Kishore Kumar and anr. Vs. State Govt. of Nct - Court Judgment

SooperKanoon Citationsooperkanoon.com/1138859
CourtDelhi High Court
Decided OnApr-28-2014
JudgeV. K. JAIN
AppellantKishore Kumar and anr.
RespondentState Govt. of Nct
Excerpt:
* in the high court of delhi at new delhi reserved on:25. 04.2014 date of decision:28. 04.2014 + crl.a. 586/2013 kishore kumar & anr. ..... appellants through: mr. vivek sood, adv. for appellant kishor kumar, mr j.s. kushwaha, adv for appellant anita versus state govt. of nct through: + ..... respondent mr feroz khan ghazi, app for state crl.a. 644/2013 bimla ..... appellant mr azhar qayum, advocate through: versus state (govt. of nct) of delhi through: + ..... respondent mr feroz khan ghazi, app for state crl.a. 651/2013 mukesh through: versus .... appellant counsel for the appellant. state + through: ..... respondent mr feroz khan ghazi, app for state through: ..... appellant mr azhar qayum, advocate crl.a. 835/2013 kartar versus state (govt. of nct) of delhi ..... respondent through: mr feroz khan ghazi, app for state + crl.a. 485/2014 mangal through: versus ..... appellant mr azhar qayum, advocate state through: ..... respondent mr feroz khan ghazi, app for state coram: hon'ble mr. justice v.k. jain judgement v.k. jain, j.on 23.4.2009, smt. sunderwati came to police station sultanpuri and reported that her grand-daughter, aged about 9 years, had gone to play outside her house bearing no.a1/154, sultanpuri, delhi, after coming back from the school and had not returned home. she suspected that some unknown persons had kidnapped her grand-daughter. an fir under section 363 of ipc was registered on the basis of the aforesaid report and efforts were made to trace the child. the investigating officer came to know that the child was last seen with the appellant bimla who was found missing from her house. on 17.7.2009, some residents of a-block of sultanpuri complained that bimla and mukesh had a hand in kidnapping of girls from the aforesaid locality. section 365 of ipc was thereafter added in the fir. on 28.7.2009, bimla surrendered in the court.2. on 9.5.2010, an information was received that ats (west) had arrested ashok @ pappu, shyamlal, veena and mangal who had confessed with respect to their involvement in the kidnapping and the kidnapped girl had been recovered from them. the statement of the missing girl was recorded before a metropolitan magistrate wherein she alleged that bimla had taken her to mukesh and kartar and thereafter she was taken to manesar and handed over to kishore and anita who had left her in girwas. the case of the prosecution is that the girl child was handed over to mangal for rs.20,000/- by one shyamlal who had paid rs.15,000/- to mukesh and kartar.3. after completion of investigation as many as seven (7) persons were chargesheeted under sections 363/366a/365/368/372/373 of ipc read with sections 34 and 120b thereof. the accused bimla, mukesh and kartar were charged by the court under section 120b of ipc read with sections 366a/367/372 thereof, kishore and anita were charged under section 120b of ipc and under section 368 of ipc read with section 120b thereof whereas shyamlal was charged under section 120b of ipc read with section 372 thereof. mangal was charged under section 120b read with section 368 & 373 thereof. since the accused persons pleaded not guilty, as many as eighteen (18) witnesses were examined by the prosecution. no witness, however, was examined in defence.4. the kidnapped child aged about 9 years was examined as pw8 and she inter alia stated that on 23.4.2009 at about 1:00 p.m. while she was playing outside her house, bimla came near her and asked her to accompany her to a doctor’s shop. she thereupon accompanied her. bimla took her to the house of mukesh and kartar. from there, mukesh and kartar went away in a car whereas she was taken in an autorickshaw after bimla had wrapped her in a saree. bimla then made her sit in the car of mukesh and kartar and sat along with her. after covering some distance, bimla, who was carrying a big bag in her hand, left saying that she was going to fetch her clothes. mukesh and kartar took her to manesar where they left her with anita and kishore, who took her to village girwas. in the said village anita and kishore used to beat her up and thereafter they left her at the house of shyamlal, who, in turn, left her at the house of mangal. she further stated that the aforesaid persons used to beat her and that the police raided the aforesaid place and rescued three (3) girls including her. she identified the accused persons who were present in the court at the time she was examined.5. pw5 sandhya is the elder sister of pw8. she inter alia stated that on 23.4.2009, pw8 was playing outside the house and she (the witness) could see her since the curtain was half open. she claimed that bimla asked pw8 to accompany her, whereupon she left with her, despite her (witness) asking pw8 to stop. according to the witness after about 4-5 hours she met bimla and enquired about her sister. bimla, however, abused her and threatened to give her a beating. she also identified the accused bimla. pw2 smt. sunderwati is the complainant in this case. she inter alia stated that when sandhya told her that pw8 had been taken away by bimla she inquired from her but bimla threatened her as well as her granddaughter and thereafter leaving the locality she started residing elsewhere. she also stated that she had seen bimla and mukesh coming in the locality, several times.6. pw9 s.i. naveen kumar inter alia stated that on 8.5.2010, he received information that one shyamlal residing at sodawas, district alwar, rajasthan used to purchase girls from delhi and sell them of at village sodawas and girwas and that he could be apprehended and the kidnapped the girls could be recovered if the said village was raided. a raiding party was thereupon organised. the raiding party reached village sodawas where the informer pointed out a house situated near a temple and also pointed out to the accused shyamlal who was present at the house. shyamlal was apprehended and interrogated. his disclosure statement ex.pw9/b was recorded. shyamlal took them to another house in the village where the accused veena and ashok were sitting outside a house. both of them were apprehended and interrogated. at their instance a girl aged about 3-4 years was recovered from the house. thereafter they reached village girwas along with shyamlal, veena and ashok and apprehended the accused mangal sitting outside a house. mangal was interrogated and his disclosure statement ex.pw9/m was recorded. he got recovered two (2) girls including the grand-daughter of the complainant in this case and the recovery memos of the aforesaid girls ex.pw9/n and pw9/o were prepared. pw10 head constable dilbagh singh has corroborated the deposition of pw9.7. pw16 shri sudesh kumar is the metropolitan magistrate who recorded the statement of the kidnapped girl. pw17 rishi kant singh of the nigam pratibha vikas vidhyalaya, sultanpuri produced the admission and withdrawal register of the school in respect of the kidnapped girl and stated that as per the record of the school her date of birth was 26.1.1999.8. in their respective statements under section 313 cr.p.c., the appellants denied the allegations against them and pleaded not guilty.9. vide impugned judgement dated 29.1.2013, the accused bimla, mukesh and kartar were convicted under section 120b of ipc read with sections 366a/372 thereof whereas accused anita and kishore were convicted under section 120b read with section 368 of ipc. the appellant mangal was convicted under section 120b of ipc read with sections 368/373 thereof. accused shyamlal died during the trial. vide impugned order on sentence dated 31.1.2013, bimla, mukesh and kartar were sentenced to undergo ri for ten (10) years each and to pay fine of rs.15,000/- each or to undergo si for one (1) year in default under section 120b of ipc. they were awarded identical punishment under section 366a of ipc read with section 120b thereof. identical sentence was awarded to them under section 372 of ipc read with section 120b thereof. anita and kishore were sentenced to undergo ri for seven (7) years each and to pay fine of rs.10,000/- each or to undergo si for a period of nine (9) months in default under section 120b of ipc. identical sentence was awarded to them under section 368 of ipc read with section 120b thereof. the appellant mangal was sentenced to undergo ri for a period of ten (10) years and to pay fine of rs.15,000/- or to undergo si for one (1) year in default under section 120b of ipc. identical punishment was awarded to him under section 368 of ipc read with section 120b thereof and under section 373 of ipc read with section 120b thereof. being aggrieved from their conviction and sentence awarded to them, the appellants are before this court by way of present appeals.10. the learned counsel for the appellant bimla has assailed her conviction on the grounds that: a. she was not named in the fir lodged by pw-2 sunderwati on 23.04.2009 though according to pw-5, who claims to have seen the appellant bimla taking the prosecutrix with her, when her grandmother (pw-2) returned home at about 5.00 pm, she had narrated the incident to her. this was also admitted by pw2. b. bimla was at her home, even after 23.04.2009, as would be evident from the complaint ex.pw-13/d made against her, and it is wrongly alleged in the charge-sheet that she was absconding from the house during this period; c. the prosecutrix was not recovered from or at the instance of bimla; d. the