Delhi District Court
State vs 1. Subhash Rai 2. Ranjeet Kr on 24 February, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28517/2016)
FIR No. 214/2015
Police Station Civil Lines
Charge-sheet filed under Sections 364A/34 IPC.
Charges framed against accused 364A/34 IPC.
Subhash Rai and accused Ranjeet
Karmakar.
State Versus 1. Subhash Rai,
S/o Sh. Mauka Rai,
R/o Village Fayeja Pur,
Post Office Jahangirpur,
Police Sation Ganga Rampur,
Distt. Dakshin Dinajpur,
West Bengal.
2. Ranjeet Karmakar,
S/o Sh. Subhash Karmakar,
R/o H. No. 418/9, Laxmi Vihar
Burari, Delhi
...Accused Persons.
Date of Institution of case 19.09.2015
Date of Arguments 24.02.2024
Judgment reserved on 24.02.2024
Judgment pronounced on 24.02.2024
Decision Acquitted
FIR No. 214/2015
PS: Civil Lines Page No. 1 of 29
State Vs. Subhash Rai & Anr.
JUDGMENT
1. Accused persons namely Subhash Rai and Ranjeet Karmakar are facing trial for the offence punishable under Sec. 364A/34 IPC. The story of the prosecution is that both the accused persons in furtherance of their common intention abducted Naiyar Alam, S/o Sh. Farman Ali and kept him in detention after abducting him and threatened to cause his death in order to compel his brother Mohd. Anis to pay ransom of Rs. 40,000/-.
2. The brief facts which are born out from the record of the case are that on 28.05.2015 complainant Mohd. Anis came to PS Civil Lines and got his complaint recorded regarding kidnapping of his brother Naiyar Alam and demand of Rs. 40,000/- as ransom. Complainant Mohd. Anis further informed that kidnappers also directed him to deposit the aforesaid amount in bank account nos. 34675440260 & 34675440373. On the next morning i.e. on 29.05.2015, FIR was registered on the complainant of Mohd. Anis after he met SI Ravinder and informed him that he had received a call from mobile no. 8572826750 and his brother Naiyar Alam talked him and he was appearing to be threatened and he informed about his address as BHL or DHL, Pataudi. Thereafter, IO prepared a raiding party and proceeded for the spot which was found near Pataudi, Haryana. Thereafter raiding party reached village Luhari where warehouse of DHL company was situated where they made inquiries but no clue of abducted person namely Naiyar Alam FIR No. 214/2015 PS: Civil Lines Page No. 2 of 29 State Vs. Subhash Rai & Anr.
was found. In the meanwhile, raiding party noticed that three persons were coming out from the said warehouse of DHL and were going towards the main road. Accused Subhash Rai had caught hold of hand of Naiyar Alam and accused Ranjit Karmakar was covering them. Complainant Mohd. Anis identified his brother Naiyar Alam. IO apprehended them with the help of staff and they were interrogated and their names were disclosed.
3. IO prepared recovery memo of victim Naiyar Alam and site plan of place of recovery. Accused Subhash Rai produced his attendance card which was issued when he along with his wife was working at the site of complainant Mohd. Anish. IO seized the same. IO arrested the accused persons, conducted their personal search and recorded their disclosure statements. IO recorded the statements of witnesses under Sec. 161 Cr.PC. IO also got recorded statement under Sec. 164 Cr.PC of victim Naiyar Alam before the Ld. MM. IO also obtained the CDRs of relevant mobile numbers. IO conducted the proceedings during investigation and on completion of investigation, he filed the charge-sheet in the court through SHO.
4. Vide order dated 1 6 . 0 9 . 2 0 1 5 , copy of the charge- sheet under Section 207 Cr.P.C was supplied to the accused persons and the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 28.09.2015 the Ld. Predecessor Court was pleased to frame charges under Sec. 364A/34 IPC against both the accused persons namely Subhash Rai and Ranjeet FIR No. 214/2015 PS: Civil Lines Page No. 3 of 29 State Vs. Subhash Rai & Anr.
Karmakar to which they pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined 14 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
7. PW-1 Sh. Pawan Singh, is the Nodal Officer, Idea Cellular Ltd. He proved the notice under Sec. 91 Cr.PC, attested copy of CDR, CAF of mobile no. 8684810678 issued in the name of Shiblal Kisku along with ID proof of subscriber and certificate under Sec. 65B of the Evidence Act as Ex. PW-1/A to Ex. PW- 1/E. In his cross-examination he stated that there was no such technology available with them to pin point the exact location of the mobile number.
