Delhi District Court
State vs . Ajay Etc. on 18 February, 2017
10
(Judgment) FIR No.524/14
PS : South Rohini
State Vs. Ajay etc.
IN THE COURT OF ADDL. SESSIONS JUDGE-II
(NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No.48/15
Unique Case ID: 02404RO192102015
State
Vs
1. Ajay Kumar Chaudhary
s/o. Sh. Amarnath Chaudhary
r/o. D-139, Omi Chrone II,
Greater NOIDA,
District Gautam Budh Nagar,
Uttar Pradesh
2. Mohit
s/o. Sh. Dharambir Singh
r/o. H.No.235, Awas Vikas IInd,
Anup Shahar Road,
District Bulandshahar,
Uttar Pradesh
FIR No. : 524/14
Police Station : South Rohini
Under Section : 395/365/342/34 IPC
Date of committal to Sessions Court : 10.07.2015
Date on which judgment reserved : 18.02.2017
Date on which judgment pronounced : 18.02.2017
JUDGMENT
1. This is a case under section 365/395/342/34 of Indian Penal Code, 1860 (IPC).
Page No.10 10 (Judgment) FIR No.524/14PS : South Rohini State Vs. Ajay etc.
2. Case of the prosecution is that on 02.10.2014, at about 11.45 a.m., opposite Raymonds showroom, near M2K, Sector-7, Rohini, Delhi, Ajay Kumar Chaudhary (the accused no.1) and Mohit (the accused no.2) alongwith their co-accused namely Jaivir Singh @ Bhati, Jitender Rawat, Lakhmi and Abhinav (all acquitted) abducted Gautam Kumar Gupta and committed dacoity of his mobile phone and purse. They withdrew Rs.11,000/- and Rs.25,000/- from the ATM of SBI Bank by using debit card of Gautam Kumar Gupta. They alongwith their co-accused wrongly confined Gautam Kumar Gupta in a house at Pari Chowk, Greater NOIDA, UP.
3. Charge under section 365/395/342/34 of Indian Penal Code, 1860 (IPC) was settled against the accused. The accused pleaded not guilty and claimed trial.
EVIDENCE
4. In order to discharge the onus, the prosecution has examined 11 witnesses.
PUBLIC WITNESSES
5. PW-3 Sanjeev Oberoi (the complainant) deposed that PW5 and PW6 used to deal in property business and worked with him. On 02.08.2014, in the morning PW6 called him and PW5 at Patel Nagar for going to Rohini, near M2K. Thereafter, they reached at Rohini, near M2K, in front of Raymond Showroom, Sector 7, Rohini. PW5 remained sitting in the car while he and PW6 came outside from the Ritz car and were standing in front of Raymond Showroom near the car. Meanwhile, two persons came there and started talking with PW6 and they told that some other persons were about to come. He was standing at some distance. Meanwhile, at about 11.00-11.30 am, one Swift Car bearing registration no. UP...7700 (complete number he did not remember) came from the side of Ayodhya Chowk and stopped near their Page No.10 10 (Judgment) FIR No.524/14 PS : South Rohini State Vs. Ajay etc. car. One person got down from the car and shook hand with PW6. He talked with PW6 for one or two minutes and went towards the Swift car while talking and made PW6 to sit in the car by putting his hand on his shoulder. They asked him to come at the police station. They followed them in the car and went to police station South Rohini but none from those persons was present there with PW6. He tried to call PW6 on his mobile phone but it was not reachable. They waited for 10-15 minutes in the police station and again called him but no response was there. Police officials made inquiry from him and they visited the spot again with the police. He was asked to give his statement regarding the incident. He made the statement Ex.PW6/A. Thereafter, PW5 received a phone call from PW6 on his mobile phone and PW6 asked him to reach at Pari Chowk, Greater Noida and told that there was some money transaction between PW6 and those persons who took him and he had to pay some money to the accused persons. The police officials left the police station with them for Greater Noida. The police officials were in their government vehicle and he along with PW5 went in Ritz car. When they reached half way, he received a call from the mobile of PW6 that the matter had been sorted out and they should go back and he would come of his own. Thereafter, PW6 came back and he was called in the police station by the police. Police made inquiries from PW6 and thereafter, they were relived from the police station. He deposed that he could not identify the person who took PW6 in his Swift car nor could he identify the persons sitting in the car as he did not notice him properly and he was talking on his mobile phone with someone. He also deposed that he had given his affidavit Ex.PW6/PX2 in the court of Ld. MM for recording of his statement in the court. As such, he turned hostile.