statement of pw-5 was not recorded for about 03 months from the date the prosecutrix went missing, though pw-5 claims to have seen her going with the appellant bimla on 23.04.2009 and the complainant smt. sunderwati also claims to have come to know of it on the same day.11. in my view, the involvement of the appellant bimla in the kidnapping and wrongfully confining the prosecutrix stands established even if the testimony of pw-5 kumari sandhya is excluded from consideration. the discrepancies, pointed out by the learned defence counsel would, at best, show that neither sandhya saw the appellant bimla taking the prosecutrix with her on 23.04.2009 nor did she states so to pw-2 and that is why bimla was not named in the fir lodged by smt. sunderwati. but, the deposition of the prosecutrix which i see no reason to disbelieve, leaves no reasonable doubt about the involvement of the appellant bimla in her kidnapping and wrongfully confinement. it has come in her deposition that she was playing gitte (stones), when bimla asked her to accompany her to the shop of the doctor. the appellant bimla being a neighbour, a child of the age of the prosecutrix was not likely to suspect her motive behind asking her to accompany her (the appellant bimla) to the doctor. the children of such impressionable age are prone to believe persons who are known to them and, therefore, would anticipate no harm in accompanying them from one place to other. she would not even understand why she was being dressed up in a saree. the deposition of prosecutrix shows that the appellant bimla took her to the house of the appellants mukesh and kartar, where she was wrapped in a saree. thereafter, mukesh and kartar left in a car, whereas bimla took the prosecutrix clad in saree, in an auto-rickshaw and made her sit in the car of mukesh and kartar. in order to convince the child, she also sat in the same car with her. after they had covered some distance, the appellant bimla got down from the car on the pretext of fetching the clothes of the child and, thereafter mukesh and kartar took her to manesar. the act and conduct of the appellant bimla in taking the child to the house of mukesh and kartar, making her wear a saree, boarding the car of mukesh and kartar along with child and thereafter getting down from the car on the pretext of fetching the clothes of the child clearly shows that she had kidnapped the child who admittedly was a minor for the purpose of selling or letting her to hire with intent that she would be employed or used for such a purpose or knowing it to be likely that she would be employed or used for any unlawful purpose. her conduct in leaving the child with the appellants mukesh and kartar also proves that she had either sold or let the child to hire with the aforesaid intent or knowledge.12. the conduct of the appellants mukesh and kartar in admitting the child in their house and then taking her in their car in the company of the appellant bimla is a clear proof that they were party to the criminal conspiracy pursuant to which the child was kidnapped for the purpose of being sold or let to hire with intent that she would be employed or used for an unlawful purpose or knowing it to be likely that she would be employed or used for such a purpose. the appellants bimla, kartar and mukesh, therefore, have rightly been convicted under section 120b of ipc read with section 372 thereof. the deposition of the prosecutrix would show that the appellants mukesh and kartar left her with anita and kishor in manesar from where she was taken to village called girwas. there is no explanation from the appellants mukesh and kartar as to why they had taken the child to manesar in their car and then left her with the appellants anita and kishor. the intention and knowledge being state of mind cannot be proved by way of direct evidence and can only be inferred from the attending facts and circumstances. instead of giving any explanation for taking the child to manesar and leaving her with anita and kishor, the appellants mukesh and kartar chose to altogether deny having taken the child with them. in the absence of any explanation from them and considering the facts and circumstances of the case, it may safely be inferred that they had either sold or let the child to hire to the appellants anita and kishor with intent that she would be employed or used for an unlawful purpose or knowing it to be likely that she would be employed or used for any such purpose by anita and kishor. therefore, they also committed substantive offence punishable under section 372 of ipc.13. the deposition of the prosecutrix which i see no reason to disbelieve also shows that anita used to beat her up and thereafter, they left her in the house of accused shyam lal. though in the examination-in-chief, the prosecutrix stated that anita and kishor used to beat her up whereas in the cross-examination she stated that it was the sister of anita, who used to beat her up, the aforesaid discrepancy, considering the tender age of the child, would be trivial and have no impact on the charge against the appellant anita. the child has been emphatic in her deposition that the appellants mukesh and kartar had left her in the company of anita and kishor, who had taken her to village girwas, where anita or her sister used to beat her up. obviously, the child was also confined in the house of the appellant anita at girwas before she was left in the house of deceased shyam lal. anita has not told the court why she had received and then kept the child in her house and later left her in the house of deceased shyam lal. the appellant anita does not claim that she was related to the child or was otherwise known to her. it can, therefore, be safely inferred that she knew that the child had been kidnapped or abducted before she was brought to him. the appellant anita, therefore, committed offence punishable under section 368 of ipc by wrongfully confining the child in her house knowing that she had been kidnapped or abducted. she did not tell the court as to why she had left child in the house of shyam lal. the obvious inference, in the facts and circumstances of the case, would be that she had either sold or let the child to hire to shyam lal with the intent that she would be employed or used for an unlawful purpose or knowing it to be likely that she would be employed or used for such a purpose. therefore, her conviction under section 372 of ipc would be fully justified.14. the deposition of the kidnapped child corroborated by pw-9 si ravinder singh and pw-10 head constable dilbagh singh shows that the child was taken by deceased shyam lal and left with the appellant mangal. the child was recovered from the house of the appellant mangal in village girwas. the appellant mangal did not tell the court as to why and for what purpose he had taken the child from deceased shyam lal and had kept her in his house. the child recovered from her house was unknown to him and was brought by a person who was not even related to her. the obvious inference, therefore is that he had obtained possession of the child with intent that she would at any age be employed or used for any unlawful purpose or knowing it to be likely that she would at any age be employed or used for the aforesaid purpose. therefore, his conviction under section 373 of ipc is fully justified. since the appellant mangal also wrongfully confined the child knowing that she had been kidnapped or abducted, he has rightly been convicted under section 368 of ipc. the learned counsel for one of the appellants relied upon sannaia subba rao vs. ors. vs. state of a.p. 2008(10) scale. the facts of the above-referred case being altogether different, it would not apply to the present case, where the prosecutrix at the time she was kidnapped was aged only about nine years and was taken first to the house of the appellants mukesh and kartar, then to the appellant anita and kishor then to the house of deceased shyam lal and later to the house of mangal from where she was recovered by the police.15. as regards the appellant kishor, he was implicated only by the prosecutrix. a perusal of the record of the trial court would show that on 13.05.2011 when the prosecutrix was examined, the aforesaid appellant was not represented by any counsel. accordingly, the aforesaid witness was not cross-examined at all on behalf of the appellant kishor. a somewhat similar issue came up for my consideration in crl.a. no.64 of 2010 titled as “nav rattan vs. the state (nct of delhi), decided on 12.03.2014. in the above referred case, it was found that two material witnesses pw-12 asi jai kumar and pw-5 surender kumar were discharged without cross-examination on behalf of the appellant before this court as the counsel representing them was not present at the time the witnesses were examined. neither the cross-examination of the witnesses was deferred nor were they provided legal aid though an agency of the state. setting aside the conviction of the appellant and remanding the matter back to the trial court for recording cross-examination of the above-referred material witnesses, this court held that the appellant had been denied a fair opportunity to cross-examination of the said witnesses. in taking this view, this court relied upon the decision of supreme court in mohd. hussain @ julfikar ali vs. the state (govt. of nct) delhi 2012 (1) scale145 in mohd. hussain @ julfikar ali (supra), the evidence of 56 witnesses out of 65 witnesses examined by the prosecution including the eye-witnesses and the investigating officer were recorded by the trial court without