Delhi District Court
State vs Rajesh Adhikari @Babloo on 29 October, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.19/11
FIR No.238/97
U/s 364A/368/307/120B IPC
PS Tuglaq Road
State
Vs.
Rajesh Adhikari @ Babloo S/o Sh. Rai Singh
...... Accused
Kalandra U/s 41.4 Cr.P.C. filed on : 08.06.99
Reserved for Order on :10.10.2011
Judgement delivered on : 22.10.2011
JUDGMENT
The facts in brief of the prosecution case are that police of PS Tuglak Road had arrested accused Rajesh Adhikari @ Babloo u/s 41.1 Cr.P.C as he was declared Proclaimed Offender vide order dated 10.01.2002 in the main charge sheet mentioning total 13 accused namely Virender, Susheel Kumar, Jeet Pal, Dhanvinder Guni, Brijesh, FIR No.238/97 Page No. 1 of 77 State Vs.Rajesh Adhikari @Babloo Arvind@Narinder@Vijay, Trilok, Leelu Singh @ Leelu, Pradeep Tyagi, Sanjay Jutshi, Brahm Pal Singh and Arvinder besides present accused Rajesh Adhikari. The present accused was declared Proclaimed Offender after recording the Statement of Accused U/s 313 Cr.P.C.
2. The present case in hand was decided vide Judgment dated 15.9.09 thereby convicting the accused Rajesh Adhikari and accordingly order on sentence was passed on 22.09.09. Accused had preferred appeal against the Judgment and Conviction by this court before the Hon'ble High Court. Vide order dated 03.08.2011 passed by Hon'ble Mr. Justice Badar Durrez Ahmed and Hon'ble Ms. Justice Veena Birbal, the present case was sent back with the direction to record the statement of accused u/s 313 Cr.PC since PW40 Insp. Ram Mehar 's testimony could not be put to the accused. It was also directed that the case will thereafter proceed from the stage of recording statement, onwards in accordance with law. The directions contained in the order dated 03.08.2011 have been complied with and statement of accused u/s 313 Cr.PC was recorded afresh on 17.09.2011.
3. The facts as alleged in the challan are that father of accused Rajesh FIR No.238/97 Page No. 2 of 77 State Vs.Rajesh Adhikari @Babloo Adhikari @ Babloo used to supply milk in the house of complainant Virender Puri and he often used to visit his house. Since he used to visit the house of the complainant, accused Rajesh Adhikari was quite aware about his affluence and business. Accused Rajesh is alleged to have informed accused Leelu Singh and allegedly discussed with him regarding extracting money from the complainant as ransom. In order to hatch out a plan, accused Jeet Pal, Arvind, Brijesh, Rajesh, Sanjay Justi, Leelu and Trilok allegedly met at the residence of Pradeep Tyagi in Prem Puri, Meerut. In this meeting it was decided to kidnap Tarun Puri, the son of the complainant so that a demand for hefty amount as ransom could be put up before the complainant. It was also decided that after kidnapping Tarun Puri he would be kept with Dhanvinder Guni and Virender. Accused Leelu was allegedly assigned the task to arrange a SIM Card. The actual plan of kidnapping was to be executed by accused Brijesh, Sanjay Jutsi, Trilok, Rajesh @ Babloo, Leelu and Jeet Pal. Pradeep Tyagi and Arvind were to keep contact with above said accused persons through a mobile phone at Meerut. Accused Brijesh, Sanjay Jutsi, Trilok, Rajesh @ Babloo, Leelu and Jeet Pal were assigned the work to execute the plan. On 4.7.97 accused Rajesh @ Babloo FIR No.238/97 Page No. 3 of 77 State Vs.Rajesh Adhikari @Babloo and Sanjay allegedly robbed Maruti Zen car from near Delhi Public School regarding which case FIR no. 413/97 u/s 392 IPC was registered in PS Hazrat Nizamuddin. The car was allegedly sent at the residence of accused Pradeep Tyagi in Prem Puri, Meerut. In order to give a practical shape to their plan accused Brijesh, Leelu, Trilok, Sanjay,Jeet Pal, Rajesh @ Babloo armed with weapons came to stay at STD booth of accused Susheel Nagar in Hasanpur. They allegedly stayed there with accused Susheel Nagar at night on 21.7.1997. Accused Susheel Nagar was allegedly running a STD Booth therefore he arranged a SIM card which accused Rajesh @ Babloo installed in his mobile phone. On 22.7.97 accused Leelu removed number plate of Zen maruti car. Accused Leelu, Brijesh, Sanjay sat in the said car and accused Trilok drove the same. In another TATA SUMO vehicle accused Rajesh @ Babloo and Jeet Pal proceeded for Delhi. Accused Rajesh allegedly drove this vehicle and was having a mobile phone no. 9811058098 with him to keep contact with Pradeep Tyagi at Meerut.
4. On 22.7.97 at about 7.40 a.m they allegedly reached 89, Golf Link and kept on waiting for arrival of Tarun Puri. As usual, the complainant alongwith his son Tarun Puri, his wife and maidservant came FIR No.238/97 Page No. 4 of 77 State Vs.Rajesh Adhikari @Babloo out, accused Sanjay Jutshi allegedly fired from assault rifle whereas accused Brijesh fired from a katta. They allegedly snatched Tarun Puri from his father Virender Puri and took him away in Zen car to Meerut at the house of Pradeep Tyagi from where they reached the house of accused Brijesh at village Kalamari. From there accused Brijesh and Brahmpal took Tarun Puri to village Rampur Moti and handed over the child to accused Dhanvinder Guni.
5. During the period Tarun Puri remained in the custody of accused persons, he was asked to disclose telephone numbers of his friends who supplied them telephone of his friend Sohit. The said telephone number was 6859355 and that of Varun as 6229545. On 8.8.97 accused Arvind @ Naresh @ Vijay and Arvinder allegedly hired a taxi from Pooja Travels at Meerut for Patiala and gave a ring at the residence of Prem Kumar Gogia, father of Sohit a friend of Tarun Puri and demanded a ransom of Rs.5.00 Crores for release of Tarun Puri. During this period the accused shifted Tarun Puri from one place to another to avoid his detection.
6. The Police reached the place of incident and began investigation in this case. A case u/s 364A/34 IPC was registered with PS FIR No.238/97 Page No. 5 of 77 State Vs.Rajesh Adhikari @Babloo Tuglaq Road. During the course of investigation police recovered three shells of fired cartridges. On examination of shells it was revealed that such type ammunition was not available in India and that they have been fired from American assault rifle, which is used by American Commandos. During the course of further investigation it was revealed that similar ammunition was used in the commission of murder of one Ram Kishan Pradhan and a case has been registered in that regard with PS Sarai Aminagar in which Arvinder had been named as an accused. It was also revealed that accused Arvinder communicates with his brother Rajnish on telephone no. 511671 and 2465647 through conferencing. Ashok Pant supplied information regarding accused Rajesh @ Babloo. Information from Meerut telephone Exchange and Brahmpuri telephone exchange regarding telephone call on telephone no. 511671 was collected.
7. On 9.8.97 accused Rajesh @ Babloo was arrested from his house in Jyotinagar and on the basis of information allegedly supplied by him, police got important clues regarding involvement of all the accused persons. Accordingly on the same day accused Susheel Nagar was arrested from village Hasanpur form his STD booth. On further information FIR No.238/97 Page No. 6 of 77 State Vs.Rajesh Adhikari @Babloo furnished by the arrested accused persons, police party proceeded to Meerut in search of accused Jeet Pal. Accused Jeet Pal is a constable in UP Police who was provided as shadow to Pradeep Tyagi. Police arrested him from outside Meerut Police Lines alongwith TATA Sumo no. DL 6CA 7709. He was arrested in this case. On interrogation he furnished important information regarding whereabouts of Tarun Puri and led the police party to village Rampur Moti to the house of accused Dhanvinder Guni. He was arrested by the police. Accused Jeet Pal then led the police party to village Julehra to the house of Mahesh Tyagi and from his house Maruti car no. UP 32S 700 was recovered. Accused Jeet Pal thereafter led the police party to village Bahadurgarh to the house of Karamvir. On 10.8.97 at about 4 a.m police party raided the house of Karamvir and found Tarun Puri sleeping on a cot flanked by accused Virender and Trilok. Tarun Puri was taken into protective custody by the police and accused Trilok and Virender were arrested in this case. Both Tarun Puri and Accused persons were brought to Delhi and investigation continued.
8. On the basis of secret information accused Brijesh was arrested on 21.8.97 form AIIMS. During the course of his interrogation by the police FIR No.238/97 Page No. 7 of 77 State Vs.Rajesh Adhikari @Babloo he is alleged to have made a disclosure regarding the weapon of offence allegedly used by him in this case. Thereafter he is alleged to have led the police party to the garment factory of his brother in Tuglaqabad and got recovered a katta and a live cartridges from the drawer of a table in the office of the factory. On 18.9.97 coaccused Arvind and Leelu were arrested and pursuant to their disclosure statement they got recovered American Rifle from a tube well at Rampur Moti alongwith 11 live cartridges. The same were sent to FSL. On the basis of evidence collected by the police it came to the conclusion that all the accused named in this case are involved in the kidnapping of Tarun Puri. Accordingly police filed the challan against all the accused persons. Seven Coaccused of present accused namely Susheel Nagar, Jeet Pal, Dhanvinder Guni, Trilok Singh, Brijesh, Arvinder Kumar @ Narinder @ Vijay and Leelu Singh @ Leelu have already been convicted by the Ld. Sessions Court vide Judgment dated 15.05.02.
9. This case being triable by the court of sessions, after committal proceedings u/s 207 Cr.P.C, Ld. Metropolitan Magistrate committed this case to the court of Sessions and it was received by the court of session for FIR No.238/97 Page No. 8 of 77 State Vs.Rajesh Adhikari @Babloo disposal in accordance with law.
10. The present accused Rajesh Adhikari @ Babloo was charged for the commission of offence punishable u/s 120B r/w sec. 364A IPC, 364A, 307/120B IPC and 368 r/w sec 120B IPC on 07.11.1998 to which he pleaded not guilty and claimed trial.
11. The prosecution, in order to prove its case, has examined as many as 42 witnesses. All the witnesses were examined before the present accused. He has also moved an application u/s 311 Cr.P.C and recalled some of the witnesses i.e. PW4 HC Hira Lal, PW37 SI Braham Pal, PW38 Insp.Manoj Kr Sinha, PW39 Insp.Rajender Bhatia, PW40 Insp.Ram Mehar Singh, for their further cross examination.
12. The evidence against the accused Rajesh Adhikari was put to him in his statement recorded u/s 313 Cr.PC in which he has stated that he has been falsely implicated in this case. However, after recording of statement u/s 313 Cr.PC, the present accused did not appear in the court and ultimately he was declared proclaimed offender. Thereafter, the present accused was arrested u/s 41.1 Cr.P.C and then sent up to the court of Sessions for trial on 08.01.07. The accused had also examined DW1 Rai FIR No.238/97 Page No. 9 of 77 State Vs.Rajesh Adhikari @Babloo Singh Adhikari & DW2 Dharamvir Singh in his defence. After hearing the final arguments, this case was decided and accused was convicted and sentenced. The accused moved to Hon'ble High court against his conviction and by the order of Hon'ble High court, the case was sent back with the direction to recorded the Statement of accused u/s 313 Cr.PC again since testimony of PW40 could not be put to him. Statement of accused recorded again. It was also directed that case would proceed from this stage.
