Dharmender @ Dharmu v. State

SANJIV KHANNA, J. For detailed order see Criminal Appeal No. 1112/2012, Puran @ Shankar Vs. State pronounced today. MAY 29th, 2013 kkb ~ ~ - 'L[ L- (SANJI~ KHANNA) . JUDGE ~;\\> (VEO PRAK~H~~)SH) JUDGE ,';. ... ~ '-~-' .. - . --~. ~-------~-.. -- _. ---- --. -_._- -.. -- --- _ .. - .. __ . __ ._ .. _-- .... --._ .. --.-... - % --.-... -.... --.-----.-~.----.-.-.~--.---.-.--~-----------------" IN THE HIGH COURT OF DELHI AT NE\'\1 DELHI CrL Appeal No. 1112/2012 Reserved on': 6th rvlay~20i3 Date of Decision:2~!10Jay, 2013" PURAI\] @ SHANKAR Through .... Appellant STATE: + STATE -I-Versus Through ... Respondent Nlr; Sanjay Lao, APF' Cr!.Appea~No.B55/2012 .... Appel/a nt Through Ms. Prerna, Advocate. Versus Through ... Respondent Mr. Sanjay Lao, APP Crl. Appeal No. 241/2013 SJ\TYAWAN KATHERIA AND ORS. .... Appellant Versus STATE -I-Hr\N! @ IVIAI\IJU Through Mr. Ravish Roshan, Mr. Manoj Bansal and Mr. Yunush Advocates. Through ... ,Respondent Mr. Sanjay Lao, APP Cri. Appea! No. 394/2013 Through .... Appe!lant IVis. Rakhi Dubey, Advocate., Versus ST!\TE ThroUBh ... Respondent Mr. 53njay Lew, APP CrU\ppcal~; 1112/12., 855/12,241/U, 394/13 -------, - - ----- -- -- -- ------- ---- ---___ • ________ ,_-';-c ___________________________________________________ _ ._---._---'---- .. --.--.~--------- --------------- (DRAM: HON'BLE:MR. JUSTICIE SANJIV KHANNA HON'lBlE,MR .. JUSnCE VED PRAI(ASH VAISH SANJIV I{HANNA, J. These four appeals by Pu\an @ Shankar, Dharmender @ Dharmu, Rani @ !VIanju, Satyawan I<atheria and Reshma, arise out of a common judgment dated 3rd April, 2012 by which th'e appellants have been convicted under SeCtions 343, 364A, 365 of the Indian Penal Code 1860 ;, (IPC, for'short). The appellants have also been convicted under Sect.ion -, " th 120B IPe. By order of sentence dated 11 April, 2012, they have been sentenced as under:

(1) S~~ction 343 ilPe Simple imprisonment for one year and fine of Rs. 2,00'0/--, and in default of the payment of fine, each appellant wil! _ undergd simple imprisonment for two months.

(2) Section 364A ~lPe Rigorous imprisonment for life and fine of H.s,10,OOO/- and in default of paymert of fine, simple imprison,ment for - I two years. / Rig~rous (mprisonment for five years and fine

(3) , Section 365 IlPe of Rs.5,OOO/- and in default of payment of fine_, simple imprisonment I for a period of one yeaL CrI.Appeais 1112/12, 855/12, 241/13, 394/13 ·-'r----··---------·-- -- --- "".. - .---- .. '--' -_ .... '--- - -.. -_.---_ ... ------_._-----_ .. _--;-- ------- ----~~--------_._ .... _.- _ ..... _.. ----- -- _. -- I~

(4)~L~ction120B IPC Rigorous imprisonment. for three years and fine ofRs.3000/- and in default of payment of fine simple imprisonment ) . for a period of six months. Section 428·of the Code of Criminal Procedure, 1973 is applicable.

¶2The prosecution version which has been accepted by the Trial Court' is that Chirag @ Chinky, aged about 3Yz years was kidnapped/abducted for ransom, from the guardianship of his father Pankaj Ji]in, pursuant to criminal conspiracy hatched by the appellants. He was !:onfined in village Sikanderpur~ Distt. Mainpuri, U.P. before he was rescued by the police. There was a threat to Chirag's' life, and Pankaj Jain, Chirag @ Chinky's father, were threatened that if ransom was not paid, Chirag would be physically harmed.

¶3\Ne record that Mohd. Imran was prosecuted as co-conspirator but he has absconded and has been declared a proclaimed offender: Hari Om was convicted by the same judgment. Subsequently he was declared.to be a juvenile on the date of the offence. His conviction and " sentence was set aside and his case was transferredfor adjudication to the Juvenile Justice Board. Crl.Appeals 1112/12, 855/12, 241/13,394/13 ---------~- -.~- ----_._-. -.------~ .. - ...... _ .. 1_.7 - --. -_._ •. _._ .. - --'---'-"- ._--------------. -_._.- ---.----- .KiDNAPPII\lG OF Cl-m~AG@ CH'iNKY