providing a counsel to the appellant. none of the 56 witnesses had been cross-examined by the accused/appellant. thereafter, the trial court appointed a counsel to defend the appellant and the evidence of remaining witnesses was recorded in his presence, though he thought it fit not to cross-examine any of them. later, the counsel sought permission to examine one prosecution witness and when the permission was granted, she only performed the formality of cross-examining the said witness. in his appeal against conviction, the appellant contended before this court that the matter needed to be remanded back to the trial court for a fresh trial, since the accused did not have a fair trial inasmuch as on most of the hearings, when material witnesses were examined, he was unrepresented and the trial court did not bother to provide him legal aid at the state expense, thereby failing to discharge its duty of ensuring that the accused was defended properly and effectively, at all stages of the trial, either by his private counsel or in the absence of a private counsel by an experienced and responsible amicus curiae. the contention, however, was rejected by this court holding that the case before it was not a case where the accused did not have a fair trial. in taking this view, this court endorsed the view taken by the learned trial judge who had inter alia noted that the accused was initially represented by a counsel who did not appear on some dates and thereafter an amicus curiae was appointed for the accused though the said amicus curiae chose not to crossexamine some witnesses and the accused himself was not interested in crossexamining the witnesses. disagreeing with this court hon’ble mr. justice h.l. dattu who along with hon’ble mr. justice c.k. prasad constituted the bench inter alia observed as under:“17. ....the code of criminal procedure provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the cr.p.c. also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the state. howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. it was the duty of the court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. in the present case, not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. the court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law..... the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a counsel was a denial of due process of law. it is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of section 304 of code of criminal procedure.18. after carefully going through the entire records of the trial court, i am convinced that the appellant/accused was not provided the assistance of a counsel in a substantial and meaningful sense. to hold and decide otherwise, would simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to.19. .... the cr. p.c. ensures that an accused gets a fair trial. it is essential that the accused is given a reasonable opportunity to defend himself in the trial. he is also permitted to confront the witnesses and other evidence that the prosecution is relying upon. he is also allowed the assistance of a lawyer of his choice, and if he is unable to afford one, he is given a lawyer for his defence. the right to be defended by a learned counsel is a principal part of the right to fair trial. if these minimum safeguards are not provided to an accused; that itself is to an accused.....” though hon’ble mr. justice c.k. prasad did not agree with hon’ble mr. justice h.l. dattu in remanding the matter back to the trial court for fresh disposal and directed acquittal of the accused, there was no disagreement in the bench that the appellant having not been provided a counsel on the dates material witnesses were examined, had been denied a fair trial. the following view taken by hon’ble mr. justice c.k. prasad is pertinent in this regard:“29. while holding the appellant guilty the trial court has not only relied upon the evidence of the witnesses who have been crossexamined but also relied upon the evidence of witnesses who were not cross-examined. the fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. to arrive at the truth, its veracity should be judged and for that purpose cross- examination is an acid test. it tests the truthfulness of the statement made by a witness on oath in examination-in-chief. its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected. the appellant in the present case was denied this right only because he himself was not trained in law and not given the assistance of a lawyer to defend him. poverty also came in his way to engage a counsel of his choice.” ....“35. in my opinion, the right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trial. the right to be defended by a legal practitioner, flowing from article 22 (1) of the constitution has further been fortified by the introduction of the directive principles of state policy embodied in article 39 a of the constitution by the 42nd amendment act of 1976 and enactment of sub-section 1 of section 304 of the code of criminal procedure. legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the constitution and the code of criminal procedure but also by international covenants and human rights declarations. if an accused too poor to afford a lawyer is to go thorough the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just. the right to be heard in criminal trial would be inconsequential and of no avail if within itself it does not include right to be heard through counsel. one cannot lose sight of the fact that even intelligent and educated men, not trained in law, have more than often no skill in the science of law if charged with crime. such an accused not only lacks both the skill and knowledge adequately to prepare his defence but many a time loses his equilibrium in face of the charge. a guiding hand of counsel at every step in the proceeding is needed for fair trial. if it is true of men of intelligence, how much true is it of the ignorant and the illiterate or those of lower intellect! an accused without the lawyer faces the danger of conviction because he does not know how to establish his innocence.” 16. in the present case also, the learned trial judge, instead of discharging the prosecutrix without cross-examination on behalf of the appellant kishore, ought to have deferred her cross-examination and provided him a counsel at the state expense. the aforesaid omission on the part of the learned trial judge, resulted in denial of a fair opportunity to the appellant kishore to defend himself at a crucial stage of the trial.17. the impugned judgment and order on sentence, to the extent they pertained to the appellant kishor kumar, are hereby set aside and the matter is remanded back to the trial court for providing a counsel to him through delhi legal services authority and, thereafter, giving an opportunity to the said counsel to cross-examine the prosecutrix on behalf of the appellant kishor. after cross-examination of the prosecutrix on behalf of the appellant kishor, the learned trial court will pass a fresh order on merits qua the said appellant only, taking into consideration inter alia the cross examination of the aforesaid witness.18. for the reasons stated hereinabove, the appellants bimla, mukesh and kartar are convicted under section 120b of ipc read with section 372 thereof as well as for the substantive offence punishable under section 372 of ipc. the appellants mukesh and kartar are also convicted for the substantive offence punishable under section 372 of ipc for selling or let to hire the prosecutrix to the appellants anita and kishore with intent that she would be employed or used for an unlawful purpose or knowing that she was likely to be employed or used for such a purpose. the appellant anita is convicted under section 372 and 368 of ipc, whereas the appellant mangal is convicted under section 373 and 368 of ipc. the aforesaid appellants are acquitted of the rest of the charges. the appellant bimla is sentenced to undergo ri for five years and to pay fine of rs 5000/- or to undergo si for 30 days in default under section 120b read with section 372 thereof. identical punishment is awarded to her under section 372 of ipc. the appellants mukesh and kartar are sentenced to undergo ri for five years and to pay fine of rs 10,000/- each or to undergo si for two months in default under section 120b of upc read with section 372 thereof. identical punishment is awarded to them under section 372 of ipc. the appellant anita is sentenced to undergo ri for four years each and to pay fine of rs 5000/- each or to undergo si for one month each in default under section 372 and 368 of ipc. the appellant mangal is sentenced to undergo ri for five years under section 373 of ipc and ri for four years under section 368 of ipc. he shall also pay fine of rs.10,000/each or undergo si for two (2) months each in default under the aforesaid provisions. one copy of this order be sent to the concerned jail superintendent, who besides communicating the order to all the appellants, shall also produce the appellant kishor before the district & sessions judge, rohini courts who will assign the case to the concerned court and direct production of the appellant kishor before the said court on the same date. the court to which the case is so assigned, will ensure that the prosecutrix is recalled and cross-examined at the earliest possible and a fresh order is passed within three months of the appellant kishor being produced before him for the first time, in compliance of this order. april28 2014 b’nesh/bg v.k. jain, j.
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:

25. 04.2014 Date of Decision:

28. 04.2014 + CRL.A. 586/2013 KISHORE KUMAR & ANR. ..... Appellants Through: Mr. Vivek Sood, Adv. for appellant Kishor Kumar, Mr J.S. Kushwaha, Adv for Appellant Anita Versus STATE GOVT. OF NCT Through: + ..... Respondent Mr Feroz Khan Ghazi, APP for State CRL.A. 644/2013 BIMLA ..... Appellant Mr Azhar Qayum, Advocate Through: versus STATE (GOVT. OF NCT) OF DELHI Through: + ..... Respondent Mr Feroz Khan Ghazi, APP for State CRL.A. 651/2013 MUKESH Through: versus .... Appellant Counsel for the appellant. STATE + Through: ..... Respondent Mr Feroz Khan Ghazi, APP for State Through: ..... Appellant Mr Azhar Qayum, Advocate CRL.A. 835/2013 KARTAR versus STATE (GOVT. OF NCT) OF DELHI ..... Respondent Through: Mr Feroz Khan Ghazi, APP for State + CRL.A. 485/2014 MANGAL Through: versus ..... Appellant Mr Azhar Qayum, Advocate STATE Through: ..... Respondent Mr Feroz Khan Ghazi, APP for State CORAM: HON'BLE MR. JUSTICE V.K. JAIN JUDGEMENT V.K. JAIN, J.