14. I therefore again heard the Ld. APP for the State and Ld. Counsel for the accused at too length and perused the testimonies of PWs and DWs and exhibited documents on record again.
15. PW1 Ashok Panth has deposed that he know accused Sushil Nagar as he used to visit Mahavir Nagar who is his client. He used to visit his shop quite often to complete the job of computer typing and fax etc. Sushil had never met him in the evening and he used to meet him during day time. The PCO and STD used to be conducted by Mahavir. His mobile number is 9811058098. After purchasing the SIM Card he gave the same to one Pradeep Sharma for use. The mobile phone was purchased by Pradeep Sharma for his own use. He proved paper regarding purchase of SIM FIR No.238/97 Page No. 10 of 77 State Vs.Rajesh Adhikari @Babloo Ex.PW1/A. Other than Mahavir and Sushil he has not become friendly with any other person. In the absence of Mahavir, employee Ravi used to look after the work. On 21.7.97 he and Mahavir had stayed in the night at 11 Hasanpur. Nobody had stayed or come at the booth during that night. He had told the police that he had given the SIM to Pradeep Sharma. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has denied the suggestion that Sushil Nagar had also stayed with him. He denied that all the six persons had come and stayed in the booth overnight. He further denied that he identified any of the accused at the Crime Branch office.
16. PW2 Mahaveer Nagar has deposed that he is running STD & PCO Booth where telephone no. 2215376 and 2465447 are installed. He and Ashok used to sit on the booth alongwith one employee Ravi. He was also declared hostile and cross examined by the Ld. APP for the State wherein he has stated that accused Sushil Nagar is his nephew. It is correct that he has not stated to the police that Sushil never sit at the booth for conducting the business, he has told the police that Susheel Nagar used to sit at the booth. In cross examination he has stated that on 21.7.97 none of FIR No.238/97 Page No. 11 of 77 State Vs.Rajesh Adhikari @Babloo the accused present in the court have stayed on that date at the booth.
17. PW3 Tarun Puri is the minor child who was abducted by the accused persons. In his testimony he has deposed that probably on 22.7.97 he was leaving for his school and when he reached near his vehicle, then some persons came in a white Zen from behind and gave beatings to his parents and maid servant namely Maya and also fired in the air and they took him away in the white zen, probably to some place at Rajasthan. They changed his clothes and shifted him to a white sumo. In the night he was taken to a big house. All the accused present in the court used to come and meet him at that house. He was shifted to another house. He was asked to tell the phone numbers of his friends. He gave them the number of Sohit and Varun i.e. 6859355 and 6229545. He identified the accused persons Leelu, Trilok and Brijesh who had taken him. Accused Trilok was identified as he was driving the car. All the accused persons present in the court used to visit from time to time that place. He pointed out Dhanwinder in whose house he was kept. He identified Leelu, Brijesh and Arvind in the Police station. He was not cross examined on behalf of present accused Rajesh Akhikari.
FIR No.238/97 Page No. 12 of 77 State Vs.Rajesh Adhikari @Babloo
18. PW4 HC Heera Lal has deposed that on 22.07.97 he was posted as MHCM and on that day case property of FIR no.238/07 was deposited in malkhana by SI MK Sinha. He further stated that on 16.12.97 both the pullandas were sent to FSL and he proved the relevant entry Ex.PW4/A. On 30.7.97 Insp.Rajinder Singh deposited one sealed pullanda vide entry no. 679 and on the same day it was sent to CFSL. The pullandas were again deposited in malkhana on 16.12.97 and entry is Ex.PW4/B. On 10.8.97 Insp Rajinder again deposited the case property recovered from UP including one pullanda and one car bearing no. UP J 25 0700 and one SUMO No. DL 6CA/A 7709 and Maruti Zen No. DL 9CA 1399. He made entry vide Ex. PW4/C. Maruti Zen was released on superdari to Rajat Gupta and the forged number plate remained in the malkhana. He further deposed that on 21.8.97 Insp.Rajinder Singh deposited one pullanda which was also sent to FSL. He proved entry Ex.PW4/D. Again on 18.9.97 one sealed pullanda was deposited and one scooter no. DDE 862 and personal search of accused Leelu, accused Arvind which was sent to FSL and he proved entry Ex.PW4/E. In cross examination conducted after filing the kalandra u/s 41.1 Cr.P.C., he has stated that the sealed pullanda were taken by Insp. FIR No.238/97 Page No. 13 of 77 State Vs.Rajesh Adhikari @Babloo Rajender Singh to CFSL himself. There was no tempering till it remained with him. On 10.8.97 Insp.Rajender Singh deposited one pulanda which was not sealed. ON 18.9.97 total two pullandas were sealed.
19. PW5 Sh Virender Puri is the father of the kidnapped child and he has deposed that on 22.7.97 he alongwith his son Tarun Puri and maid servant came out of the gate of his house in order to drop Tarun at his school. He saw that three persons came out of Maruti Zen parked nearby and they were armed with weapon. One was armed with one automatic long rifle and other two were having country made revolvers and they asked them to hands up. Efforts were made by the accused persons to snatch his son. One person pointed a revolved at his head and fired in the air. The second person placed the revolver on temple of his wife and fired in the air. The third one started quarreling with the maid servant and also fired in the air. The culprits fired 5 to 6 rounds in the air. His son was snatched by them from his hands and took him to the white maruti zen, the engine of which was already in on condition. He ran towards the vehicle and was dragged to some distance but culprits managed to escape. He gave description of accused. Police came and he gave complaint Ex.PW5/A. Police recovered FIR No.238/97 Page No. 14 of 77 State Vs.Rajesh Adhikari @Babloo three empty cartridges from the spot which were seized by the police vide memo Ex.PW5/B. He has further deposed that on the night of day of incident accused Babloo @ Rajesh Adhikari came to their house and talked to him and his father. He asked them not to inform the police and he will try to help him in his own way. He received letters after 8 or 9 days of the incident regarding that the child is with them. He has received 5 to 6 post cards of different dates and handed over to the police vide memo Ex.PW5/C to Ex.PW5/F. On 8.8.97 in the morning he received a call from father of Sohit who is a friend of Tarun Puri to the effect that one Vijay wants to talk to him and that he will call again. He reached at the house of Sohit. He received call on no.6229545 which he attended. The caller disclosed his name as Vijay and he told that his son Tarun is in their custody and demanded a ransom of Rs.5.00 crores to release Tarun. By the efforts of the police in the intervening night of 09.08.99 and 10.08.99 after 12 midnight his son was recovered by the police. He identified the person as Brijesh who placed weapon at the temple of his wife and had fired in the air. He also identified Leelu who fired the air on the day of incident. In the end of Oct. he handed over his photographs Ex.P1 of the father of Rajesh Adhikari FIR No.238/97 Page No. 15 of 77 State Vs.Rajesh Adhikari @Babloo which were seized vide memo Ex.PW5/G. He proved letters Ex.P2, P3, P4, P5 and P6. He identified accused Trilok who was at the driver seat on the date of incident. He also identified accused Babloo @ Rajesh Adhikari. In cross examination on behalf of accused Rajesh he has stated that Bablu visited their house even on the next day and one or two days thereafter he again came to their house . Police told him that Bablu was arrested on 10.8.97 when his son was recovered.
20. PW6 Meena Puri has deposed the version of PW5 regarding coming out of three persons from the Maruti Zen and taking away her son on the point of weapons. She further stated that infact four persons came and three had come out of the car. She also identified accused Brijesh who put revolver on her temple, Leelu who dragged her husband and Trilok who was driving the car.
21. PW7 Maya is the maid servant of PW5&6 and she has also deposed the version of PW5&6 regarding the incident.
22. PW8 Abitabh Veer Singh has deposed that in the year 1997 he was working at PCO STD Booth at Patiala. Police had seized from him the register of entries which is Ex.P7.
FIR No.238/97 Page No. 16 of 77 State Vs.Rajesh Adhikari @Babloo
23. PW9 Shashi has deposed that Leelu is not know to her nor relates to her. Leelu had not visited her residence alongwith 2/4 persons when she was residing in Khatoli. She was declared hostile and cross examined by the Ld.APP for the State but in vain.
24. PW10 Mahesh Tyagi has deposed that Police never came to their village for making enquiries. Nobody parked any vehicle in their gher during August 1997. He was also declared hostile and cross examined by the Ld. APP for the State but in vain.
25. PW11 Nain Singh & PW12 Onkar Singh are the witness for arrest of accused Arvind but they also turned hostile.
26. PW13 Nonender Singh has deposed that accused Davinder Guni is his uncle. He was also declared hostile and he also denied that one child of 11 years of age also stayed at the house of his uncle.
27. PW14 Jeet Singh has deposed that his cousin Harish Chander was having two wheeler scooter from whom scooter was borrowed by someone. Harish Chand in his presence handed over the documents regarding ownership to the police.
28. PW15 Harish Chand is the witness for accused Arvind and he FIR No.238/97 Page No. 17 of 77 State Vs.Rajesh Adhikari @Babloo has stated that he handed over the scooter to Arvind, who had borrowed the same from him after telling him that his mother is ill.
29. PW16 Vinod Kumar has deposed that Arvind is the brother in law of his brother. In the year 1997 phone no. 5527457 was installed at his residence. Since he used to remain at his shop he is unable to say as to who used to call at his residence during day time. He cannot say whether Arvind also used to call at his residence vol. he might have called as his sister used to remain at home.
30. PW17 Rohtash has deposed that Arvind is the brother in law of his cousin. Arvind had given calls at telephone no. 6102747 installed at his residence but he has never given any ring to him.
31. PW18 Narinder has deposed that he know accused Davinder Guni. He does not know whether anybody stayed in the village or not as he resided in Modi Nagar for the last about six years. He was declared hostile by the prosecution and cross examined by the Ld.APP for the State. He denied the suggestion that he gave his name to be as Varinder or stated that he is pradhan of village Rampur Moti. He is not a summoned witness. He has come with the son of Dharminder Guni.
FIR No.238/97 Page No. 18 of 77 State Vs.Rajesh Adhikari @Babloo
31. PW19 Jagat Narain is the owner of Maruti 800 bearing no. DL 9C 1399 of white colour He proved the RC Ex.PW19/A.In cross examination on behalf of accused Rajesh he has stated that he purchased the said vehicle from registered dealer and not purchased from any person. Right since the date of purchase the vehicle had remained in his possession. The same was never stolen by anybody or he handed over the same to anybody.
32. Pw20 Sanjay Malik is the driver of car UNO Fiat no. DL 3CB 1681. In the year 1996 he was driver of Maruti car no. DL 3CD 7667 belonging to Manmohan Singh and used to ply under the name Pooja Travels. He had taken this car as a taxi from Meerut to Patiala and had come through the same very taxi Meerut and the passengers who had taken from Meerut to Patiala was dropped back at the office of Pooja Travels at Chapula, Meerut. He could identify only accused Arvind who had gone in his taxi.