6. PW5 Ankur Jain deposed that he was the property dealer. He knew PW3 and PW6 and worked with them. On 02.08.2014, he along with PW3 and PW6 came at Rohini near M2K in a car make Ritz. He remained sitting in the car while PW3 and PW6 came outside the car and were standing in front of Raymond showroom near the car Page No.10 10 (Judgment) FIR No.524/14 PS : South Rohini State Vs. Ajay etc. at sector 7, Rohini. At about 10:30 or 10:45 AM one Swift car having its registration number UP-13-W-7700 came from Ayodhya chowk side and stopped near their car. Since he was sitting in the car and was talking on the mobile phone and the Swift car was parked behind their car, he could not see anything happening outside the car. He saw the Swift car going from there and he was informed by PW3 that they should go to the police station as some persons had taken PW6 in their car and they had asked them to reach at the police station. They followed them in the car and went to the police station South Rohini but none from those persons was present there with PW6. PW3 tried to call PW6 on his mobile phone but it was not reachable. They waited for 10-15 minutes in the police station and again called him but no response was there. Police officials made inquiry from them and they visited the spot again with the police. PW3 made the statement to the police. Thereafter, PW3 received a phone call from PW6 on his mobile phone and he asked him to reach at Pari Chowk, Greater Noida. The police officials left the police station with them for Greater Noida. The police officials were in their government vehicle and he along with PW3 went in Ritz car. When they reached half way, PW3 received a call from the mobile of PW6 that the matter had been sorted out and they should go back and he would come of his own. Thereafter, PW6 came back and he was called in the police station. Police made inquiries from PW6 and thereafter we were relived from police station. He failed to identify the person who took PW6 in his Swift car nor could he identify the persons sitting in the car. He deposed that the police never recorded his statement. He admitted that that he had given his affidavit in the court of Ld. MM for recording of his statement in the court i.e. Ex.PW7/PX2. As such, PW5 turned hostile.
7. PW6 Gautam Gupta (the victim) deposed that on 02.08.2014, he was called at Rohini by the accused Lakhmi (since acquitted) for some deal of a property situated at Karol Bagh. He along with PW3 and PW5 reached in front of M2K near Raymond showroom, sector 7, Rohini. The accused Lakhmi and the accused no. 2 came in the Swift car with 2-3 other persons. At that time, he was standing outside the car with Page No.10 10 (Judgment) FIR No.524/14 PS : South Rohini State Vs. Ajay etc. PW3 while PW5 was sitting in the car. Talks were going on between him and Lakhmi regarding the property and money transactions. They asked him to go along with them to the police station to settle the matter. He went with them in their Swift car. They did not take him to the police station and instead they took him to Greater Noida as during conversation it was decided to go to Greater Noida instead of going to police station. He told Lakhmi and the accused no. 2 that there was no deal of the property at Karol Bagh and he had not received Rs five lacs as earnest money, but they were not believing his version. On that day, his grandmother had also expired and he was repeatedly receiving calls from his home but they were not letting him go without getting the things clarified. Since he wanted to settle the matter at the earliest, he called PW5 to bring Rs five lacs and documents of the property. Thereafter, the accused Lakhmi and the accused no. 2 became normal towards him. During conversation, he tried to make the accused Lakhmi and the accused no.2 understood that his intension was bonafied and due to that reason he had called PW5 to bring Rs five lacs and documents of property. Accused no. 2 and Lakhmi convinced with his bonafide conduct and the matter was settled. Thereafter, he called PW5 and asked not to bring rupees five lacs and documents of property and informed that he was coming back from Greater Noida. But by that time, PW3 got the case registered due to misunderstanding and some network problem in mobile phone. His statement was recorded by the IO. His statement was also recorded by Ld. MM U/s 164 Cr. P.C Ex.PW6/A ( also as Ex.PW8/A). As such, PW6 also turned hostile.
POLICE WITNESSES
8. PW-4 HC Inder Singh relied upon the copy of DD No. 16-A dated 02.08.2014 Ex.PW2/A, copy of FIR Ex.PW2/B and endorsement on rukka Ex.PW2/C.