On 23.4.2009, Smt. Sunderwati came to Police Station Sultanpuri and reported that her grand-daughter, aged about 9 years, had gone to play outside her house bearing No.A1/154, Sultanpuri, Delhi, after coming back from the school and had not returned home. She suspected that some unknown persons had kidnapped her grand-daughter. An FIR under Section 363 of IPC was registered on the basis of the aforesaid report and efforts were made to trace the child. The Investigating Officer came to know that the child was last seen with the appellant Bimla who was found missing from her house. On 17.7.2009, some residents of A-Block of Sultanpuri complained that Bimla and Mukesh had a hand in kidnapping of girls from the aforesaid locality. Section 365 of IPC was thereafter added in the FIR. On 28.7.2009, Bimla surrendered in the court.

2. On 9.5.2010, an information was received that ATS (West) had arrested Ashok @ Pappu, Shyamlal, Veena and Mangal who had confessed with respect to their involvement in the kidnapping and the kidnapped girl had been recovered from them. The statement of the missing girl was recorded before a Metropolitan Magistrate wherein she alleged that Bimla had taken her to Mukesh and Kartar and thereafter she was taken to Manesar and handed over to Kishore and Anita who had left her in Girwas. The case of the prosecution is that the girl child was handed over to Mangal for Rs.20,000/- by one Shyamlal who had paid Rs.15,000/- to Mukesh and Kartar.

3. After completion of investigation as many as seven (7) persons were chargesheeted under Sections 363/366A/365/368/372/373 of IPC read with Sections 34 and 120B thereof. The accused Bimla, Mukesh and Kartar were charged by the Court under Section 120B of IPC read with Sections 366A/367/372 thereof, Kishore and Anita were charged under Section 120B of IPC and under Section 368 of IPC read with Section 120B thereof whereas Shyamlal was charged under Section 120B of IPC read with Section 372 thereof. Mangal was charged under Section 120B read with Section 368 & 373 thereof. Since the accused persons pleaded not guilty, as many as eighteen (18) witnesses were examined by the prosecution. No witness, however, was examined in defence.

4. The kidnapped child aged about 9 years was examined as PW8 and she inter alia stated that on 23.4.2009 at about 1:00 p.m. while she was playing outside her house, Bimla came near her and asked her to accompany her to a doctor’s shop. She thereupon accompanied her. Bimla took her to the house of Mukesh and Kartar. From there, Mukesh and Kartar went away in a car whereas she was taken in an autorickshaw after Bimla had wrapped her in a saree. Bimla then made her sit in the car of Mukesh and Kartar and sat along with her. After covering some distance, Bimla, who was carrying a big bag in her hand, left saying that she was going to fetch her clothes. Mukesh and Kartar took her to Manesar where they left her with Anita and Kishore, who took her to Village Girwas. In the said village Anita and Kishore used to beat her up and thereafter they left her at the house of Shyamlal, who, in turn, left her at the house of Mangal. She further stated that the aforesaid persons used to beat her and that the police raided the aforesaid place and rescued three (3) girls including her. She identified the accused persons who were present in the Court at the time she was examined.

5. PW5 Sandhya is the elder sister of PW8. She inter alia stated that on 23.4.2009, PW8 was playing outside the house and she (the witness) could see her since the curtain was half open. She claimed that Bimla asked PW8 to accompany her, whereupon she left with her, despite her (witness) asking PW8 to stop. According to the witness after about 4-5 hours she met Bimla and enquired about her sister. Bimla, however, abused her and threatened to give her a beating. She also identified the accused Bimla. PW2 Smt. Sunderwati is the complainant in this case. She inter alia stated that when Sandhya told her that PW8 had been taken away by Bimla she inquired from her but Bimla threatened her as well as her granddaughter and thereafter leaving the locality she started residing elsewhere. She also stated that she had seen Bimla and Mukesh coming in the locality, several times.

6. PW9 S.I. Naveen Kumar inter alia stated that on 8.5.2010, he received information that one Shyamlal residing at Sodawas, District Alwar, Rajasthan used to purchase girls from Delhi and sell them of at Village Sodawas and Girwas and that he could be apprehended and the kidnapped the girls could be recovered if the said Village was raided. A raiding party was thereupon organised. The raiding party reached Village Sodawas where the informer pointed out a house situated near a temple and also pointed out to the accused Shyamlal who was present at the house. Shyamlal was apprehended and interrogated. His disclosure statement Ex.PW9/B was recorded. Shyamlal took them to another house in the village where the accused Veena and Ashok were sitting outside a house. Both of them were apprehended and interrogated. At their instance a girl aged about 3-4 years was recovered from the house. Thereafter they reached Village Girwas along with Shyamlal, Veena and Ashok and apprehended the accused Mangal sitting outside a house. Mangal was interrogated and his disclosure statement Ex.PW9/M was recorded. He got recovered two (2) girls including the grand-daughter of the complainant in this case and the recovery memos of the aforesaid girls Ex.PW9/N and PW9/O were prepared. PW10 Head Constable Dilbagh Singh has corroborated the deposition of PW9.

