R.S.SODHI, J. -
(1.) Criminal Appeal Nos.468 of 2002 and 196 of 2002 seek to challenge the common judgment and order of the Additional Sessions Judge, Delhi, in Sessions Case No.127/1999 arising out of F.I.R. No.908 of 1998, Police Station Dabri whereby the learned Judge vide his judgment dated 15.9.2001 has held the appellants, Vipin Kumar and Ramesh, guilty for the offence under Sections 120-B, 364-A, 302 and 201 IPC. Further, by his order dated 19.9.2001, the learned Judge sentenced both the appellants to life imprisonment under Section 302 IPC with a fine of Rs.25,000/- each and in default of payment of fine further rigorous imprisonment for one year each; imprisonment for life under Section 364-A IPC with a fine of Rs.25,000/- and in default of payment of fine further rigorous imprisonment for one year each; rigorous imprisonment for seven years under Section 201 IPC with a fine of Rs.20,000/- and in default of payment of fine further rigorous imprisonment for nine months each. All the sentences were directed to run concurrently.
(2.) Brief facts of the case, as have been noted by the learned Additional Sessions Judge, are that :
"Avdhesh, the only son of PW2 Mohar Singh went to school as usual on 23rd December '98. He was 8 years old and was student of 11th Class in RM Convent School, Kailash Puri at 1.30 p.m. At the time of closing of school, Mukesh who used to bring Avdhesh from the school went to bring him back home. Avdhesh was not found there. Mukesh enquired from the Principal. Principal told him that some known person had come to the school at 'CHUTTI' time and taken him. Avdhesh did not reach home. He was searched here and there around the school, in the Mohalla, but no trace was found. Late in the day, a letter is delivered by a child to Pinki, sister of Avdhesh, who gives this letter to her father. In the letter, it is written that Avdhesh was in possession of writer of the letter. Money should be arranged by the parents. they should not worry about the child. PW2, father of Avdhesh takes this letter to the police station. FIR No. 906/98 of kidnapping of Avdhesh u/s 364 IPC is recorded at police station at 4.15 p.m. The letter written by the kidnapper is seized by the police vide a seizure memo. Police starts investigation, meets the Principal-cum- Manager of the school, makes further enquiries from the father of the child, takes a photograph of the child, makes efforts for search of the child and a 'Hue and Cry' notice is issued and published and displayed in the area. All relatives of Mohar Singh are visited but upto the evening of 24th December '98, no trace of the child is found. In the evening of 24th December '98, Mohar Singh received another ransom letter through one Amar Nath who is a shop keeper of the area and at whose place somebody left this letter for Mohar Singh. Mohar Singh takes this letter also to the police. Police seizes this letter. In the letter, a ransom amount of Rs.3 lakh is demanded. This letter reads as under :-
"To Mohar Singh You must have received information that your son is with us. Do not try to play trick otherwise it will be disastrous. You leave all other work and arrange money of Rs.3 lakh. This money should be arranged by 26th December '98 and I shall collect this money on the same day, which is Saturday. Your son Avdhesh shall be left at the school on 27th December '98. You will not inform police, nor you will play tricks as these shall harm you. Rest on Saturday." Police examined Amar Nath through whom the second letter was received and records his statement. Police again makes attempt to locate kidnapped boy but is not successful. The complainant is again questioned about the persons who ha been visiting the family and who had become familiar and acquainted with the child. Then police learnt that one Vipin Kumar had visited the house of Mohar Singh about 10-15 days prior to the incident, on his Bajaj Chetak Scooter alongwith a distant relative of Mohar Singh and had stayed at home of Mohar Singh for about two days and had taken the child to leave him to school for these two days. On coming to know this, police searches for this Vipin and went to his house at Sadar Pur Colony, Noida. Vipin is not found at his house. Police goes to his native place Etah. He was not found there also and police found that he was missing from his house since kidnapping of child. On 2nd January '99, police received secret information that suspect Vipin Kumar has come to his house at Noida. On receiving this information, police comes into action and Vipin Kumar is apprehended from his residence in Noida, at the identification of the Mohar Singh. He is interrogated and he revealed that on 23rd December '98, it was he who had gone with one Ramesh to the school and picked up the child from the school. Ramesh stood alongwith scooter in the Gali. His interrogation reveals that child had already been murdered on the same day and dead body was thrown into canal. Disclosure statement of accused was recorded in which he disclosed the entire plan. He disclosed that a room was hired in Harijan Basti, Nasir Pur in H.No.59, Gali No.5, two days prior to kidnapping. After kidnapping, the child was taken to that room. The clothes of the child were changed and then the child was given sleeping pills in milk and was taken to Agra Canal where he was killed and thrown. He disclosed that school bag, clothes, etc., of the child were still lying in the same room. They had planned to recover ransom amount by showing school bag and the clothes of the child. The accused Ramesh was arrested at the pointing out of accused Vipin. Room of accused Vipin was searched, in that room in one Almirah/shelf some books and some notebook were found. IO found that in the notebook there was some sort of planning scribed about kidnapping of child and area map of the location of school of child was made and was there. IO seizes this notebook. Both the accused persons, thereafter, led the police to the wooden bridge wherefrom the dead body of the child was thrown into canal. IO interrogated the persons living