Sidharth Jeitley v. State

1. This appeal assails the impugned judgment dated 30th July, 2019 passed by the learned Additional Sessions Judge convicting the appellant for offences punishable under Sections 302/364A/201 IPC, and order on sentence dated 17th August, 2019 awarding sentence of imprisonment for life for offence punishable under Section 302 IPC and a fine of Rs.1,00,000/- (simple imprisonment for five years in default of payment of fine), life imprisonment for offence punishable under Section 364A IPC and a fine of Rs.1,00,000/- (simple imprisonment for five years in default of payment of fine) and rigorous imprisonment for seven years for offence punishable under Section 201 IPC and a fine of Rs.50,000/- (simple imprisonment for one year in default of payment of fine). The Incident

2. As per the case of the prosecution, Sh. Parvinder Kansal, the complainant registered a complaint in PS Prashant Vihar regarding kidnapping of his elder son Vipul Kansal aged 10 years vide DD No.28A, based on which an FIR No.742/2007 was registered under Section 364A read with 34 IPC and investigation of the case was entrusted to Inspector C.M. Meena. During investigation, it was revealed that the kidnapper made ransom calls on mobile number and landline number of complainant from a mobile No. 9971933571. Accordingly, the relevant numbers were put on interception. The kidnapper initially demanded Rs. 1.[5] crores but later the ransom money was finalised at Rs.33 lacs, which the complainant arranged and the IO hander over this cash to Mr. Sandeep Kansal and Mr. Om Prakash for delivery to the kidnapper. On 16th October, 2007 at about 11:00 p.m., the kidnapper received ransom money under Ranjeet Singh fly over in New Delhi but after receipt of the ransom money the kidnapper switched off his mobile No. 9971933571. Pursuant to an analysis of call detail records, IMEI numbers and recorded conversations, the appellant was apprehended from his House No. 21/43, 2nd Floor, Old Rajinder Nagar, Delhi. After interrogation, his disclosure statement was recorded and on 17th October, 2007 at his instance, the ransom money was recovered from his bedroom and was seized by the IO. The IO further seized two mobile phones, one Nokia 6600 and other Nokia 6270 at the instance of the appellant along with a Honda City Car No. UP32 BV 8094 used in the commission of the crime. The case property was deposited in the malkhana of PS Prashant Vihar and statements of witnesses under Section 161 Cr.P.C. were recorded. On 17th October, 2007, on pointing out by the appellant, the dead body of the kidnapped boy Vipul was recovered from the left side of G.T. Karnal Road, near village Kumaspur, District Sonipat in the jurisdiction of PS Murthal, Haryana. The complainant identified the dead body as that of his kidnapped son and the information regarding recovery was given to PS Murthal. The crime team and the team from PS Murthal inspected the scene of the crime, inquest proceedings were conducted, and dead body of the deceased child was handed over to the complainant after getting post mortem conducted at general hospital, Sonipat, Haryana. During investigation, IO seized the entry register of the gate of the society having entry of the car of the appellant, two audio cassettes having recorded conversations between the appellant and the complainant on his landline number and at the instance of the appellant, school uniform, school bag and books of the deceased were recovered from 3.[5] km ahead towards Delhi from the spot where the appellant had thrown the dead body of the deceased. On 20th October, 2007, the IO recovered and seized one more mobile handset Nokia 9500 at the instance of the appellant from his house. The ownership record of Honda City Car was obtained from Lucknow Transport Authority and was found in the name of Mr. Baldev Singh Sahni, father-in-law of the appellant. The IO also collected call detail records and ownership records of relevant mobile numbers from concerned service providers and on 29th December, 2007, the investigation of the case was transferred to AATS/North-West District and entrusted to Inspector B.R. Maan. The initial charge-sheet was filed in the learned Trial Court under Sections 364A/302/201 IPC against the appellant and pursuant to obtaining the FSL report on the voice sample of the appellant, the supplementary charge sheet was also filed under Sections 420/468/471 IPC. Investigation of the case was transferred to Crime Branch and subsequently the investigation was entrusted to Anti Extortion Cell of Crime Branch. The case file was received at Crime Branch, R.K. Puram and the same was entrusted to Inspector B.S. Jakhar for further investigation. Pursuant to further investigation regarding the mobile numbers used by the appellant, final charge sheet was filed and charges under Sections 364A/302/201 IPC were framed against the appellant to which he pleaded not guilty and claimed trial. The prosecution examined 67 witnesses in support of its case. The statement of the appellant was recorded under Section 313 Cr.P.C. and the defence led the evidence of four witnesses to support their case. Submissions on behalf of the Appellant