7. PW16 Shri Sudesh Kumar is the Metropolitan Magistrate who recorded the statement of the kidnapped girl. PW17 Rishi Kant Singh of the Nigam Pratibha Vikas Vidhyalaya, Sultanpuri produced the admission and withdrawal register of the school in respect of the kidnapped girl and stated that as per the record of the school her date of birth was 26.1.1999.

8. In their respective statements under Section 313 Cr.P.C., the appellants denied the allegations against them and pleaded not guilty.

9. Vide impugned judgement dated 29.1.2013, the accused Bimla, Mukesh and Kartar were convicted under Section 120B of IPC read with Sections 366A/372 thereof whereas accused Anita and Kishore were convicted under Section 120B read with Section 368 of IPC. The appellant Mangal was convicted under Section 120B of IPC read with Sections 368/373 thereof. Accused Shyamlal died during the trial. Vide impugned Order on Sentence dated 31.1.2013, Bimla, Mukesh and Kartar were sentenced to undergo RI for ten (10) years each and to pay fine of Rs.15,000/- each or to undergo SI for one (1) year in default under Section 120B of IPC. They were awarded identical punishment under Section 366A of IPC read with Section 120B thereof. Identical sentence was awarded to them under Section 372 of IPC read with Section 120B thereof. Anita and Kishore were sentenced to undergo RI for seven (7) years each and to pay fine of Rs.10,000/- each or to undergo SI for a period of nine (9) months in default under Section 120B of IPC. Identical sentence was awarded to them under Section 368 of IPC read with Section 120B thereof. The appellant Mangal was sentenced to undergo RI for a period of ten (10) years and to pay fine of Rs.15,000/- or to undergo SI for one (1) year in default under Section 120B of IPC. Identical punishment was awarded to him under Section 368 of IPC read with Section 120B thereof and under Section 373 of IPC read with Section 120B thereof. Being aggrieved from their conviction and sentence awarded to them, the appellants are before this Court by way of present appeals.

10. The learned counsel for the appellant Bimla has assailed her conviction on the grounds that: a. she was not named in the FIR lodged by PW-2 Sunderwati on 23.04.2009 though according to PW-5, who claims to have seen the appellant Bimla taking the prosecutrix with her, when her grandmother (PW-2) returned home at about 5.00 PM, she had narrated the incident to her. This was also admitted by PW2. b. Bimla was at her home, even after 23.04.2009, as would be evident from the complaint Ex.PW-13/D made against her, and it is wrongly alleged in the charge-sheet that she was absconding from the house during this period; c. the prosecutrix was not recovered from or at the instance of Bimla; d. The statement of PW-5 was not recorded for about 03 months from the date the prosecutrix went missing, though PW-5 claims to have seen her going with the appellant Bimla on 23.04.2009 and the complainant Smt. Sunderwati also claims to have come to know of it on the same day.

11. In my view, the involvement of the appellant Bimla in the kidnapping and wrongfully confining the prosecutrix stands established even if the testimony of PW-5 Kumari Sandhya is excluded from consideration. The discrepancies, pointed out by the learned defence counsel would, at best, show that neither Sandhya saw the appellant Bimla taking the prosecutrix with her on 23.04.2009 nor did she states so to PW-2 and that is why Bimla was not named in the FIR lodged by Smt. Sunderwati. But, the deposition of the prosecutrix which I see no reason to disbelieve, leaves no reasonable doubt about the involvement of the appellant Bimla in her kidnapping and wrongfully confinement. It has come in her deposition that she was playing gitte (stones), when Bimla asked her to accompany her to the shop of the doctor. The appellant Bimla being a neighbour, a child of the age of the prosecutrix was not likely to suspect her motive behind asking her to accompany her (the appellant Bimla) to the doctor. The children of such impressionable age are prone to believe persons who are known to them and, therefore, would anticipate no harm in accompanying them from one place to other. She would not even understand why she was being dressed up in a saree. The deposition of prosecutrix shows that the appellant Bimla took her to the house of the appellants Mukesh and Kartar, where she was wrapped in a saree. Thereafter, Mukesh and Kartar left in a car, whereas Bimla took the prosecutrix clad in saree, in an auto-rickshaw and made her sit in the car of Mukesh and Kartar. In order to convince the child, she also sat in the same car with her. After they had covered some distance, the appellant Bimla got down from the car on the pretext of fetching the clothes of the child and, thereafter Mukesh and Kartar took her to Manesar. The act and conduct of the appellant Bimla in taking the child to the house of Mukesh and Kartar, making her wear a saree, boarding the car of Mukesh and Kartar along with child and thereafter getting down from the car on the pretext of fetching the clothes of the child clearly shows that she had kidnapped the child who admittedly was a minor for the purpose of selling or letting her to hire with intent that she would be employed or used for such a purpose or knowing it to be likely that she would be employed or used for any unlawful purpose. Her conduct in leaving the child with the appellants Mukesh and Kartar also proves that she had either sold or let the child to hire with the aforesaid intent or knowledge.