33. PW21 Tilak Raj is the witness from Pooja Travels and he deposed on the lines of PW20 that vehicle was booked from Meerut to Patiala in Aug 1997 and Pw20 took the vehicle. He further stated that the FIR No.238/97 Page No. 19 of 77 State Vs.Rajesh Adhikari @Babloo entry was made in the register when the vehicle was sent and he further stated that on 7.8.07 vehicle no. 7667 was booked in the name of Narender Singh vide entry Ex.PW21/A.
34. PW22 Amarjit Singh has deposed that he has brought the original record from 16.6.96 to 15.7.07 of telephone no. 511671 which is in the name of Narender Prakash Tyagi.
35. PW23 Naveen Chand Jain has deposed that he does not know Pradeep Tyagi. He know one Arvind who is son of Om Prakash Gupta.
36. PW24 Amarjit Singh has deposed that he does not know to whom vehicle no.DL 6C 7709 belong to. He does not know Trilok Chand.
37. PW25 Balbir Singh has deposed that on 21.9.97 police came to his STD Booth with one persons who told the police he had given phone calls from his STD booth.
38. PW26 Insp.Surendera Kapur has deposed that on 22.7.97 Sh Vijay Kumar reporter of Times of India came to the office and delivered live cartridge. He handed over the same to SI Manoj of PS Tuglak Road who prepared the sketch Ex.PW26/A and seized vide memo Ex.PW26/B.
39. Pw27 Ct.Ashok Kumar has taken photographs of maruti car no. FIR No.238/97 Page No. 20 of 77 State Vs.Rajesh Adhikari @Babloo DL 2CH 1887. He proved the photographs Ex.PW27/B1 to 5 and negatives Ex.PW27/A.
40. PW28 SI Deep Chand has reached at the spot on 22.7.97 on receipt of DD no.3A alongwith SI Manoj Singh where Vijender Puri handed over three empty cells of cartridge PSD 86. IO prepared the sketch and took the same into possession vide memo Ex.Pw5/B. Statement of complainant was recorded and case was registered. On 22.7.97 Insp.Surender Kapoor called him at PHQ and handed over three cartridge to SI Manoj Sinha on the bottom of which KNYDCH 320 were inscribed. Sketch of the cartridge is Ex.PW26/A and the same was taken into possession vide memo Ex.PW26/B. He identified the case property Ex.P28/1 and Ex.P28/2.
41. PW29 HC Vinod Kumar has deposited two sealed pullanda in FSL Malviya Nagar after taking the same from Malkhana.
42. PW30 Ct.Rishipal is the witness of arrest of accused Arvind. He proved personal search memo Ex.Pw30/A. He disclosed about the disclosure statement made by accused Arvind and recovery of country made pistol was effected at the instance of accused from the factory of his FIR No.238/97 Page No. 21 of 77 State Vs.Rajesh Adhikari @Babloo brother at Tuglkabad Extension. The seizure memo of revolver is Ex.PW30/B and sketch is Ex.PW30/C. He identified the revolver and fired cartridge Ex.PW30/1 to Ex.P30/2.
43. PW31 Sh M.K.Gupta, Ld. ASJ has conducted the TIP of accused Brijesh and he has stated that the accused has refused to participate in the TIP. He proved TIP Ex.pw31/B. He also conducted TIP of accused Arvind and Leelu and stated that they also declined to join the TIP He proved TIP proceedings Ex.PW31/G.
44. PW32 Insp.Parvati is the FIR recorder who proved copy of FIR Ex.PW32/A.
45. PW33 L/Ct P Sharma has filled the form Ex.PW33/A regarding kidnapping of child when she received call from Ms. Kishore and she passed the information to concerned wireless operator.
46. PW34 HC BPS Rawat has produced the summoned record of FIR no. 120/97 PS Sarai Ami Nagar. He has stated that on 17.05.97 Sh Gandalal HC was posted as MHCM and he deposited 4 pullandas in FIR no. 120/96 against Madan Bhaiya. Jitender and Naresh. The said property was taken by Delhi Police as per the oder of ACJM on 30.7.07. He proved FIR No.238/97 Page No. 22 of 77 State Vs.Rajesh Adhikari @Babloo record Ex.PW34/A.
47. PW35 Insp Data Ram is the witness of initial investigation and he searched for the kidnapped boy.
48. PW36 SI Subash Chand has recorded DD no.3A copy of which he proved as Ex.PW36/A. He handed over the said DD to SI Suganchand.
49. PW37 SI Brahm Pal has deposed that on 9.8.97 he alongwith Insp. Rajender Bhatia reached at village Hasanpur at the STD Booth of Sushil Nagar where accused Sushil Nagar was arrested and his personal searched was conducted vide memo Ex.PW37/A. They reached at police line Meerut and found one TATA Sumo no. DL 6CA 7709 parked in front of gate no.4. Ct.Jeetpal was found present at the barbar shop. He was arrested vide memo Ex.PW37/B and Tata sumo was seized vide memo Ex.PW37/C. At the instance of accused Jeet pal they went to village Rampur and accused Dhanvinder Guni. Jeetpal led the police party to village Juljhera from there they seized one maruti car no. UP 32S 0700 from the house of Mahesh Tyagi vide memo Ex.PW37/E. Then they went to Bahadurgarh village District Muzaffarpur. They found accused Virender Kumar and Trilok sleeping in the room and the boy Tarun Puri was sleeping FIR No.238/97 Page No. 23 of 77 State Vs.Rajesh Adhikari @Babloo in between both the accused persons. The boy was recovered vide memo Ex.PW37/F and both the accused were arrested vide memo Ex.PW37G and H. IO also sized three bottles of bisleri one bottle of sampoo and one packet of toffee. One maruti car no DL 6CA 1399 was also seized from the house of accused Karamvir vide memo Ex.Pw37/J. He proved pointing out memo of accused Trilok Ex.PW37/K. He further deposed about arrest, personal search and disclosure statement of accused Brijesh as well as recovery of country made pistol at his instance. He identified the Bisleri Bottles Ex.PW37/AC and sampoo clinic bottle Ex.PW37/D, revolver Ex.PW30/I and empty shell of cartridge Ex.PW30/2. In cross examination after filing the kalandra u/s 41.1 Cr.P.C, he has stated that accused Rajesh Adhikari had not disclosed the address of accused Sushil Nagar. He had not visited the residence of Rajesh Adhikari for investigation of this case alongwith IO. Accused Rajesh Adhikari had made disclosure in the office of Crime Branch. Insp. Rajender recorded the disclosure of Rajesh Adkhikari He is not aware about the place from where accused Rajesh Adhikari was arrested. Accused Sushil Nagar was arrested on 9.8.97 and he saw accused Rajesh Adhikari only on 14.8.97 when his disclosure was recorded by the FIR No.238/97 Page No. 24 of 77 State Vs.Rajesh Adhikari @Babloo IO. Rajesh Adhikari was not arrested in his presence.
50. PW38 SI Manoj Kumar Singh has deposed that on 22.7.97 on receipt of DD no.3A Ex.PW36/A he alongwith Ct.Sombir reached at the spot and recorded the statement of complainant Ex.PW5/A, made his endorsement Ex.PW38/A and got the case registered. He proved the site plan Ex.PW38/B. He got the spot photographed. He prepared the sketch of shells Ex.PW5/B handed over to him by Virender Puri. He seized the same vide memo Ex.PW38/C. He prepared the sketch of live cartridge handed over to him by Insp.Surender Kapur Ex.PW6/A. The cartridge was taken into possession vide memo Ex.PW26/B. He identified the live cartridge Ex.P28/1 and empty cartridge Ex.P28/2 to 4. In cross examination after filing kalandra u/s 41.1 Cr.P.C., he has stated that there Virender Puri has handed over him the empty cartridges. There was one bullet mark in the glass of Zen Car. No bullet was found from inside of the maruti zen. He does not know whether the glasses of the Zen from the other side in open condition or were closed. He could not ascertain the informer who lodged the complaint about the commission of crime on phone no.100. He has no knowledge about the release of press note by Delhi Police if any. He denied FIR No.238/97 Page No. 25 of 77 State Vs.Rajesh Adhikari @Babloo the suggestion that false rukka had been prepared by him and manipulated FIR had been registered on the basis of said rukka. He further denied the suggestion that at the time of incident the accused were wearing masks.