3. The learned counsel for the appellant submitted in support of the appeal that the entire case of the prosecution is based on circumstantial evidence and the learned Trial Court ignored many broken links and unexplained circumstances leading to the impugned order of conviction and order of sentence. It was contended by the counsel for the appellant that allegedly the ransom call was made on 15th October, 2007 on the landline No. 27861155 through mobile No.9971933571. However, neither the said telephone set containing the caller ID facility nor the tape recorder in which the alleged conversation was recorded was seized. The complainant PW-20 alleged that he recorded the conversation in the recorder make Sony and submitted the two sets of audio cassettes to the police. However, there was no document on record to show that permission for intercepting the mobile had been taken since it was initially rejected vide a letter dated 23rd October, 2007 Ex. PW-12/DX[1] and later again by letter dated 30th October, 2007. The entire interception being unauthorized, the case of the prosecution was therefore unsustainable. PW-49, SI Hira Lal stated that he was verbally instructed to hear and record the conversation which he recorded in the CD Ex. P16 and make transcripts of the conversation Ex. PW-49/A having 47 pages but the FSL reported only 38 pages and no Section 65B, Indian Evidence Act Certificate of the CD and the transcript was submitted and therefore could not be read or treated as evidence. PW- 28, Dr. Rajender Singh, Director, CFSL stated in his report Ex. PW- 28/A that he never examined the cassettes provided by PW-20 and the alleged original CD Ex. P16 was never tested by him. The counsel for the appellant further contended that as regards the ransom amount, PW- 20 had confirmed that he had put his initials on some currency notes of the ransom amount, but the seizure memo PW-20/E does not show any mark on the currency notes recovered from the appellant. The appellant further contended that the main basis of apprehending the appellant was the mobile No.9971933571, however, neither the SIM of this number was recovered nor the mobile handset which was used to make the ransom call. Further, the said mobile number was issued in the name of one Amit Sahay whose photograph was appended by him on the form after due verification. It was further contended that the recovery of the bag of the ransom amount and mobile handsets were suspect and could not be relied upon. While PW-44 stated in his cross-examination that mobile handsets were recovered in his presence but in the statement of PW-30 who was with PW-44 there is no mention of recovery of mobile handsets and nor are there signatures of PW-30 on the seizure memo. While there was presence of family members of the appellant at the time of the arrest and recovery, none of them were asked to join and the local police of PS Rajinder Nagar were neither intimated prior to the raid nor were the recovered articles deposited at their malkhana. As regards the recovery of the dead body on 17th October, 2007, it was contended that the arrest memo Ex. PW-44/C showed that the appellant was arrested under Section 302 IPC but the prosecution seems to have already recovered dead body prior to the arrest which is corroborated by Ex. PW-7/DX[1] and Ex. PW-7/DX[2] where the name of the body in brought dead register is mentioned as unknown and there is no mention of either PW-20 or PW-32. As regards the recovery of the books, uniform of the deceased, it is contended that there are contradictions in the statements of PW-34 ASI Rajender Singh. As regards the recovery of the white Honda City Car, it was contended that PW-60 who gave the CFSL report showed that there was no fingerprint, or any other biological substance recovered from the said car. On the prosecution‟s case that the appellant was present in the society on that day, witnesses PW-62 and PW-1 became hostile and resiled from their statements and the Entry Guard Ram Kumar was since deceased and was never examined regarding the entry register. The counsel for the appellant contended that as per the prosecution, the complainant and his family were known to the appellant and his family since more than 10 years but despite the said relationship, none of them recognised the voice of the appellant when they received the ransom calls. Also, the alleged kidnapper got the deceased to talk to his father and mother and even then, the deceased did not name the appellant though he had known the appellant since his childhood. The CDR relied upon by the prosecution and the analysis chart is based on a forged document since the recovery memo Ex. PW-25/A is dated 19th December, 2007 whereas Ex. PW-25/D was printed on 28th December,

2007. As per the prosecution, the mobile Nokia 9500 was in the name of the wife of the appellant, but neither was she made an accused nor a witness and the lie detection test of the wife of the appellant confirmed that she had no knowledge of the alleged offence. The counsel for the appellant has inter alia relied on Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 on mandatory requirement of certificate under s. 65-B, Indian Evidence Act, Jaffar v. State, 2013 SCC OnLine Del 1838 on violation of s. 166 Cr.P.C., and Patel Manabhai Mavjibhai v. State of Gujarat, 2012 SCC OnLine Guj 6047 on relevance of recovery made at instance of accused and Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 on reliance of testimony of related witness and relevance of motive on case based solely on circumstantial evidence. Reliance has also been placed on judgments reported in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Devi Lal v. State of Rajasthan, (2019) 19 SCC 447, Hari Om v. State of U.P., (2021) 4 SCC 345, Shivaji Chintappa Patil v. State of Maharashtra, (2021) 5 SCC 626, State of Odisha v. Banabihari Mohapatra, 2021 SCC OnLine SC 121, Ram Badan Yadav v. State, 2019 SCC OnLine Del 12002, Anil Puri v. State, 2021 SCC OnLine Del 5072 and Prince v State of Punjab, CRA-D NO. 1666-DB of 2015, Punjab & Haryana High Court, in support of the contention that chain of circumstantial evidence is incomplete and prosecution has failed to prove its case beyond reasonable doubt. Submissions on behalf of the Prosecution