12. The conduct of the appellants Mukesh and Kartar in admitting the child in their house and then taking her in their car in the company of the appellant Bimla is a clear proof that they were party to the criminal conspiracy pursuant to which the child was kidnapped for the purpose of being sold or let to hire with intent that she would be employed or used for an unlawful purpose or knowing it to be likely that she would be employed or used for such a purpose. The appellants Bimla, Kartar and Mukesh, therefore, have rightly been convicted under Section 120B of IPC read with Section 372 thereof. The deposition of the prosecutrix would show that the appellants Mukesh and Kartar left her with Anita and Kishor in Manesar from where she was taken to village called Girwas. There is no explanation from the appellants Mukesh and Kartar as to why they had taken the child to Manesar in their car and then left her with the appellants Anita and Kishor. The intention and knowledge being state of mind cannot be proved by way of direct evidence and can only be inferred from the attending facts and circumstances. Instead of giving any explanation for taking the child to Manesar and leaving her with Anita and Kishor, the appellants Mukesh and Kartar chose to altogether deny having taken the child with them. In the absence of any explanation from them and considering the facts and circumstances of the case, it may safely be inferred that they had either sold or let the child to hire to the appellants Anita and Kishor with intent that she would be employed or used for an unlawful purpose or knowing it to be likely that she would be employed or used for any such purpose by Anita and Kishor. Therefore, they also committed substantive offence punishable under Section 372 of IPC.

13. The deposition of the prosecutrix which I see no reason to disbelieve also shows that Anita used to beat her up and thereafter, they left her in the house of accused Shyam Lal. Though in the examination-in-chief, the prosecutrix stated that Anita and Kishor used to beat her up whereas in the cross-examination she stated that it was the sister of Anita, who used to beat her up, the aforesaid discrepancy, considering the tender age of the child, would be trivial and have no impact on the charge against the appellant Anita. The child has been emphatic in her deposition that the appellants Mukesh and Kartar had left her in the company of Anita and Kishor, who had taken her to village Girwas, where Anita or her sister used to beat her up. Obviously, the child was also confined in the house of the appellant Anita at Girwas before she was left in the house of deceased Shyam Lal. Anita has not told the Court why she had received and then kept the child in her house and later left her in the house of deceased Shyam Lal. The appellant Anita does not claim that she was related to the child or was otherwise known to her. It can, therefore, be safely inferred that she knew that the child had been kidnapped or abducted before she was brought to him. The appellant Anita, therefore, committed offence punishable under Section 368 of IPC by wrongfully confining the child in her house knowing that she had been kidnapped or abducted. She did not tell the Court as to why she had left child in the house of Shyam Lal. The obvious inference, in the facts and circumstances of the case, would be that she had either sold or let the child to hire to Shyam Lal with the intent that she would be employed or used for an unlawful purpose or knowing it to be likely that she would be employed or used for such a purpose. Therefore, her conviction under Section 372 of IPC would be fully justified.

14. The deposition of the kidnapped child corroborated by PW-9 SI Ravinder Singh and PW-10 Head Constable Dilbagh Singh shows that the child was taken by deceased Shyam Lal and left with the appellant Mangal. The child was recovered from the house of the appellant Mangal in village Girwas. The appellant Mangal did not tell the Court as to why and for what purpose he had taken the child from deceased Shyam Lal and had kept her in his house. The child recovered from her house was unknown to him and was brought by a person who was not even related to her. The obvious inference, therefore is that he had obtained possession of the child with intent that she would at any age be employed or used for any unlawful purpose or knowing it to be likely that she would at any age be employed or used for the aforesaid purpose. Therefore, his conviction under Section 373 of IPC is fully justified. Since the appellant Mangal also wrongfully confined the child knowing that she had been kidnapped or abducted, he has rightly been convicted under Section 368 of IPC. The learned counsel for one of the appellants relied upon Sannaia Subba Rao vs. Ors. vs. State of A.P. 2008(10) SCALE. The facts of the above-referred case being altogether different, it would not apply to the present case, where the prosecutrix at the time she was kidnapped was aged only about nine years and was taken first to the house of the appellants Mukesh and Kartar, then to the appellant Anita and Kishor then to the house of deceased Shyam Lal and later to the house of Mangal from where she was recovered by the police.

15. As regards the appellant Kishor, he was implicated only by the prosecutrix. A perusal of the record of the Trial Court would show that on 13.05.2011 when the prosecutrix was examined, the aforesaid appellant was not represented by any counsel. Accordingly, the aforesaid witness was not cross-examined at all on behalf of the appellant Kishor. A somewhat similar issue came up for my consideration in Crl.A. No.64 of 2010 titled as “Nav Rattan vs. The State (NCT of Delhi), decided on 12.03.2014. In the above referred case, it was found that two material witnesses PW-12 ASI Jai Kumar and PW-5 Surender Kumar were discharged without cross-examination on behalf of the appellant before this Court as the counsel representing them was not present at the time the witnesses were examined. Neither the cross-examination of the witnesses was deferred nor were they provided legal aid though an agency of the State. Setting aside the conviction of the appellant and remanding the matter back to the Trial Court for recording cross-examination of the above-referred material witnesses, this Court held that the appellant had been denied a fair opportunity to cross-examination of the said witnesses. In taking this view, this Court relied upon the decision of Supreme Court in Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi 2012 (1) SCALE145 In Mohd. Hussain @ Julfikar Ali (supra), the evidence of 56 witnesses out of 65 witnesses examined by the prosecution including the eye-witnesses and the Investigating Officer were recorded by the trial court without providing a counsel to the appellant. None of the 56 witnesses had been cross-examined by the accused/appellant. Thereafter, the trial court appointed a counsel to defend the appellant and the evidence of remaining witnesses was recorded in his presence, though he thought it fit not to cross-examine any of them. Later, the counsel sought permission to examine one prosecution witness and when the permission was granted, she only performed the formality of cross-examining the said witness. In his appeal against conviction, the appellant contended before this Court that the matter needed to be remanded back to the trial court for a fresh trial, since the accused did not have a fair trial inasmuch as on most of the hearings, when material witnesses were examined, he was unrepresented and the trial court did not bother to provide him legal aid at the State expense, thereby failing to discharge its duty of ensuring that the accused was defended properly and effectively, at all stages of the trial, either by his private counsel or in the absence of a private counsel by an experienced and responsible amicus curiae. The contention, however, was rejected by this Court holding that the case before it was not a case where the accused did not have a fair trial. In taking this view, this Court endorsed the view taken by the learned trial Judge who had inter alia noted that the accused was initially represented by a counsel who did not appear on some dates and thereafter an amicus curiae was appointed for the accused though the said amicus curiae chose not to crossexamine some witnesses and the accused himself was not interested in crossexamining the witnesses. Disagreeing with this Court Hon’ble Mr. Justice H.L. Dattu who along with Hon’ble Mr. Justice C.K. Prasad constituted the Bench inter alia observed as under:

“17. ....The Code of Criminal Procedure provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the Cr.P.C. also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. In the present case, not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The Court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law..... The necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a counsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of Code of Criminal Procedure.