¶4Pankaj Jain, father of Chirag has deposed as PW-1. He has averr.ed that on 20 th March, 2007 at about 7.30 PM, his' son Chirag was weeping,. therefore, he sent him with his employee Akash (P\N-8) to market. Akash (PW-8) was given Rs.l0/-: to get toffees for Chirag. Akash returned within ten minutes and told him that on the wayan unknown person came and asked him to pmcha.se pani puri for Rs 10/-, as this was crdered by PW-l for a person sitting with him.' On this Akash had, handed over Chirag to the said person in order to purchase the pani puri andget back. Akash returned and was questioned. Since child had not returned home, PWl went to market to search for Chirag but he could not be located. Neither was th~ unknown person who had approached Akash traceable. PWl called the police control room and the police reached within 10 minutes. Local police also came at the residence of PW1. The same day, at about 9.00 P.I\/I., PW-l received a telephone call that Chirag had been taken out of Delhi and Rs.70,OO,OOO/- should be paid as ransom for his release. The said call was received on PW-l's mobile no. 9213285013, when he was at the police station. Police noted down the said number 'i:rom which the call was received. The caller had stated that hewauld mClke another Crl.Appeais 1112/12, 855/12, 241/13, 394/13 -- -----------------, - ----------- ------ -- ~ - --- - -------- ---------- telephone call on the next day. The complaint made by PWl was marked as E)(. PW1/A He was informed that the ransom call was made from a number located at Bhopura, Ghaziabad. Another call from the abductwr was received on the ne)(t day. PWl \iV2S asked to arrange money and the caller informed him that he would, again call him on the following day. PWl has deposed about several calls made by the abductor, the threats and the money demanded for releasing Chirag. PW-l \/vas asked whether he had arranged for the money upon which P\Nl had replied that he was making necessary arrangements. A.bdu(~tor informed him that he had come to know of the police report lodged by PWl andas such he had chopped off bot~l thumbs of CMirag.' Abductor further stated that his son had been taken to the forests of lVIadhya Pradesh and the money should be paid b'f Friday of that week. When PW-l e)(pressed his inability to pay the'amount, he was threatened ,that if he was unable to arrange the money, he should forget about his son. Thereafter, abductor demanded Rs.15,OO,GOO/- as ransom in the denomination of ~s.1000/- each. Abductor ,gave him an optiiJn that if Rs.15,OO,OOO/- wa~ paid Chirag would be returned in eight hours and if Rs 70,00,000/- was paid Chirag would be returned imm~diately. PW-l was further asked to arrange for a vehicle as he CrL/\ppeals 1112/12, 855/12, 241/13, 394/13 --- -- ~- ----- ----~ .~ -~,------------- : . .' .\ ., . --'-_ ... _._-----' - ~---.. ---.-----.----.-.--.---.-.-. ----------~--- would bE: required to travel for about 1000 kms .. r An old lady was suppose?ly to meet PW-1 on the way, with a Rs 1(, note and a specific currency'number which was told to PW-1. The ransorr.l money was to be paid to this lady who, the abductors said, was not, connected with the case. The abductor called him at bus stand or tonga stand of Kanpur city ) , on the Friday of that week. Entire information was reiayed to the police I'.' • by PW-l~' On 24th March, 2007, at about 6.30 AM, Chi~ag was brought to his hous~ by the police. PW1's brother-in-law SU,shil Jain (PW-2) had .' : t gone with the police for recovery of his son. PWl had made a complaint . . with SHO, P.S. Krishna Nagar requesting that his another number' 9212751277 should be put under surveillance. On 21st /22 nd MarchI 2007 P\l\i-l's employee Dharmender and hiS wife Rani were arrested by . the polic'e. PW-1 identified Dharmender and Rani in the court. S. In, PW-1's cross-examination, he has averred that he was not taken to Titlar Jail for identification. The abductor had made calls on his mobile phone around 8-10 times. These calls 'Nere from different " numb~r'.~ and no specific number was given by the abductor. In furthel' j-cross examination PW1 has averred that when he went to the Police Station, 'Krishna Nagar for the first. time, Akash(PW-8) accompanied him but he could not recollect whether Akash's statement was CrU\ppeals 1112/12,855/12,241/13,394/13 ; .' " --.------------------.-.--.--:---~-----.------~ .. --- , , " recorded. At the time of abduction, Dharmender was present in the factory. 'Dharmender had worked f9r him 'for tW() and a half months prior to the date of the incident. After the abduction, his employees were su~'nmoned by the police. He had seen Rani @ Manjuin the Police Station on the day Chinky was recovered. Rani too had worked with PW-l prior to the occurrence. It is highlighted that PWl in cross-e)(amination has averred to the effect ~hat the appellant Dharmender was arrested on 21st/22 nd March, 2007 i.e. before, Chirag was rescued and produced before him at· 6~00 AM/7.00 AM of 24th March, 2007. This asp~ct will be discussed below.

¶6Akash PW-8, servant to PW-l,has supported the testimony of PWl. PW-8 has deposed that he was working c;s ,a servant on 20th March, 2.007. At about 4.30 PM, he had taken Chirog in his lap to the market to purchase eatables. Here, it should be pqinted out that PW-8 has not been able to correctly recollect the timing ()f the incidence: The incidence actually occurred at 7.30 P.M. and not 4.30 P.M., as has been correctly deposed by PW-l Pankaj Jain, and recorded in the FIR (Ex. PW.,. , , 12/A). There one person wearing spectacles cameto him and told him that PVV-8 had been directed by PWl to fetch panipuri. The said person took Chirag with him. PW-8 delivered panipuri on returning to the (rLAppeals 1112/12, 855/12, 241/13, 394/13 · .. "--"---'-~-'---"-""--.--.--.--' -------_._._------ house. PWl told PW-8 that he had not asked for any pan-puri and 'i t questi,oned him about Chirag. PW-8 narrated the incident and g~ve descrip~ion of the person who was wearing red tmusers and a T-shirt; ,. PW-8 has deposed that the skin colour of that person was shallow and 'I he coul,d identify the said person, if shown to him. In the cross- " examination PW-8 has stated that he had accompanied PWl to the police station.

¶7,The factum about kidnapping is further corr:oborated by PW-2 Sushil Jain, maternal uncle of the victim, in his d~position which we . have elaborated upon, below. The said facts are ,corroborated by the , , , contemporaneous enteries in the police records. In the present case, t DD entrY 48B dated 20th March, 2007 marked EX.PW\/15!A was proved -;. - ; by HC Pratap Singh (PW15). On the basis of the sa.id DD entry which \ was recorded at .8.35 PM, FIR No. 129/07, P.S.' Krishna Nagar was' ; recorded at 10.00 PM. The FIR recQrds the time of occurrence as 7.30 PM on 20th "-:"arch, 2007 and the FIR (Ex. PW-12/A) itself was recorded at 9.45 P'M. The FIR mentions that a ransom call was received from the abductOr! at 9.00 PM. I

