Ashok Kumar @ Govind v. The State NCT of Delhi

judgment and order dated

28.2.2007, holding that there was no evidence against Jit Kaur save and except the statements of the co-accused implicating her, which were inadmissible in evidence, learned Trial Judge has acquitted Jit Kaur.

38.

All other accused i.e. the appellants have been convicted for the offences of which they were charged for.

39.

Noting that no recoveries had been made pursuant to the disclosure statement of appellant Ashok and Sunil and merely because the names of the other accused persons and the contours of the conspiracy were disclosed in said statements and that the facts pertaining to the conspiracy stood established by the fact that the crime was given effect to, it has been held that the disclosure statements of Ashok and Sunil are inadmissible in evidence with reference to Sections 25 to 27 of the Evidence Act.

40.

But, in para 27 of the impugned decision, the learned Trial Judge has held as under:- "27. I have perused the disclosure statement of the accused Ashok and that of accused Sunil Ex.PW-23/B and Ex.PW-23/E in detail. The information given to the accused Ashok by the accused Sunil and the information given to the accused Sunil by the accused Jaipal as mentioned in their respective disclosure statements can very well be admissible in evidence u/s 8 and u/s 10 of Indian Evidence Act. It is only upon the disclosure statement of the accused Ashok that led to the arrest of the accused Sunil and further the disclosure statement of the accused Sunil could make the police successful for the arrest of the accused Jaipal which ultimately led to the recovery of the incriminating material and the dead body. Admittedly, after the hatching of conspiracy, no overt or covert act was done by the accused Ashok and Sunil but they had the knowledge and participation of the conspiracy, as reflected from the statement of other co-accused. They had also knowledge about the indulgence of the other accused with whom they had hatched conspiracy in doing the illegal act, and hence, their case clearly falls within the ambit of Section 120-B IPC under the

guidelines laid down by the Hon'ble Supreme Court of India as herein after discussed."

41.

In the preceding paragraphs, being paras 24 to 26, the learned Trial Judge has noted Section 3, Section 4, Section 5, Section 8, Section 10, Section 27 and Section 114 of the Evidence Act and has opined that conduct of an accused is relevant by virtue of Section 8 of the Evidence Act. The learned Trial Judge has also held that in a charge pertaining to conspiracy, anything said or done by a conspirator is admissible evidence.

42.

Pertaining to accused Jaipal, Madan and Dharam the learned Trial Judge has held that the dead body of Sunil was recovered by the police pursuant to their disclosure statements and upon the three leading the police to the place which was pointed out by the three as recorded in the pointing out memos Ex.PW-26/C, Ex.PW-26/D and Ex.PW-26/E and this was incriminating evidence against the three showing their involvement in the abduction and murder of Sunil. Since the testimony of PW-1 establish that the minor children left the school with their driver Sunil, the learned Trial Judge has held that from the fact that the three were involved in the abduction and murder of Sunil an inference had to be drawn that the three had kidnapped the minor children of Rajiv

Aggarwal. The learned Trial Judge has further held that the fact that the two minor children were recovered from Dharam Singh proved his accomplicity. The fact that the accused had told that the two children were confined in Village Balwapur and that the clothes of the children were recovered from the house of Dharam Singh in Village Balwapur was also incriminating evidence against accused Dharam Singh, Jaipal and Madan. Against accused Jai Bhagwan, as also accused Jaipal the fact that their finger prints were lifted from the car was held to be incriminating evidence against the two.

43.

In view of the fact that Rajiv Aggarwal PW-12 had categorically deposed of having received a ransom call, the learned Trial Judge has concluded that the appellants are proved guilty of having entered into the conspiracy as alleged and it being executed.

44.

We shall be dealing with the arguments raised in during arguments of the appeals after noting the same i.e. would note the argument and thereafter deal with the same immediately thereafter.

45.

A very forceful argument was raised by Sh.Deepak Manmohan Bhalla, learned counsel for appellants Jaipal, Madan and Jai Bhagwan that the dead body recovered by the police was not that of Sunil. Thus, counsel argued that there was no

discovery of a fact pursuant to the disclosure statements of Madan, Jaipal and Dharam Singh. Learned counsel urged that if this be so, the linkage between the recovery of the dead body as that of Sunil the driver who went missing with the children does not get linked to the conspiracy.

46.