4. The learned Additional Public Prosecutor (APP) countered the arguments submitted on behalf of the appellant and submitted that the following pieces of evidence presented by the prosecution show the unbroken chain of circumstances which would prove the guilt of the appellant beyond reasonable doubt. Firstly, evidence with regard to the deceased going to the school on 15th October, 2007 and his coming back to his residential apartment in Section -13, Rohini was fully corroborated by PW-1 and PW-3, the bus teacher and the Principal of G.D. Goenka School respectively. Secondly, evidence about the entry register of residential society where the deceased family used to live was fully corroborated by PW-35 Umesh, the Security Guard who identified the handwriting and signature of Ram Kumar (the Guard who had since passed away and had made the entry). Thirdly, evidence regarding receiving ransom call and of kidnapping the child was fully corroborated by the testimonies of PW-52 Sonia, the mother of the deceased who had received a call on landline No. 27861155 which had a caller ID and PW- 20, the father of the deceased who also testified that a ransom call had been received and ransom amount had been demanded. Fourthly, the evidence of collecting money from neighbours and friends was fully corroborated by PW-13 to PW-18 and PW-44 who all confirmed that they had given certain amounts to PW-20 to consolidate the ransom amount to be paid. Fifthly, evidence regarding recovery of the dead body of Vipul was fully confirmed and corroborated by the testimonies of PW-19, Dr. Randeep Kumar from FSL, Haryana and PW-20 who had accompanied the police party to Sonipat, Haryana at the spot where the dead body was lying and recovered at the pointing out of the appellant. Sixthly, evidence with respect to recovery of uniform, bag and books of the deceased was fully corroborated by PW-20, the father who was with the police party and had recovered the same from the dense bushes at the pointing out of the appellant and who identified the contents of the bag and that of the uniform as belonging to his deceased son. PW-4, the Librarian at G.D. Goenka also confirmed that one of the books recovered in the school bag had a stamp of G.D. Goenka and was issued to student Vipul of Class IV-A on 10th October, 2007. Seventhly, evidence with respect to the homicidal nature of the death of Vipul was confirmed by PW-7, PW-8 and PW-9 doctors who conducted the post mortem on the body of the deceased. Eighthly, evidence regarding handing over of ransom amount to the appellant was confirmed from the testimonies of PW-44, Sandeep Kansal, cousin of the complainant who along with PW-30 left the ransom amount as per the instructions of the kidnapper and saw one young boy picking up the bag, sitting in one Honda City Car and driving towards ITO. Ninthly, the evidence relating to the arrest of the appellant is corroborated by the testimonies of PW-65 the IO, Inspector C.M. Meena and PW-44, who accompanied the police party to the residence of the appellant in Old Rajinder Nagar. Tenthly, the recovery of the ransom amount was done from the room of the appellant and is corroborated by the testimony of PW-44 who had accompanied the police party and had identified the denominations of currency notes which had been collected as ransom. Also, the recovery of three mobile handsets from the house of the appellant was evident from the testimonies of PW-44, PW-20, PW-59 and PW-65 as also the recovery of the car which was used in the offence. As per the learned APP, PW-20 had clearly identified the dead body of his son and also cremated the body after the post mortem had been done. As regards the conversations which were recorded on the cassette recorder in the phone, the learned APP submitted that these cassettes were played in the Court and PW-20 identified the voice as that of the appellant. PW-20 and PW- 52 had stated that the police officials had installed a parallel line on the landline number to hear the conversations on incoming calls and the request for interception had been made and was exhibited as Ex. PW- 12/A and further corroborated by the testimony of PW-65. PW-28, Dr. Rajender Singh had testified in his report Ex. PW-28/A regarding the matching of the recorded voice of the appellant with his specimen voice to the extent of more than 99%. He further confirmed that he had listened to the CD in Court and the voice contain was that of the appellant. As regards the SIM from which the ransom calls were made, the allottee of the number Amit Kumar Sahay was found to be false which was used to procure the SIM. The CDR analysis of the mobile number used by the appellant for making ransom calls would show his location in the area of Bhalgarh from where the dead body of the deceased was recovered, as on 15th October, 2007 at 4:05 p.m. and 4:49 p.m. Moreover, at the relevant time when the child returned from school at 2:45 p.m., the location of the appellant was at Section-14, Rohini at the time and the ransom money collected by the appellant from Ranjeet Singh flyover his location also shows of areas around Ranjeet Singh flyover. Both the mobile numbers which were used by the appellant show that the numbers were running concurrently at the relevant dates and time and were at the same locations. Evidence

5. The evidence relevant and necessary for assessment of this case, is inter alia as under: 5.[1] PW-1 Ms. Shivani Saldi, teacher in G.D. Goenka Public School testified that on 15th October, 2007, she was present on the school bus which was used to drop the children to their homes. Child Vipul (deceased) used to be in the bus plying on the said route and on that day was dropped at the gate of Neelkanth Apartments, Sector-13, Rohini, Delhi at about 2:40-2:45 p.m. As per PW-1, driver Tej Singh was driving the bus and Sandeep was the conductor and the deceased was student of class IV at that time. She stated that she had seen the deceased on that day while he was going inside the society premises till the time when he was out of her sight. This was as per regular practice where a teacher must ensure that a student gets down from the bus and has properly gone to the house and out of her sight till the bus restarts. She had not seen him talk to any person. PW-2 Ved Prakash, working as an Administrative Officer in G.D. Goenka Public School testified that on 15th October, 2007 student Vipul Kansal was sent back to his house after school hours in the school bus under the care of school teacher Ms. Shivani Saldi. PW-3 Ms. Ritu Pathak, Principal, G.D. Goenka Public School, Rohini testified that she has provided the certified true copies of the application form, admission form and transportation form of Vipul Kansal to the IO. PW-4 Ms. Neelam Ahlawat, working as in-charge of the library in G.D. Goenka Public School, Rohini brought the record pertaining to the book issued to Vipul Kansal Class IV-A on 10th October, 2007 with the title “Makhan Chor aur Anya Rochak Kahaniyan” which was to be returned on 17th October, 2007 as per the record. When shown the book which was recovered at the instance of the appellant, she correctly indentified that it was the same book as issued by the library. PW-5 Tejpal, working as a driver in G.D. Goenka Public School, Rohini testified that on 15th October, 2007 he was on duty on the school bus No. DL1PB-9305 and had left the school at 2:20 p.m. to drop the children and had reached the stop at Sector-13, Rohini where student Vipul was dropped at Neelkanth Apartments at the gate of the society by about 2:45 p.m. by conductor Sandeep and under supervision of Ms. Shivani, school teacher. He stated that student Vipul Kansal had gone inside the gate of the society and moved towards the right side and they left when he was out of sight. 5.[2] PW-35 Umesh, who was working as security guard at Neelkanth Apartments on the date of the incident testified that he along with Ram Kumar, Lakhmi and Govind were posted as security guards and joined duty at 8:00 a.m. on that day. While he was marking entry of pedestrians including names in the register, Ram Kumar was marking entries of vehicles entering into the society in a separate register. He was shown the register of the society which he identified and identified the entry which was made by Ram Kumar (since deceased) by identifying his handwriting and signatures, as he used to make entries in the register in his presence. Register was exhibited as Ex.PW-35/A. In his cross-examination, he stated that on 15th October, 2007 at about 5.00 or 6.00 p.m. Parvinder Kansal, the father of the deceased, was making enquiries about his son when he informed him that he had entered the society but Mr. Kansal did not check the register of the society but instead was enquiring about the visitors to the society, when he showed him the entries in the register. The entry which he identified was in the name of “Sidharth, Rajinder Nagar, 1333, 1, UP32 BV 8094 and 245” mentioned under the date 15th October, 2007. On a perusal of the register, this would be relatable to the categories as name, address, number of the flat visiting, number of persons, car number and entry time. 5.[3] PW-52 Smt. Sonia Kansal, mother of the deceased, testified that her son used to come back by the school bus at about 2:40-2:45 p.m. and she usually would pick him at the time of the arrival of the school bus but on that day of incident, she had some work and could not pick him up. She had given standing instructions to school authorities to drop her son inside the gate of the society when she was not able to pick him up. On that day 15th October, 2007, her son did not come home at the usual time of his arrival and she continued waiting. At about 3:00 p.m. a call was received on her landline phone No.011-27861155 and since she had a caller ID facility, the incoming call was from mobile No. 9971933571. As per her testimony, the caller told her that he had kidnapped her son and upon asking about his identity, he gave the phone to her son Vipul who said that he had been kidnapped. She was totally perplexed and put questions to her son, but the caller took the phone from the son and said that if she wanted release of her son payment of Rs.1.[5] crores will have to be made otherwise he would kill her son and throw the dead body in area of Bada Ganda Nala, Muzaffarnagar. He also threatened that if they informed the police, he would kill her son and said that she should call her husband from Karol Bagh and he would call after half an hour also, and the phone was disconnected. She immediately made a call to the husband and asked him to come home who returned within 30-45 minutes. At about 4:00-4:15 p.m. again a call was received from the same mobile number on the landline number and the husband took this call. The caller allowed the husband to talk to the son. Her husband then consulted friends and relatives and lodged an FIR in this regard and the police arrived in plain clothes at their house at about 5:30 p.m. and installed a parallel line on the landline number to hear the conversations of the calls received. At 7:30 p.m. another call was received from the same mobile number and was picked up by the husband and this time the caller did not allow any conversation with the son. In her crossexamination, she stated that the family of the appellant was known to her family since the year 2001 also and she along with her husband had attended the marriage function of the sister of the appellant. She stated that the family of the appellant had business of medicines at Bhagirath Palace where they were also having a similar business during the said period. 5.[4] PW-20 Parvinder Kansal, the father of the deceased, deposed that on 15th October, 2007 he received a call from his wife at about 3:15 p.m. mentioning that their son had been kidnapped by unknown persons and she had received a call on the landline number and ransom had been demanded. He immediately rushed back to his house and enquired at the society gate regarding the arrival of his son from the school when the guards told him that the school bus had come, and Vipul had alighted from the bus and gone towards the house. He confirmed that a call at

4.00 p.m. was received from the mobile No. 9971933571 on the landline phone from a caller who mentioned that he had kidnapped his son and was in his custody and allowed him to talk to his son. His son told him that he was alright and asked me to talk with “uncle”. Thereafter, he lodged a complaint with the police station and in the meantime got another call from the kidnapper to ask him how much money he had arranged. When he asked the kidnapper to make him talk to the son the caller mentioned that he had already sent his son to Meerut. The complaint was lodged in PS Prashant Vihar (Ex.PW-20/A) and police immediately came to their house in plain clothes. They installed a parallel phone connection on the landline to hear the incoming calls and recording the incoming and outgoing calls on the audio cassette recorder make Sony. As per PW-20, the kidnapper called repeatedly on the landline and asked him to arrange the ransom amount but did not allow him to talk to his son. PW-20 stated that from the spoken words of the caller, it was evident he was not talking in his own language but was using imitated language and may be after “putting something in his mouth”. On 16th October, 2007, PW-20 was busy arranging ransom amount from his relatives, friends, neighbours and other persons by withdrawing money, borrowing it from brother Suresh Kansal, Ramesh his father-in-law, relative Anil Bansal, Sh. Bhushan cousin of his wife, Sarita Goel, relative, Brighu Goel, son of his relative, Namrita Kansal, wife of his cousin Sandeep Kansal and Sandeep Kansal himself. He managed to consolidate about Rs.33 lacs till the evening of 16th October, 2007 in various denominations of Rs.1000/-, Rs.500/- and Rs.100/-. He stated that during the day hours on 16th October, 2007 he received calls from the kidnapper and told him that he was trying to arrange the money but he still did not allow him to talk to his child. In the evening on 16th October, 2007 he informed the kidnapper that he could only arrange Rs.33 lacs from all his known sources and had used all his best efforts and the kidnapper agreed to accept the said amount and stated that while he would received the money in Delhi the child would be delivered at Meerut and said that the child had been kept in Muzaffarnagar. The kidnapper asked PW-20 to send the amount through some other person known to PW-20 to Indiana Bar, Meerut Cantt and hand him his mobile phone handset. He also asked PW-20 for another mobile number so that the kidnapper could contact him on that number and PW-20 gave another number of his to the caller (9818044900). The said amount of Rs.33 lacs was kept in white polythene and then kept in a purple colour polythene tied with a black colour thread and then kept in a purple colour bag closed with a zip and handed over to the IO. He stated that he had put initials on some currency notes of the ransom amount. He further handed over his mobile number 9818011000 to his brother Sandeep Kansal since the kidnapper asked him to send the ransom amount at Zakhira Pul, Delhi while asking him to go to Meerut to take the child who would be delivered after about half hours of receiving the money. On 17th October, 2007, he along with Vishwa Kalyan Gupta arrived at Meerut to receive the child as per the instructions of the kidnapper. In the meantime, on 16th October, 2007, Sandeep Kansal and Om Prakash had gone to Zakhira Pul at about 8:00 p.m. with the ransom amount as per the instructions of the kidnapper. On 17th at about 5.00-5.15 a.m. he received information from the police to reach Balgarh Chowk, G.T.K. Road, Sonipat at the earliest. Since they were present in Meerut the night before they rushed to Balgarh and reached there at about 7.30 a.m. They accompanied the police in the Gypsy vehicle with Inspector Ram Mehar who told him that the appellant was the kidnapper and was present in the Gypsy vehicle. Upon the appellant‟s pointing out, they went 3-4 kms towards Panipat then the appellant asked to take a U-turn and parked the Gypsy vehicle on the left side of the road leading to Delhi from Panipat opposite Traffic Police Station, Sonipat. The appellant got down and led them to bushes where he said he had thrown the dead body of the child. PW-20 was shown the dead body of the child whom he identified as that of his son and a red colour thread was there around the neck of the body and a while colour underwear. He stated that the crime team came to the spot and inspected the area and took photographs and recorded his statement Ex. PW-20/E. SHO Ranjeet Singh of PS Murthal prepared the death report Ex. PW- 20/G and sent the dead body to Civil Hospital, Sonipat for the post mortem, which was conducted and the dead body of the child was handed over to PW-20. They brought the body of the child to their residence and then cremated the dead body according to Hindu rites. Thereafter when they arrived home, Inspector Ram Mehar Singh asked them about the audio cassettes by which the conversation between him and the kidnapper had been recorded on the landline. The two audio cassettes were handed over to Inspector C.M. Meena at PS Prashant Vihar and which were accordingly sealed. On 18th October, 2007, he was called to the police station and made to accompany in the police Gypsy vehicle with the appellant who led them along Ranjeet Singh Fly Over via ITO and then Yamuna Bridge and after a U-turn from the redlight at Laxmi Nagar towards ITO Road, the appellant pointed out the place before Yamuna Bridge where he had thrown the SIM having NO. 9971933571 after chewing the same from his mouth. The appellant made them stop the Gypsy vehicle a bit further and pointed out to the place where he had thrown the mobile phone handset which was used with the said SIM in the Yamuna river. Thereafter, the appellant directed that the Gypsy vehicle be taken towards Murthal Police Station and asked to take a U-turn towards Delhi and on pointing out on the road from Delhi to Panipat, the appellant led them to dense bushes where he got recovered blue coloured half pant/capri of the school uniform having red stripes with a belt and a buckle with the mentioning “Goenka”, socks with the name “Goenka”, one school bag of blue colour containing books including one hindi book with the stamp of G.D. Goenka School with the title “Makhan Chor aur Anya Rochak Kahaniyan” alongwith other books having stickers of Vipul Kansal Class-IVA Roll No. 25. All these were identified by PW-20 and were duly sealed. On 20th October, 2007, PW-20 was again called at PS Prashant Vihar and was told that the