18. After carefully going through the entire records of the trial court, I am convinced that the appellant/accused was not provided the assistance of a counsel in a substantial and meaningful sense. To hold and decide otherwise, would simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to.

19. .... The Cr. P.C. ensures that an accused gets a fair trial. It is essential that the accused is given a reasonable opportunity to defend himself in the trial. He is also permitted to confront the witnesses and other evidence that the prosecution is relying upon. He is also allowed the assistance of a lawyer of his choice, and if he is unable to afford one, he is given a lawyer for his defence. The right to be defended by a learned counsel is a principal part of the right to fair trial. If these minimum safeguards are not provided to an accused; that itself is to an accused.....”

Though Hon’ble Mr. Justice C.K. Prasad did not agree with Hon’ble Mr. Justice H.L. Dattu in remanding the matter back to the trial court for fresh disposal and directed acquittal of the accused, there was no disagreement in the Bench that the appellant having not been provided a counsel on the dates material witnesses were examined, had been denied a fair trial. The following view taken by Hon’ble Mr. Justice C.K. Prasad is pertinent in this regard:

“29. While holding the appellant guilty the trial court has not only relied upon the evidence of the witnesses who have been crossexamined but also relied upon the evidence of witnesses who were not cross-examined. The fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross- examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected. The appellant in the present case was denied this right only because he himself was not trained in law and not given the assistance of a lawyer to defend him. Poverty also came in his way to engage a counsel of his choice.”

....

“35. In my opinion, the right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trial. The right to be defended by a legal practitioner, flowing from Article 22 (1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 and enactment of sub-section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations. If an accused too poor to afford a lawyer is to go thorough the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just. The right to be heard in criminal trial would be inconsequential and of no avail if within itself it does not include right to be heard through counsel. One cannot lose sight of the fact that even intelligent and educated men, not trained in law, have more than often no skill in the science of law if charged with crime. Such an accused not only lacks both the skill and knowledge adequately to prepare his defence but many a time loses his equilibrium in face of the charge. A guiding hand of counsel at every step in the proceeding is needed for fair trial. If it is true of men of intelligence, how much true is it of the ignorant and the illiterate or those of lower intellect! An accused without the lawyer faces the danger of conviction because he does not know how to establish his innocence.”

16. In the present case also, the learned Trial Judge, instead of discharging the prosecutrix without cross-examination on behalf of the appellant Kishore, ought to have deferred her cross-examination and provided him a counsel at the State expense. The aforesaid omission on the part of the learned Trial Judge, resulted in denial of a fair opportunity to the appellant Kishore to defend himself at a crucial stage of the trial.

17. The impugned judgment and Order on Sentence, to the extent they pertained to the appellant Kishor Kumar, are hereby set aside and the matter is remanded back to the Trial Court for providing a counsel to him through Delhi Legal Services Authority and, thereafter, giving an opportunity to the said counsel to cross-examine the prosecutrix on behalf of the appellant Kishor. After cross-examination of the prosecutrix on behalf of the appellant Kishor, the learned Trial Court will pass a fresh order on merits qua the said appellant only, taking into consideration inter alia the cross examination of the aforesaid witness.

18. For the reasons stated hereinabove, the appellants Bimla, Mukesh and Kartar are convicted under Section 120B of IPC read with Section 372 thereof as well as for the substantive offence punishable under Section 372 of IPC. The appellants Mukesh and Kartar are also convicted for the substantive offence punishable under Section 372 of IPC for selling or let to hire the prosecutrix to the appellants Anita and Kishore with intent that she would be employed or used for an unlawful purpose or knowing that she was likely to be employed or used for such a purpose. The appellant Anita is convicted under Section 372 and 368 of IPC, whereas the appellant Mangal is convicted under Section 373 and 368 of IPC. The aforesaid appellants are acquitted of the rest of the charges. The appellant Bimla is sentenced to undergo RI for five years and to pay fine of Rs 5000/- or to undergo SI for 30 days in default under Section 120B read with Section 372 thereof. Identical punishment is awarded to her under Section 372 of IPC. The appellants Mukesh and Kartar are sentenced to undergo RI for five years and to pay fine of Rs 10,000/- each or to undergo SI for two months in default under Section 120B of UPC read with Section 372 thereof. Identical punishment is awarded to them under Section 372 of IPC. The appellant Anita is sentenced to undergo RI for four years each and to pay fine of Rs 5000/- each or to undergo SI for one month each in default under Section 372 and 368 of IPC. The appellant Mangal is sentenced to undergo RI for five years under Section 373 of IPC and RI for four years under Section 368 of IPC. He shall also pay fine of Rs.10,000/each or undergo SI for two (2) months each in default under the aforesaid provisions. One copy of this order be sent to the concerned Jail Superintendent, who besides communicating the order to all the appellants, shall also produce the appellant Kishor before the District & Sessions Judge, Rohini Courts who will assign the case to the concerned Court and direct production of the appellant Kishor before the said Court on the same date. The Court to which the case is so assigned, will ensure that the prosecutrix is recalled and cross-examined at the earliest possible and a fresh order is passed within three months of the appellant Kishor being produced before him for the first time, in compliance of this order. APRIL28 2014 b’nesh/BG V.K. JAIN, J.