The factual basis of the argument was the condition of the body noted in the post-mortem report Ex.PW-10/A, to the effect that the skin was peeled off at places and that the scalp hair was loosen. Also the fact that it was recorded in the post-mortem report that the body was 3-4 days old. It was urged that putrefaction or decomposition of a body commences soon after the death and is a slow process. With reference to Medical Jurisprudence it was urged that only after 8 to 10 days of the death, the skin starts peeling and nails and hair become loose. It was urged that under the circumstances the dead body could not be that of Sunil the driver for the reason as per the prosecution the driver went missing in the late afternoon of 17.9.2001. Counsel further urged that from the cross examination of the wife of the deceased it was apparent that she had identified the dead body of her husband with reference to the clothes of the deceased.

47.

In Modi's Medical Jurisprudence, putrefactive changes have been listed as under:-

Putrefactive Changes Time after death

¶1Greenish coloration over the iliac fossae. The eyeballs, soft and yielding. to days

¶2Green coloration spreading over the whole abdomen, external genitals and other parts of the body. Frothy blood from mouth and nostrils. to days

¶3Abdomen distended with gas. Cornea fallen in an concave. Purplish red streaks of veins prominent on the extremities. Sphincters relaxed. Nail firm to days

¶4Body greenish brown. Blisters forming all over the body. Skin peels off. Features unrecognizable. Scrotum distended. Body swollen up owing to distension. Maggots on the body. Nails and hair loose and easily detached. 14 to 20 days

¶5Soft parts changed into a thick, semifluid, black mass. Skull, abdomen and thorax burst. Bones exposed. Orbits empty. to months

48.

Now, the doctor did not find any maggots in the body. Ex facie, the body could not be of category 4 above. No doubt, the scalp hair were found to be loose, but the nails were not found to be loose. In any case, it has not been recorded in the post-mortem report that the nails were found to be loose.

49.

It has to be noted that PW-10 has not been subjected to any cross examination on this aspect and no questions had been put to him with reference to the physical condition of the body noted by him and on the issue how could the body be of a person who died 3-4 days back. Further, the wife and the brother of the deceased had deposed

categorically that they had identified the dead body and that it was of Sunil. Whereas Sudhir Poddar, the brother of the deceased has not been cross examined on the issue of identification of the dead body, the wife has been subjected to a cross examination, but not fully. A question has been put to her during cross examination to which she has responded that the clothes on the dead body of her husband was the same which he was wearing when he left the house.

50.

The clothes of the deceased are not only his undergarments but consist of his pant and a shirt as also a belt. Who, other than a wife would be familiar with the clothes and a belt of a man, more so, when both come from a humble background and are not well to do. The reason is that the number of personal clothing of such man would presumably be few, and in all probability the wife would be washing and ironing the clothes. Women have an instinctive uncanny eye to identify personal household goods, jewellery and clothes etc.

51.

In our opinion, without subjecting PW-2, PW-10 and PW-11 to any cross examination on the point of identity of the dead body, the arguments advanced in appeal are nothing but surmises and conjectures.

52.

We thus hold that the dead body recovered on

21.9.2001 as per the recovery memo Ex.PW-7/A was that of the driver Sunil.

53.

Pertaining to the recovery of the dead body we note that not only two police officers, one each from PS Garh Mukteshwar and PS Bahadur Garh were associated but even a team of police personnel from Delhi was associated and as many as 5 public witnesses i.e. local villagers were associated. It is no doubt true that Pappi PW-3 has stated that Delhi Police Personnel were not present when the body was seized and SI Shri Ram PW-26 of PS Garh Muktheshwar stated that Delhi Police had left the place where the dead body was recovered at 6:00 AM, but from said facts introduced by the two witnesses it cannot be said that the other witnesses were lying.

54.

It has to be noted that when the Delhi Police reached Balwapur they reported the purpose of their visit to the police post at Brij Ghat under jurisdiction of PS Garh Mukteshwar and SI Shri Ram PW-26 joined the police team. After the recoveries were effected from the house of Dharam Singh, Madan, Jaipal and Dharam Singh led the police to a place between village Balwapur and Village Silarpur and since said place fell within the jurisdiction of PS Bahadur Garh, at the

asking of SI Shri Ram the police team reported their presence at PS Bahadur Garh where vide DD No.6, Ex.PW-27/A entry was made at 5:40 AM of said fact and SI Charan Singh PW-27 of PS Bahadur Garh also joined the police team. We note that SI Chandarpal Singh PW-29 from the Delhi Police has also deposed to the recovery of the dead body of the deceased from the field in his presence. This part of his testimony has gone rebutted. We note that there are general suggestions at the end of the cross examination that he was deposing falsely.