8. PW-2 HC Attar Singh was the Duty Officer who proved FIR No. 214/2015, Ex. PW-2/A and rukka Ex. PW-2/B. He also proved certificate under Sec. 65B of The Evidence Act as Ex. PW-2/C. In his cross-examination, he denied the suggestion that accused persons and complainant were with the IO at the time of recording of FIR. He also denied the suggestion that FIR is ante- dated and timed.
9. PW-3 Surender Pal Mandal deposed that he was working as Accountant in Nice Project Pvt. Ltd., Okhla Phase-I, Delhi and on 28.05.2015 his duty was at Lohari, District Jhajhar, Haryana where warehouse of said company was being constructed. He further deposed that on that day labour of his company namely Munshi Mumtaz came to him and requested him to provide his account number as he informed that some new labours had come to him from contractor of another company and said contractor of FIR No. 214/2015 PS: Civil Lines Page No. 4 of 29 State Vs. Subhash Rai & Anr.
another company will transfer a sum of Rs. 40,000/- to new labour Subhash. He further deposed that considering the request of Munshi Mumtaz, he provided his account no. 34675440373 to him. He also deposed that on 28.05.2015 police along with accused Subhash Rai came to him then he came to know from Police that accused Subhash Rai had kidnapped brother of one contractor and he was demanding Rs. 40,000/- from him. In his cross-examination, he admitted that he had not asked the police officials whether the kidnapped person had been recovered from accused persons or that the police officials had also not told him about the same.
10. PW-4 Ct. Sumit deposed that on 29.05.2015 he joined the investigation with IO SI Ravinder Singh. He deposed about the proceedings conducted by IO/SI Ravinder Singh at Haryana including the preparation of recovery memo, Ex. PW-4/A of victim Naiyar Alam, arrest memos, personal search memos and disclosure statements of accused Subhash Rai and Ranjeet Karmakar. This witness was cross-examined at length. In his cross-examination, he deposed that it was the complainant who told the IO about the presence of kidnappers and his kidnapped brother at the warehouse. He further deposed that he and IO/SI Ravinder was in uniform and after seeing them, accused persons did not try to escape. He also deposed that no weapon or any lathi/danda was recovered from the possession of accused persons. He further deposed that IO had not obtained the signatures of public witnesses namely Surender Prasad and Mumtaz on seizure memos. He denied the suggestion that seizure FIR No. 214/2015 PS: Civil Lines Page No. 5 of 29 State Vs. Subhash Rai & Anr.
memo of mobile phone was prepared at Police Station and not at the spot. He also denied the suggestion that he had not joined the investigation of the present case or that he had signed all the documents in the Police Station on the direction of IO.
11. PW-5 Ct. Nagesh deposed that on the lines of PW-5 Ct. Sumit. He deposed that on 29.05.2015 he joined the investigation with IO SI Ravinder Singh. He also deposed about the proceedings conducted by IO/SI Ravinder Singh including the preparation of recovery memo of Naiyar Alam, site plan, arrest, personal search and disclosure statements of accused Subhash Rai and Ranjeet Karmakar. This witness was cross-examined at length. In his cross-examination he deposed that gate-keeper was present at the warehouse and was having visitor register but he did not remember whether IO made relevant entries in the said register or not. He further deposed that they all were in police uniform and the accused persons did not try to escape after seeing them in police uniform. He also admitted that few attendance cards were recovered from possession of accused Subhash Rai.
12. PW-6 Sh. Naiyar Alam was the victim who was allegedly abducted by the accused persons. He deposed that on 27.05.2015, he was doing water proofing work of NBCC company at Civil Lines, Delhi and on that day, he left the said place for Noida Sector 78 and reached JMC Company at Sector-78, Noida where accused Subhash Rai and his father-in-law/accused Ranjeet Karmakar met him and demanded Rs. 40,000/- from him. He further deposed that accused Subhash Rai and his wife had FIR No. 214/2015 PS: Civil Lines Page No. 6 of 29 State Vs. Subhash Rai & Anr.
worked under his brother/complainant Mohd. Anis for a period of 2-3 months and his brother Mohd. Anis had given them their due wages therefore he replied them that the said money will be given by his brother Anis. He further deposed that accused Subhash Rai snatched his mobile phone and got him seated in TSR forcibly by extending threats of life and took him Gurgaon and thereafter he was taken at the site of DHL company and where he was confined in a Jhuggi by accused persons. He further deposed that in the evening on the same day, accused Ranjeet Karmakar took him to a chicken shop at Pataudi where he borrowed mobile phone from the owner of chicken shop and informed his brother Mohd. Anis regarding his abduction and address of site of DHL company. He also deposed that on 29.05.2015 his brother Mohd. Anis along with Police officials reached at the site of DHLT and thereafter the police apprehended accused persons namely Subhash Rai and Ranjeet Karmakar.
