh,AIR 1972 SC 2020; KrishnaMochi&Ors. vs. State ofBihar,(2002)6 SCC 81. Crl.A.191/2013 & Crl.A.195/2013 Page H of 15

¶23In the instant case also, except for minor variations, the witnesses stood the test of cross-examination.

¶24Moreover, merely because they are police officials there is no reason to disbelieve their testimony which on material aspect remained unimpeachable.The testimonyof policepersonnelhave to be treatedin ihe same manner as testimony of any other witnesses and there is no principle of law that without corroboration by independent witnesses their testimony cannotbe relied upon. The presumptionthat a person acts honestlyapplies, as much in favour of police personnel as of other person and it is not a properjudicial approachto distrustand suspectthem without good ground. It will all depend upon the facts and circumstances of each case and no. principle of general application can be laid down as held in Karamjit Singh vs. State (Delhi Admn.) 2003 5 SCC 291, C.Ronald & Anr. V5. Union Territory of Andaman & Nicobar Islands, (2011) 12 SCC 428. In Sunil Clifford Daniel vs. State of Punjab,

(2012) 11 SCC 205, Apex Court referred to State of Govt of NCT of Delhi vs. Suoil and Anr., (2001) 1 SCC 652, wherein Court held as under:- "20 Sut if no witness was present or if no person had agreed to affix his signature on the docunnent, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

¶21Wefeel that it is an archaic notion that actions of the police officer should be approached with initial distrust At any rate, the court cannot start with the presumption that the police records are untrustworthy. >As a proposition of low the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the Crl.A.191/2013&CrI.A.195/2013 Page 12 of15 . \ ; statement madebythe accusedit is open to the courtto believethe versionto be correctifit is not otherwiseshown to be unreliable.It is for the accused, through cross-examinationof witnessesor through any other materials, to show that the evidence of the police officer is either unreliableor at least unsafeto be actedupon in aparticularcase. If the courthas any goodreason to suspect the truthfulnessof such records of the police the court could certainlytake into account the fact that no other independentperson was presentat the time ofrecovery.Butitis not a legallyapprovableprocedureto presume the police action as unreliable to start with, nor to jettisonsuch-action merely for the reason that police did not collect signatures of independentpersons in the documents made contemporaneouswith such actions."

¶25Although, it is true that this accused was tried for offence under Section 307 IPG and 25 of Arms Act arising out of the same incident whereinhe was acquittedby GinnorCourtbut learnedTrial Gourtwas right in observingthat Gourt was not bound to accept the appreciationof facts done by that Gourt and disbelievethe statementsofPW-6 and PW-11. It is not in disputethat the child was recoveredfrom Girinorewhich is fortified by the fact that on receipt of informationfrom PW-11, PW-10 SI Swaraj Singhalongwithother staffand the complainantreachedGinnorwhere they were informed that the child Aman was recovered from the possession of accused Bijender Singh. Gustody of the child was handed over to complainantat police station Ginnor vide Ex.PW-2/B.Ex.PW-6/Ais the seizure memo regarding recovery of victim Master Aman from the possessionof accused BijenderSingh and recovery of countrymadepistol from the possessionof this accused. These documents further supportthe •statement of police officials that accusedBijender was apprehendedby the police of police station Girmor on 02.11.2004 and victim child was recovered from his possession.

¶26. Accused has taken a plea that he was running a Kiryana Shop at Sahu CrI.A.191/2013 & CrI.A.195/2013 • Kara DistrictBadayun,U.P and police officialsused to demandmoney from him for running the shop and on refusal, he was falsely implicatedin this case. He had examined DW-2 Ashok Kumar Gautam in support of his defence however this witness admitted that police officials never demanded any money from him however the explanation furnished by him is that his counter was inside the shop whereas goods of accused Bijender used to be kept outside the shop. Accused admitted in his cross-examination that he could not tell the date when bribe was demanded by the police officials and he did not make any complaint about this fact to any superior authority at any point of time. Moreover, according to PW-4, accused Bijender used to sell potatoes at Mandawali, Delhi and his testimony was not challenged by the accused as he was not cross-examined at all. This falsifies the statements of DW-1 and DW-2 that accused was running a Kiryana shop at Sahu Kara. Even otherwise, there was no reason for them to get the accused implicated in this case as well while allowing the real culprit to go scot free.

¶27Under the circumstances, learned Trial Court was right in observing that so far as this accused is concerned, it was proved that the child who was kidnapped on 28.10.2004 was recovered from the possession of this accused from the area of Pohce Station Ginnor, U.P. on 02.11.2004. Since the recovery of child was effected from the possession of this accused, it was for him to explain as to how child came in his possession which he has failed to explain. As such, it is to be taken that during this period, he was kept secretly and wrongfully confined. Under the circumstances, there is no infirmityin the order passedby learnedAdditionalSessionsJudge qua this accused.

¶28That being so, Crl. Appeal No. 191/2013 filed by BijenderSingh is CrI.A.191/20I3&CrI.A.195/2013 dismissedwhile Crl. Appeal No.195/2013 filed by Ashok Kumar Yadav is allowed. His conviction and order on sentence dated 22.12.2012 and

07.01.2013 are set aside. He be set at liberty, if not wanted in any other case. Trial Court record be sent back along with the copy of the judgment. Copy ofjudgmentbe sent to SuperintendentJail for informationand compliance. MAY 13, 2015 (SUNITA GUPTA)' JUDGE Crl.A.191/2013&Crl.A.195/2013 Page 15 of15

V * IN THE HIGH COURT OF DELHI AT NEW DELHI DateofDecision: IS**" May,2015 +CRL.A. 195/2013 & Crl.M.B.No.10793/2014 ASHOK KUMAR YADAV Appellant Through: Mr.Ajit Sharma, Advocate versus STATE OF (NCT) DELHI Respondent Through: Ms.Ritu Gauba, Additional Public Prosecutor for the State alongwith SI Neeraj Kumar from Police Station Mandawali Delhi. CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA