Full Text
JUDGMENT
CHAND KHAN ALIAS CHAND MIAN ..... Appellant
Through: Mr.V.K. Tandon, Advocate with Mr. Ranjan Kumar Rai, Advocate
Through: Mr. Pawan Sharma, APP
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes AJIT BHARIHOKE, J.
1. Instant appeal is directed against the impugned judgment dated 27.9.1995 delivered by the Additional Sessions Judge in Sessions Case No.52/91 arising out of FIR No.33/90, P.S. Karol Bagh, in terms of which the appellant Chand Khan @ Chand Mian has been convicted for the offence punishable under Section 302 IPC and the order on sentence dated 30.9.1995 sentencing the appellant to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine, to 2009:DHC:5284-DB undergo RI for further period of two months. We may note at this stage that vide the impugned judgment, appellant’s co-accused Kaley Khan was also convicted for the offences punishable under Section 363/363A (1) IPC and sentenced accordingly. The other co-accused persons who were sent for trial were acquitted vide the impugned judgment.
2. At the outset, we may record, though the appellant was also charged for the offences punishable under Sections 120-B/363/364/368/307/201/34/ IPC, the learned Trial Judge has not returned any finding on the said charges in his judgment dated 27.9.1995. However, in the order of sentence dated 30.9.1995, while awarding sentence under Section 302 IPC to the appellant, learned Trial Judge has observed that no separate sentence is necessary for the offences punishable under Sections 363/364/368/120-B and Section 307 IPC as the appellant has been convicted and sentenced for the most aggravated offence under Section 302 IPC.
3. Briefly stated, case of the prosecution is that on 02.02.1990, two minor children of the complainant Bhagwati Devi, PW11, Manoj aged 9 years and Jitender, aged 6 years did not return from the school. Complainant Bhagwati visited the school at 1.00 p.m. and she was told that her children had not attended the school on that day. She, therefore, went to P.S. Karol Bagh and lodged a report about her missing children, expressing her suspicion that her children might have been kidnapped by some unknown persons. Her report was recorded as DD No.19A dated 02.02.1990 (Ex.PW20/A). S.I. Rameshwar Singh was entrusted with the job of carrying on the investigation. Efforts were made by S.I. Rameshwar Singh as also the complainant to trace the children. When the children could not be traced till 04.02.1990, complainant Bhagwati Devi again visited the police station on that day, where her statement Ex.PW11/B was recorded, wherein she expressed a doubt that the children have been kidnapped. On the basis of the said statement, a formal FIR was recorded at the police station, copy of which is Ex.PW8/A.
4. On 5.2.1990, at around 8.30 p.m., one of the kidnapped children Jitender was found naked and shivering at the bank of Hazara Canal, Kasganj by one Prem Singh, PW[4], who was returning back after the supply of milk to his customers. A DD entry regarding recovery of the child Ex.PW18/D was recorded at the police station Kasganj wherein it was recorded that one boy aged six years, wearing green coloured pyjama and white rubber shoes, who revealed his name as Jitender and the names of his brother and mother as Manoj and Bhaggo respectively, and his place of residence as Village Mehndipur or Mahadevpur has been recovered and if any police station has any information regarding him they should contact the police station Kasganj. The custody of the child Jitender changed hands several times and ultimately it was handed over to one Praveen Kumar Aggarwal on 07.02.1990 and on 15.02.1990, the custody of the child was given on superdari to one Nathu Ram Acharya vide DD No.34, PW18/C.
5. On 19.02.1990, an application Ex.PW20/DB dated 16.02.1990 was moved by the appellant Chand Khan for surrender in the Court. The learned Magistrate sought a report from the police station for 20.02.1990. As per the reply, Ex.PW20/DA submitted by S.I. Raghubir Singh, there was no evidence available to justify the arrest of the appellant till then and as such, the said application was dismissed as not maintainable.
6. The investigation was taken over by S.I. Rajinder Singh, PW19 on 24.02.1990. He arrested the appellant Chand Khan on 25.02.1990 and conducted his personal search vide memo Ex.PW18/A. On the same day, appellant Chand Khan is stated to have made a disclosure statement Ex.PW14/A wherein he confessed that he had kidnapped said two children of the complainant in the morning of 02.02.1990 at around 9.00 a.m. and thereafter he took them to the house of his sister Salma at Shastri Nagar in a three wheeler scooter. Salma and her husband Afaq were present there and he left both the children with them. He also told them that they should leave the bags of Manoj and Jitender at the house of one Nagina, resident of Shastri Nagar. Thereafter he went to the factory of his friend Nabo Kumar Bengali at Inderlok, where he met Raj Kumar, younger brother of his friend, who told him that his friend Nabo Kumar had gone to Jaipur. He told Raj Kumar that a relation of his had died giving birth to a child, leaving behind her two sons and he requested Raj Kumar to keep those children for some time. Raj Kumar agreed to help him out. Thereafter, he along with Raj Kumar came to his sister’s house at Shastri Nagar and from there, he sent both the children in a TSR with Raj Kumar. On 03.02.1990, he again went to the house of his friend in the evening and from there, he fetched Jitender and Manoj and took them to ISBT and at night at around 10.00 pm, he took a bus to Kasganj. In the morning, they reached Kasganj and from there he took both the children in a rickshaw to the village of his ‘fufa’ and narrated the facts to him. Thereafter they concealed the children in a ‘kothari’ of the house of Hamid. He disclosed that he could get those children recovered from the house of Hamid.
7. On 26.2.1990, the co-accused Salma was arrested by the Investigating Officer. She is stated to have made the disclosure statement Ex.PW11/D and pursuant to that, she got recovered three note books having name of Manoj on the covers and two pencils from under the bedding in her house, which were seized vide memo Ex.PW11/E. On the same day, the Investigating Officer also got recovered one note book belonging to Jitender from a box lying in the house of co-accused Nagina at her instance, which was seized vide memo Ex.PW11/G.
8. Co-accused Kaley Khan was also arrested by the police and on interrogation, he made a disclosure statement Ex.PW11/H. Pursuant to the said disclosure statement, Kaley Khan got recovered an identity card of child Manoj Kumar of Class IV, purported to have been issued by Adarsh Vidyalaya, 18, Biden Pura, Karol Bagh, which was seized vide memo Ex.PW11/K. It is further the case of the prosecution that coaccused Mehraj Begum also got recovered a school bag from a steel box lying in her house, which was seized vide memo Ex.PW11/L.
9. SI Mahipal Singh, PW18, along with the police party was sent to Kasganj, District Etah, where on the basis of the disclosure made by the appellant, Wahidullah Khan was arrested. Thereafter, the appellant led the police party to ‘Hazara Canal’ and pointed out the exact place where he threw the children in the canal. A rough site plan of the place of occurrence was prepared. During investigation, statements of witnesses were recorded. An application was moved for recording statement of child Jitender in the court of Metropolitan Magistrate and the concerned Magistrate recorded his statement (Ex.PW13/B) under Section 164 Cr.P.C. On completion of investigation, charge sheet was filed against the appellant and his co-accused persons. They were charged under Sections 120-B IPC, 363/34 IPC, 364/120B/34 IPC, 368 IPC, 302/34/120B IPC, 307/34/120B IPC, 201/34/120B IPC. Accused persons pleaded not guilty and claimed trial.
10. On conclusion of trial, learned Additional Sessions Judge convicted the appellant Chand Khan for the offence punishable under Section 302 IPC and co-appellant Kaley Khan for the offences punishable under Section 363 and Section 363A(1) IPC. The other coaccused persons were acquitted of all the charges.
11. Kaley Khan also preferred an appeal against the impugned conviction and order on sentence. He, however, died during the pendency of appeal, as such his appeal stood abated.
12. On perusal of the impugned judgment, it transpires that the conviction of the appellant is based upon the eye witness account given by one of the kidnapped children Jitender (PW10) and circumstantial evidence, the material witnesses to prove the incriminating circumstances against the appellant inter alia the complainant, PW11 Smt. Bhagwati Devi and taxi driver Dhan Pal, PW[3] as also PW[7] Israr Ahmed, who allegedly travelled in the taxi of PW[3] in which the appellant is also stated to have travelled along with them from the crossing of Village 4 to Kasganj.
13. PW[3] Dhan Pal has stated that he used to carry newspapers from Agra to Tundla, Etah, Sikandrabad, Kasganj, Sahra and Sehwar on daily basis in his car. On 05.02.90, when he was getting ready to return back to Agra after delivering the newspapers at Sehwar the last destination of his route, at around 6:00 am, two persons whom he identified in the court as the appellant Chand Khan and his co-accused Kaley Khan, came along with two children and requested him to take them to Kasganj in his car. The children were aged about 5 to 6 years and 9 to 10 years respectively and both of them were wearing green pant with Jersy. He also deposed that two newly married couples were also sitting in his car as they wanted to go to Agra. The appellant Kaley Khan and said two children got down at Agra. The witness identified the photograph Ex.P-1 as that of the said two children, who had travelled in his car with the appellant and his co-accused. In his cross-examination, the witness could not tell as to who travelled in his car from Sehwar to Agra on 20.10.92. When asked how he could tell the names of the appellant and his co-accused Kaley Khan to the police, he explained that the incident was fresh in his mind as his statement was recorded on 03.02.90, i.e., the very next day on which the appellant and his co-accused travelled in his car. He denied the suggestion that the appellant and his co-accused along with two children never travelled in his car from Sehwar to Kasganj. PW[7] Israr Ahmed, who as per prosecution, also travelled in the car of PW[3] from Sehwar to Agra along with his wife has not supported the prosecution case inasmuch as he did not identify the appellant or Kaley Khan as the persons who travelled in the car from Sehwar to Kasganj. Further, he stated that actually one man, who had covered his face and body with a rug, travelled in the car with two or three children. Out of them, one boy sat on the front seat and two children sat on the rear seat and the age of those children ranged between 9 to 11 years. PW[7] was crossexamined at length by learned APP, but nothing material to support case of prosecution could be elicited.
14. Further, PW10 Jitender, as per the details recorded by the court, was about 7 years when his statement was recorded in the court. He stated that about a year prior to recording of his statement in the court while he and his brother Manoj were going to the school, appellant Chand Khan, whom they called uncle, met them. He took them to his sister’s house in a three-wheeler scooter. Later on, they were taken in a train to some place and after getting down from the train, he took them in a rickshaw to a place where water was flowing and thereafter, he made them remove their shirts. Initially, he threw Manoj in the canal and thereafter, the appellant threw the witness in the canal. PW10 Jiitender further stated that he somehow managed to catch hold of a branch of tree and came out of the canal and there he met two cyclists, who took him to their house and served him with food. He also stated that his statement under Section 164 Cr.P.C. was recorded by the Magistrate to whom he narrated the entire story. We may note at this juncture that the statement of PW10 Jitender recorded by the Metropolitan Magistrate is a one liner wherein the witness stated that Chand Khan had taken away him and his brother Manoj and he threw them in the water. As per the certificate given by the Metropolitan Magistrate at the bottom of the statement under Section 164 Cr.P.C., Jitender was aged about six years when his statement was recorded by the Metropolitan Magistrate on 03.03.90.