13. PW-6 further deposed that his statement under Sec. 164 Cr.PC, Ex. PW-6/A was recorded by Ld. MM. This witness was cross-examined at length by Ld. Defence counsel. In his cross- examination, he deposed that he did not remember whether he had stated in his statement under Sec. 161 Cr.PC & 164 Cr.PC that his brother was to pay some money out of due wages of accused Subhash Rai and his wife. He admitted that he had not raised any alarm when he was being made to sit in the auto as the accused persons were threatening him. This witness was also confronted with his statement under Sec. 164 Cr.PC, Ex. PW-
FIR No. 214/2015 PS: Civil Lines Page No. 7 of 296/A. He further deposed that he had slept at the night time and was not tied at the said time. He also admitted that he had not raised any alarm at the chicken shop also. He also admitted that he did not remember whether accused persons had made any call to his brother Anis or not.
14. PW-7 Sh. Anuj Bhatia is the Nodal Officer, Vodafone Mobile Services Ltd. He proved the certified copy of CAF along with voter ID, CDR & Cell ID Chart of the subscriber of mobile phone no. 9711072630 namely Satender Kumar along with certificate under Sec. 65B of The Evidence Act as Ex. PW-7/A to Ex. PW-7/E. In his cross-examination, he deposed that the aforesaid mobile number was operational till 28.05.2015, as per CDR Ex. PW-7/C.
15. PW-8 Sh. Mumtaz deposed that he was working as Munshi at warehouse of DHL at village Lohari, Jhajjar, Haryana where accused Ranjit Karmakar and his wife were also working. He further deposed that in May, 2015, accused Ranjit Karmakar introduced his daughter and her husband to him to work in the warehouse. He further deposed that after two days, accused Subhash Rai came to him and told him that he alongwith his wife were going to somewhere and they will returned in the evening. He further deposed that on the next day, accused Subhash Rai returned to warehouse alongwith one person and upon asking about the said person, accused Subhash Rai told him that he is the brother of one contractor. He further deposed that accused Subhash Rai asked him to give his bank account number stating that the contractor will deposit money in his account as accused FIR No. 214/2015 PS: Civil Lines Page No. 8 of 29 State Vs. Subhash Rai & Anr.
Subhash Rai had no bank account therefore, he provided his bank account number to accused Subhash Rai. He further deposed that accused Subhash Rai again asked him to provide another bank account number and therefore he provided account number of Surender Mandal to him. He further deposed that thereafter Police of PS Civil Lines visited the warehouse and they told him that accused Subhash Rai and accused Ranjit Karmakar had brought the said persons after abducting him. This witness was cross-examined by Ld. Addl. PP for the State in which he admitted that accused Subhash Rai had came to him and told him that he along with his wife had worked as labourer with some other contractor and his due wages of Rs. 40,000/- was due on the contractor and accused Subhash asked him to provide his account number as the contractor will deposit his above said due wages in the account and accused Subhash Rai further told him that since only upto Rs. 25,000/- can be deposited in one account so he required on another account number for depositing the above said wages. He denied the suggestion that he had stated in his statement that accused Subhash Rai was demanding money of Rs. 40,000/- from the contractor. This witness was cross- examined at length on behalf of accused persons. In his cross- examination he stated that both the accused persons along with their wives had left the site on the said day and they returned along with said brother of contractor on the very next day. He further deposed that the said brother of thekedar was not looking afraid when he was brought by the accused persons. He further deposed that brother of Thekedar was enjoying with accused FIR No. 214/2015 PS: Civil Lines Page No. 9 of 29 State Vs. Subhash Rai & Anr.
persons as they were taking chicken etc. together. This witness was also confronted with his statement under Sec. 161 Cr.PC, Ex. PW-8/D. He denied the suggestion that he had not participated in the investigation at any point of time or that he had seen Naiyar Alam with accused Subhash Raid and Ranjit Karmakar at the the site of that he had not gone to PS Civil Lines alongwith IO.