51. PW39 Insp.Rajender Bhatia has deposed that 09.08.97 Insp.Ram Mehar has arrested accused Rajesh@Babloo and he was interrogated and recorded his disclosure statement. On the basis of disclosure he arrested accused Sushil Nagar. He arrested accused Sushil and conducted his personal search vide memo Ex.PW7/A. He further stated that they went to Meerut and arrested accused Ct.Jeetpal and he deposed the version of PW37 in this respect. The disclosure statement of accused Jeetpal is Ex.PW39/A. In disclosure statement he has stated that kidnapped child Tarunpuri placed at the place of accused Dhanvir Guni and he can get recover the same. He led the police to the house of Dhanvir Guni where accused Dhanvir Guni was arrested and interrogated who disclosed that the child was with Karamvir Singh at his house at Bahadurgarh Meerut. Ct.Jeet Pal led the police party to the said house and got recovered the kidnapped child where other accused Virender and Trilok Chand were also arrested. He further deposed the version of PW37 regarding seizing of bisleri bottles, FIR No.238/97 Page No. 26 of 77 State Vs.Rajesh Adhikari @Babloo clinic shampoo, arrest of accused Trilok and Virender, their personal search, recovery of maruti car from the house of Karamvir. He further deposed that Trilok accused pointed out the place of incident vide memo Ex.PW37/K. He further stated about apprehension of accused Brijesh, conducting his personal search and recording of his disclosure statement Ex.PW39/B. On the basis of disclosure he got recovered one revolver and one live cartridge from the factory of his brother at Tuglakabad. It was taken into possession. He further deposed about arrest of accused Arvind and Leelu. He seized visiting card from Leelu vide memo Ex.PW39/E on which 9811058098 was mentioned. Accused Arvind was found in possession of D/L in the name of Vijay and one identity card of reporter of local newspaper of Lucknow Aaj Ki Khabar was recovered and one toll tax receipt dated 8.8.97 was also recovered. He seized the same vide memo Ex.PW39/H. He seized scooter no. DDE 862 vide memo Ex.PW39/J and two slips are Ex.PW39/K&L. He proved disclosure statement of Arvind Ex.PW39/M and of Leelu mark Z. In disclosure statement Arvind disclosed that he can get recover the assault rifle and he got recovered the same from village Rampur Moti Meerut from a tubewell. Sketch of the same is Ex.PW39/N and it was seized vide memo FIR No.238/97 Page No. 27 of 77 State Vs.Rajesh Adhikari @Babloo Ex.PW39/O. He further stated that accused Arvind led the police to Patiala and pointed out the STD booth from where he made call to the house of Sohit friend of Tarun Puri vide pointing out memo Ex.PW39/P&Q. He proved register mark PW25/11. The entry of the relevant phone call is at page no. 62 of the register at sr.no.15. The entry is Ex.PW39/S.He collected the record of telecommunication Ex.Pw2/1 to 11. He also seized the record of mobile no. 9811058098 which is Ex.PW1/A. He proved seizure memo of RC of scooter no. DDE 862 Ex.Pw39/T. He also collected the relevant record of telephone no. 511671 from the residence of Narender Prakash Tyagi which is Ex.PW39/U1 to 17. He collected the CFSL result Ex.PW39/A1 and A2 to A6. He obtained the permission of DCP u/s 25 Arms Act. He identified the rifle Ex.PW39/A7 and country made revolver Ex.PW39/A8, bisleri bottles Ex.PW38/A to D and packet of toffees Ex.PW39/A9. In cross examination he has stated that he has examined and interrogated Rajesh Adhikari. His disclosure statement was recorder by him. However, nothing was recovered consequent to that disclosure statement. He denied the suggestion that assault rifle was planted on him or that Virender was also falsely implicated in this case alongwith Rajesh FIR No.238/97 Page No. 28 of 77 State Vs.Rajesh Adhikari @Babloo Adhikari and they were also made to sit in the office of Crime Branch long back from the date of their arrest. He denied that nothing was recovered at their instance. It is correct that a case of robbery in respect of Zen Car used for commission of offence in this case was made on accused Rajesh Adhikari. It is correct that accused Rajesh Adhikari had been acquitted in that case vol. since the witness has turned hostile. Zen car in this case was recovered from village Bahadurgarh from where the kidnapped child was recovered but Rajesh was not present there at that time nor the recovery was affected at his instance. He seized the photograph of father of Babloo. In cross examination conducted after filing of kalandra u/s 41.1 Cr.P.C. he has stated that he does not know the role of accused Arvind in FIR no. 120/96 PS Ami Nagar Sarai. He had done efforts by deploying their own sources to trace the accused persons. It is correct that before receiving the report from CFSL in respect of the aforementioned three empty cartridges they were not having any knowledge about the make and the bore of the cartridge and were not aware about the weapon from which the same was fired. It is correct that an application was moved before the Ld. CJM Meerut for receiving the five fired cartridges in case FIR no. 120/96 PS Ami Nagar FIR No.238/97 Page No. 29 of 77 State Vs.Rajesh Adhikari @Babloo Sarai. The fired cartridges of FIR no.120/96 and empty cartridges of this case were sent to CFSL for comparison simultaneously. Case FIR no.120/96 was registered in respect of murder of Sh Ram Kishan Pramukh and Arvind was accused in that case. He denied the suggestion that assault rifle Narinco was in possession of accused Madan Bhaiya, Naresh and Yatinder and not in the possession of Arvind. The role of accused Rajesh Adhikari has been mentioned by him in the charge sheet. He does not know their roles as on today due to lapse of time. He does not remember whether he received the information that the long rifle fire arm which was used in this case, was also used in case FIR no. 120/96 either before sending the cartridges to CFSL for comparison or after sending the cartridges to CFSL. Ld. defence counsel produced statement of Ms. Shashi which marked as Ex.PW39/DA. It was not recorded by him. He is not aware about the relation between Smt.Shashi and Madan Bhaiya. Leelu and Madan Gopal are residents of same village. He denied the suggestion that Madan Bhaiya who was an accused in FIR no. 120/96 of PS Ami Nagar had already disclosed them the whereabouts of the child. He had no knowledge that the father of accused Rajesh Adhikari was employed as the driver in the office of Sh Harbans Lal Puri who was elder FIR No.238/97 Page No. 30 of 77 State Vs.Rajesh Adhikari @Babloo brother of Virender Puri. He denied the suggestion that to save the accused in case FIR no. 120/96 of PS Ami Nagar Sarai he had falsely mentioned the name of accused Arvind in this case. He denied the suggestion that Shashi was not made an accused in this case because she was the cousin sister of Madan Bhaiya. He further denied the suggestion that he had wrongly mentioned the involvement of accused Rajesh Adhikari in case FIR no. 413/97 of PS HN Din.
52. PW40 Prem Kumar Gogia has deposed that he know Virender Puri whose son Tarun was kidnapped in the first week of July 1997. He received call on telephone no. 6229545 from Mr. Vijay who asked him to call Virender Puri. He called him. After half an hour again phone came and Virender Puri attended the call. He came to know that Vijay had asked ransom of Rs.5.00 crores to release Tarun.
53. PW40 Insp.Ram Mehar Singh (again examined as PW40) in kalandra filed u/s 41.1 Cr.P.C. against accused Rajesh Adhikari has deposed that on 09.08.97 on receipt of an information he along with HC Ashok Kumar, ASI Ramesh reached West Jyoti Nagar near Durgapuri Chowk. The accused Rajesh Adhikari was having his house there and they found him FIR No.238/97 Page No. 31 of 77 State Vs.Rajesh Adhikari @Babloo standing near his house. He was apprehended and his personal search was conducted vide memo Ex.PW40/A. He was interrogated and his disclosure statement Ex.PW40/B was recorded. The accused was correctly identified by the witness. He further deposed that accused Rajesh Adhikari disclosed to him all the facts of this case how they hatched the conspiracy for kidnapping of master Tarun Puri. He also disclosed that his father used to supply milk at the residence of complainant Virender Puri and therefore he was also on visiting terms with the complainant. He also disclosed that in the house of complainant, the face of the child Tarun Puri was shown by him to co accused Lillu, Sanjay and other co accused but he does not remember the names of other coaccused. He also disclosed that the escape route was also shown to other coaccused by him. After arrest of accused Rajesh Adhikari he informed about the investigation to Insp.Rajender Bhatia and ACP Ravi Shanker telephonically and he handed over the documents to them. In cross examination he has stated that he was not made IO by any authority. The investigation was being done by the crime team and he was directed by them that information has been received about accused Rajesh Akhikari and he was directed to arrest the accused from his FIR No.238/97 Page No. 32 of 77 State Vs.Rajesh Adhikari @Babloo house in this case. He arrested accused at about 11.30 from near his house. He recorded his disclosure statement on the spot. The information regarding arrest of accused Rajesh Adhikari was not given to the local police because the accused was arrested in Delhi. The gist of the interrogation and the disclosure statement of accused was informed to the senior officer before recording of the disclosure. It is wrong to suggest that he is deposing falsely in the court today and accused Rajesh Adhikari was already in their illegal custody for several days and he was falsely implicated in this case.
54. PW41 HC Karan Singh has deposed that DCP Karnel Singh has accorded Sanction u/s 39 Arms Act against accused Arvind and Brijesh.
55. PW42 Roop Singh is the witness from CFSL and he examined the case property of FIR no.120/96 PS Ami Nagar and stated that five .223"/ 5.56 mm cartridge cases contained in the parcel described above had been fired from a single .223"/5.56 mm calibre fire arm. He proved his report Ex.Pw39/A2. He also proved another examination report Ex.PW39/A4, 5 & 6.
56. I have also perused the testimonies of defence witnesses adduced by the accused. DW1 Rai Singh Adhikari is the father of Rajesh FIR No.238/97 Page No. 33 of 77 State Vs.Rajesh Adhikari @Babloo Adhikari he has deposed in his testimony that Sh HL Puri was the director of the office of Controller Mail Motor Service under the department of Post and Telegraph at Parliament Street. His son Rajesh had never visited his residence. Virender Puri is the son of Rajender Lal Puri the brother of HL Puri. During his service Virender Puri was a small child. In the year 1997, when the son of Virender Puri was kidnapped, he came to know about the same incident from newspapers and after twothree days of the incident he asked his son Rajesh to take him to the residence of Sh HL Puri where Virender Puri was residing with his family. He visited their residence to show his sympathy with their family and thereafter returned back to his residence. Police came to his residence and enquired about him and he disclosed to them that Sh HL Puri was his sr.officer and therefore he visited to show the sympathy. Later on he came to know that his son has been arrested in this case. He had never supplied milk at the residence of Sh HL Puri. In cross examination he has stated that he cannot give any reason as to why he used to visit to the house of Virender Puri. He had good relations with his son before his arrest. Since arrest till today he did not go to jail to meet his son. It is correct that due to incident with the family of Virender FIR No.238/97 Page No. 34 of 77 State Vs.Rajesh Adhikari @Babloo Puri and involvement of his son in the said case he felt uneasiness and not good so, he has finished all the relations with his son.
57. DW2 Dharamvir Singh has deposed that Rai Singh Adhikari was doing the work of driver in the department of posts and telegraphs. He was not doing any work except that of driver. In cross examination he has stated that he has never seen Rai Singh Adhikari bringing Govt.vehicle to his house being driver in P&T. Almost he remained on morning duty in DTC which starts from 4.30 and 5.50 a.m early in the morning and he used to come back after duty hours of 8 and half hour. He cannot say the duty hours of Rai Singh Adhikari. It is correct that he has not seen Rai Singh Adhikari going for his duty.
58. According to the prosecution case, accused Rajesh @ Babloo was on visiting terms at the house of complainant as his father used to supply milk and he was aware of the affluence of the complainant therefore he informed co accused Leelu about it who appraised Pradeep Tyagi and then coaccused Pradeep Tyagi, Jeet Pal, Arvind, Brijesh, Rajesh, Sanjay Jutsi, Leelu and Trilok had a meeting and chalked out plan to kidnap Tarun Puri to demand ransom. PW5 Virender Puri has deposed that father of FIR No.238/97 Page No. 35 of 77 State Vs.Rajesh Adhikari @Babloo accused Rajesh @ Babloo used to supply milk in his house so he was on visiting terms in his house. He has also placed on record a photograph depicting Virender Puri with father of Rajesh Adhikari.
59. It is further the case of the prosecution that on 20.7.97 accused Brijesh, Sanjay Jutsi, Trilok, Leelu Rajesh and Jeet Pal arrived at the STD booth of accused Sushil Nagar and stayed at night there. These accused persons came in a maruti Zen car and TATA SUMO and in the morning of 21.7.97 before proceeding to Golf Link residence of Complainant, number plates of these vehicles were removed. At the STD booth of accused Sushil Nagar he is alleged to have handed over a SIM card which accused Rajesh installed in his cell phone to keep contact at Meerut with Pradeep Tyagi. To prove this, the prosecution has examined PW2 Mahavir Nagar and as per his version he was running STD Booth and PCO Booth at 1, Hasanpur village, Patparganj and he along with PW1 Ashok Pant used to sit at the said booth. He proved copies of telephone number Ex.Pw2/1 to Ex.PW2/11. He admitted that accused Sushil is his nephew. Both PW1&2 were declared hostile. PW2 has admitted that he has stated to the police in his statement that Sushil used to sit in his booth. He has denied about FIR No.238/97 Page No. 36 of 77 State Vs.Rajesh Adhikari @Babloo staying of accused persons at his booth on the night of 21.7.97. As per the case of the prosecution all the accused persons proceeded to the house of Virender Puri in the morning of 22.7.98.