55.

The fact that the police personnel from Delhi were present when the dead body was recovered is established not only from the testimony of PW-26 and PW-27, the two police officers of U.P. Police, but also from the entries made in the DD registers of the police post Brij Ghat under jurisdiction of PS Garh Mukteshwar and PS Bahadur Garh.

56.

We thus hold that the prosecution has successfully proved that the dead body recovered from the field on

21.9.2001 was that of deceased Sunil.

57.

The controversy pertaining to disclosure statements and joint pointing out of places wherefrom recoveries are effected, stands concluded by the Supreme Court in the decision reported as 2005 (11) SCC 600 State Vs. Navjot Sandhu. In para 145 the Supreme Court held that disclosure

statements of accused made to the police followed by both accused jointly taking the police to a place and getting recovered an object pursuant to the disclosure statement would not take out the disclosure statements from outside the purview of Section 27 of the Evidence Act.

58.

The making of the disclosure statements by Madan, Jaipal and Dharam Singh has been proved by the testimony of SI Chanderpal PW-29, SI Ramesh Singh PW-30 and Const. Dayanand PW-23. The pointing out memos Ex.PW-26/C, Ex.PW-26/D and Ex.PW-26/E have been proved by means of the testimony of SI Chanderpal PW-29 as also the testimony of SI Shri Ram Singh PW-26. It thus stand established that the dead body of Sunil was recovered from a place not within the knowledge of the police and a fact was discovered by the police namely that Madan, Jaipal and Dharam Singh had knowledge about the dead body being in the sugarcane field, at a distance of about 15 meters from a canal, hidden by sugarcane, in village Silarpur i.e. the place wherefrom the dead body was actually recovered.

59.

Thus, it stands proved that appellants Jaipal, Madan and Dharam Singh had knowledge about Sunil (deceased) being murdered and his dead body being hidden in the sugarcane field in village Silarpur and that the aforesaid

evidence pertaining to their disclosure statements and the recovery of the dead body at their instance and the identification thereof as that of deceased Sunil is incriminating evidence against the three since they have not been able to explain said evidence against them.

60.

It is not in dispute that while taking the finger prints of Madan, Dharam Singh and Jaipal on 22.9.2001 and while taking the finger prints of appellant Jai Bhagwan after he was arrested on 3.7.2002, no permission was obtained from the Court and as required by the Identification of Prisoners Act 1920, neither was got properly identified.

61.

It was urged by learned counsel for said accused that under the circumstance the reports of the finger print experts Ex.PW-20/D and Ex.PW-20/K were inadmissible in evidence.

62.

Ms.Richa Kapoor, learned counsel for the State urged that a Constitution Bench of 11 Judges of the Supreme Court had held that taking specimen handwriting, specimen finger prints or anything which revealed the personal attributes of an accused was permissible and was not violative of Article 20(3) of the Constitution of India.

63.

We need not note the various authorities on the subject inasmuch as the same were considered by us in our

decision dated 5.3.2009 in Crl.A.No.682/2008 Santosh @ Bhure Vs. The State. In paras 19 to 24 thereof we had held as under:- "19. Learned counsel for the State urges that a Constitution Bench of 11 Judges of the Supreme Court, in the decision reported as 1962 (3) SCR 10 State of Bombay vs. Kathi Kalu Oghad & Ors. has upheld the constitutional validity of compelling an accused to give specimen handwritings. It has been held that the same does not contravene Article 20(3) of the Constitution of India and thus the fact that the police obtained the specimen handwriting of Neeraj when he was in their custody does not invalidate the said act. Learned counsel was at pains to point out that the Constitution Bench of the Supreme Court was considering three references pertaining to three views taken by the High Court of Bombay, Punjab and West Bengal pertaining to compelling an accused to give his specimen handwriting, fingerprints and specimen signatures respectively and that in the latter two cases the palm and finger print impressions as also the specimen signatures were obtained with the permission of the magistrate concerned but in the first case pertaining to the Bombay High Court the specimen handwritings were taken when the accused was in police custody. Thus, learned counsel urged that the Constitution Bench upheld the action of taking specimen handwriting by the police when the accused was in police custody.