16. PW-9 Mohd. Anis is the complainant/elder brother of victim Naiyar Alam. He deposed that on 27.05.2015 his brother Naiyar Alam did not return to home till night. He tried to trace his brother Nair Alam by making calls to their relatives but no clue was found. He further deposed that on 28.05.2015, he received a call on his mobile phone and caller told his that his brother Naiyar Alam was in his custody and caller provided him two bank account numbers and asked him to send Rs. 40,000/- in the bank accounts and then he will release his brother. Caller also threatened him that he will kill his brother if he did not transfer the said amount in the bank account. He further deposed that he filed his written complaint Ex. PW-9/A in the office of DCP. He also deposed that in the evening of said date, he received a call on his mobile phone and his brother Naiyar Alam was speaking from the other side and told him that he had been confined at DHL Pataudi. He further deposed that on the next morning he along with Shakeel and four police officials from PS Civil Lines left for DHL, Pataudi. He further deposed that after sometime they saw that three persons coming out from the DHL and one of them was holding the hand of one person and third person was behind the above said person whose hand was caught hold and FIR No. 214/2015 PS: Civil Lines Page No. 10 of 29 State Vs. Subhash Rai & Anr.
when they came near to their vehicle, he saw that the person whose hand was caught hold was his brother Naiyar Alam and accused Subhash Rai caught hold the hand of his brother and accused Ranjit Karmakar was behind his brother. He further deposed that he informed the Police Official that Naiyar Alam was his brother thereafter police apprehended both the accused persons and got released his brother from them. He also deposed about the proceedings conducted by IO regarding preparation of site plan, arrest memo of accused persons, their personal search and disclosure statements, seizure memo of case properties etc. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he stated that he did not remember why he alongwith police had gone to Pataudi only and not to any other place. He also deposed that he did not know whether Police had inquired from Shakeel or had recorded his statement. He denied the suggestion that he had to pay the dues of Rs. 40,000/- to the accused Subhash Rai and therefore, he had falsely implicated the accused persons in the present case. He also denied the suggestion that his brother Naiyar Alam was not kidnapped or abducted by the accused persons rather he and his brother Naiyar Alam had made a frivolous and concocted story to falsely implicate the accused persons in the present case.
17. PW-10 Surender Kumar, Nodal Officer, Bharti Airtel Ltd. He proved notice under Sec. 91 Cr.PC, certified copy of CAF along ID of subscriber, CDR & Cell ID Chart of Delhi circle and Cell ID chart of Haryana circle of mobile phone no. 9871289989 issued in the name of Mohd. Anis as Ex. PW-10/A FIR No. 214/2015 PS: Civil Lines Page No. 11 of 29 State Vs. Subhash Rai & Anr.
to Ex. PW-10/E. He also proved CAF along ID of subscriber, CDR of mobile phone no. 8572826750 issued in the name of Madan Ram as Ex. PW-10/F to Ex. PW-10/G. He also proved certificate under Sec. 65B of The Evidence Act, Ex. PW-10/H. In his cross-examination, he denied the suggestion that he had not handed over the abovesaid document on the same day.
18. PW-11 Sh. Amjad Khan, deposed that he was running a Chicken Shop at Village Lauhari near DHL Company, District Jhajjar, Haryana. He further deposed that in the year 2015, accused Ranjeet Karmakar along with three persons came to his shop and asked him for providing chicken meat. He further deposed that the person with accused Ranjeet Karmakar had demanded his mobile phone and had made call with the said phone. He further deposed that on the next day, police officials came to his shop along with accused Ranjeet Karmakar and 2-3 other persons and made inquiry from him thereafter he came to know that matter was of a transaction. In his cross-examination, he deposed that he did not tell the police that the person who used his mobile phone was under fear. He also deposed that he had not stated in his statement that he came it know when the police came to him that the matter was of kidnapping.
19. PW-12 HC Karamvir was the MHC(M). He proved the entries made by him in the register no. 19 vide Ex. PW-12/A regarding deposit of case properties by the IO. In his cross- examination, he denied the suggestion that mobile phones were not deposited in the Malkhana on the abovesaid date or that said entries are ante-dated and ante-timed. He also admitted that both FIR No. 214/2015 PS: Civil Lines Page No. 12 of 29 State Vs. Subhash Rai & Anr.
the mobile phones were in unsealed condition.