in the surrounding area but could not find trace of the dead body nor got any clue about dead body. He also searched the record of police station Badarpur and police station Sarita Vihar within which this canal came but could not find any record of recovery of dead body of a child. Accused persons then led police to the house which was rented by them. House owner Suresh Kumar was interrogated. He told IO about the taking of room on rent by the accused persons and bringing a child there on 23rd December '98 for few hours. He stated that he had not seen the accused persons after that day and saw them only with the police on that day. He was shown the photograph of the child and on seeing photograph he stated that it was the same child who was brought to the room and thereafter taken away from the place after locking the room by accused persons. Lock of the room was broken in presence of Suresh and Mohar Singh and room was entered and at the instance of accused persons, police recovered school bag of the child containing lunch box, Class IInd books and notebooks of the child from upper shelf (Tand). The clothes of the child namely one Navy woolen cap, one Navy blue jersy, blue and white strip Tie, white shirt, white pant, white socks and white colour PT shoes were recovered. Accused persons also got recovered, from the room, one empty strip of Larpose-2 tablets (sleeping pills) from which five tablets had been removed. IO seized this empty strip, school bag, books and clothes of the child. Mohar Singh had identified them as that of child. The accused disclosed that Larpose-2 tablets were given to the child in the milk to make him unconscious. The body of the child could not be found out, but the police was able to catch the culprits. Both the accused persons were charged with the offence of hatching up a conspiracy to commit kidnapping for ransom and to commit murder u/s 120B. They were also charged with the offence u/s 364A and 302 IPC for kidnapping the child for ransom and threatening to kill him as well as for murder of the child. They were also charged u/s 201 IPC for eliminating the evidence of the crime. Both the accused persons pleaded not guilty tot he charge and claimed trial."
(3.) Prosecution to substantiate its case examined 15 witnesses. Of these PW-2, Mohar Singh, is the father of Avdhesh Kumar. He testifies that Avdhesh was eight years of age and was a student of 2nd class in R.M. Convent School, Kailashpuri. On 23.12.1998, Avdhesh went to school around 7:45 a.m. and as usual Mukesh went to pick him up at 1:30 p.m. but the Principal of the school told him that the boy had already been taken away. Mukesh reported this matter to Mohar Singh who began searching for the child. During this time, a letter was delivered to Pinki, his daughter, which letter was in the nature of a ransom note. Mohar Singh reported the matter to the police and an F.I.R. Exhibit PW 2/B was registered. He goes on to state that he had informed the police that 10-12 days prior to 23.12.1998, Vipin Kumar, present in court, along with one Naresh had come to stay at their house for about two nights. Naresh was related to Mohar Singh and had introduced Vipin as his friend. Vipin had taken Avdhesh to school on one of those days on his scooter. Naresh was identified by this witness as being the same person. The witness proved the ransom note Exhibit PW 2/A and the seizure memo Exhibit PW 2/C. Mohar Singh further deposes that on 24.12.1998 at about 8 p.m., a shopkeeper handed over another letter in which there was a demand of Rs.3 lacs as ransom. This letter was also handed over to the police Exhibit PW 1/C, the envelope Exhibit PW 1/B and the seizure memo Exhibit PW 1/A. He further testifies that on 02.01.1999, he had gone with the police to Noida when accused Vipin was arrested from his room. His personal search was conducted vide memo Exhibit PW 1/D. Vipin made a disclosure statement Exhibit PW 2/E which was signed by him. A notebook was seized from the room of Vipin which had a sketch of Sagarpur area on it as also particulars as to when the child was to be lifted. The notebook was Exhibit PW 2/F and the writing on the notebook was Exhibit PW 2/G. Vipin disclosed the involvement of Ramesh in the crime. On this, the police caught up with Ramesh at the house of his uncle Harish. Ramesh was arrested and his personal search was conducted vide memo Exhibit PW 2/H. Ramesh, on interrogation, made a disclosure statement Exhibit PW 2/J. Thereafter, both Ramesh and Vipin lead the police party to the canal where they had thrown the child Avdhesh after killing him. The pointing out memo is Exhibit PW 2/K. They then lead the police party to a room in Nasir Pur, Harijan Basti, which was lying locked. The lock was broken open in the presence of the landlord Suresh Kumar and from the room, school bag of Avdhesh was recovered. In the bag, there was a lunch box, geometry box and class II books as also notebooks. Clothes of the deceased, namely, a jersy, shoes, cap, etc., were also recovered at the instance of Vipin. These articles were seized vide memo Exhibit PW 2/N. Vipin also got recovered an empty packet of tablets which was seized vide memo Exhibit PW 2/P. The articles recovered were identified as Exhibit P-1 to P-10, pair of socks Exhibit P-11/1 and 2 and pair of shoes Exhibit P-12/1 and 2. Mohar Singh was extensively cross-examined. In cross-examination, he states that Vipin and Naresh had come to his house prior to kidnapping of Avdhesh on a two-wheeler scooter. He confirms that Naresh was also interrogated by the police. He goes on to testify that he did not know the address of Vipin prior to his coming and staying with him. He testifies that he had also made inquiries from the Principal of the school. He also testifies that initially he did not suspect anyone. He further testifies that on the following day when he went to the school, he was told by the children that Avdhesh had been taken by some person on a two-wheeler scooter of green colour which was quite new. It is only hereafter that he began suspecting Vipin Kumar.;