¶8Learned counsel for the appellants submitted that it is possible . , I i that Akash PW8 was ihvolved and his deposition that he handed over crLA,ppe'als;1112/12, 855/12, 241/13,394/13 ----- --------- ------------- - -.... -----.- --._-----------_.,-_._---------_ .. _-- -- - --- . --- --------~------.-- ------------ . . the child to a stranger who had glv~n him' Rs:.10/- for purchasing papri/pani puri is unbelievable .. PW-S's deposition ;was recorded on 25th March, 2009 and mentions his age as about 16 years. Thus, at the time of occurrence he would have been about 14 years of age. He was a • small boy who may not have understood and reali2;ed responsibility and consequences. It is on record that PW-1 had ma hy persons working there and the person who approached PW-S had; taken PW-l's name. PW-8,: it seems, had been duped into giving the chi/d.- The abductor took f\Jll. advantage. PWS's testimony reveals that he was a simple boy who did not visualize or see through the plan. He believed the person who had approached him because he took the narne of Pankaj Jain, his . , emplover and being' obedient and gentle accepted. Chirag was abducted. On being questioned by Pankaj Jain, he realized that somebody had abducted/kidnapped the child Chire'g. leads and the Arrest of Appeiiant imran

¶9Sushil Jain (PW-2) has stated that on 20th March~ 2007 PWl, ;who is his brother-in-law, had informed him that his son -Chinky had been kidnapped/abducted. PW-2went to P.S. I<rishna I\iagar with PW1 to lodge report. On 21st March, 2007, he went to Itawah with the police team headed by Insp. Anil Sharma (PW-1S). The s;3id team consisted of Crl.Appeals 1112/12, 855/12, 241/13,394/13 Page 9 ,of 32 --. ----.- -----,,~----- -------- -~--~ .. _------" -----~-.--- si)( police officers who, em reaching Itawah, checked 6 to 8 STD booths. From one STD booth near bus stand Itawah, Imran ~as overpowered while he was talking to PWlin Delhi. Imran was interrogated and he . . confessed that Chirag was in village Sikanderpur. Vv'e shall refer to PW-2's testinlony regarding recovery of the child from the particular house, subsequently.

¶10Inspector Rajender Gautam (PW21) was posted at P.S. Krishna Nagar as Inspector (Investigation) on 20th Mari:.:h., 2007, and was entrusted with this case. He recorded the complaint Ex. PW1/ A 'pursuant to which FIR was registered. He also interrogated Akash

(PW8)., Thereafter, PW-21 constituted six member police team and sent them to different locations. Sketch of the suspect was drawn. PW21 ha:s deposed that he had moved an application before the mobile operator/service provider for keeping the phone of the complainant under surveillance. On this basis they came to know that the " kidnappers had made calls from Itawah. Accordingly.he sent a team , headed by Inspector Anil Sharma to Itawah. On 24th March, 2007, Insp. Anil Sharma informed that they h~d rescued the child Chirag and arre'sted Imran, Puran, Hari Om (who has been declared juvenile), Satyawan and Reshma. On perusal. of telephone data CrLAppeals 1112/12, 855/12, 241/13, 394/13 ._------------_ .. -_._--------- - I -.I-I .... _. --.- --~-.. --_._ ... _.-... -. --_ ... _. _ .. -- ._ .... _-_ ...... - - .. - _ ... _-- ------------_ .... __ ._--.,--.. --_ .. _-- records, it was ascertained that appellant Dharmencler and his wife Rani i were involved and both of them were' arrested ';Jide memo nos. Ex. ,- th - PWll!B and PWll/C on 24 March, 2007, from Gandhi Nagar, New Delhi. We shall refer to the statement of PW21 once again subsequ.ently, when we examine and refer to: voice samples and telephone records.

¶11Insp. Anil Sharma PW18 has stated that on 21st March, 2007, he was posted as Addl. SHO, P.S. Krishna Nagar. During investigation they came to know that ransom call was made from Itawah and he along-with S.I. J.I<. Singh, HCVijay Shankar proceeded to I'tawah with Sunil Jain (PVV-2) in a private vehicle. They reached ·Itawah or; 22nd March, 2007 at about noon time. There they received a cail from Investigating Officei' that the kidnappers had made a call for ra~lsom from Itawah from telephone no. 05688-251271. On verification, they ca me to know that the said telephone was installed in a pee booth "I<amlesh Telecom", near old bus stand, Itawah. There they spoke to a girl aged about 12-13 years who informed them that a boy agl:,d 27--28 years had comearld made the said call and paid Rs.40/-, thqugh the call charges were .much less. The boy was in a hurry. Ther~after, on 23 rd March, 2007,atabout 7.45 PM, he again received anothe;r call from Delhi that-Crl./\pp~alsl112/12, 855/12, 241/13, 394/13 . / e· -~- -+ I'------~---·---- ----- --, --.---~.--------.---.----- --.-.-~--.----~.----:--.---.-------- .-----.-- -- - -- --- --- , - -- - -------- ... - ... _ .• _-_. __ ...•.. _.-._ .. _--._._-- ; I the caller/kidnapper was making a call from telephone number 05688· 251072 .• ' This number belonged to "Heilo Telecom" on Railway Road, Itawah. The said PCO booth was being operated by Alzaz Ahmed. PVV18 i had alr~ady verified from the said PCO as kidnaprlers had used the . st same PQO number on 21 March, 2007 to make a call. At 7.45 PM when th~ call was received, by chance the police team headed by PW18 was near the said spot i .. e. "Hello Telecom" Booth. b They immediately went to the said booth and were informed that the b"erhad just left. Aizaz Ahmed identified the caller from his back. The {eam 9Pprehended him and on enquiry, the boy disclosed his name as Irnran. From imran two PCO booth slips of He"o Telecom and that one of I<amlesh Telecom Itawah Ex. PW13/><, PW13/Y and PW13/Z were recc;vered. Imran was arrested vide arrest memo Ex. PW13/ A. Imran made a disclosure I I statement Ex. PW13/C. Thereupon the police team proceeded to village Sikanderpur, Distt. Mainpuri, U.P., where they also took local police assistance from P.S. Civil Lines, Mainpuri.