9. PW-1 Inspector Ghanshyam deposed that on 03.08.2014, he joined the investigation of the present case and he alongwith IO SI K.P. Singh, PW3, PW5, Page No.10 10 (Judgment) FIR No.524/14 PS : South Rohini State Vs. Ajay etc. Ct. Joginder and Ct. Suresh Kumar reached at Pari Chowk, Greater Noida as the accused persons had called PW3 there to hand over the custody of PW6 on fulfilling the amount of ransom. During the said period, the accused persons were in conversation with PW3 and had asked not to tell the anything to the police. But it appeared that while talking, the accused persons learnt that the police was with PW3 and PW5 as they asked them to follow their instructions. Due to fear of the accused persons, PW3 and PW5 made the police party to sit at Dhaba for having meal and they went from there on the pretext of purchasing food while the police personals were having meal at the said dhaba. After some time, PW5 made a telephonic call to them and told that they had given the amount of ransom to the accused persons and PW6 would be released by them and meet them at ITO. They reached at ITO where PW3, PW5 and PW6 met them. Thereafter, they came back to the police station.
10. PW-9 Ct. Satish Kumar deposed that on 07.08.2014, he joined the investigation in this case with IO ASI K.P. Singh and reached at house no.235, Awas Vikas Colony-II, Bulandshehar, UP. Maruti Swift car bearing no. UP-13W-7700 was found parked there outside the house with key. The said car was required in this case, hence, the same was taken into possession vide seizure memo Ex.PW9/A (already Ex.PW3/A). He identified the car Ex.PW9/P1.
11. PW-2 Ct. Pramod Kumar relied upon the seizure memo of vehicle Swift bearing registration no. UP-13W-7700 Ext.PW3/A. He also relied upon the arrest memos of the accused Jaibir Singh @ Bhati, Jitender Rawat and Abhinav Ex.PW2/X1, Ex.PW2/X2 and Ex.PW2/X3 and their disclosure statement Ex.PW2/X4, Ex.PW2/X5 and Ex.PW2/X6.
12. PW-11 HC Yashvir deposed that on 08.08.2014, SI K.P. Singh gave him a seizure memo dated 08.08.2014 regarding the seizure of vehicle bearing no. UP-13W-7700. He got the vehicle parked in the police station and made entry no. 774/14 in Register Page No.10 10 (Judgment) FIR No.524/14 PS : South Rohini State Vs. Ajay etc. no. 19 i.e. Ex.PW11/A (OSR). The said vehicle was released on superdari to Dharamvir Singh on 12.01.2015 and an endorsement to this effect was also made in Register no. 19.
13. PW-10 SI K.P. Singh deposed that on 02.08.2014, PW3 visited the PS North Rohini and got his statement recorded to him Ex.PW6/A. He made endorsement, prepared the rukka Ex.PW10/A and got the present case registered vide FIR Ex.PW2/B. He proved the certificate u/s 65-B Indian Evidence Act Ex.PW10/B. He prepared the site plan at the instance of PW3 Ex.PW10/C. On 02.08.2014, PW6 met at ITO Delhi and was brought to the police station. In the presence of the senior officials, statement of PW6 was recorded in which he disclosed about the name of six accused persons Jaivir Singh @ Bhati, Abhinav, Jitender Rawat, Lakhmi, Mohit and Ajay Choudhary and number of the Swift car, colour white number UP13W-7700 and told that he would later on gave his statement as he had to visit his native village because of the death of his grandmother. The aforesaid car was recovered from Bulandshehar UP vide seizure memo Ex.PW3/A. Accused Jaivir Singh @ Bhati, Abhinav, Jitender Rawat and Lakhmi were arrested in the present case (all the aforesaid accused were acquitted vide judgment dated 06.01.2015 passed by the Hon'ble Court of Dr. Kamini Lau, ASJ, Rohini Court). The accused no.1 and 2 were not traceable that time and their NBW were obtained. The application moved by PW6 to the senior officials was received at the police station i.e. Ex.PX1 to Ex.PX4. Statement of PW6 was recorded u/s 164 Cr.PC by the Ld. MM Sh. Shirish Aggarwal Ex.PX1. He proved the application for recording the statement of PW6 Ex.PX2 and application obtaining copy of the statement Ex.PX3 and the envelop containing the statement u/s 164 Cr.PC Ex.PX4. There was contradiction in the statement of PW6 in his statement u/s 161 Cr.PC and in the version narrated by him on the applications received through Dak and in the statement u/s 164 Cr.PC also, he alleged that he sat in the car of the accused persons for doing the money account settlement by visiting PS but later on by his consent, they all went to Pari Chowk, Greater Noida and failed Page No.10 10 (Judgment) FIR No.524/14 PS : South Rohini State Vs. Ajay etc. to communicate his friends for the same who got the present case registered. During the course of investigation, he recorded the statement of witnesses and collected the call detail record and other information of the mobile phones including phone no. 8860316820 Vodafone, 9560690789 Airtel. He prepared the charge sheet against the accused Jaivir Singh @ Bhati, Abhinav and Jitender Rawat and after the arrest of accused Lakhmi, supplementary charge sheet filed against him also (all the four aforesaid accused persons were acquitted). On 05.02.2015, both the accused were granted anticipatory bail by the Hon'ble Court. On 08.02.2015, both the accused were arrested vide arrest memo Ex.PW10/D and Ex.PW10/E respectively and were released on bail. Thereafter, supplementary charge sheet was filed against both the accused.
