Adarsh Shukla vs State of Uttaranachal

Prafulla C. Pant, J.—This appeal, preferred u/s 373 of Code of Criminal Procedure, 1973 (for short, Code of Criminal Procedure), is directed against the judgment and order dated 19.2.2005 passed by the Additional Sessions Judge/Fast Track Court, Kashipur, District Udham Singh Nagar, whereby the said court has convicted accused Appellant Adarsh Shukla u/s 364A, 302 and 201 of Indian Penal Code, 1860 (for short, IPC). The convict (Appellant) has been sentenced to imprisonment for life and directed to pay fine of Rs. 5,000/- u/s 364A I.P.C, imprisonment for life and directed to pay fine of Rs. 5,000/- u/s 302 IPC and rigorous imprisonment for a period of 7 years and directed to pay fine of Rs. 3,000/- u/s 201 IPC.

Heard learned amicus curiae for the Appellant, Additional Government Advocate for the State and learned Counsel for the complainant, and perused the lower court record.

Prosecution story, in brief, is that PW 1 Suresh Kumar had two sons. His elder son Subham @ Lavi (deceased) was aged 11 years. On 20.7.2003 at about 7:00 P.M., while playing in a park, the child went missing. The parents of the child made enquiries from other children, who had gone to park, and they were told that a boy who disclosed his name Karam Chand of Moradabad used to come to play in the park for last 3-4 days. PW 1 Suresh Kumar recollected that about some days before 20.7.2003, his son Subham @ Lavi has brought with him a boy and requested his father to employ him. But the father (PW 1 Suresh Kumar) gave meals to the boy and expressed inability to provide job. After making enquiries from the other children, who used to play in the park, PW 1 Suresh Kumar suspected that his son has been kidnapped by Karam Chand (later it was disclosed that his real name was Adarsh Shukla - Appellant). PW1 Suresh Kumar gave a First Information Report (Exb. A-1) at Police Station Kashipur at about 11:15 P.M. on the very day (20.7.2003). On the basis of the said report, Crime No. 645 of 2003 was registered relating to offence punishable u/s 364A IPC against Karam Chand. For two days, the parents of the child made search for the boy. On 22.7.2003, PW 1 Suresh Kumar received a local phone call on his phone No. 273781, in which the caller demanded Rs. 2.5 lakhs as a ransom to release the child else he would be killed. Again, on 23.7.2003, he (PW 1 Suresh Kumar) received phone calls twice with the same threat, and in which it was demanded that amount be arranged at the earliest. PW 1 Suresh Kumar asked the caller to allow him to talk to his son but the caller declined to oblige, and simply told that the child was fine. PW 1 Suresh Kumar made all these informations available to the Investigating Officer PW 7 Sr. Sub-Inspector Suresh Chandra Joshi. PW 7 Suresh Chandra Joshi alerted the persons running local Public Call Offices (PC Os), and asked them to inform to the police if anyone around 18-20 years makes any suspicious calls from their PC Os. In the intervening night of 24-25/07/2003, PW 1 Suresh Kumar along with PW 2 Anuj Agrawal (a neighbour) and others was making search of the kidnapped child in their Feat car. Police was also making search for the boy. At about midnight (of the intervening night of 24-25/7/2003), accused/Appellant Adarsh Shukla alias Karam Chand was caught near PCO of PW 4 Rajesh, by the police. He disclosed his identity in interrogation as Karam Chand @ Aditi @ Aditya@ Adarsh Shukla. PW 1 Suresh Kumar also reached there and identified the boy arrested near the PCO as the one, who had come with the child (kidnapped) in his house, and requested to get employed. PW 3 Neeraj Jain had last seen the accused with the kidnapped child when he took with him. PW 3 Neeraj Jain disclosed that when he asked Subham @ Lavi as to where he was going, he told that Karam Chand is taking him to feed blackberry. On interrogation, accused Karam Chand @ Aditi @ Aditya @ Adharsh Shukla confessed to the police and the witnesses PW1 Suresh Kumar and PW 2 Anuj Agrwal that the child has been killed by him on 20.7.2003 by strangulating him. On the pointing out of the accused, dead body of Subham @ Lavi was recovered from the bushes near railway station, where he had dumped the body of the boy in a sack. A recovery memorandum (Exb. A-2) was prepared by the police in the wee hours of 25.7.2003 in the presence of PW1 Suresh Kumar, PW2 Anuj Agrawal and others. Inquest Report (Exb. A-3), Police Form No. 13 (Exb. A-10), and other necessary papers were also prepared and dead body was sent for postmortem examination. PW 6 Dr. J.K. Goyal conducted postmortem examination on 25.7.2003 at about 9:45 AM and recorded ligature mark around the neck of the deceased, in the Autopsy Report (Exb. A-11). The Medical Officer opined that the deceased has died of asphyxia as a result of strangulation. The sandals were also recovered on pointing out of the accused Adarsh Shukla (@Karam Chand ), and after completion of investigation, Charge Sheet (Exb. A-15) was filed against the accused for his trial under Sections 364A, 302 and 201 IPC.