20. PW-13 Sh. Sachin Sangwan, Ld. Metropolitan Magistrate deposed that on an application Ex. PW-13/A marked to him, he recorded the statement under Sec. 164 Cr.PC, Ex. PW-13/B of victim Naiyar Alam in camera proceedings. Thereafter, IO moved an application Ex. PW-13/C for providing copy of the statement and the same was allowed. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
21. PW-14 SI Ravinder Singh, is the Investigating Officer of the present case. He deposed that on 28.05.2015 one complaint of complainant Mohd. Anis regarding kidnapping of his brother Nayyar Alam and demand of Rs. 40,000/- as ransom was received by him in the PS. He further deposed that complainant Mohd. Anis informed him that kidnappers had directed him to deposit the aforesaid amount in account nos. 34675440260 & 34675440373. He further deposed that on the next morning complainant met him and informed him that he received a call from mobile no. 8572826750 and his brother Naiyar Alam talked him and he was appearing to be threatened and he informed about his address as BHL or DHL, Pataudi. He further deposed that he made endorsement on the complaint and got the present FIR registered under Sec. 364A/34 IPC at the Police Station. He further deposed that he obtained the location of mobile number of kidnapper which was found near Pataudi, Haryana. He also deposed that raiding team reached village Luhari where the raiding team noticed that three persons coming out from the warehouse of DHL and going towards main road. Accused FIR No. 214/2015 PS: Civil Lines Page No. 13 of 29 State Vs. Subhash Rai & Anr.
Subhash Rai was apprehending the hand of Naiyar Alam and accused Ranjit Karmakar was covering them. Complainant identified his brother Naiyar Alam. He further deposed that he apprehended them with the help of staff and they were interrogated and their names were disclosed. He further proved the recovery memo of Naiyar Alam, site plan of place of recovery, arrest memos, personal search memos and disclosure statements of both accused persons. He further deposed that he interrogated the SBI account holders namely Surender Prasad Mandal and Mumtaz who were employees of DHL company, one Amjad Khan whose mobile number was used for making ransom call to complainant. He further deposed that he also got recorded statement under Sec. 164 Cr.PC of victim Naiyar Alam before Ld. MM. He also deposed that he obtained the CDRs of relevant mobile phone numbers. He also correctly identified the accused persons in the Court. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he denied the suggestion that all the statements of Anis and Naiyar Alam were recorded in PS Civil Lines. He also denied the suggestion that the present case was registered at the request of Mohd. Anis for the only reason that Mohd. Anis was known to him or that accused persons were not arrested from the DHL, Pataudi. He also admitted that he could not trace Satender Kumar and Nokhi Ram in whose names the abovesaid mobile phone connections bearing numbers 9711072630 and 8572826750 were registered. He also admitted that accused Subhash Rai has produced his attendance card and had submitted that the said card was issued FIR No. 214/2015 PS: Civil Lines Page No. 14 of 29 State Vs. Subhash Rai & Anr.
to him when he along with his wife was working at the site of complainant Mohd. Anis.
22. After closing of prosecution evidence, separate statements of both the accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. They stated that they have been falsely implicated in this case by PW- 9/Complainant Mohd. Anis in connivance with PW-6 Naiyar Alam and PW-14/IO SI Ravinder Singh. They further stated that they are innocent. They did not commit any offence and they have been falsely implicated in the present case. Accused persons did not lead any defence evidence.
23. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Sh. Yatinder Kumar, Ld. Legal Aid Counsel for both the accused persons.
24. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that PW-9 Mohd. Anis and PW-6 Naiyar Alam have narrated the entire incidents. He further argued that PW-3 Sh. Surender Mandal and PW-11 Amjad Khan have also corroborated the prosecution story. He also argued that none of the prosecution witness has turned hostile. He also argued that PW-6 Naiyar Alam was rescued from the custody of accused persons. He also argued that the testimony of prosecution witnesses is of sterling quality and hence same should be relied upon. He also argued that since the prosecution has proved its FIR No. 214/2015 PS: Civil Lines Page No. 15 of 29 State Vs. Subhash Rai & Anr.
case against all the accused persons beyond reasonable doubt, they should be convicted under all sections of law under which charges have been framed against them.