¶12Almost similar statement has been made. bV 51 J.I<. Singh (PW29) and H.C. Vijay Shankar (PW13). PW13 has clarifiecl that they had gone , to itawah Telephone Exchange to get the deta;ls i of telephone/STD booths. They had got in touch with Aizaz Ahmed and interrogated him CrI.Appr:ais 1112/12, 855/12, 2.41/13, 394/13 ---. - -- ----- - - -- - --- -- ---- --- -.----------------- .--- ------------ .J- ( , - . - ---- ---------------- to ascertain identity and physical description of the person who had made The call. He has deposed about their visit to I<amlesh Telecom and then their visit to STD booth of Aizaz Ahmed on 22~d March, 2007 and how.:they overpowered Imran on 23 rd March, 2007 just after he had made a telephone call from the said booth. He identified t~lephone slips Ex. PW13/X, PW13/Y and PW13/Z, which were taken into possession from Itawah vide seizure memo PW13/D. There is nothing , . . . 'j in the cross-examination to dent o~ cause doubt aib~ut the deposition made by PW13 viz. the facts stated above. P\N29's statement as noticed above is on identical lines as he has deposed that they had , gone to STD booth of Aizaz 'Ahmed where they were told that the boy, ! . . who had':gone out had made the call. The said boy disclosed his name - as Imran 'on interrogation. Thereafter, they went to P.S. Civil Lines and after taking police assistance they went to vilfage Sikanderpur. Therefore, we find that there is hardly any contradiction of statement - - ' , ' of PW13, PW18 and PW29 on core or material aspects relating to arres;t '. of Imran, .

¶13This position is further fortified by Aizaz Ahmed who appeared as L (.: " I; - , PW9 a:nd has fully corroborated the prosecut'ion v~rsion leading-to the , , ' i arresUoflmran. He has deposed that in 2007, Delhi police officers had : I - CrU\ppeals 1112/12: 855/12, 241/13. 394/13 , , I --" .'- -- ------ ."--~,-,-~---'--.-'--~--'-'- .. - --_._----"-_ .. _. --.--~ -'-" ~.--. . ; ... --.----",-.... -.+.~._ ._. ____ .. --C __ • __ .. ________ " ___ • ____ ._ -------'._-_ .. _---_ .. _ .. -_._-_.---_. __ . come to his booth and Qverpowered a person who had come there. They had also taken the call bills, which PW9 could n()t identify because of lapse of time. However, in the cross-examination by the Addl. Public Prosecutor he has accepted that a telephone call vvas made to Delhi on rd March, 2007, and earlier too, on 21st March, 2D07, the same' person had made a call from his STD booth. Rescu~ and Recovery of the victim ,

¶14~e)(t in the chain of facts is the raid leading to arrest of appellar.ts . and rescue of Chirag from village Sikanderpur, D,istt. I ! Mainpul"i, U.P. by the police team which included; PW13, PW18 and PW29. :, Head Constable Vijay Shankar (PWI3) has'stated that Imran , , • took them to the house of Satyawan in night hours of 23 rd March, 2007 . Satyawan was questioned and he disclosed .that Chirag~ confined in another 'house, was in custody of Hari Om and Reshma. Satyawan then' led them to the other house at some distance.- Insp. Anil Sharma (PWI8j gained entry in that house by scaling the wall. PW-18 then :i opened the bolt of the door from inside for others to enter. Two persons were sleeping on a cot with a sheet on their legs. The sheet was rem0ved and Chirag was found sleeping betwe l2n legs of Puran arid Hari Om> Reshma who was present there daimedthat Chirag was her. Crl.Appea/s 1112/12, 855/12, 241/13, 394/13 J ~ /" - .•. -~--.-.-------.-----.------------ - --- --------- child, while Sushil Jain identified the said child a5 Chirag and they arrest,ed' Puran, Hari Om, Satyawan and Reshma' vide memos Ex. PW13/E, PW13/F, PW13/G and PVV13/H. Thereafter they returned to Delhi on 24th March, 2007.

¶15Anil Sharma (PW-18) has averred that at the instance of Imr~m, they enti~red in a house in Village Sikenderpur. One lady with a small baby in her lap came before them and disclosed that the baby VIlas hers. SushilJa1n PW2 confirmed that that the said baby :iN~3.S not Chirag. On enquirv,the said lady disclosed that a child was kept in a nearby house~ She led them to the said house which was bolted from inside. PW18 , , climbed and after scaling and jumping the wall entered the house. In the courtyard, he found one cot. On removing the sheet, two persons were found sleeping on it and one boy, aged 3 years, was found sleeping between them. By this time, the police team with Sushil Ja'in

(PW2) entered the house. Sushil Jain (PW2) identified the' child as Chirag. The said persons in the house were Puran and Hari Om. He has averred ,that Satyawan came from the room from wher~ the thild was recoverEd. Aforesaid four persons were arrested vide arrest memos mentioned above. Crl.Appeals 1112/12, 855/12, 241/13, 394/13 - - ------- -- ---~-- - . --------_ .. - .--.

16.PW-29 51 J.I<. Singh has averred that Imran leel them to the house of Satyawan. One lady i.e. Reshma (:ame out of the house, who on interrogation disclosed that the kidnapped child was in another house. She took them to the other house. The house wa.s ,bolted from inside. , , , i ~ The Ir,lvestigating Officer entered the house climbing the wall and " I opened the door. Two persons namely Puran and Hari Om were foun'd sleeping in the courtyard and the kidnappep,' child was sleeping betweerl their le~s. In the meanwhile, another person namely . ' Satyawan came out from inside the house. The saidfour persons Were arrested.

¶17On the other hand, deposition of PW-2 Sushi) Jain on the <';lrrest of Satyawan and Reshma and the role assigned to them )is clearly different: " He has state'd that Imran took them to villag'e Sikanderpur near Mainpuri Town. House of Satyawan was raided. Scltyawan and Reshma were prE~sent there. He identified both of them in the court. Chirag ! was not there. However, the appellants Satyawan and Reshma were apprerlended. Thereafter, Imran led them to another house in the same village. The said house was bolted from inside. PW21 along with one m~re person scaled the boundary wall and opened the door from inside. Two boys were sleeping on a cot and Chirag was lying between Crl.Appeals 1112/12, 855/12, 241/13, 394/13 ~-------- - . -- - ---- -----.",-- -----~------~--'----~ --- --------------.-. -~~---------- ----- ( A, , . ---~----- ----- ---------- -< ----- - - - - " '1 their legs. The said persons were Hari Om and Puran. Appellants Satyawa:n and Reshma were not aware about anything.