60. In this case PW3, Tarun Puri - the kidnapped child, PW5 Virender Puri - father of kidnapped child, PW6 Smt. Meena Puri - mother of Kidnapped child and PW7 Maya servant of Virender, PW5 & 6 are the main star witnesses of the prosecution. PW5 has stated that on 22.7.97 he alongwith his wife, son Tarun Puri and maid servant came out of the gate at about 7.45 p.m (should be a.m.) to drop his son in the school. There he saw on maruti zen parked having no number plate. Thereafter three persons armed with weapons came out of the said maruti zen and made efforts to snatch his son from him. One person pointed a revolver at his head and fired in the air. The second person placed the revolver on temple of his wife and fired in the air. The third one started quarreling with his maid servant and also fired in the air. They fired 57 rounds in the air and snatched Tarun Puri from them and took him away in the said maruti zen. The other Pws, i.e. PW6 & 7 who are wife and maid servant of PW5 and have seen the incident with their eyes, mutatis mutandis have corroborated the version of FIR No.238/97 Page No. 37 of 77 State Vs.Rajesh Adhikari @Babloo PW5 in this respect. From their corroborative version, it is crystal clear that Traun Puri was kidnapped on the said date. PW5,6 & 7 have proved their statements given to the police. PW5 has further stated that police recovered the empty cartridges and he proved memo Ex.PW5/A. PW5 has also deposed to have received a call for ransom of Rs.5.00 crores from one Vijay at the house of Sohit, friend of Tarun Puri. His version in this respect has been corroborated by PW40 Prem Kumar Gogia at whose residence the ransom call was received and he has also stated that call was made by one Vijay as stated to him at his telephone no. 6229545. This version has been further been strengthened by PW3 Tarun Puri, the kidnapped child who has stated that he gave the telephone number of Sohit, his friend to those persons on their asking. So, this fact has been proved by the prosecution that PW5 Virender Puri has received ransom call at the telephone of PW40. It is further stated by PW5 that on the night of day of incident accused Babloo @ Rajesh Adhikari came to his house and talked to him and his father. He asked them not to inform the police and he will try to help him in his own way. PW5 & 6 have identified accused Brijesh who put weapon on the temple region of PW6, Leelu who fired in the air & Trilok who was on FIR No.238/97 Page No. 38 of 77 State Vs.Rajesh Adhikari @Babloo the driver seat. PW7 Maya also identified Brijesh and Leelu as culprits. PW5 also identified present accused Rajesh Adhikari @ Babloo. I have also perused the cross examination of these witnesses but their testimonies could not be shattered by the Ld. defence counsels. From the testimony of PW5 it is transpired that present accused Rajesh Adhikari @ Babloo used to come to the house of PW5 before the present case incident as his father used to sell the milk. It is also transpired that he has visited the house of complainant on the next day of incident and asked PW5 not to involve the police and he will handle the situation on his own way. As per the evidence available on file even of DW1, it seems that the father of accused Rajesh Adhikari @ Babloo was having visiting terms at the house of PW5 Virender Puri. DW1 was the driver of H.L.Puri, Tau of PW5 who was the Director in the office of Controller Mail Motor Service under Deptt of Post and Telegraph. So, from the testimony of DW1 as well as deposition of PW5, the prosecution has established that there was visiting terms of Rajesh Adhikari to the house of PW5. The present accused might have visited after the incident to the house of PW5 for the sake of sympathy but it is not digestible as to why he has asked PW5 not to report the matter to the police FIR No.238/97 Page No. 39 of 77 State Vs.Rajesh Adhikari @Babloo and that he will handle the situation on his own. There was no reason for PW5 to depose this version of present accused Rajesh Adhikari in the court when the father of accused Rajesh Adhikari was very well known to him and they were having visiting terms. Accused Rajesh Adhikari was not occupying any higher post so that he could have been able to help PW5 in his own way. Instead he was the son of the driver of Tau of PW5. This smells that present accused Rajesh Adhikari was aware about the kidnapping and he was also party to the conspiracy of this case. Coming to the cross examination of PW5 no question/suggestion has been put by the Ld. defence counsel that Rajesh Adhikari did not visit at the house of PW5 and stated not to report the matter to the police and he will handle the situation on his own way. In a judgment reported in Bal Kishan Vs. State & Anr. 1977 Crl. J. 410, it has been held that if there is a failure to crossexamine a witness in respect of a material assertion, it is to be presumed that that assertion stands admitted. Thus, the participation in kidnapping of Tarun Puri and role imputed to him by witnesses have not been challenged during the cross examination either by way of suggestion or otherwise on behalf of the accused.
FIR No.238/97 Page No. 40 of 77 State Vs.Rajesh Adhikari @Babloo
61. The next important witness is PW3 Tarun Puri who was the kidnapped child. His version is also the same as deposed by PW5,6&7. He deposed to have kept in Rajasthan after kidnapping. He also stated that he was shifted to different houses. He identified accused Trilok who was driving the car. He identified others as accused Brijesh and Leelu who had taken him. He identified accused Dhanvinder Guni in whose house he was kept. As per his version, he has assigned the role of other accused Brijesh, Leelu, Dhanvinder Guni, Arvind and Trilok who have already been convicted by the court. However, for the present accused Rajesh Adhikari he has not assigned any role. However, as per the disclosure statement of accused Rajesh Adhikari he was near to the place of incident in another car and thereafter after incident he went to Meerut.
62. I have also perused the testimonies of other PWS. PW8 has proved the STD call register of STD/PCO Booth at Patiala as Ex.P7. By way of producing this register and in view of the testimony of PW20 Sanjay Malik driver of car and PW21 Tilak Raj, owner of Pooja Travels, it has been proved on record that accused Arvind @ Vijay was available in Patiala on 08.08.97 and from there he had made ransom call on phone no.6229545. FIR No.238/97 Page No. 41 of 77 State Vs.Rajesh Adhikari @Babloo PW40 has stated that phone no.6229545 belonged to him and on this number he received ransom call.
63. PW9 Shashi, PW10 Mahesh Tyagi, PW11 Nain Singh and PW12 Onkar Singh are the public witnesses who were produced by the prosecution for accused Leelu, Jitpal and Arvind but they did not support the case of the prosecution and turned hostile. However, all the above stated accused have already been convicted by the court. PW13 Narender Singh & PW18 Narinder have been examined for accused Davinder Guni but they also turned hostile. Accused Davinder Guni has also been convicted by the court. PW14, Jeet Singh, PW15 Harish Chand, PW16 Vinod Kumar, PW17 Rohtash, PW23 Naveen Chand Jain, PW25 Balbir Singh have been adduced by the prosecution for accused Arvind who has already been convicted by the court. PW19 is Maruti 800 no. DL 9C 1399's owner and he proved RC Ex.PW19/A. PW22 has proved the record of telephone no. 511671. Call records shows that the accused persons had talked with each other during the said period. PW23 Amarjeet Singh has been produced by the prosecution with a view to prove that vehicle no. DL 6CA 7709 was given to him on contract basis. But this witness has FIR No.238/97 Page No. 42 of 77 State Vs.Rajesh Adhikari @Babloo turned hostile. However, accused Trilok has already been convicted by the court. PW26 Insp.Surender Kapoor is the witness to whom one reporter of Times of India has handed over a live cartridge. His testimony has been corroborated by PW38 SI Manoj Sinha in this respect as on the instruction of Insp.Surender Kapur he reached in the headquarter and seized the said live cartridge vide memo Ex.PW26/B. He also prepared its sketch Ex.PW26/A. Both the witnesses have corroborated to each other in this respect. So, it has been proved that live cartridge was handed over to the police by Press Reporter of Times of India as he might have been taking the photographs of the place of incident and found the said cartridge there. PW27 has proved the photographs of maruti car no. DL 2CH 1887 as Ex.PW27/A. PW4 is the Malkhana mohrar with whom the case properties were deposited and then it was sent to FSL for examination by PW29. They are formal witnesses. PW30 is the witness of arrest, personal search and disclosure of accused Brijesh and recovery effected on his disclosure statement. Accused Brijesh has already been convicted by the court. PW31 Sh MK Gupta has conducted TIP of accused Brijesh, Arvind and Leelu who have already been convicted by the court. PW32 Insp.Parvati is FIR No.238/97 Page No. 43 of 77 State Vs.Rajesh Adhikari @Babloo the formal witness who recorded the FIR no. 238/07 and her testimony has been corroborated by PW38 SI Manoj as he has stated that he made endorsement Ex.PW28/A on the statement of Virender Puri Ex.PW5/A and got registered the FIR. So, copy of FIR has successfully been proved in this case by the prosecution. PW33 L/Ct P Sharma is a formal witness who received call regarding kidnapping of child and recorded the same vide form Ex.PW33/A. PW34 HC BPS Rawat is the MHCM and PW35 Insp.Data Ram is the formal witness. PW36 SI Subhash Chand is DD recorder who recorded DD no.3A which is regarding the message of incident. Pw41 HC Karan Singh has deposed about taking sanction u/s 39 Arms Act and PW42 Roop Singh has examined the alleged weapon of offence used in the crime. The accused persons from whom the said weapon of offence were recovered have already been convicted by the court.