20.

It may be noted that the Constitution Bench of the Supreme Court was dealing with the issue whether to compel an accused to give his blood sample, palm and fingerprints impressions, signatures and handwriting etc. would or would not be violative of Article 20(3) of the Constitution of India which made it unconstitutional for a person to be a witness against himself. The Constitution Bench held that to be a witness means to give evidence. It was held that giving handwriting samples or fingerprints or palm impressions did not tantamount to giving evidence and that when a handwriting sample or a fingerprint or

a palm impression was obtained by the police it did not amount to compelling an accused to be a witness against himself.

21.

In the decision reported as AIR 1980 SC 791 State of UP vs. Rambabu Mishra, with reference to the decision of the Constitution Bench in Kathi Kalu Oghad's case (supra) in para 7 it was observed as under:-

"7. S.73 of the Evidence Act was considered by us in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 where we held that a Court holding an enquiry under the Criminal Procedure Code was entitled under S.73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be tried to compare it with disputed writings. The present question whether such a direction, under S.73 of the Evidence Act, can be given when the matter is still under investigation and there is no proceeding before the Court was expressly left open. The question was also not considered in State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808, where the question which was actually decided was that no testimonial compulsion under Article 20(3) of the Constitution was involved in a direction to give specimen signature and handwriting for the purpose of comparison."

22.

In para 3 to 6 and para 8 of the decision in Rambabu Mishra's case (supra) it was observed as under:- "3. Section 73 of the Evidence Act is as follows:

¶73In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications to finger-impressions.

¶4The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under Section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?

¶5We may also refer here to Section 5 of the Identification of Prisoners Act, 1920, which provides:

¶5If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the CrPC, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. Section 2(a) of the Act defines "measurements" as including "finger impressions and foot print impressions".

¶6There are two things to be noticed here. First, signature and writing are excluded from the range of Section 5 of the Identification of Prisoners Act and, second, 'finger impressions' are included in both Section 73 of the Evidence Act and Section 5 of the Identification of Prisoners Act. A possible view is that it was thought that Section 73 of the Evidence Act would not take in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of Section 73 of the Evidence Act. xxx xxx

¶8The view expressed by us in the earlier paragraphs, on the construction of Section 73, Evidence Act was the view taken by the Madras High Court in T. Subbiah v. S.K.D. Ramaswamy Nadar AIR 1970 Mad. 85, the Calcutta High Court in Farid Ahmed v. the State AIR 1960 Cal 32 (Mitter J., at page 32). and Priti Ranjan Ghosh and Ors. v. The State (1973) 77 Cal WN 865,

the High Court of Punjab and Haryana in Dharamvir Singh v. State 1975 Crl. L. J. 884, the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad v. The State AIR 1957 Madhya Pradesh 106, the Orissa High Court in Srikant Rout v. State of Orissa 1972 (2) Cuttack Weekly Reporter 1332 and the Allahabad High Court in the judgment under appeal. A contrary view was taken by the Patna High Court in Gulzar Khan and Ors. v. State AIR 1962 Patna 255 and the High Court of Andhra Pradesh in B. Rami Reddy and Ors. v. State of Andhra Pradesh, 1971 Crl. L.J. 1519 (A.P.). We do not agree with the latter view. We accordingly dismiss the appeal and while doing so we would suggest that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act and provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings."

23.

In the decision reported as 1994 (5) SCC 152 Sukhvinder Singh & Ors. Vs. State of Punjab, noting that the specimen writing of Sukhvinder Singh was obtained by the police when he was in police custody, notwithstanding the fact that Sukhvinder Singh had admitted in his statement under Section 313 Cr.P.C. that he gave the specimen handwriting it was held that the opinion of the handwriting expert had to be excluded while considering the evidence against Sukhvinder Singh. We note that the said evidence brought on record inculpatory evidence against Sukhvinder Singh in respect of ransom letters Ex.P-A and Ex.P-C alleged by the prosecution to be in the handwriting of Sukhvinder Singh.

24.

Thus, excluding the opinion of the handwriting expert pertaining to the letter recovered by the police from the left pocket of the deceased, we are left with only one piece of evidence against Neeraj. The same is the recovery of a knife at his instance."

64.