¶18In the cross-examination ,by counsel for Hari Om, P\JV2 has deposed that In the second house except for Hari Om, Purah and Chirag: none else was 'present i.e. Sa,tyawan was not present there. . . . . ' PW2, in his examination in chief, has categorically. without hesitation, and clearly stated that the appellants Satyawan and: Reshma were not . aware 'about anything and it was Imran who had led them to the house from where Chirag was recovered. - To this extent, therefore, there is :1 marked ~contradiction on the involvement of Saty'awan and Reshma. ~ . ' PW-2 w~o is uncle of the victim Chirag has compl~t1ly exonerated and , . not implicated them. The police officers PW13, P\N18 and PW29 have . , however implicated both of them. We have notice;'::! the difference in ~ • versions'of PW13 on one side and PW18 and PW29 on the other side. As per PW13, Satyawan was present in his house' and Reshma was present in the house from where Chirag was recovered, whereas PW18 and P\N29' have stated that Satyawan was not pres'=nt in the first house, where he was staying with his wife Reshma, and had come out from the second ,house where Chirag was recovere~. Normally such discrepancies are ignored or treated as non-fatal as they can occur ' CrLAppeals 1112/12,855/12,241/13,394/13 :: . t' . -- _ .... :-...:-. ------_.-- ------ - ------------- -- ----------- - y,---:;------------- . i --_. __ ._--------------------------------------- because'of lapse of time and failure to meticulously, remember details , , which is common human error.' But in the present case, the said discrepancies are relevant in view of the court testimony of PW2. Thereis,:no reason or cause to doubt or debate thl'= deposition of PW2 . ! J who had no interest in falsely implicating or proteding the appellants Reshmaimd Satyawan. Being a relative of the victim who had been a , I~ part of the raiding team and had gone to the spc:t itself i.e. Village Sikander;pur, U.P., he was a witness to the entire episode. which resulted/in recovery and rescue of Chirag. PW2's statement, th~refore, . should pe accepted. Statement and exoneration of Satyawan ,- and' Reshma' by PW-2 cannot be reconciled with the testimonies/court - statertle,nts of police officers PW-13, PW-18 and PVV-·29. The assertions madelby police officers themselves qua Satyawan and Reshmaare contradictory and at variance. This enures to the; benefit of Satyawan and Reshma. We ,note th~t there is no other evidence against Satyawan and Reshma. The appellants Reshma and Satyawatl, are thus entitled to benefit of doubt. Their conviction is accordingly set aside. However, " . ~ , ' : ' . involvement of the appellant Puran is confirmed in view of the afores,a\d evidence. Crl.Appeai's 1112;'1.2, 855/12, 241/13, 394/13 ",._- --... -------------:--~------: ...... ------- -.. _ .. _----_. ,--~---- ._-- ---- ------ ---- -- _ .. _---- - -._-- --_ ... _ ..• -.--. ..------.--. - .• ----~_.-• ......L-....---. InvolvleL"ent of Dharmender and Rani

¶19The next question relates to involvement of Dharmender and Rani and whether they were part of the criminal conspiracy to kidna'p Chirag for ransom. Dharmender was an employee of PW-l Pankaj Jain for about two and a half months before the date ;of occurrence. Rani , had earJ,ier worked for PW1 but at the rele~ant time was not working for him. It is stated that Rani was wife of Dharmender and two of the other accused Hari Om -and Imran were her broth~r~~. Before we dwell , ~ . ~ . .. \ and examine involvement of Dharmender and Ra'ni, we would lik~ to , deal with the contention raised by learned counseJ for the appellant Rani to .the effect that there is no evidence and material to show that , . Rani wa,s wife of Dharmender. It is argued that Rani is older in age and no m"H~jage certificate or wedding photographs haye been placed 'on record to show that they were married to each othe'r. VVe do not find, any merit in the said contention. As per the charge sheet and the charge framed, Rani has been shown as wife of Dharmender. In the I ' , statr.ment under Section 313 Cr. P.c., Rani's identity has been described as wife of Dharmender and this was not object to or contested. Rani has, in fact accepted in her Section 313 Cr.P.c. statement that Hari Om is her' young'er brother but claimed that she did not know rest of the accused. Crl.Appt~al5 IJ 12/12,855/12, 241/13, 394/13 ._----_._--_._._------_._----- This is ex Jacie wrong as she had worked for PW1, and therefore' also : : J . knew Dharmender who was working with him. PWLl has clearlv stated that he knew Rani and had identified her and described her as wife of Dharmender. He was not cross-examined on the s-~i;j aspect. Initial'ly , . ; one or the same counsel had appear.ed for Dharmender and'Rani, before the trial court. PW-1has deposed that Rani had worked for him prior to the period relating to the incident but on the date of the incident, she was not working for him. On 24th March, 2007, he had come to know that Dharmender and Rani were involv:2d in the case.

¶20. P\W6 HCMaya had stated that she joined the investigation on 24th M,arch, 2007 along with Insp. Rajender Gautarn (PW-21) and the appellant Rani was arrested. On her personal search i , apart from other things, mobile phone yvas recovered. She proved th2 arrest memo Ex. - PW6/ A and search memo Ex. PW6/B. Search memo PW6/B mentions mobile t:elephone number as 9210817093. Recovery of the said mobile telephone at the time of personal search of Rani was affirmed by Lalitesh (:iautam (PW14) and He Virender Tyagi (P\JV11).