appellant in another disclosure mentioned that another mobile phone handset was lying in his bedroom which he got recovered in which he said he had also used the SIM NO. 9999966512. This mobile handset of make Nokia 9500 was recovered from his wardrobe. The two audio cassettes which were provided by PW-20 to the police were played in the Court with the help of cassette/CD player and PW-20 identified his voice as well as the voice of the caller/kidnapper. The transcript of the conversation between PW- 20 and the kidnapper/caller were exhibited as Ex. P-14 and the Court recorded its observation that the transcript recorded on 15th October, 2007 is not the exact version of the audio cassette but almost similar. The CD which was used to record these conversations could not be played in Court since it was partly broken and the other one had some technical issue. He stated in his cross-examination that he knew the appellant and his family for the last ten years and the father of the appellant was also running the business of medicines. He stated that when he had come back to Neelkanth Apartments after receiving the call of his wife he had asked the Guard Ram Kumar who said that his son had returned and he did not check the register of the society at that time. 5.[5] PW-13 to PW-18 and PW-44 all testified in their respective depositions that they had given certain amounts of money to PW-20 on 16th October, 2007 for the purposes of collecting the ransom amount. 5.[6] PW-44 Sandeep Kansal, cousin of PW-20, deposed that upon being informed that his nephew had been kidnapped he helped PW-20 to collect the money for the ransom amount. On 16th October, 2007 at about 6.00 p.m. he was instructed by PW-20 to carry the cash of Rs.33 lacs to Zakhira Pul in a TSR auto as per directions of the kidnapper and to carry with him the mobile handset of PW-20. PW-44 thereafter carried mobile bearing No. 9818011000 along with the ransom amount in a purple colour bag and was accompanied by PW-30 Om Prakash Gupta. On leaving the house of PW-20, they reached Zakhira Pul and he made a call to the phone of the kidnapper who instructed him to reach at McDonald‟s Janpath and later to the Barakhamba red light. The kidnapper then instructed him to come to Ranjeet Singh flyover and mentioned that in the mid of the flyover on the left side they will see one white colour cloth tied with the pole. Upon reaching there, the kidnapper told them on the phone to drop the bag containing the money from the place opposite the pole which they did and when they bent down from the flyover to see they saw one Honda City Car with one young boy who came and picked up the bag and rode the car towards the ITO and disappeared. Later at about 1.30 a.m. on that same day, they received a call from the police and were instructed to reach Old Rajinder Nagar. At 4.00 a.m. he was told that the kidnapper had not handed over the child to PW-20 thereafter they took them to House No.21/43, 2nd Floor, Old Rajinder Nagar and knocked on the door which was opened by the appellant whom PW-44 identified. A purple colour bag with the amount of Rs. 33 lacs was recovered from the room of the appellant. The currency notes had the same description as he had carried from the house of PW-20 which was accordingly sealed and seized vide memo Ex. PW-44/A. One Honda City Car which was parked outside the house of the appellant having No. UP32 BV 8094 was also seized vide memo Ex. PW-44/B. Further, as per the disclosure of the appellant, two mobile phones from under the pillow were recovered one of make Nokia 6600 and the other was of Nokia 6270 which were accordingly seized and sealed vide memo Ex. PW-44/F. In his cross-examination, he stated that he had seen the appellant once or twice prior to 16th October, 2007 but did not know him personally. He also stated that he had spoken to the kidnapper about 8-10 times on telephone on 16th October, 2007 and that he was not familiar with the voice of the appellant to identify him just by his voice. 5.[7] PW-7 Dr. Jai Kishore, Deputy Civil Surgeon at General Hospital, Sonipat, Haryana testified that on 17th October, 2007 at about 1.15 p.m. he had conducted the post mortem examination alongwith PW-8 Dr. Punia and PW-9 Dr. Adarsh Sharma of the dead body of Vipul Kansal which was brought by the police. On external examination, it was found that rigor mortis had disappeared from all parts of the body and there were many external injuries including four crescentric abrasions on the neck which had caused haemorrhage and fracture of the thyroid cartilage, abrasions on the abdomen, laceration on the medical canthus of left eye and other injuries. In his opinion, the cause of death was asphyxia as a result of throttling which was ante mortem in nature and sufficient to cause death in normal course of life. The probable time between injury and death and between death and post mortem was about 36-48 hours. 5.[8] PW-6 Baldev Singh Sahani, father-in-law of the appellant, deposed that in the year 2006 he had given one Honda City Car bearing registration No. UP32 BV 8094 to the appellant at the time of his marriage of his daughter to him and the car was registered in PW-6‟s name. He stated that since marriage the car continued in the possession of the appellant. PW-38 verified the ownership of this vehicle from the authorities at Lucknow and record was exhibited as Ex. PW-38/B and Ex. PW-38/C. 5.[9] PW-28 Dr. Rajendra Singh, Director CFSL, stated that he had more than 23 years in the field of forensic voice identification, and he had received three sealed parcels for examination from the police which were marked as Q[1], Q[2] and S[1]. Parcel Q[1] contained a compact disc, parcel Q[2] contained two normal audio cassettes with the same recorded text as contained in parcel Q[1] and parcel S[1] contained specimen voice recordings of the appellant. He stated that the recordings in audio cassettes Q[2] were not examined since they had been reproduced and recorded in the CD in Q[1]. Upon examination of Q[1] with S[1] through auditory and voice spectrographic examination he found that the specimen voice of the appellant matched in respect of the linguistic, phonetic and general spectrographic parameter and the probability of the identification was more than 99%. He stated that on 5th September, 2011, he had received two sealed parcels Ex. P-16 and Ex. P-17. Ex. P- 16 contained a broken compact disc and Ex. P-17 had a compact disc of make Moser Baer. He stated that Ex. P-17 was the same disc which was examined in his report Ex. PW-28/A.