Thus, unfortunately for the prosecution, the incriminating evidence against Jaipal and Jai Bhagwan pertaining to their finger prints being lifted from the car bearing registration No.DL 8C B 5369 from which the children were kidnapped on the way to the house from the school cannot be admitted in evidence and hence the same has to be excluded while considering the incriminating evidence against the two.

65.

No serious attempt was made by learned counsel for Dharam Singh to challenge the recoveries of the school bag containing the books of the children as also the recovery of the school dress of the children and their tiffin boxes from his house. The said recoveries prove that the two children were confined in the house of Dharam Singh after they were kidnapped.

66.

Pertaining to the recovery of the children from Madan we note that while deposing in Court on 1.6.2004 SI Shri Ram PW-26 stated that the two children were recovered from the house of Dharam Singh in village Balwapur but went on to correct himself the very next day i.e. on 2.6.2004 that he had said so by mistake and that no children were recovered from the house of Dharam Singh.

67.

The submission by learned counsel for Madan that the name of the secret informer who informed the SHO of PS Prashant Vihar that a man would be disembarking at Anand Vihar Interstate Bus Terminal has not been disclosed by any police officer, requiring this Court to disbelieve the testimony of the police officers and the father of the children, has hardly impressed us. The reason is obvious. Inasmuch as criminals have their own network, the police has a network of secret informers and if their names are disclosed, the network of informers created by the police would be breached and the informants life or limb may be endangered.

68.

The submission that the two children were neither examined as witnesses of the prosecution nor their statements were recorded under Section 164 Cr.P.C. has to be noted and rejected for the reason it has come on record that the two children were aged 4½ years. It is obvious that both were infants and could have hardly told anything meaningful.

¶69The discussion by the learned Trial Judge on the scope and applicability of Section 8 and Section 10 of the Evidence Act is totally misplaced and the conclusions drawn by the learned Judge in para 27 of the impugned decision are wholly erroneous.

70.

A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In that connection, that piece of conduct of the accused can been held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. Pertaining to Section 10 of the Evidence Act, suffice would it be to state that Section 10 can be divided into two parts. Part 1 refers to the existence of reasonable grounds to form a belief that two or more persons have conspired and the second part would come into operation when the condition of the first part is satisfied and makes relevant anything said, done or written by the conspirators as a relevant fact against the co-conspirators. In the decision reported as AIR 1965 SC 682 Sardar Sardul Singh Kavaesher Vs. State of Maharashtra it was held that the evidentiary value of the act, deed or writing referred to in Section 10 of the Evidence Act is limited by two circumstances; namely, that the acts shall be in reference to the common intention, and in respect of a period after such intention was entertained by anyone of them.

71.

Needless to state, once a conspiracy is given effect to, the individual acts of the conspirators thereafter do not brush the others with the same taint for the reason once a

common intention is given effect to the theory of constructiveness no longer remains in operation.

72.

Thus, the reasoning of the learned Trial Judge pertaining to appellant Ashok and Sunil as recorded in para 27 of the impugned decision is completely faulty.

73.

The result of our aforenoted reasoning may be summarized.

74.

As against appellants Ashok and Sunil there is no admissible incriminating evidence against them. Their inculpatory disclosure statements are totally inadmissible in evidence as nothing has been recovered or discovered by the police pursuant thereto and cannot even be read as evidence against them under Section 8 or Section 10 of the Evidence Act.

75.

Against appellants Jaipal, Madan and Dharam Singh the incriminating evidence is their disclosure statements, joint pointing out memos and recovery of the dead body of Sunil from the place identified by them. Against appellant Madan there is further incriminating evidence i.e. the two children being recovered from his possession. Against appellant Dharam Singh there is further incriminating evidence of the recoveries of the school dress and the school bag etc. of the children from his house. Against appellant Jai Bhagwan there

is no incriminating evidence for the reason the facts which he disclosed to the police in his disclosure statement were already within the knowledge of the police and nothing incriminating was recovered by the police pursuant to his disclosure statement. Fortunately for him and unfortunately for the prosecution the evidence pertaining to his finger prints being lifted from the car in which the children were abducted is inadmissible in evidence.

76.

From the evidence against Jaipal, Dharam Singh and Madan any reasonable person with a logical mind would reach the irresistible conclusion that the three had participated in taking deceased Sunil to the place where his dead body was found and after strangulating him to death, dumped the body in sugarcane fields. Since Sunil had left the school taking along with him the two abducted children it is apparent that said three persons had a role in abducting the two children. The further evidence against Dharam Singh and Madan pertaining to the recovery of the personal belongings of the children from one and the recovery of the children from another, further strengthens the chain of circumstances against Dharam Singh and Madan wherefrom an inference of their guilt pertaining to the conspiracy and the execution thereof can be inferred.