64. PW37 ASI Brahm Pal, PW38 SI Manoj, PW39 Rajender Bhatia are the main witnesses of investigation. On perusal of their testimonies, it is revealed that they have corroborated the version of each other regarding that accused Rajesh @ Babloo who was arrested on 09.08.97 by Insp.Ram FIR No.238/97 Page No. 44 of 77 State Vs.Rajesh Adhikari @Babloo Mehar, was interrogated and his disclosure statement was recorded. I have also perused the disclosure statement of accused Ex.PW40/B. On the basis of disclosure PW39 Insp.Rajender Bhatia arrested accused Sushil Nagar. So, on the basis of disclosure statement of present accused Rajesh Adhikari, the police had arrested accused Sushil Nagar first and thereafter other co accused were arrested and even the recovery of kidnapped child Tarun Puri was got effected by the coaccused of present accused Rajesh Adhikari. The coaccused of present accused Rajesh Adhikari were already convicted by the court. The convicts inturn had got the weapon of offence recovered. Sec.27 of the Evidence Act only provide that if an accused while in police custody furnishes any information, such portion of the information as distinctly relates to the facts thereby discovered will be relevant. In the present case, after arrest of other accused persons, the kidnapped child was also recovered from accused Virender and Trilok from the house of accused Karamvir (already convicted). In case Mohd.Inayattullah Vs. State of Maharashtra, AIR 1976 SC 483 their Lordship of Hon'ble Supreme Court observed that three things are admissible in evidence in a statement of accused under sec.27 of Evidence Act viz (i) knowledge of FIR No.238/97 Page No. 45 of 77 State Vs.Rajesh Adhikari @Babloo the accused (ii) knowledge as to certain thing and (iii) the place of concealment of object so discovered in consequence of knowledge. In the present case when in consequence of the information furnished by the present accused Rajesh Adhikari, the other coaccused were arrested and they led the police to different places and finally the child was got recovered by coaccused of accused Rajesh Adhikari, it is therefore, clear that the present accused had exclusive knowledge about the crime as well as whereabouts of his coaccused. In this case accused Rajesh Adhikari did not come infront and he worked and participated actively from behind being well known to the family of kidnapped child. All the three investigation witnesses have further corroborated about the arrest, personal search, disclosure statements and seizure of articles from other accused persons (who are already convicted). I have found some contradictions in the testimonies of official witnesses but they are of trivial nature and can be ignored by the court. It is revealed that some of the witnesses were recalled by the accused persons for cross examination after filing of kalandra u/s 41.1 Cr.P.C against the present accused. On perusal of the cross examination of PW4 HC Hira Lal, PW37 SI Brahmpal, PW38 Insp.Manoj FIR No.238/97 Page No. 46 of 77 State Vs.Rajesh Adhikari @Babloo Kr Sinha & PW39 Insp.Rajender Bhatia after filing kalandra u/s 41.1 Cr.P.C, it is revealed that the Ld. counsel has tried to strengthen the case of the prosecution. In cross examination PW38 has denied the suggestion that at the time of incident the accused were wearing masks. By putting this suggestion it is admitted that incident has happened and even accused were present but at that time accused were wearing masks. So, the present case incident is being admitted by putting this suggestion. The testimonies of these witnesses could not be shattered by the Ld. counsel in cross examination. I have also perused the testimony of PW40 Insp.Ram Mehar Singh who has arrested the present accused Rajesh Adhikari vide memo Ex.PW40/A and recorded his disclosure statement Ex.PW40/B. It has come in the evidence that accused Rajesh Adhikari was arrested first in this case on the basis of secret information and thereafter other accused were arrested. Accused Rajesh Adhikari disclosed to him all facts of this case as to how they hatched the conspiracy for kidnapping of Master Tarun Puri. No suggestion has been put to PW37, PW38, PW39 & PW40 in cross examination after filing kalandra u/s 41.1 Cr.P.C that accused has not been arrested and that he has not made any disclosure statement to the police. FIR No.238/97 Page No. 47 of 77 State Vs.Rajesh Adhikari @Babloo Cross examination of PW40 is quite formal and his testimony could not be shattered in cross examination. So, arrest and disclosure statement of accused remained unchallanged. I have found some contradictions in his testimony but that is of trivial nature and can be overlooked by the courts.
65. Taking into consideration the testimony of Defence witnesses DW1 Rai Singh Adhikari is the father of accused. In his cross examination it has come that due to incident with the family of Virender Puri and involvement of his son in the said case he felt uneasiness and not good, so he has finished all the relations with his son. In my opinion no father would finish relation with his son unless there is something bad and untoward incident or that son is involved in some criminal activities. By finishing relations by the father of present accused with him, it even seems and proves that the present accused was involved in this case. DW2 Dharamvir Singh is not a reliable witness as in cross examination he has stated that he used to be on morning duty in DTC which starts from 4.30 a.m or 5.50 a.m early in the morning. So, in my opinion he might not have seen DW1 as to what work DW1 was doing at the time of incident. It has been admitted by DW1 that he was on visiting terms with the family of PW5 Virender Puri. FIR No.238/97 Page No. 48 of 77 State Vs.Rajesh Adhikari @Babloo DW1 has further stated that he after 23 days of the incident, he asked his son Rajesh to take him to the residence of Sh HL Puri where Virender Puri was residing with his family. He visited to show his sympathy with their family. By this statement of DW1 it is crystal clear that he had taken his son, present accused Rajesh Adhikari to the house of Virender Puri. PW5 Virender Puri has stated that Rajesh Adhikari came to his residence and asked not to involve the police and he will treat this case on his own way. It seems that accused Rajesh Adhikari after visiting the house of Virender Puri, must have stated so, as per the version of PW5. There was no reason for PW5 to depose against the accused about his coming and asking not to involve the police and that he will tackle the situated on his own way, since his father was having visiting terms with the family of Virender Puri.
66. It is argued by the Ld.counsel for the accused that IO has committed illegalities during the course of investigation in not informing the relatives of accused about his arrest nor joined independent witnesses to his alleged disclosure statement and these illegalities committed by the IO should be taken into consideration while appreciating the evidence on record. It has been further argued that IO has played fraud in this case and FIR No.238/97 Page No. 49 of 77 State Vs.Rajesh Adhikari @Babloo such a fraud has never been played in criminal history. But their Lordship of the Supreme Court in State of Punjab Vs Gurmit Singh & Ors, AIR 1996 SC 1393 and State of Rajasthan Vs. Kishore, AIR 1996 SC 3035 held that irregularities and illegalities committed by the investigating officer will not render the prosecution case untrustworthy. I am of the view that the contention of the Ld. counsel for the accused is not well founded.
67. It is argued that accused Rajesh has not been identified that at the time of kidnapping he was present or he did not demand any ransom and therefore he has not hatched any conspiracy. This contention cannot be countenanced in law. When an offence is committed only a part of underlying story is visible. Sometime only the tip of ice burg is visible with naked eyes. It is only after investigation into various aspects of a case is conducted that the whole facet and ramification of the crime come to light. In the present case, FIR was recorded on the basis of facts which took place at the spot. The modus operandi adopted, their design and motive came to light when the demand for ransom was made. Even otherwise in organised crimes it is difficult to know about the whole story the moment a crime is FIR No.238/97 Page No. 50 of 77 State Vs.Rajesh Adhikari @Babloo committed. Such offences are committed with minute planning and concerted designs with definite motives with definite factices to caemouflage it... Participants are many, therefore, to relate their individual role to scattered actions require time and proper investigation. This, in other words, is called conspiracy. On the basis of evidence on record it has been clearly proved on record that the accused was in active interaction with another and was a conscious participant in the well knit conspiracy to extract ransom. Therefore, merely the offence initially appeared to be of simple kidnapping does not mean that facts brought to light in investigation and based on cogent evidence should be ignored. For trial of an accused, only ultimate conclusions based on evidence so collected are material to decide as to what offence actually was committed.
68. It is argued that present accused has been acquitted of charge of robbery in respect of car allegedly used in this case, therefore prosecution case in this case is also liable to fail. In this case Maruti Zen car was allegedly used by accused persons. However, since number plates of the same had been removed, no number of Maruti Zen car was given by the complainant. Secondly, in this case Maruti Zen car no. DL 9C 1399 was FIR No.238/97 Page No. 51 of 77 State Vs.Rajesh Adhikari @Babloo recovered from the house of Karamvir, a place where the kidnapped child was detained. The above case is not in respect of this Maruti Zen Car. But it was DL 3 CL 1104 which was robbed vide FIR 413/97 in which Rajesh Adhikari and Sanjay Jutsi are accused. I am of the view, therefore, acquittal of present accused Rajesh @ Babloo in a robbery case in respect of different Maruti Zen has no bearing on the fate of this case.
69. It is argued by the Ld. counsel that PW3 has not assigned any role to the present accused Rajesh Adhikari. It is the case of the prosecution that accused Rajesh with other accused who are already convicted were present in Tata Sumo and the persons who committed the crime were in Maruti Zen. Accused Rajesh did not come infront of complainant or the kidnapped child at the time of commission of crime. But PW5 complainant has stated that the present accused came to his house on the next day of incident and asked him not to inform the police and that he will handle the situation on his own. The fact of visiting the house of PW5 Virender Puri by accused Rajesh Adhikari has even been deposed and supported by DW1 Rai Singh Adhikari. PW3 Tarun Puri has also stated in his examination in chief that at the house where he was kept, all the accused persons used to come to FIR No.238/97 Page No. 52 of 77 State Vs.Rajesh Adhikari @Babloo him one by one. Even otherwise the present accused had hatched conspiracy with his coaccused and he participated actively from being already known to the family of the complainant.
70. It has been further argued that the father of accused Rajesh Adhikari was not supplying milk at the house of Virender Puri. It has been stated by PW1 who is the father of accused Rajesh Adhikari that he used to visit at the house of H.L.Puri being he was driver posted in Post and Telegram office where Sh HL Puri was the Director. So, it is clear that there was visiting terms between the family of accused as well as Virender Puri. He might not be supplying milk at his residence but still visiting terms was there and it has been proved by the testimony of DW1 itself.
71. It has been further submitted that deposition of PW5 has not been corroborated by PW6&7 regarding coming of accused Rajesh Adhikari. It is possible that Rajesh Adhikari did not meet Pw6&7 and he might have met only PW5 on the next day of incident and that is why PW5 has deposed against him. Further this version of PW5 regarding coming of accused Rajesh Adhikari at his house has been clarified by DW1 R.S. Adhikari who is the father of accused as he has stated that he asked his son FIR No.238/97 Page No. 53 of 77 State Vs.Rajesh Adhikari @Babloo Rajesh to take him to the house of Virender Puri after the incident.
72. It has been proved on record that the present accused was working in active collaboration with others. In this case the ransom demand of Rs.5.00 crores had been made and the same has been proved by the prosecution by examining the witnesses PW20 Sanjay Malik,PW21 Tilak Raj from Pooja Travel who produced the booking register of vehicle to Patiala and PW25 Balbir Singh from STD Booth, Patiala from where the call was made at the house of Sohit friend of kidnapped Child. No person involve himself in such a serious crime unless he himself is going to be benefited. It is seldom possible to procure direct evidence of involvement of an accused in a conspiracy which is hatched in secrecy and executed in darkness. The fact that accused was a principal member of group who actually kidnapped Tarun Puri clearly goes to prove that he had been actively participating in conspiracy.
73. I have also perused the case laws relied upon by the Ld. defence counsel . In case law AIR 1986 SC 180 it is stated in head note © that : "Constitution of India, Arts. 21, 39(a), 41, 226 - Right to FIR No.238/97 Page No. 54 of 77 State Vs.Rajesh Adhikari @Babloo life - Includes right to livelihood - Deprivation of right to livelihood except according to just and fair procedure established by law - Can be challanged as violative of Art. 21"
In case Law AIR 1990 SC 1402 it is stated in para 23 that: "the shift now is to broader notion of "fairness" or fair procedure in the administrative action. As far as the administrative officers are concerned the duty is not so much to act judicially as to act fairly".
In case law 1986 CRI.I.J.932 it is stated in para 13 that : "there is a real distinction between a 'fair trial' and a trial which is "legally valid" though not necessarily fair by ideal standards. An average trial in this country may not be as bad as a Kafkan trial, but every trial has some Kafkan shade or the other, even though that does not prevent it from being considered a legally valid trial".
74. In this case complainant has made complaint after kidnapping of his son. The accused was arrested. His disclosure statement was recorded. Thereafter his coaccused were arrested. The witnesses were examined by the prosecution in the court in the presence of all the accused. Their Statements u/s 313 Cr.P.C were recorded while they were present in the court. They were even given opportunity to examine witnesses on their FIR No.238/97 Page No. 55 of 77 State Vs.Rajesh Adhikari @Babloo behalf. Even the entire trial of this case was done on the basis of concept of natural justice. So, it was a fair trial and legally valid trial in the present case. There is no question of Kafkan trial.
It is stated in AIR 1976 SC 2423 in para 8 that : "It is the duty of the prosecution and no less of the court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with the weapon. Failure to do so may sometimes, cause aberration in the course of justice."
