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2015 Supreme(Del) 789
High Court of Delhi
SUNITA GUPTA, J.
Bijender Singh @ Titoo & Another – Appellant
Versus
State of (NCT) Delhi – Respondent
CRL.A. Nos. 191, 195 of 2013 & Crl.M.B. Nos. 10536, 10793 of 2014
Decided On : 13-05-2015
For the Appellants:Arundhati Katju, Ali Choudhary, Ajit Sharma, Advocates.
For the Respondent: Ritu Gauba, Additional Public Prosecutor.
The main legal point established is the reliance on witness testimonies, recovery of the kidnapped child, and the burden of the accused to explain the possession of the child.
Headnote:
Kidnapping - Criminal Law - IPC 363, IPC 365/34 - The judgment discusses the prosecution's case of a child being kidnapped and recovered from the possession of the accused. The court analyzes the testimonies of witnesses, the recovery of the child, and the defense's arguments. The court finds one accused guilty and the other acquitted based on the evidence presented.
Fact of the Case:
The prosecution alleged that a child was kidnapped from a grocery shop and later recovered from the possession of the accused. The defense claimed false implication. After examining the evidence, the court found one accused guilty and the other acquitted.
Finding of the Court:
The court found one accused guilty of kidnapping under IPC 365/34 based on the recovery of the child from his possession. The other accused was acquitted due to insufficient evidence against him.
Issues: The key issues revolved around the recovery of the kidnapped child, the testimonies of witnesses, and the defense's claim of false implication.
Ratio Decidendi: The court relied on the testimonies of witnesses, the recovery of the child, and the defense's failure to provide a satisfactory explanation for the child being in the accused's possession.
Final Decision: Criminal Appeal No. 191/2013 was dismissed, and the conviction of Bijender Singh was upheld. Criminal Appeal No. 195/2013 was allowed, and the conviction of Ashok Kumar Yadav was set aside, leading to his release.
1. The appellants Bijender Singh alias Titoo and Ashok Kumar Yadav challenges the impugned judgment and order on sentence dated 22.12.2012 and 07.01.2013 passed by learned Additional Sessions Judge in Sessions case No.51/2011 arising out of FIR No.571/2004 u/s 363/365/34 IPC vide which they were convicted under Section 365/34 IPC and were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1000/- in default, to undergo simple imprisonment for one month.
2. Prosecution case, succinctly stated, is as follows.
Anil Kumar (PW-2) made a complaint alleging inter alia that he is running a grocery shop at Shop No.302, Krishna Puri, Main Road, Mandawali, Delhi. On 28.10.2004 at 1.00 pm, his son Aman aged about two and a half years was present at the shop. His nephew Deepak who was also running a grocery shop nearby came to his shop and took Aman with him. Thereafter, Anil Kumar went to take lunch and when he returned back he did not find his son Aman. He went to the shop of Deepak to enquire but the shutter of the shop was down. After sometime Deepak came there and on enquiry from him about Aman, Deepak told him that Aman was not with him. He made a call on 100 number regarding missing of his son. He suspected that his son Aman has been kidnapped.
3. Investigation of the case was conducted by PW-10 SI Swaraj Singh. He got the portrait of the suspect prepared on the basis of description given by the neighbours. On 02.11.2004, the Investigating Officer received an information from Police Station Ginnore that a child belonging to Delhi has been recovered from there, as such, he alongwith complainant and other police officials went to Ginnor where Inspector Yogender Kumar (PW-11) met him and told that boy Aman was recovered from the possession of accused Bijender Singh. Bijender Singh was interrogated and the child was brought to Delhi. On the intervening night of 2-3.11.2004, accused Deepak was apprehended from his house. Accused Bijender Singh was also arrested on 25.07.2005. Accused Ashok surrendered in the Court and was arrested. After completing investigation, chargesheet was filed against all the accused under Section 363/365 IPC.
4. Initially the trial was conducted by the learned Metropolitan Magistrate, however, in view of the notification dated 04.08.2010 victim being minor at the time of incident and trial of offences concerning Protection of Child Right Act, 2005 was to be conducted by a designated Court, as such, the case went to Additional Sessions Judge. Charge under Section 365/34 IPC was framed to which accused pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution in all examined 11 witnesses. All the incriminating evidence was put to the accused while recording their statement under Section 313 Cr.P.C wherein they denied the case of prosecution and alleged false implication in this case. Accused Bijender Singh took the defence that he was picked up by U.P Police from his shop on 01.11.2004. Thereafter he was falsely implicated in a case under Section 307 IPC and 25 of Arms Act and thereafter in this case. He examined himself as DW-1 and proved the certified copy of the judgment Ex.DW1/A vide which he was acquitted for offence under Section 307 IPC and 25 of Arms Act. He also examined DW-2 Ashok Kumar in support of his case.
6. After scrutinising the evidence led by the prosecution and the defence taken by the accused, vide impugned judgment dated 22.12.2012 accused Deepak was acquitted of the charges levelled against him. However, both the appellants were convicted under Section 365/34 IPC and sentenced, as mentioned hereinabove.
7. Feeling aggrieved, separate appeals have been preferred by the appellants.
8. Assailing the findings of the learned Trial Court, learned counsel for appellant Bijender Singh alias Titoo submitted that the statement of complainant PW-2 Anil Kumar does not further the case of the prosecution in as much as his statem