25. Per Contra Ld. Legal Aid Counsel argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate their point, they argued that the investigation in the present case has been conducted in an arbitrary manner. He further argued that accused Subhash Rai was working with complainant Mohd. Anis and an amount of Rs. 40,000/- was due in favour of accused Subhash Rai from complainant Mohd. Anis. He argued that to teach a lesson to accused persons, PW-9 Mohd. Anis in connivance with PW-6 Sh. Naiyar Alam and PW-14 IO/SI Ravinder Singh has falsely implicated the accused persons in the present case. He argued that earlier PW-6 Sh. Naiyar Alam deposed that four persons had abducted him but later on he changed his version and deposed that only two persons were involved in his abduction. He also argued that as per prosecution story, accused persons were not having any weapon and the victim did not raise any alarm. He also argued that PW-8 Sh. Mumtaz has specifically deposed that the victim was enjoying with accused persons and he was not looking afraid. He also argued that the snatched mobile phone of victim was not recovered. He also argued that the testimony of prosecution witnesses is suffering from material contradiction and cannot be relied upon. He argued that since the prosecution has miserably failed to prove its case against accused persons beyond reasonable doubts, both the accused persons should be FIR No. 214/2015 PS: Civil Lines Page No. 16 of 29 State Vs. Subhash Rai & Anr.
acquitted under Sec. 364A/34 IPC.
26. In the present case, Charges under Sec. 364A/34 IPC have been framed against the accused persons. These Sections have been defined as follows:
364A. Kidnapping for ransom, etc. Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a resonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or intertnational inter-governmental organization or any other person] to do so or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
34. Acts done by several person in furtherance of common intention When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
27. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the state as well as Ld. Counsels for accused persons.
28. PW-6 Naiyar Alam is the star witness of the prosecution. He is the victim as well as the only eye witness of the alleged FIR No. 214/2015 PS: Civil Lines Page No. 17 of 29 State Vs. Subhash Rai & Anr.
incident of kidnapping/abduction for ransom. The testimony of PW-6 Naiyar Alam is to be appreciated as per the established principle of law regarding the testimony of sole eye witness.
29. PW-6 Naiyar Alam in his testimony recorded on 28.01.2016, deposed that on 27.05.2015, he went to the site of JMC company, Sector 78, Noida where he met with accused persons namely Subhash Rai and Ranjeet Karmakar. He further deposed that accused persons demanded Rs. 40,000/- from him and both the accused persons and two other persons got him seated in TSR forcibly. He also deposed that all the four persons were talking to each other regarding the demand of money from his brother Mohd. Anis. However, in the later part of his examination in chief dated 03.02.2016, PW-6 Naiyar Alam changed his version and deposed that inadvertently he had deposed in his earlier examination in chief that both the accused persons alongwith two unknown persons got him seated in TSR forcibly. He further deposed that no other person was present with the two accused persons when he was taken to Pataudi by them in TSR. Thus, PW-6 Naiyar Alam has given two contradictory version which cannot stand together. This raises serious doubts on veracity of PW-6 Naiyar Alam and hence his testimony regarding the incident cannot be relied upon.
30. PW-6 Naiyar Alam deposed that at the time of incident he was carrying mobile phone make Samsung Galaxy -2. However, he has not produced any purchase receipt of the same either FIR No. 214/2015 PS: Civil Lines Page No. 18 of 29 State Vs. Subhash Rai & Anr.
before the IO or during the trial. During the investigation, only two mobile phones make Karbonn and Kechaoba were recovered from the possession of accused persons and the complainant has not claimed any of the mobile phones to be his phone. PW-6 Naiyar Alam in his statement Ex. PW14/B recorded under Section 164 Cr.P.C stated before the Ld. MM that at the time of incident he was not having any mobile phone. PW-14 IO Insp. Ravinder Singh in his cross-examination deposed that victim PW-6 Naiyar Alam was not having any mobile phone. In these circumstances, it has become doubtful whether any such phone was ever in possession of PW-6 Naiyar Alam at the time of alleged incident. This raises serious doubts on the veracity of PW-6 Naiyar Alam as well as prosecution story.