75. In this case no injury was caused to anyone. None was removed to hospital. So, there was no need to show the weapon of offence to any medical witness and with due respect this case law is not applicable to the present facts and circumstances of the case.
It is stated in AIR 1992 SC 1701 in para 23 that: "The prosecutor is under an obligation to supply not only the documents relied upon by him but also all those documents which may be favourable to the accused as well. This obligation flows from Rule 16 of the Rules framed under the Advocates Act and from the very nature of the office and duties attaching the office of FIR No.238/97 Page No. 56 of 77 State Vs.Rajesh Adhikari @Babloo prosecutor. Rule 16 aforesaid prohibits the prosecutor from suppressing the material favourable to the accused".
76. The prosecution has placed before the court each and every documents. Even the favourable witnesses to the accused have also been examined who have turned hostile.
In case Law AIR 1974 SC 1822 it is stated in para 11 that : "The duty of the IO is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth".
It is stated in AIR 1974 SC 1822 in para 11 that : "Duty of IO is not to bolster up a false case to record conviction"
It is stated in 1982 CRI. L.J. 213 in para 1 that : "Duty of public prosecutor is not to win a case by hook or by crook. A public prosecutor must be "an open book".
77. The public prosecutor has placed before the court whatever investigation has been done by the police. Even the prosecution has examined all the witnesses who were even related to the accused persons. FIR No.238/97 Page No. 57 of 77 State Vs.Rajesh Adhikari @Babloo Different Investigation officers have investigated this case. There is nothing on record that they have bolstered up a false case.
It is stated in 1966 Cr.L.J. 483, in para 61 & 62 that : "No one whatever may be his special skill in ballistic forensics can arrest without doubt that the bullets found on person who was target of a gun shot came out at a particular gun".
78. In this case gunshot was not made after aiming anyone. These were fired only in the air. However, the accused from whom the gun was recovered has already been convicted.
It is stated in case Law AIR 1966 SC & 1966 Cr.L.J 68 that : "There is a clear distinction between the admissibility of an evidence and the weight to be attached to it.
79. Perusal of the testimonies of PW3 Tarun Puri, the kidnapped child, PW5 Virender Puri - father of kidnapped child, PW6 Meena Puri and PW7 Maya - maid servant of PW5&6, there are clear cut allegations against already convicts. Ld.APP for the State put a question to PW3 Tarun Purithe FIR No.238/97 Page No. 58 of 77 State Vs.Rajesh Adhikari @Babloo kidnapped child "Can you identify the persons who used to visit the house where you were kept?" The kidnapped child had answered - All the accused persons present in the court used to visit from time to time that place. At the time of examination of kidnapped child present accused Rajesh Adhikar was present in the court.
It is stated in case Law AIR 1997 Cr.L.J. 1892 in head note (A) that : "Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.50Search and seizure - Procedure - No evidence showing concerned officer made any genuine effort to join independent witness before conducting further proceeding - Trial vitiated".
80. In the present case many independent witness have been made by the prosecution and even examined in the court. But they all turned hostile. It has come in the knowledge of the court during the final arguments that even though the coassociates of present accused Rajesh Adhikari @ Babloo have been convicted and even their sentence (except of two Ct.Jeet and Sushil Nagar) was upheld by the Hon'ble High court. It is stated in AIR 1974 SC 329 head note (B) that : FIR No.238/97 Page No. 59 of 77 State Vs.Rajesh Adhikari @Babloo "Evidence Act (1872), S.3 - Credibility of witnesses in criminal cases. Although defence witnesses are often untrustworthy, it is wrong to assume that they always lie and that prosecution witnesses are always trustworthy".
81. On perusal of the entire evidence available on file it is revealed that PW5 is the complainant and he deposed against the present accused about his coming to his house on the next day of present case incident. It has been established by the deposition of DW1 that they were having visiting terms at the house of complainant PW5 and that accused Rajesh Adhikari accompanied DW1 to the house of PW5 after present case incident. So, there was no reason for PW5 to depose against present accused Rajesh Adhikari being son of DW1 who was the driver of his Tau H.L.Puri. It is stated in AIR 1962 SC 1821 in para 324 that : "Charge sheet is hardly complete for accurate thesis of the prosecution case".
82. I have also perused the report u/s 173 Cr.P.C. Perusal of the same revealed that each and every fact has been mentioned by the Investigating Officer in the charge sheet connecting the present accused as FIR No.238/97 Page No. 60 of 77 State Vs.Rajesh Adhikari @Babloo well as his associates in this case.
It is stated in AIR 1981 SC 1237 that : "The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects there".
83. Ld. Counsel for the accused has argued that in this case secret informer disclosed that cartridges found at the spot were of FIR PS Aminagar Sarai in which Madan Bhaiya was involved and are tallying with that rifle seized in FIR no.120/96. He has argued that how the secret informer/IO came to know that cartridges found at the spot were of rifled seized in FIR no.120/96 without seeing the same. He has further argued that how three cartridges were matched with five cartridges and how secret informer identify any cartridge. He has further argued that Madan Bhaiya against whom FIR no.120/96 was registered has not been asked about his rifle to establish as to whom he had given the same. Ld. Counsel has further submitted that the child was allegedly recovered from the house of Smt. Shashi alongwith accused Virender and Trilok. Smt. Shashi has neither been FIR No.238/97 Page No. 61 of 77 State Vs.Rajesh Adhikari @Babloo made accused nor witness in this case. I have perused the file and it is revealed that present accused Rajesh Adhikari was the main conspirator in this case. The submissions made by the Ld. Counsel would have been considered for other accused allegedly found in possession of rifle at the spot. The submission of Ld. Counsel is, therefore not well founded for the present accused.
84. Ld. Counsel has further argued that nothing has been recovered at the instance of accused Rajesh Adhikari and none was arrested. Accused was arrested in a case of robbery in which he was acquitted and on the basis of disclosure statement in that case has has been falsely arrested in this case. In this case accused Rajesh Adhikari has been charged with section 120B IPC r/w sec. 364 A IPC, u/s 364A, 307/120B and u/s 368/120B IPC. Section 120A defines 'Criminal Conspiracy' as under: Definition of criminal conspiracy When two or more person agree to do or cause to be done, (1) an illegal Act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provide that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason section 10 of the Indian Evidence Act was enacted. It reads as under:FIR No.238/97 Page No. 62 of 77
State Vs.Rajesh Adhikari @Babloo
10.Things said or done by conspirator in reference to common design: where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the person believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
Thus the substantive section of the IPC i.e. Sec. 120A adumbrated thereon section 10 of the Indian Evidence Act give us the legislative provisions application to the conspiracy and its proof. A conspiracy is a march under a banner. The very agreement, concert or league is the ingredient, of the offence like most crimes, conspiracy requires an act and the accompanying mental state (mens rea). From the definition in Sec. 120A, it is evident that the agreement constitutes the act and the intention to achieve unlawful object constitutes the mental state. Conspiracy criminalizes the agreement to commit a crime. Inherently, conspiracy is a clandestine activity. Its covenants are not formed openly. It has to be inferred from circumstantial evidence of cooperation. If conspiracy are hatched in the darkness of secrecy and direct evidence is seldom forthcoming and if the offence is to be proved in relation to the acts, deeds or things done by the coconspirators, the question would arise as to what is the nature of these acts, deeds and things. Is merely moving around together or seen in each other's company sufficient? If not, what more should be there from which it could be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime.
85. It is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this FIR No.238/97 Page No. 63 of 77 State Vs.Rajesh Adhikari @Babloo proposition. The Law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties "actually came together' and agreed in terms" to pursue the unlawful object; there need ever have been an express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done.
86. Since more often that not, conspiracy would be proved on circumstantial evidence, four fundamental requirements as laid down as far back as in 1881 in the Judgment reported 60 years later at the suggestion of Rt. Hon'ble Sir Tej Bahadur Sapru i.e. 1941 ALJR 416 Queen Empress vs.Hoshhak is reemphasized: I. That the circumstances form which the conclusion is drawn be fully established;
II. That all the facts should be consistent with the hypothesis of guilt; III.that the circumstances should be of a conclusive nature and tendency; IV.That the circumstances should, by a moral certainty, actually exclude every hypothesis but the one proposed to be proved;
87. To bring home the charge of conspiracy within the ambit of section 120B it is necessary to establish that there was an agreement between the parties for doing an unlawful Act. It is difficult to establish conspiracy by direct evidence. Considering the facts and circumstances of the present case and since PW5 Virender Puri has specifically stated that accused FIR No.238/97 Page No. 64 of 77 State Vs.Rajesh Adhikari @Babloo Rajesh Adhikari @ Babloo, on the night of day of incident had come to his house and talked to him and his father. He asked them not to inform the police and he will try to help him in his own way. Thereafter, PW5 had received letters which are Ex.PW5/C,D,E and F stating that the child is with them. It has further been stated that thereafter call for ransom was received on 8.8.97 at the house of Sohit, a friend of Tarun (kidnapped child) from one Vijay who demanded Rs.5.00 crores to release Tarun. As per the case of the prosecution, the child Tarun was recovered from the possession of co accused of present accused Rajesh Adhikari. Only present accused Rajesh Adkhikari was aware about the affluence of PW5 Virender Puri since he used to visit his residence being his father was driver of HP Puri. DW1 R.S.Adhikari who is the father of accused has also stated that he asked his son Rajesh Adhikari to take him to the house of Virender puri after the incident. Even by the defence itself, it has been established that accused Rajesh Adhikari had visited the house of PW5 Virenderpuri. In cross examination Ld. Counsel has put the question to PW5 which is reproduced hereunder: Question: When did you see, Bablu for the first time after night of 22.07.97?
Answer: Bablu visited our house even on the next day and one or two day thereafter he again came to our house with his father and thereafter I had seen him in the court.
Question: How you told the police that Bablu came to your house on two or three occasions and even with his father, and that you FIR No.238/97 Page No. 65 of 77 State Vs.Rajesh Adhikari @Babloo were knowing them even before the incident in the statement dated 25.10.97?
Answer: I have stated before the police only that Bablu came to my house on three occasions and asked me not to involve the police and he of his own will make efforts to trace Traun Puri.
88. The above question put in cross examination also suggest that accused Rajesh Adhikari @ Bablu had visited the house of PW5. No question/suggestion has been put in cross examination by the Ld. Defence counsel to PW5 that accused Rajesh Adhikari @ Bablu never ever visit in the house of PW5 Virender Puri or he never hatched any plan to kidnap Tarun Puri. In view of the above discussions and evidence on file, I am of the view that present accused Rajesh Adhikari @ Bablu was the main conspirator in this case and he alongwith others, who are already convicts, had hatched criminal conspiracy before the commission of offence in this case to kidnap Tarun Puri and then demand ransom.
89. On perusal of the testimonies of all the witnesses it is revealed that they have corroborated the version of each other regarding present case incident and investigation. Even PW5 Virender Puri complainant has stated that present accused visited his house and stated not to report the matter to the police and he will handle the matter on his own way.