5.10 PW-40 Nitin Madan deposed that he ran a mobile phone shop in Sector-15, Rohini under the name and style of Electrocom and stated that the customer application form Ex. PW-25/C regarding sale of the mobile no. 9971933571 was in the name of Amit Kumar which was purchased from his shop with the ID proof who had given his identity proof. PW-61 retired ACP B.R. Maan stated that he got the driving license of one Amit Kumar Sahai which was used to procure the SIM of the said mobile number and on verification from District Hardoi, U.P. it was found to be false as the genuine license was allotted in the name of one Mirza Afroz Haider. PW-27 R.K. Singh, the Nodal Officer of Bharti Airtel, provided the CAF, CDR and cell ID chart for mobile NO. 9971933571 indicated it was issued in the name of Amit Kumar Sahai and these were exhibited along with Section 65B Certificate (Ex. PW- 27/B – Ex. PW-27/F). PW-26 Deepak, the Nodal Officer for Vodafone, provided the CAF, CDR and cell ID charts along with the Section 65B Certificate (PW-26/A – PW-26/G) with respect to the mobile Nos. 9999966512, 989913066, 9899070993 all belonging to the appellant.

5.11 PW-65 Inspector C.M. Meena the IO in the case was posted at PS Prashant Vihar and investigated the case. He stated that since they could not get any clue initially regarding the missing boy, they put the landline number of the complainant on surveillance and Constable Om Prakash was deputed to hear every call on that number and pass on the same to senior police officials. On 15th October, 2007 when he got information that the kidnapper had called, he made further enquiries at the security gate of Neelkanth Society and it was disclosed by Ram Kumar that the guard at the gate that he had seen child Vipul Kansal going towards his house at 2:45 p.m. and at that time he had seen a young person talking with the boy. He testified to the events relating to the ransom calls being received by the complainant, the handing over of the ransom money by the complainant to the police and then to Mr. Sandeep Kansal and Mr. Om Prakash to deliver to the kidnapper. In the meantime, he had been asked by senior police officials to remain ready and wait for further directions and on 17th October, 2007 he was asked to be at Water Tank, Old Rajinder Nagar. He had been informed by senior police officials that from the phone conversations relating to the ransom amount two numbers had been zeroed in and the address of the said numbers was revealed as 21/43 2nd Floor, Old Rajinder Nagar and accordingly they went to the house and then apprehended the appellant when he opened the door. He testified to the recoveries which were made from the appellant including the two mobile phones and the ransom amount and the car initially. He further testified to the pointing out by the appellant on 18th October, 2007 of the place where he had collected the ransom and then the place that he had chewed the SIM and thrown it as well as the mobile phone. Efforts were made to trace out the mobile hand set with the help of divers but could not be recovered. He further testified to the recovery of the body and recovery of the bag of the deceased. On 20th October, 2007, the appellant had got further recovered another handset which was hidden by him in his almirah in his bed room. Analysis