31. PW-6 Naiyar Alam deposed that in the TSR, accused persons took him to bus stand, Gurgaon and thereafter they took him to the site of DHL. In his cross-examination, PW-6 Naiyar Alam deposed that he had not raised any alarm when he was being made to sit in auto nor did he try to get out of the auto or raise the alarm. He also deposed that he did not raised any alarm at Gurgaon bus stand. He admitted that accused persons had not given any beatings to him. He also admitted that accused persons were not carrying any weapon. Since, accused persons were not carrying any weapon and they had not given any beatings to PW-6 Naiyar Alam, he had the opportunity to inform the TSR Driver as well as the passengers and staff of the government bus regarding his abduction and since he has not done so and he has FIR No. 214/2015 PS: Civil Lines Page No. 19 of 29 State Vs. Subhash Rai & Anr.
also not explained as to what stopped him from doing so which raises doubts on his conduct as well as his veracity. In these circumstances, the testimony of PW-6 Naiyar Alam is not reliable.
32. PW-6 Naiyar Alam deposed that he was taken from Noida to Gurgaon in a TSR and from Gurgaon to Pataudi, he was taken in a government bus. However, in his cross-examination, he deposed that police did not take him to the place Noida from where he is alleged to have been abducted. PW-14 IO Insp. Ravinder Singh in his cross-examination admitted that he did not visit the auto stand and he had not inquired about the auto in which victim PW-6 Naiyar Alam was taken by the accused persons. Thus, the auto driver as well as the driver and conductor of the government bus have not been examined by the IO w.r.t the travel of accused persons and the victim in the above-said vehicle on the alleged date of incident. Thus, a material link is missing in the prosecution story. This raises serious doubts on the prosecution story.
33. PW-6 Naiyar Alam in his statement Ex. PW14/B recorded under Section 164 Cr.P.C stated before the Ld. MM that the accused persons told him that he will have to accompany them. In the said statement, he has not stated that he was ever threatened by the accused persons which shows that he accompanied them only on the asking of accused persons. However, in his examination in chief, PW-6 Naiyar Alam has FIR No. 214/2015 PS: Civil Lines Page No. 20 of 29 State Vs. Subhash Rai & Anr.
deposed that he was threatened to be killed by the accused persons. Thus, different versions of PW-6 Naiyar Alam have come on record and hence his testimony cannot be relied upon.
34. PW-6 Naiyar Alam deposed that in the evening of 28.05.2015, accused Ranjeet Karmakar took him to the chicken shop from where he borrowed mobile phone of the chicken shop owner and informed his brother Mohd. Anis. PW-11 Sh. Amjad Khan also deposed that one person who came to his shop with accused Ranjeet Karmakar had used his mobile phone. However, in his cross-examination, he deposed that the said person was not under fear. He also admitted that he had not given the name of PW-6 Naiyar Alam in his statement given to the police. He deposed that he had not stated to the police that it was a matter of kidnapping. He deposed that he came to know that it was the matter of transaction. PW-8 Mumtaz deposed that the victim was not looking afraid when he was brought by the accused persons and he was enjoying with the accused persons as they were taking chicken together. Accused persons have taken the defence that the wages of accused Subhash Rai in sum of Rs. 40,000/- were due from PW-9 Mohd. Anis and they have produced the attendance card regarding the same to the IO. PW-14 IO Insp. Ravinder Singh admitted that accused Subhash Rai had produced his attendance card and submitted that the said card was issued when he alongwith his wife working at the site of complainant Mohd. Anis. No investigation has been conducted by the IO w.r.t said attendance card for the reason best known to IO. Accused FIR No. 214/2015 PS: Civil Lines Page No. 21 of 29 State Vs. Subhash Rai & Anr.
Subhash Rai has put a dent on prosecution story through the production of attendance card which raises serious doubts on the prosecution story and there is a possibility that the issue in the present case was of the due wages of accused Subhash Rai from complainant Mohd. Anis.
35. Complainant PW-9 Mohd. Anis deposed that he had recorded the threatening/ransom call in his mobile phone but later on the said calls were deleted by mistake as he had pressed a wrong button of mobile phone. Complainant PW-9 Mohd. Anis in his cross-examination admitted that he did not know as to how recording could be done in mobile. No recording of ransom call has been collected by the IO in the present case despite the fact that this fact was mentioned by PW-9 Mohd. Anis in the FIR lodged by him. PW-14 IO Insp. Ravinder Singh has not deposed that he had heard any such recording regarding the alleged ransom call. The different versions of Complainant PW-9 Mohd. Anis regarding recording of ransom call raises serious doubts on his veracity and hence this witness cannot be relied upon.