¶21Vi[-ender Tyagi (PW-11) has testified that on 24th March, 2007, he was posted in Police Station Krishna Nagar and had joined investigation' on that day. On the said date they had gone to the h9use of Crl.Appeals 1112/12, 855/12, 241/13, 394/13 .~---- -.- ~. :; ------.. --.-~--.-. -~- r ,/ . > --- ---- -~-,- -----------.~----.-.-- Dharrnender in West Kat)ti Nagar and 10 Insp. Raj r2nder Gautam (PW-21) had interrogated him along with Imran, his brother-in-law. Thus, i Imr~n was brother or related to Rani. In the meanwhile, his wife Rani was brought by Lady Constable Maya (PW6) and th'ey were arrested. From pei:'sonal search of appellant Rani vide search memo Ex. PW-6/B, a -mobile phone was recovered. In his cross-exan:lination, it was not suggested to PW11 that Rani was not wife of Dharmender or was not married to him. On the other hand, suggestion given was that the appellants Dharmender and Rani were already confined in the police station beforehand . . 22. IVI-N. Vijayan, Nodal Officer, Tata Tele Services Ltd. (PW1,0) had • ) ! _ l "' proved on record the;subscriber form of mobile number 9210817093 allotted to Harish Chand, Ex. PW10/A. He proved ::)11; record call details of the said telephone as Ex. PW10/B. PW10 aiso proved the certified copies of the -call records of telephone numbrer 9213285013. (Ex. . .- PWI0!C-1 to PW10/C-4), registered in the name of Pawan Kumar. Here _ it is pert,inent to mention that though according to PW-10 the number 92132.85013 was in name of one Pawan Kumar but the number was in fact being used by PW-1 Pankaj Jain. In the Court statement PW·~1 has averred that the number .belonged to him and ransom calls were CrU\ppeals 1112/12, 855/12, 241/13, 394/13 , P~ge 21 of 32 ( / .' I . :' I . --_ .. _-------_._-- .. -------.... ~'---~---~------,-----.--- received on this number, even when he was sitting in the Police Station. He has' averred that there was another mobile phone with number 9212751277 but that phone, he later clarified, was, being used by his wife. The FIR (Ex. PW-12/A) mentions that the ransom calls were received by PW-l on the said number. Therefore, we have no doubt in ,accepting that this number was in fact being used by;PW-l. i

¶23;It: was submitted before us that the telepho'ne number ,9210817093 was not procured and registered in the name of . Dharrne"nder, therefore, the call records do not p:(o've or establish the prosecution version. It was further argued that the 'recovery of mobile ~ t . ' phone ~rom Rani should be doubted and not accepted. There is no meritinthe said contentions. Harish Chand appei3fed as PW4 and has testified that one Ram Niwas used to reside in his property as a tenant. Dharrr,le:nder is younger son of Ram Niwas. He recognized Dharmender in the; cpurt and testified that he' {Dharmender} vias married to a lady elder to him in age. Dharmender had asked him (PW4) to give himlD proof,s6 that he could purchase a mobile phone., PW4 had given photocc~(py of his ration card or electricity bill/election card, but had not signed any documents. We also record that PVi/4 was not cross-I ; examined on the aspect that Dharmender was m~rried to a lady elder Crl./\ppea!'S 1112/12,855/12,241/13,394/13 , , / ; .\ .-~--.--.. --.. ~-.. ~----.---.--- - -----,-_ .. _ .. -._-to him ,in age. Dharmender, in his statement und~r,Section 313 Cr.P.c." ' has accepted that he was a tenant of Harish Chand fJrior to the incide~t and had taken identity/residence proof of HarishChand Jor telephone; connection. He however denied that he knew co-appellants Reshma, Satyawan, Puran, Imran or Hari Om. He did not say that Rani was not known to him. In view of the aforesaid position we should accept the ,I prosecution evidence that Tata telephone number 9210817093 was procurerj and was being used by Dharmender.; The telephone instrument with the said number was found and recovered from Rani, wife of,' Oharmender. The call details, and the transcripts of the conversations have been discussed below.

¶24The call records of telephone number 9210811093 were proved by M.N.'vijayan(PW10) and have been marked as' Ex. PW10/B. As already noted above telephone No. 9213285013 belonged to PW1 Pawan' Jain and call records of the said number have been ma rke~ as ' Ex. PW10/C-1 to C-4., A careful perusal of the said exhibits would reveal that calls were received from Itawah (STO' Code 05688) from telephone numbers 251271 and 251072. This is further depose? to by PW1 a~d PW-9 Aizaz Ahmed, the owner of the telephone booth with number 251072. Call from telephone no. 05688-251072 to telephone Crl.Appeals 1112/12, 855/12, 241/13, 394/13 ,! numb9r: of PW1 i.e. 92.13285013 was made on '21st March, 2007 at

18.23 H("s and lasted for about 339 seconds. Call from telephone No. I ;jl . . 05688-;2.51271 to telephone of PW1 i.e. 9213285013;was made Oil 22 nd March" 2.007 at 15.29 Hrs and the same lasted for a'bout' 352 seconds. I The important call after which Imran was arrested is duly reflected in . . I the call record of PW1 telephone number 921328':;0;13 (Ex. PW 10/C3). The calL~was rnade from telephone number of peo, bOoth of PW9 i.e. 05688-2'51072 on 23 rd March, 2007 at 19.41 Hrs. The said telephone , I call also matches and gets ,corroborated with the telephone slips Ex. PVV13!Y;and PW13/X which were seized from Imra'l when he was taken , - , . into C~istody.

¶25The call record details Ex. PW10/B relating to telephone No. 9210817093 of the appellant Dharmender wh'ich was recovered from Rani, further shows that a telephone calf was made from telephone No. 05688-251271 on 22 nd March, 2007 at 15.26 Hrs f(?r ;about 125 seconds, i,e. just before call from the same telephone to P\Nl on'telephone No. r 9213285013. This is confirmed by the STD slip seized from Imran, Ex. PW13/Y~ The call details of telephone No. 92108;17093 reveais that " ': ~. . other calls were also made to the said number from Itawah during the Crl./I,ppeaj's 1112/12, 855/12, 24J/13, 394/13 Page 240f 32 , ---- -~~ - - -,.\ -, ~ - - --~~-~-- ---- ------ ~-----~------, ,-.-------"-.---~-.-~----~.' ,. . / / . .-~------------.--------.. _J_~ .. period 22 nd March, 2007 to 23 rd March, 2007 including one calion 21st . March, 2007 'at 11.41 'Hrs.