Additional Chief Judicial Magistrate, Kashipur, on receipt of the charge sheet on 21.8.2003, after giving necessary copies to the accused, committed the case to the court of sessions for trial. On 4.11.2003, Sri Ravi Kumar Saxena, Advocate was appointed amicus curiae to assist the court on behalf of accused Adarsh Shukka @ Aditya @ Karam Chand during trial. After hearing, charge of offences punishable under Sections 364A, 302 and 201 IPC was framed against accused Adarsh Shukla @ Aditya @Aditi @ Karam Chand @ Omprakash, to which the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW 1 Suresh Kumar (informant), PW 2 Anuj Agrawal (in whose presence the dead body of the child was recovered on pointing out of the accused), PW 3 Neeraj Jain (who had last seen the child going with the accused), PW 4 Rajesh (from whose PCO accused made calls for ransom), PW 5 Constable Clerk Gopal Sharma (who prepared the Check Report of First Information Report), PW 6 Dr. J.K. Goyal (who conducted postmortem examination on dead body of the child) and PW 7 Sr. Sub-Inspector Suresh Chandra Joshi (who investigated the crime). All the witnesses were cross-examined at length on behalf of the Appellant.

The oral and documentary evidence was put to the accused u/s 313 Code of Criminal Procedure ., in reply to which he pleaded his innocence. However, no evidence in defence was adduced. The trial court, after hearing the parties, found that the prosecution has successfully proved the charge of offences punishable under Sections 364A, 302 and 201 IPC. After hearing on sentence, the convict Adarsh Shukla was sentenced to imprisonment for life and directed to pay fine of Rs. 5,000/- u/s 364A I.P.C, imprisonment for life and directed to pay fine of Rs. 5,000/- u/s 302 IPC and rigorous imprisonment for a period of 7 years and directed to pay fine of Rs. 3,000/- u/s 201 IPC. Aggrieved by the said judgment and order dated 19.2.2005, passed by the Additional Sessions Judge/Fast Track Court, Kashipur, in Sessions Trial No. 230 of 2003, this appeal has been preferred by the convict.

Before further discussion, we think it just and proper to mention the ante mortem injury recorded by PW6 Dr. J. K. Goyal, who conducted post mortem examination on dead body of Shubham @ Lavi on 25.3.2003 at 9.45 AM. The ante mortem injury is being reproduced below, from Autopsy Report (Exb. A-11):

One ligature mark 12cm X 4cm brownish in colour is present on front and sides of neck low down below thyroid situated 6 cm below the chin and 7cm from right ear. On dissection the sub-cutaneous tissue under the mark is ecchymosed and underlying hyoid bone is fractured.

The Medical Officer opined that deceased had died due to asphyxia as a result of strangulation. PW6 Dr. J. K. Goyal further told the court that the deceased might have been strangulated on 20.07.2003 at 8.00 AM. The medical evidence on record establishes that Shubham @ Lavi died homicidal death. Now, we have to examine, whether the deceased was kidnapped by accused Adarsh Shukla (@Karam Chand) for ransom and committed his murder. We have also to examine, whether to cause disappearance of the evidence, the accused concealed the dead body of the deceased boy, by throwing it in bushes near railway station in a sack.

PW1 Suresh Kumar is the father of the deceased. He has stated that in front of his house, there is a Park in which the children play. He further told that on 20.07.2003, his son Shubham @ Lavi, who had gone to play in the Park, did not come back. The witness has further narrated that some days before 20.07.2003, his son (Shubham @ Lavi) had come with a boy, for whom he requested him to get employed. PW1 Suresh Kumar further states that he told the boy, who came with his son that he had no job to provide him, but fed him on that day. The witness further narrates that thereafter the boy (accused) used to come to the park. PW1 Suresh Kumar has stated on 20.07.2003, when his son did not return to home, he along with his wife made inquiries from the neighbours. He was told by Ruchi Jain wife of Neeraj Jain that Shubham @ Lavi was seen going with Karam Chand near LIC Building. At about 11.15 PM, PW1 Suresh Kumar gave First Information Report at Police Station, and continued to make search for the missing child. On 22.7.2003, he got a local phone call, and the caller demanded Rs. 2.5 Lakhs as ransom with the threat that if the amount was not paid, the child would be killed. PW1 Suresh Kumar further states that on 23.7.2007, he received two phone calls asking him to arrange the amount at the earliest. The witness told that he requested the caller to allow him to talk his son, but the caller told him that the child was fine. PW1 Suresh Kumar further told that on 24.7.2003, when he along with Anuj Agarwal, Jogendra Singh, Naresh Pokhariyal and others was coming back after searching the child, near Jaitpur Turn on Bajpur Road, he met the police party led by Station House Officer. Since after the search they were tired, according to the witness, they started taking tea at about midnight, and saw a boy coming towards PCO (run by PW4 Rajesh). PW1 Suresh Kumar states that he was the same man, who had come to his house with his son. PW1 Suresh Kumar further told that the police caught hold of the boy and started interrogating him. He disclosed his real identity and confessed that he has killed the kidnapped child by strangulating him on 20.7.2003. The witness further states that thereafter on his pointing out, in the wee hours of 25.7.2003, he got recovered dead body of Shubham @ Lavi, lying in the bushes near the railway station, in a sack. The witness has proved that Recovery Memo (Exb. A-2) was prepared by the police in his presence and in the presence of the other witnesses.