6. On an examination of the evidence on record and appreciation of the contention of the parties, this Court is of the considered view that the guilt of the appellant is proved beyond reasonable doubt by the prosecution, inter alia for the following reasons: 6.[1] Homicidal Death. The death of the deceased child Vipul Kansal was clearly homicidal in nature as is evident from the testimonies of PW-7, PW-8 and PW-9, the doctors who had conducted the post mortem on the dead body at General Hospital, Sonipat. As regards the identification of the dead body, the testimonies of PW-19 (Dr. Randeep Kumar from FSL Haryana) who had been called by SHO PS Murthal when the body had been found and of PW-20, the father of the deceased himself who identified the dead body of his child which was recovered at near Bhalgarh, Sonipat, Haryana in the area of village Kamaspur at the pointing out of the appellant are conclusive. The body was claimed after the post mortem by PW-20 and was duly cremated by the family. 6.[2] Victim’s Return from School. The fact that the child Vipul had gone to school and had returned in the school bus from which he alighted at his society in Neelkanth Apartments, Rohini has been duly corroborated by the testimonies of PW-1 Ms. Shivani Saldi, the supervising teacher who was in the bus, PW-2 the school Administrative Officer, who confirmed that the student was sent back, PW-3, the Principal of the school who provided the records of the student, PW-5 Tejpal who drove the school bus. It is quite cogent and clear from the testimonies that the child Vipul was dropped at the gate and thereafter had entered inside the society premises after which he was out of sight of PW-1, the school teacher. PW-52, the mother of the deceased, further corroborated the fact that she was not available to pick up the child on that day and had given instructions to the school to ensure that he enters the society gate. 6.[3] Victim’s Entry into Residential Society. PW-65 the IO, testified that he had interrogated the Guard Ram Kumar who was on the gate on that day of incident and he had seen the child going towards his house at around 2.45 p.m. and at that time he had seen a young person talking with that boy. Although Ram Kumar had since died and could not be subjected to trial, thus the testimony of PW-65 to this extent is hearsay, however the fact that child entered the gate of his housing society is proved by the testimony of the school staff. 6.[4] Presence of Appellant in Residential Society. The visitors entry register of the entry gate of Neelkanth Apartments had been seized and exhibited as Ex. PW-35/B and was also perused by this Court. It is evident that the last entry on page No.208 (as marked by the learned Trial Court) is of Sidharth with address as Rajinder Nagar, visiting flat 1333 and the car number as UP32 BV 8094 with the entry time as 2.45 p.m. This entry provides sufficient evidence that the appellant had entered the gates of the society at 2.45 p.m. in the car which was later identified as the one given to the appellant by his father-in-law PW-6. His presence therefore in the society on that day stands corroborated. Contention by the counsel of the appellant that this entry was fabricated later by the police is not acceptable to this Court having seen the register in Court and examining it carefully for the purposes of any signs of tampering or later insertion. The other contention of the appellant that the register was not examined by the father PW-20 when they had found the child missing can be explained by the sequence of events which had occurred on that day. When the father had returned to the society having come to know from his wife that the child had been kidnapped, he had asked the guard whether the child had entered the society. On having got a positive affirmation of the same, he had no reason to inspect the register at that stage. An omission at that stage by a perplexed father of a child who had been kidnapped cannot discredit the otherwise cogent and clear testimonies. The presence of the appellant in the area of Rohini where the housing society of the deceased is situated is further corroborated by the examination of the CDR records which would show that CDR records of the mobile numbers 9971933571 (the mobile number used for ransom calls) and 9999966512 (which was in the name of the appellant) which were respectively located as per cell ID details at 3:08:45 p.m. at Sector- 11, Rohini and at 2:13:53 p.m. at Sector-14, Rohini. An analysis of the charts has been exhibited as Ex. PW-61/B which was prepared by PW- 61 retired ACP B.R. Maan. 6.[5] Events Post Kidnapping of Victim. An examination of the CDR charts for both these mobile numbers later at 3:52:17 p.m. (located at Narela), 4:05:45 p.m. (located at Bhalgarh to IIT Chowk, Sonipat), then at 4:20:03 p.m. (located at Narela) and at 4:59:42 p.m. (located at IIT Chowk, Sonipat to Rai) would show that having kidnapped the child around 2.45-3.00 p.m. the appellant‟s mobile numbers (one issued in his own name and the other which was used by him for making ransom calls) were both in the area where the dead body was finally recovered. It would be evident from this analysis that the appellant committed the murder of the child around that time in the evening of 15th itself. It is further corroborated by the post mortem report Ex. PW-7/A which notes that the death would have been in a time period of 36-48 hours prior to the post mortem conducted at about 1.15 p.m. on 17th October, 2007, the range of time therefore being the evening of 15th October, 2007. This fact also corroborates the version of the parents that in the first two ransom calls, they were made to talk to the deceased and thereafter they were not made to speak to the child. 6.[6] Ransom Calls. The fact of the ransom calls being received on the landline from the mobile number 9971933571 (hereinafter referred to as the „ransom mobile number‟ for ease of reference) has been corroborated by the testimonies of PW-20 the father and PW-52 the mother. Even though the particular instrument was not seized, as contended by the counsel for the appellant, the call records for this ransom mobile number would clearly show that outgoing calls are made to the landline of the complainant from that number on 15th October, 2007 at 4:05:45 p.m., 4:59:42 p.m., 7:32:19 p.m., 7:34:18 p.m., 9:57:33 p.m. and 10:52:08 p.m. There are further calls on 16th October, 2007 from that number to the landline number of the complainant at 4:49:36 p.m., 4:51:22 p.m. The fact that the CAF for this number 9971933571 was issued in the name of Amit Kumar Sahai would not exculpate with appellant since on the verification by PW-61 it was found that the driving license used to procure the SIM from PW-40‟s shop was found to be false as the genuine license holder was some other person Mirza Haider. It was evident that the ransom mobile number was used by the appellant since as per the CDR records, on 3rd October, 2007 the number was used in a handset with IMEI 354306002217230, in which handset mobile NO. 9999966512 (issued in the name of the appellant) was used continuously since at least 01st August, 2007 till 15th October, 2007. The Nokia Phone 9500 recovered from the appellant was with this IMEI number 354306002217230 as evident from seizure memo Ex. PW-20/P. This would clearly prove the fact that it was the appellant which was using this handset with the mobile No.9999966512 (issued in the name of the appellant) as also the ransom mobile no. 9971933571 which was used on that handset on 3rd October, 2007. The recoveries of the two other phones Nokia 6270 and Nokia 6600 by seizure memo Ex. PW-44/F would show that the mobile numbers 9999966512 (issued to the appellant) and 9899070993 (also issued to the appellant) were used in Nokia 6270 handset while yet another number 9899130666 (also issued in the name of the appellant) was used along with 9999966512 (issued to the appellant) in Nokia 6600. 6.[7] Ransom Collection and Delivery to Appellant. The circumstances relating to the collection of the money for the ransom is evident from the testimonies of PW-13 to PW-18 and PW-44, the relatives and friends of PW-20 who have all testified that they had contributed for the ransom amount. The delivery of the ransom amount is testified too by PW-44 and corroborated by PW-30 who had as per instructions of the kidnapper dropped the ransom bag from the Ranjeet Singh flyover having first gone to Zakhira Pul and from thereafter being redirected to the point at Ranjeet Singh flyover where PW-44 saw a young boy take pick up the bag in a Honda City Car. This is further corroborated by the fact that PW-44 was carrying the mobile phone NO. 9818011000 given to him by PW-20. The CDR records of the ransom mobile number 9971933571 would show a series of calls to the mobile no. 9818011000 from 9:55:39 p.m. till 11:09:27 p.m. (about 11 calls) all of which could be located to the cell ID tower of either Bengali Market, Jantar Mantar, Plaza Cinema, Minto Road, Himachal Bhawan and Bahadur Shah Zafar Marg. This would clearly establish that the ransom mobile number used by the appellant was communicating with this mobile number handed over by PW-20 to PW-44 to deliver the ransom on that day and the mobile location towers clearly established that the appellant was in that area to collect the ransom. Thereafter at about 11:10:03 p.m. the location moved towards Bahadur Shah Zafar Marg and then at about 11:12:55 p.m. was found near the tower at Laxmi Nagar and there was no call recorded thereafter on the said mobile number as per the CDR. These cell tower locations corroborate what was disclosed by the appellant that post picking up the ransom amount from the area of Ranjeet Singh flyover, the appellant moved through Bahadur Shah Zafar Marg area and then to Laxmi Nagar area, where he chewed the SIM and threw the mobile handset in the Yamuna river. 6.[8] Co-location of Mobile Numbers. A perusal of the CDR chart would show consistently that the two mobile numbers 9971933571 (the mobile number used for ransom calls) and 9999966512 (the mobile number issued in the name of the appellant) were both co-located at various points of time throughout from 15th October, 2007 and 16th October, 2007 including being at Rajinder Nagar location at night at timings post 8:00 or 9:00 p.m. on both the days which would substantiate the fact that it was the appellant who was using these two mobiles and would be present at his residence at night. 6.[9] Mobile Numbers used by the Appellant. Essentially, the four mobile numbers which were being used by the appellant are as follows: i) Mobile number 9971933571 was used for ransom calls (“ransom mobile number”) as deposed by PW-20 (father of the deceased) and PW-52 (mother of the deceased). The CAF was in the name of Amit Kumar Sahai which was found post investigation as allotted on false identification. This mobile number was found used in two of the handsets used by the appellant (i.e. as per the IMEIs). ii) Mobile number 9999966512 (“appellant mobile no. 1”) was allotted to the appellant as per the CAF exhibited and was used in all three phones recovered from the appellant as listed in the table below. iii) Mobile number 9899070993 (“appellant mobile no. 2”) was Nokia 6270 recovered from the appellant in which handset the ransom mobile number and appellant mobile number no. 1 was also used. iv) Mobile number 9899130666 (“appellant mobile no. 3”) was Nokia 6600 recovered from the appellant in which handset the appellant mobile number no. 1 was also used.