NODAL OFFICER
14. PW7 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile services, C-45, Okhla phase II, New Delhi-110 020 deposed that the mobile No. 8860316820 was issued in the name of Malhar Marketing Advance Solution Pvt. Ltd. (corporate number) and was used by Ms Sunita, office address B-165, Gali No. 9, Govindpuri Extension, Delhi-19 vide Customer Application Form (CAF) Ex.PW4/A (and now Ex. PW7/A). He proved the copy of PAN Card and electricity bill in support of office address Ex.PW4/B1 and Ex.PW4/B2 (and now Ex. PW7/B-1 and Ex. PW7/B-2), Call details from the period 01.08.2014 to 03.08.2014 Ex.PW4/C (running into five pages) (and now Ex. PW7/C), Cell ID chart Ex.PW4/D (running into 14 pages) (and now Ex. PW7/D) and Certificate U/s 65 B of Indian Evidence Act Ex.PW4/E (and now Ex. PW7/E).
15. PW-8 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd., 224, Okhla Phase III, New Delhi-110 020 deposed that the mobile No. 9560690789 was issued in the name of Ankur Jain, S/o Sh. Ashok Kumar, R/o T-95, Mohalla Bagh, Raoji Kishan Page No.10 10 (Judgment) FIR No.524/14 PS : South Rohini State Vs. Ajay etc. Ganj, New Delhi, vide Customer Application Form (CAF) Ex.PW5/A(OSR) (and now Ex. PW8/A). He proved the copy of Voter ID Card in support of residence proof Ex.PW5/B (and now Ex. PW8/B), Call details from the period 01.08.2014 to 03.08.2014 Ex.PW5/C (running into six pages) (and now Ex. PW8/C), Cell ID chart Ex.PW5/D (running into three pages) (and now Ex. PW8/D) and certificate U/s 65 B of Indian Evidence Act Ex.PW5/E (and now Ex. PW8/E).
STATEMENT OF ACCUSED
16. PW3, PW5 and PW6, the star prosecution witnesses have not supported the case of the prosecution and turned hostile on the allegations against the accused persons. There is no incriminating evidence against the accused persons either in the form of ocular or circumstantial or medical or forensic. Hence, statement of both the accused under section 313 Cr. PC has been dispensed with.
17. I have heard the ld. Addl. PP for the State and counsel for the accused and have perused the material available on record.
18. PW3, PW5 and PW6 have not supported their earlier versions. There is no other evidence circumstantial, electronic, scientific and otherwise to even remotely confirm their first version and substantiate the allegations made against the accused persons before this court.
19. PW6 in his statement though mentioned about the accused no. 2 but had not stated anything incriminating against him to implicate him in the present case.
20. No doubt the electronic evidence confirms the location as alleged by PW6 and the various calls made between PW6 and the accused but not the contents of the Page No.10 10 (Judgment) FIR No.524/14 PS : South Rohini State Vs. Ajay etc. conversations. Further, once PW6 confirms that he had gone with the accused of his own consent and there was no force used upon him, there is a little which can be done in the matter, particularly in the absence of any other material to the contrary.
21. The accused have not disputed their apprehension arrest and are only disputing their disclosure statement which are not admissible into evidence hit by Section 27 of Indian Evidence Act.
22. In view of the foregoing discussions, it can be held that all the material eye witnesses i.e. PW3, PW5 and PW6 have turned hostile and there is no incriminating material against both the accused either direct or circumstantial or medial or forensic or otherwise. Their statement under Section 313 Cr.PC have been dispensed with. Therefore, benefit of doubt is being given to both the accused. Hence, both the accused are held not guilty under section 365/395/342/34 IPC.
23. Accordingly, both the accused are acquitted for the offences under section 365/395/342/34 IPC.
Announced in the open court on this 18th day of February, 2017. (PANKAJ GUPTA) ADDL. SESSIONS JUDGE-II ROHINI COURTS: DELHI Page No.10