¶26('he prosecution had moved an application before Dr.' Archana Sinha, rVletropolitan Magistrate for taking voice samples of Jmran and Rani to be taken by FSL, Lodhi Road for comparison with the, taped convel"sation. The application was allowed and the permission was th . granted, vide order dated 20 April, 2007, as recorded on the application itself. The application is a part of judicial record i.e. the trial . court record. Thereupon their voice samples were taken, as per Ex. PWI/D and sealed with the seal of RPG. The said seizure memo h,as been proved by Inspector Rajender Gautam, PW-21, Constable Jaibir Singh, P\JV27 who had witnessed the seizure memo and SI Vinay Yadav PW26. PW26 has deposed that mobile number of the complainant PWI was intercepted by their Cell on the request of, the Investigating Officer and conversations on the telephone No. 92'10817093, being used by Rani, was also intercepted. CD of the said conversation wa:s prepared and sealed with the seal of RPG. This W2.S done on 4th May, 2007. The transcript of the telephone conversations have been proved by O.K. Tanwar (PW-19) and have been marked as Ex. PW19/DA~ O.K.' Tanwar (PW-19) was working as Sr. Scientific Officer, Gr.1 {P,hysics), ,_ Crl.Appeal:; 1112/12, 855/12, 241/13,394/13 Page 250f 32 ---.--., .T-~· ---~-----••• ----- - - .. ---------.---------~--. -.- ---~---.---.- CFSL, 'rBI, New Delhi and had received 'two sealed parcels ma~ked Ql and S1. The parcel Q1 when opened had recorded conversations purportedly between Imran and Rani. The parcel Sl contained two audio cassettes which contained voice recordings of Rani and Imran. After, scientifically examining the voice quality of the questioned and speCimen voice recordings, PW19 vide report Ex. PW19/Aopi~ed that the specimen voices of Imran and Rani ll1atched with the 'questioned. conversations. The conversation between the appellant Imran and Rani have. been examined. During the conversation, 'Remi has consistently a.sked for money, saying that she was 'penniless. Irnran had informed , that he,was in Itawah and would be departing for Kanpur. We note here that Kanpur was the place where PW-1 was asked.tc come with ransom money. There is also discussion about Hari Om andwhether',he should be further involved or not. Rani and Imran have Gonstantly referred to . - " ' j each other as brother and sister and Rani was requested not to give his , ' . ' . t numberto anyone otherwise "all five may face the; music".

27.' 'Learned counsel for the appellants Rani al~d Dharmender have drawn our attention to the transcript PW19/DA and submitted that . they do not reflect or establish any conspjracy. The contention is ~ meritfess, as on reading of the transcript, it is apparent that Rani wa;, . ' " ; Crl.Appeals 1112/1.2, 855/12, 241/13, 394/13 (' / , ~1 " , , ._--_. __ ._---_._-._-- . __ .. _---\ ------------ , cl(~arly'conscious of the abduction and kidnapp-ihg and demand for ranso'rrL Conspiracy under Section 120B IPC requires an agreement between co-conspirators. It is a separate offence which can be proved if the prosecution is able to establish an agreement between two or more pl~rsons to do or cause to be done an illegal act or some act which may not be illegal but is performed by illegal meahs_ Agreements of such n~ture are normally not reduced into writing and prosecution evidence/case invariably relies upon inferencE's drawn from the conduct; of the partie~, conversations betweeri then~etc. Inference as to existence of conspiracy from circumstances canbe drawn when such circums-~ances are incapable of any other explanation. On examining and scrutinizing of the evidence in the present case we are cif t~e opinion that the charge of the, conspiracy under Section 120B and active in\/olve~l1ent of Dharmenderand Rani with others stands proved b,eyond doubt. There were telephonic conversatio,ns, between Rani and Imran. '

¶28W'e briefly note here that it transpires that Rani was close to imran, even if we presume that she was not Imran"s sister. Rani, it is accepted, is sister of Hari Om. The appellants Imran, tJuranand Hari Om . could not have got details and particulars about PV1jl Pankaj Jain, his Crl.Appeals 1112/12,855/12,241/13,394/13 .. - --.. ,- ~-.~----- .- '--. -.. ---.--~~--~----..... ~, ----.--~-~----:-----~.----.--- .--.---. -,--_. ------------ ----- - -------------- ---- ---- . I I I' (. --~.-.. -.---.,---------------.-----.-- ,!, place ?f residence, his economic condition, his telr,=phane number, the , ., . , . fact th,?t he had a child Chirag etc. without help from a person who waS , an insider and fully aware of these details. Pe'rsons living in Itawa~ - could ,hot have carried out the said kidnapping. and abduction -'for ransom in Delhi without logistical details, support and particulars: A child aged 3}i years could not have furnished and given any such :i particutars like phone numbers. "

¶29Ajt this .stage, we must deal with another contention raised on behalf ~f the appellants Dharmender and Rani. It Was highlighted that PWI Pankaj Jain has deposed that on 21st or 2i nd March, 2007, Dharmehder an employee of PWI was arrested. jt was submitted that - - . if Dharmender was already arrested, then conversations between lmran ;j ' : . and Rani on 22 nd or 23 rd March, 2007 are'fabricated and unbelieveable. , , ' . PWl, in his deposition, was not clear and categorical on the date. He , has men'tioned both 21st and 22 nd March, 2007 .. He has also further stated that after he came to know about kidnapping and abduction 'of - - Chirag, h:e had informed the police and their investigation started., He ; had n~c$ived several telephone calls from thekidnapp_ers. His employerS were suspected. In his cross-examinat-ion, PWl has stated that at the relevant time Dharmender was pres'ent in the factory. '\ Crl.Appeals 1112/12, 855/12, 241/13, 394/13 i·; ! ____ . __ ~ ____ ~ _________ ~_. __ ~ __ I' __ ~ __ ~ _______________________ ~ ____________ .--1-~---------~-------- ------ I. • • and the entire lot of employees were summoned to the Police Station ne)ct ~ay. They were called to the Police ~tation on the day of the incidt.=nt also. The employees were made to sit outside the Police . . . . Station till the child was recovered. It is apparent that in this contextj PWl has stated that Dharmender was in police custody since 21st or - - nd "1arch, 2007. He has clarified in ,the cross-'examination on iI"J Januarv, 2008 that he was not aware whether Dharmender and Rani were allowed to leave the Police Station or not., He has further stated' . that after his son Chirag was recovered on 24th 1\1arch, 2007, he came to know that Dharmender and Rani were involved. The arrest memo of Dharrnender and Rani Ex. PW6/ A and PWll/B records their arrest on th .- 24 March, 2007.