6.10 Tracking of the Ransom Mobile Number to the Appellant and Consequential Arrest. The ransom mobile number was also used along with appellant mobile no. 1 in a handset with IMEI ending in #2630 which was not recovered. Despite the SIM for the ransom mobile number and the handset in which it was used having not been recovered the investigation team was clearly able to use this data to trace the appellant and finally apprehend him. Evidently, they first tracked the call record of the ransom mobile number, then identify the handset with specific IMEI no. in which it was being used (i.e. ending in #7230 and #2630) and then tracing the other mobile number used in the handsets with the same IMEI. On this basis the investigation team zeroed in on the other mobile No. (viz. appellant mobile no. 1) being used on the same handsets which had been allotted in the name of the appellant. The appellant had supplied his driver‟s license for allotment (as per the CAF Ex. PW-26/A) and the said driver‟s license had the residential 21/43 Second Floor, Old Rajinder Nagar, New Delhi-110060. Having zeroed in on the said address the police team apprehended the appellant from the residential address in the late hours of the night. The two IMEIs which had been zeroed in, on which both the ransom mobile number and appellant mobile no. 1 had been used, were of the two handsets finally recovered from the appellant (viz. Nokia 6270 and Nokia 9500).

6.11 Tabulation of Mobile Details. To further clear this miasma of mobile numbers, handsets with IMEIs, CAFs and Cell ID locations, a tabulated version is as under:

┌──────────────────────────────────────────────────────────────────────────────────────────────────┐
│                      Sl. Make of         handset Mobile       Recovery exhibit      CAF and      │
│                      No with       its    IMEI number used                          CDR          │
│                           number                                                    exhibited    │
├──────────────────────────────────────────────────────────────────────────────────────────────────┤
│                      1.   354306002217230 9999966512          Ex. PW-20/P           PW-26        │
│                           Nokia 9500                                                             │
│                                                 9971933571                          PW-27        │
│                      2.   357579004957850 9999966512          Ex. PW-44/F           PW-26        │
│                           Nokia 6270                                                             │
│                                                 9899070993                          PW-26        │
│                                                 9971933571                          PW-27        │
│                      3.   358074019542630 9999966512          Not recovered         PW-26        │
│                                                 9971933571                          PW-27        │
│                      4.   351546005442550 9999966512          Ex. PW-44/F           PW-26        │
│                           Nokia 6600                                                             │
│                                                 9899130666                          PW-26        │
│ Signature Not Verified                                                                           │
│ Digitally Signed                                                                                 │
│ By:MANISH KUMAR CRL.A.1150/2019                                                  Page 30 of 33   │
│ Signing Date:16.11.2022                                                                          │
│ 12:50:03                                                                                         │
│                      2022/DHC/004865                                                             │
└──────────────────────────────────────────────────────────────────────────────────────────────────┘

7. In light of the above discussion and analysis, this Court finds that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt by the prosecution. Consequently, this Court finds no error in the impugned judgment of conviction and order on sentence by the learned Trial Court.

8. Appeal is accordingly dismissed.