15. Learned counsel for the appellant has submitted that the prosecution case rests mainly on the eye witness account given by one of the kidnapped child Jitender, PW10 which is sought to be corroborated by the testimony of Dhan Pal, PW[3] and Israr Ahmed PW[7], who have been examined by the prosecution to establish that the appellant and his co-accused Kaley Khan had travelled along with the kidnapped children in the newspapers delivery taxi of PW[3] from Sehwar to Kasganj, in which PW[7] Israr Ahmed and his wife were also the co-passengers as they were going to Agra. It was contended by learned counsel for the appellant that PW10 Jitender is a child witness who was about seven years old when examined in the court and his testimony is not free from blemish and a possibility of tutoring of the witness cannot be ruled out. It was further submitted that even the testimony of PW[3] Dhan Pal is not free from doubt, firstly, because it does not find corroboration from the testimony of PW[7] Israr Ahmed, who deposed that one person along with three children instead of two persons along with two children travelled in the taxi. PW[3] Dhan Pal named the appellant and his co-accused as the persons who travelled in his taxi in his examination-in-chief. When he was asked to explain as to how he was aware of their names, he stated in his crossexamination that he could give the names of Chand Khan and Kaley Khan to the police because his statement was recorded by the police on 03.02.90 i.e. the day after the alleged travel by the appellant and his co-accused in the taxi of Dhan Pal. Aforesaid version, it was submitted by learned counsel, is belied by the fact that on 20.02.90 a report Ex.PW20/DA was submitted in the court of Metropolitan Magistrate by SI Raghubir Singh wherein it was stated that the police was not planning to arrest the appellant Chand Khan as till then there was no material against him, which version if correct, definitely rules out any possibility of PW[3] Dhan Pal having made any statement to the police on 03.02.90 and, if it is otherwise, then it reflects upon the fairness of the investigation. Thus, learned counsel for the appellant has urged us to disbelieve the above witnesses.
16. On the other hand, learned counsel for the State has argued in support of the impugned judgment. He has submitted that there is no reason to disbelieve PW10 Master Jitender or PW[3] Dhan Pal because there is nothing on the record to suggest that they had any axe to grind with the appellant or his co-accused Kaley Khan. Thus, he has argued that the learned Trial Court has rightly relied upon the evidence of PW10 Jitender and PW[3] Dhan Pal to arrive at a finding of guilt of the appellant.
17. We have considered the submissions made on behalf of the respective parties and we find merit in the submissions made on behalf of the appellant. Perusal of the record shows that as per the case of prosecution, sons of the complainant Bhagwati Devi, PW11 went missing on 02.02.90 and a missing persons report was lodged by her in the P.S. Karol Bagh, which was recorded as DD No.19A (Exbt. PW20/A). PW11 Bhagwati Devi did suspect that her sons were kidnapped, but she did not express her suspicion against the appellant or his coaccused. On 04.02.90, the complainant again visited the police station where her statement Ex.PW11/B was recorded, on the basis of which formal FIR Ex.PW8/A was registered. Even in the said statement, the complainant did not express any suspicion against the appellant or his co-accused. On 16.02.90, an application Ex.PW20/DB was moved by the appellant Chand Khan for surrender in the court of Metropolitan Magistrate and on 20.02.90 SI Raghuvir Singh submitted a report Ex.PW20/DA in the court stating that till that day, there was no evidence on record which could justify the arrest of the appellant Chand Khan. On 24.02.90, the investigation was taken over by SI Rajender Singh, PW19 and on the very next day, he came to know that the child Jitender had already been recovered at the P.S. Kasganj and suddenly every piece of puzzle started falling in the place and the case was solved within a span of few days.
18. The above sequence of events casts a doubt upon the fairness and correctness of the investigation. The aforesaid doubt gets strengthened from the fact that according to PW[3] Dhan Pal, his statement was recorded by the police on 03.02.90, which is not the case of the prosecution. Another aspect of the matter is that admittedly the appellant and his co-accused as well as the two children were chance passengers in the taxi of PW[3] Dhan Pal and they were not previously known to him. Therefore it is highly improbable that Dhan Pal could have identified those persons in the court. Dhan Pal stated in his cross-examination that he had seen the appellant and his coaccused Kaley Khan after 02.02.90 in the court only. No identification parade was conducted by the investigating agency to fix the identity of the appellant or his co-accused. Therefore, also we find it unsafe to rely upon the identification of the appellant done by PW[3] Dhan Pal in the court after a lapse of more than two and a half years.