77.

Crl.A.No.274/2007, Crl.A.No.275/2007 and Crl.A.No.601/2007 filed by Ashok Kumar, Sunil Kumar and Jai Bhagwan are allowed. The impugned judgment and order dated 28.2.2007 convicting them of the charges framed against them is set aside. They are acquitted of the charges framed against them. They are directed to be set free if not required in custody in any other case.

78.

Crl.A.No.397/2007, Crl.A.No.398/2007 and Crl.A.No.410/2007 filed by Dharam Singh, Jaipal and Madan are dismissed.

79.

Copy of this order be sent to the Superintendent Central Jail Tihar for compliance.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J. April 09, 2009 mm

* IN THE HIGH COURT OF DELHI % Judgment reserved on : 30.01.2009 Judgment delivered on: 09.04.2009 + CRL.A. No.274/2007 ASHOK KUMAR @GOVIND …Appellant Through : Mr. Abhinav Bajaj, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. No.275/2007 SUNIL KUMAR @KALU …Appellant Through : Mr. Tarun Sharma, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. No.397/2007 DHARAM SINGH …Appellant Through : Mr. Ajay Chaddha, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. 398/2007 JAIPAL SINGH …Appellant Through : Mr.Deepak Manmohan Bhalla, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. 410/2007 MADAN …Appellant Through : Mr.Deepak Manmohan Bhalla, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. 601/2007 JAI BHAGWAN …Appellant Through : Mr.Deepak Manmohan Bhalla, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Case of the prosecution is that the appellants and co-accused Jeet Kaur (who has been acquitted after the trial) hatched a conspiracy on 16.9.2001 to kidnap for ransom Master Rishabh and Master Shubham, twins aged 4 ½ years and in furtherance thereof on 17.9.2001 kidnapped Master Rishabh and Master Shubham as also abducted the driver Sunil, employed by Shri Rajiv Aggarwal father of Master Rishabh and Master Shubham. That, in furtherance of the conspiracy, to eliminate they being identified, since appellant Ashok was also employed as a driver by Shri Rajiv Aggarwal and hence driver Sunil knew appellant Ashok, driver Sunil was murdered and body hidden in a cane field next to a canal in village Silarpur and as per the conspiracy ransom in sum of Rupees One Crore for each child was demanded. As per the prosecution, the conspirators gave effect to the conspiracy inasmuch as on 17.9.2001 kidnapped the two children and abducted the driver and thereafter murdered the driver as also demanded ransom but their mission failed because they were apprehended. 2. It is not in dispute that Master Rishabh and Master Shubham were students of Bal Bharti School, Sector-14, Rohini, studying in Nursery Section-A. As proved by their class teacher Ms.Anjana Baweja PW-1, who we note has not been cross-examined, Master Rishabh and Master Shubham sons of Shri Rajiv Aggarwal were dropped at the school in the morning by the driver of Rajiv Aggarwal and at 12.45 noon the same day the children were entrusted to driver Sunil after school hours were over. 3. Neither the two young boys nor their driver returned to their house. Their father Rajiv Aggarwal went to the local police station i.e. PS Prashant Vihar at around 6:00 PM on 17.9.2001 and informed HC Khushi Ram PW-5, the officer on duty, that his children as also the driver were missing. HC Khushi Ram noted the statement Ex.PW-5/B in the daily diary register vide DD No.13A and informed the police control room. He registered the FIR Ex.PW-5/A on the basis of the statement Ex.PW-5/B under Section 363 IPC. Soon thereafter Shri Rajiv Aggarwal received a telephone call demanding ransom of Rupees One Crore per child, which information he dutifully passed on to ASI Chander Pal Singh PW-29 to whom the case was entrusted for investigation after FIR Ex.PW-5/A was registered. ASI Chander Pal Singh recorded a supplementary statement of Shri Rajiv Aggarwal under Section 161 Cr.P.C. and added the offence under Section 364-A IPC for further investigation in the FIR. 4. The employees of Shri Rajiv Aggarwal were kept under observation and search teams were constituted to look for clues and in particular to search and find out the Maruti Zen bearing registration No.DL-8CV-5369, the car in which d