PW2 Anuj Agarwal has corroborated the prosecution story that he was with PW1 Suresh Kumar on 24.7.2003 in making search for the kidnapped son of the informant. The witness has narrated the entire story of recovery of the dead body of Shubham @ Lavi on pointing out of accused Adarsh Shukla, as narrated by PW1 Suresh Kumar. This witness has also proved that after the recovery of dead body, Inquest Report (Exb. A-3) was prepared by the police in his presence. From the statement of PW1 Suresh Kumar and PW2 Anuj Agarwal, it is proved beyond reasonable doubt that the recovery of the dead body of kidnapped child was made on pointing out of accused Adarsh Shukla (@ Karam Chand).

PW3 Neeraj Jain has adduced the evidence that he had last seen Shubham @ Lavi going with accused Karam Chand on 20.7.2003 at about 7.00 PM near LIC Building. This witness is husband of Ruchi Jain, who had told the informant, when he was making search at about 8.00 PM regarding his missing son. House of PW3 Neeraj Jain, as stated by him, is situated in front of the park. This witness has stated that he knew Karam Chand as he saw him coming to the park daily in July, 2003 playing with other children. This witness has told that when he saw Subham @ Lavi going with Karam Chand, he asked Shubham @ Lavi as to where he was going. He (Subham @ Lavi) told that Karam Chand is taking him to feed Blackberry. As such, the prosecution has adduced through this witness, evidence of last seen of the kidnapped child, before he was murdered.

PW4 Rajesh is the witness, who runs a PCO with Telephone No. 272543. This witness has stated that on 22.7.2003, the accused (identified by him in the court) as the person who made call from his PCO. He has further told that on 23.7.2003 also, the same man made two telephone calls. PW4 Rajesh has stated that his PCO remains open 24 hours a day. This witness has also told that in the intervening night of 24-25/7/2003, near his PCO, the accused was caught by the police. He has also stated that the calls made by the accused were to the No. 273781 (belonging to Suresh Kumar, father of the kidnapped child). As Such, this witness has provided further link evidence relating to demand of ransom from the father of the kidnapped child.

Statement of PW7 Senior Sub-Inspector Suresh Chandra Joshi further corroborates the prosecution story relating to the recovery of dead body of child, recovery of the sandals, both on pointing out of accused Adarsh Shukla @ Karam Chand.

Having reassessed the entire evidence on record, we concur with the view taken by the trial court that prosecution has successfully proved charge of offences punishable under Sections 364A, 302 and 201 IPC.

Sri Mohd. Umar, learned amicus curiae for the Appellant submitted that accused was a juvenile and, as such, he has been wrongly tried by the sessions court. No such plea appers to have been taken before the trial court. We have examined the evidence on the point. The statement of accused/Appellant Adarsh Shukla recorded by the trial court u/s 313 Code of Criminal Procedure shows that the accused himself has disclosed his age as 20 years. The incident relates to 20.7.2003. As such, the age of the accused at the time of the incident appears to be 19 years. Though in the First Information Report, the informant has mentioned that a boy named Karam Chand aged 13-14 years used to come to play in the park, but said assessment of age gets superseded by the report of the Chief Medical Officer, Udham Singh Nager. Before the trial was concluded, it appears that accused Adarsh Shukla sent a letter from Jail, on the administrative side to the Supreme Court of India (copy 24 B in the lower court record), which was received in the PIL Cell on 12.10.2004. In said petition, accused/Appellant Adarsh Shukla had pleaded that the fact relating to his age be examined. It is nowhere stated in the application that he was minor. It further appears that the Inspector General (Jail) of Uttarakhand received copy of said letter from the Supreme Court for necessary action, on which a letter dated 27.12.2004 (copy paper No. 32B in the lower court record) was sent to Superintendent of Sub-Jail, Haldwani (where the accused was lodged) with the request that age of the detenue be determined. The Chief Medical Officer, Udham Singh Nagar appears to have examined the detenue, and on the basis of medical examination and X-ray reports, he opined that accused Adarsh Shukla is above 18 years (copy paper No. 35B in the lower court record). The said copy of the medical report was sent by the Jailor of Sub-Jail, Haldwani to Additional Sessions Judge/Fast Track Court, Kashipur with letter dated 9.2.2005 (copy paper No. 33 B of lower court record). Thereafter, the trial court delivered its judgment on 19.2.2005. Therefore, we do not find any substance in the argument advanced on behalf of the Appellant in this regard. It is pertinent to mention here that no application appears to have been moved by accused Adarsh Shukla before the trial court claiming juvenility, which would have made the trial court to refer the matter to Juvenile Board.

For the reasons as discussed above, the appeal is dismissed. Judgment and order dated 19.2.2005 passed by Additional Sessions Judge/Fast Track Court, Kashipur in Sessions Trial No. 230 of 2003 is affirmed.

Let a copy of this judgment be sent to the Superintendent of Jail concerned.