¶30Learned Counsel for the appellants have submitted that offen'ce under Section 364A IPCis not made out. Reliance was placed on decision' of this Court in Surender Kum~r @ Raja Vs. State, Criminal Appeal No.738/2003 decided on 6th January, 2010 and it was highlighted that .essential ingredient of Section 364AIPC is threat to cause peath or hurt to the victim or conduct which gave rise to a , reasonab'le apprehension that the kidnapped person: would be hurt-or killed. ·It WaS further submitted that a criminal conspiracy was not trl.Appeals 1112/12, 855/12, 241/13, 394/13 Page 29 of32 .~ .. ·--... -.----.-;--:---... - .. --..... -- .. -~. _._.- .. -_._--_ ..... _-_ ....... _-. I ' made out and reliance was placed upon decisions of the Supreme Court In P.K. Narayanan Vs. State of Kerala, (1995) i see 142 and Sanjiv KumarVs. State of H.P., (1999) 2 see 288.

¶31Section 364A IPC mandates threat to cause, hurt or death to the kidnapped or abducted person. Conduct which gives rise to a reasonable apprehension that such person may be put to death or hurt will al~;o bring the offence of kidnapping or abducti.on for ransom within , the four corners of Section 364A IPC.

¶32In, the present case, there were threats that t:1e kidnapped child Chirag would be harmed. In fact, PW-l lias dr2posed that he was informed on telephone that thumbs of his child had been chopped. It . would be relevant here to refer to Shyam BaQu 8: Others Vs. State of Haryano, 2008 (14) . Scale 310 wherein Section 364A IPC was interpreted and it was held that the wording itself s:Jggests that when ,: ! kidnapping is done with the threat to cause death, hurt etc to the kid~apped person, the offence is complete. In the present case, the .J child Chirag was kidnapped and taken out of Delhi to a remote villa&e in Sikandrabad. Ransom was repeatedly demande(:::/ on telephone by; extending threats that harm would be caused or harm had been caused CrI.Appe;~ls 1112/12, 855/12, 241/13, 394/13 i ---._- - ----::-------------.----------.---.--- -- '.'---', ---. ".---- ----.------- -r-.------------- -------.- -----.---.-~ / -.". __ . ------~-------.- '-"- ----.-.-.-.. '---. ------------ --- ------ i. to the child. Undoubtedly, offence under Section 364-A has been, committed.

¶33SiPnilar view has been taken by the Supreme Cc:,urt in Malleshl Vs. State of, Karnataka, 2004 (S) see 95. Refere'ncecan also be made to i . Suman Sood Vs. State of Rajasthan, 2007 (5) sec 634. In the said decision the Supreme Court also examined Section 120,.B IPC and meaning of the term "conspiracy" and observed that conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence for the same. Decisions in Sanjiv Kumar (supra) and P.K. 'Narayanan (supra) also deal with the concept/term conspiracy~ In P.K. Narayanan it has been observed that preparation or motive themselves. do not ;, '. constitut;2 conspiracy and Court should be careful an'd not accept the chC!rge of conspiracy-on mere suspicion, surmises or inference unsuppo~ted by cogent or sufficient evidence. We have referred to the clear-cut cogent and reliable evidence before recordir:g our finding that appellant:s' Dharmender and Rani were part of the conspiracy hatched by Puran and others. The kidnappingof Chirag in Delhi was not possible without -~:he appellants Dharmenderand Rani being part of the conspiracy. The 'telephone conversations are cogent and sufficient evidence which implicates and confirms their involverrient. Cd,Appeals ~_112/12, 855/12,241/13, 394/13 /' , " ;:r . i~~:";}

¶34In view of th.e aforesaid discussion, we allow the appeals filed by Satya'wan and Reshma and they are acquitted. However, we do not find any. merit in the appeals preferred by Dharmender, Rani and Puran. Theil" ap~eals are dismissed. We also maint~in ,the order of sentence , .. pas5i,ed ~gainst the said appellants. Satyawan and Reshma will, be . . -"tt;' , rele'ased forthwith unless required to be ~tainedin any other case in llccordance with law.

35., The appeals are disposed of accordingly. It MA Y ?-1 I 2013 kkb Crl.Appeals 1112/12, 855/12, 241/13, 394/13 ~~-- -.. ---------_. __ .. - '--Lz r 'l( .C- . , (SANJIV KHANNA) JUDGE ~~ ~~\£l.,3 {VED PRAKA:SH VY-\ISH) . JUDGE Page 32 of 3l .

* % + IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 6th May, 2013 Date of Decision: 29th May, 2013 erl. Appeal No. 855/2012 DHARMENDER @ DHARMU .. :.Appellant Through Ms. Prerna, Advocate. Versus STATE ... Respondent Through Mr. Sanjay Lao, APP + er!. Appeal No. 241/2013 SATYAWAN KATHERIA AND DRS. .. .. Appellant Versus STATE + Through Mr. Ravish Roshan, Mr. Manoj Bansal and Mr. Yunush Advocates. ... Respondent Through Mr. Sanjay Lao, APP er!. Appeal No. 394/2013 RANI @ MANJU .... Appellant Through Ms. Rakhi Dubey, Advocate. Versus STATE Through Mr. Sanjay Lao, APP CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE VED PRAKASH VAISH ... Respondent \'-\