90. In view of the above discussions of the case laws relied upon FIR No.238/97 Page No. 66 of 77 State Vs.Rajesh Adhikari @Babloo by the Ld. defence counsel, with due respect, these case laws are not applicable to the present facts and circumstances of the case.
91. During the course of final arguments Ld. Defence counsel has argued that he has filed an application u/s 340 Cr.PC for initiating appropriate criminal proceedings against the prosecution agency/Investigating officer on behalf of accused Rajesh Adhikari and Sanjay Zutshi and the said application is pending adjudication. I have considered the record. The application was registered as Misc. No. M1/08 and used to be put up with case against accused Sanjay Zutshi. I heard the Ld. Counsel on the said application also. Ld. Counsel has submitted that IO of this case has played a fraud in this case and such type of fraud has never been played in criminal history. He has drawn the attention of the court on the application filed u/s 340 Cr.PC and related documents available on file and pointed out certain contradictions in the case of the prosecution. I have considered those contradictions and the submissions of the Ld. Defence counsel. In the present case 11 years old child was kidnapped for the purpose of ransom. The call for ransom was made from Patiala. The complainant, his wife and maid have clearly deposed against the coaccused FIR No.238/97 Page No. 67 of 77 State Vs.Rajesh Adhikari @Babloo of present accused Rajesh Adhikari @ Babloo and identified them as the same persons who had snatched Tarun from the hand of his father. The present accused was standing at a distance in some other car and watching the incident. The present accused had also visited the house of complainant on the same day of incident and thereafter also and asked the complainant not to involve the police and that he will see the matter on his own. The present case was investigated by IO Insp. Rajender Bhatia. The coaccused who were present at the time of incident and kidnapped Tarun were identified by the complainant, his wife and maid. Subsequently, they were convicted by the court on the investigation conducted by Insp. Rajender Bhatia. Perusal of the record revealed that the sentence of coaccused of present accused Rajesh Adhikari @ Babloo i.e. Dhanvinder Gunil, Virender Singh, Trilok Chand, Brijesh and Leelu have been confirmed by the Hon'ble High court and accused Sushil Nagar and Ct.Jeet Pal have been acquitted. The conviction of accused persons have been confirmed by the Hon'ble High court on the investigation done by the Insp. Rajender Bhatia. In view of my discussions in the preceeding paras of Judgment regarding investigation as well as discussions in present para, I am of the view that FIR No.238/97 Page No. 68 of 77 State Vs.Rajesh Adhikari @Babloo application u/s 340 Cr.PC has no merit and the same is hereby dismissed. It be attached with the main case file titled State Vs. Rajesh Adhikari.
92. So far as offences u/s 307/120B IPC are concerned, according to PW5 Virender Puri, PW6 Meena Puri and PW7 Maya, accused Brijesh and Leelu had put a country made revolver on the temple of Virender Puri and his wife Meena Puri and their maid servant. No role in this respect has been assigned to present accused Rajesh Adhikari. So, charge u/s 307/120B against present accused is not proved against the present accused.
93. Accused Rajesh has also been charged with S.368/120B IPC. He has also been charged with Sec.364A/120B IPC. Offence under S.364A makes punishable the kidnapping or abduction or detention of any person for the purpose of extorting ransom, or when circumstances of such kidnapping or abduction or detention give rise to apprehension that such person may be put to death. Offence u/s 364A is more serious in magnitude as compared to sec. 364, 365, 366, 366A&B, 367 to 369. Being less serious offences of similar kinds, if the accused is found guilty for offence u/s 364A no separate punishment can be given for the minor. In other words major offence include the minor. To my mind when accused has been charged FIR No.238/97 Page No. 69 of 77 State Vs.Rajesh Adhikari @Babloo with and found guilty of offence under sec. 364A/120B IPC he cannot be held guilty u/s 368 IPC. On the basis of evidence on record and on the basis of reasons given in the above discussions, I come to the conclusion that accused Rajesh Adhikari @ Babloo has informed his coaccused (already convicted) about the affluence of PW5 Virender Puri and since he used to visit his premises and know his business, he alongwith others hatched a plan to kidnap Tarun Puri, the son of PW5. There is evidence on file that a ransom call was made by one Vijay @Arvind for a sum of Rs.5.00 crores against the release of Tarun Puri. There is also a piece of circumstantial evidence available on file that he used to visit the house of complainant and there is another circumstantial evidence that accused Rajesh Adhikari visited at the house of complainant after the present case incident and asked him not to involve the police and that he will handle the situation on his own way. There was no reason for him to state to PW5 that he will handle the situation on his own. It seems that he was very well aware before hand about the incident and by handling the situation on his own way means that he will get the matter settled since he knew all of his coaccused (already convicted) and as to where the kidnapped child was kept. There is another FIR No.238/97 Page No. 70 of 77 State Vs.Rajesh Adhikari @Babloo piece of circumstantial evidence when on his disclosure statement accused Sushil Nagar was arrested and then other coaccused (already convicted) were arrested and kidnapped child was recovered by the police. In view of the evidence available on file, I am of the opinion that the present Accused Rajesh Adhikar @ Babloo was the main conspirator in this case and he hatched the conspiracy alongwith others to kidnap PW3 Tarun Puri for the sake of ransom.
94. As a sequel to my findings above, I am of the view that the prosecution has been able to prove the the case against accused Rajesh Adhikari @ Babloo by leading cogent and reliable evidence for the commission of offence punishable u/s 364A/120B IPC and he is convicted thereunder.
Announced in the open Court on 22.10.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court) New Delhi and South East District NEW DELHI FIR No.238/97 Page No. 71 of 77 State Vs.Rajesh Adhikari @Babloo IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI SC No.19/11 FIR No.238/97 U/s 364A/368/307/120B IPC PS Tuglaq Road State Vs. Rajesh Adhikari @ Babloo S/o Sh Rai Singh ..... Accused ORDER ON THE POINT OF SENTENCE Accused Rajesh Adhikari @ Babloo has been held guilty for the commission of offence punishable u/s 364A/120B IPC and convicted thereunder vide Judgment dated 22.10.2011.
2. I have heard the arguments on the point of sentence from the Ld.counsel for the convict as well as convict himself. During the course of arguments it has been submitted by the Ld. Counsel on behalf of convict FIR No.238/97 Page No. 72 of 77 State Vs.Rajesh Adhikari @Babloo that in this case none of the ingredient required to prove the case u/s 364A IPC has been proved by the prosecution. He has stated that section 165 of Evidence Act has been squarely breached in trial as nothing could be brought by the prosecution on record against accused Rajesh Adhikari. He has submitted that in this case illegal conviction has been made and further stated that illegal conviction and illegal acquittal both the very fatal. Ld.counsel has further submitted that he leave everything on the court regarding sentencing the accused/convict. No other submission has been made.
3. On the other hand Ld. APP for the State has submitted that this is a case of serious nature i.e. kidnapping for ransom and such offences are increasing day by day. It has become organised crime nowadays. He has submitted that such an accused may be dealt with heavy hands. It has also been submitted by the Ld. APP for the state that present accused/convict was the main conspirator in this case as he was known to the family of kidnapped child and he was present at the scene of crime at some distance in some other vehicle. Ld. APP has prayed that maximum punishment provided under law may kindly be awarded to the convict. FIR No.238/97 Page No. 73 of 77 State Vs.Rajesh Adhikari @Babloo
4. Under section 364A IPC discretion of the court has been limited to make choice between two sentences (i) imprisonment for life and (ii) capital punishment. The modus operandi adopted by the convict seems to be of professional criminals. He was well aware about the affluence of complainant and his family and he hatched conspiracy alongwith his coaccused to kidnap a child of 11 years of age to procure hefty ransom which create fear psychosis in the society. The coaccused of present convict were armed with sophisticated weapon like NARINCO rifle of 5.56/.223 caliber which is rarely found in India and is only used by Commandos in USA. In the field of penology there are divergence of opinion in regard to penological prescriptions. There are two extreme view governing this field. Protagonists of 'eye to eye and limb for limb' believe in maxima as a punishment to deter potential criminal from committing crimes. Where as humanist, on the other hand press for other extreme viz. 'death in no case' as punishment however heinous the crime may be. Both the philosophies put forward their own rationale for the conclusions they adhere to between these two extreme, the optimists believe in a balanced approach of 'reclamation and rehabilitation' of criminals. In the countries FIR No.238/97 Page No. 74 of 77 State Vs.Rajesh Adhikari @Babloo governed by established Constitutional philosophical justifications in the field of penology are required to be in consonance with the ethos of the Constitutional philosophy. In India, 'human dignity' is one of the edifices of our constitutional philosophy. Therefore, in Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 their Lordship of Supreme Court observed that the death sentence should be awarded only in the 'rarest of rare' cases where the alternative option is unquestionably foreclosed. It was observed that statutory mandate of sec.354 Cr.P.C enjoins a duty on the court to give 'special reasons' as justification for award of capital sentence.
5. In Machchi Singh Vs. State of Punjab, AIR 1983 SC 957 their Lordship held that humanistic edifice is constructed on the foundation of 'reverence for life' but deviation from the principal and 'killing the killer' is justified only when selfpreservation of society is in peril.
6. In the present case convict hatched conspiracy with his co accused to kidnap a child to extract hefty amount of Rs.5.00 crores from his parents as ransom. They chose emotionally soft target. The impact of this incident was that a sense of insecurity amongst the members of the society was created. The manner of commission of crime suggest that offence was FIR No.238/97 Page No. 75 of 77 State Vs.Rajesh Adhikari @Babloo committed in an organized manner with premeditation and calculated strategy and design. The kidnapped child was kept in custody for more than 20 days and demand for ransom was put forward. Because of the promptitude shown by the police, the child was recovered unharmed. The child and his parents certainly must have passed these 20 sleepless nights with fear and agony in their minds. It was organized crime committed by well organized band of dreaded criminals where mastermind remained behind the curtain and pigmies are employed as tool to execute the criminal act. The present convict Rajesh Adhikari is the main conspirator in this case as he was the person who know the complainant and his family's background. He was very well aware about the affluence of complainant since he was having visiting terms at his house. He has been convicted u/s 364A/120B IPC.
7. Keeping in view the circumstances as enumerated above, though the offence committed by the convict is serious and heinous, yet it neither qualifies to be 'rarest of rare' case nor the extreme penalty is warranted.
8. Therefore, keeping in view all the facts and circumstances of FIR No.238/97 Page No. 76 of 77 State Vs.Rajesh Adhikari @Babloo the case, convict Rajesh Adhikari @ Babloo is sentenced to undergo Imprisonment for Life and to pay fine of Rs.5,000/ for the commission of offence punishable u/s 364A/120B IPC. In default of payment of fine he shall undergo SI for one year.
9. The benefit of sec.428 Cr.P.C be given to the convict. Copy of this order on the point of sentence and copy of Judgment be given to the convict free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the open Court on 29.10.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court) New Delhi and South East District NEW DELHI FIR No.238/97 Page No. 77 of 77 State Vs.Rajesh Adhikari @Babloo FIR No.238/97 Page No. 78 of 77 State Vs.Rajesh Adhikari @Babloo