19. Coming to the testimony of the child witness PW10 Jitender. His statement Ex.PW13/B under Section 164 Cr.P.C. was recorded by the Metropolitan Magistrate on 03.03.90. In the said statement, he gave his age around six years. He was examined in the court as PW10 on 13.08.93 wherein also his age was recorded by the concerned trial Judge as seven years. This implies that PW10 Jitender, when examined in the court, was about seven to nine years. Be that as it may, he was a child of tender age of not more than seven years at the time of the incident. Therefore, prudence demands that his testimony should be approached with greater care and caution. PW10 Jitender stated in the court that he and his brother Manoj were taken away by the appellant Chand Khan in the morning of 02.02.90 when both of them were going to the school. Thereafter, Chand Khan took them to the house of his sister in a three-wheeler and from there, they were taken in a train to some place. After boarding down from the train, he took them in a rickshaw to a canal and he threw both of them in the canal after removing their shirts. Aforesaid version of PW10 Jitender obviously is an improvement over his earlier statement Ex.PW13/B recorded under Section 164 Cr.P.C., where he did not give the details and only stated that he and his brother were thrown by Chand Khan in the water. It is pertinent to note that as per the DD report Ex.PW18/D recorded at the P.S. Kasganj on 05.02.90, child Jitender aged about six years was recovered on 05.02.90 and at the police station, he disclosed his name as well as name of his brother and mother as Manoj and Bhaggo respectively. He also gave the name of his uncle Onkar and said that he was resident of either village Mehdipur or Mahadev Pur. If the prosecution version that the appellant Chand Khan had thrown PW10 Jitender and his brother Manoj in the canal and with the grace of God, Jitender somehow caught hold of a branch of tree which saved his life, is taken to be true, then under the natural course of circumstances it was expected of witness Jitender to tell the police at Kasganj that he had been thrown into canal by the appellant and that he was brought by the appellant from Delhi. This, however, is not the case and the only plausible inference from the aforesaid factual matrix could be that either the appellant Chand Khan was not involved in the crime or that the child Jitender because of his young age was not having the mental capacity to understand as to what had happened with him. We may note that PW10 Jitender in his entire testimony in the court is silent about having travelled along with the appellant and Kaley Khan in the taxi of Dhan Pal from Sehwar to Kasganj. As a matter of fact, he has not stated about having travelled with the appellant his co-accused in a car after they were taken from one place to other. In view of the aforesaid infirmities in the evidence, we do not find it safe to rely upon the testimony of PW10 Jitender.
20. PW10 Jitender in his cross-examination also stated that he met his mother three days after he was taken away by the appellant Chand Khan. If aforesaid version is to be believed, then PW10 met his mother on 05.02.90, which incidentally is the date on which the DD Report Ex.PW18/D was recorded regarding the recovery of the child Jitender at P.S. Kasganj. This circumstance casts a strong doubt on the fairness of the investigation and a possibility cannot be ruled that the investigating agency was aware of the recovery of child Jitender at Kasganj since 05.02.90, which fact was not recorded in the case diary. Otherwise, there was no occasion for SI Rajinder Singh to submit the report Ex.PW20/DA in the court of Metropolitan Magistrate stating that by that date, they had no evidence to justify arrest of the appellant.
21. In view of the discussion above, we are of the view that the evidence produced against the appellant is not beyond suspicion and the prosecution has failed to establish the guilt of the appellant beyond the shadow of reasonable doubt. Thus, we are unable to sustain the conviction of appellant Chand Khan.
22. The appeal is allowed and the appellant is acquitted, giving him benefit of doubt.
23. Appellant is on bail. His personal bond and surety bond stand discharged. AJIT BHARIHOKE, J. DECEMBER 09, 2009 SANJAY KISHAN KAUL, J. gm/pst