36. PW-6 victim Naiyar Alam in his cross-examination deposed that he slept in the jhuggi of accused persons alongwith them but he did not remember whether the said jhuggi was locked or not. In these circumstances, it cannot be relied upon that the accused had no opportunity to escape from the custody of accused persons. Moreover, PW-6 victim Naiyar Alam had himself admitted that accused persons provided him food and it FIR No. 214/2015 PS: Civil Lines Page No. 22 of 29 State Vs. Subhash Rai & Anr.
has also been brought on record that he was roaming freely with the accused persons and he was enjoying their company. In these circumstances, it cannot be relied upon that PW-6 victim Naiyar Alam was kept captive by the accused persons.
37. Complainant PW-9 Mohd. Anis in his complaint on the basis of which present FIR has been registered stated that he received ransom call from mobile phone numbers 9711072630 and 8684810678. PW-6 Victim Naiyar Alam deposed that he made call to his brother PW-9 Mohd. Anis from mobile phone number of Amjad Khan 8572826750. PW-14 IO Insp. Ravinder Singh has placed on record the CDRs of above -said mobile phone numbers. PW-1 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. proved the CAF and CDR of mobile phone number 8684810678 Ex. PW1/A to Ex. PW1/D which has issued in name of one Shiblal kisku. As per the prosecution story, the above-said mobile phone number was being used by accused Ranjeet Karmakar. Prosecution has not examined Shiblal Kisku to prove that the sim card issued in his name was being used by accused Ranjeet Karmakar. PW-7 Sh. Anuj Bhatia, Nodal Officer, Vodafone Cellular Ltd. proved the CAF and CDR of mobile phone number 97110742630 Ex. PW7/A to Ex. PW7/E which has been issued in name of one Satendra Kumar. As per the prosecution story, the above-said mobile phone number was being used by accused Subhash Rai. Prosecution has not examined Satendra Kumar to prove that the sim card issued in his name was being used by accused Subhash Rai. PW-10 Sh.
FIR No. 214/2015 PS: Civil Lines Page No. 23 of 29Surender Kumar, Nodal Officer, Bharti Airtel Ltd. proved the CAF and CDR of mobile phone number 8572826750 Ex. PW10/F to Ex. PW10/H which has been issued in name of one Nokhi Ram. As per the prosecution story, the above-said mobile phone number was being used by PW-11 Amjad Khan. Prosecution has not examined Nokhi Ram to prove that the sim card issued in his name was being used by PW-11 Amjad Khan. Thus, the subscribers of above-said mobile phone numbers have not been examined to connect the accused persons with the ransom call. Moreover, IO has not collected the ownership proof of recovered mobile phone hand sets make Karbonn and Kechaoda. In these circumstances, the CDR and mobile location of the above-said mobile phone numbers cannot be connected with the accused persons and hence the above-said CAF, CDR and location chart does not have any evidentiary value in the present case.
38. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
FIR No. 214/2015 PS: Civil Lines Page No. 24 of 2939. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness"
should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to FIR No. 214/2015 PS: Civil Lines Page No. 25 of 29 State Vs. Subhash Rai & Anr.
hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
40. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
41. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such FIR No. 214/2015 PS: Civil Lines Page No. 26 of 29 State Vs. Subhash Rai & Anr.
a quality that there should not be any shadow of doubt upon it.
42. The contradictions and inconsistencies appearing in the testimony of PW-6 Naiyar Alam, PW-9 Mohd. Anis and PW-11 Amjad Khan coupled with the fact that PW-6 Naiyar Alam was roaming free and was enjoying in the company of accused per- sons serious doubts have been created on the prosecution story. The versions of PW-6 Naiyar Alam and PW-9 Mohd. Anis are not natural one. The different versions brought on record by the PW-6 Naiyar Alam, PW-9 Mohd. Anis and PW-11 Amjad Khan coupled with the fact of non-examination of the subscribers of mobile phones used in the commission of offence casts a shadow of doubt on their veracity. The things appears to have not happened in the manner these have been projected. The testimony of PW-6 Naiyar Alam, PW-9 Mohd. Anis and PW-11 Amjad Khan in the present case cannot be said to be of sterling quality to secure the conviction of the accused persons.
43. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
44. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless FIR No. 214/2015 PS: Civil Lines Page No. 27 of 29 State Vs. Subhash Rai & Anr.
the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
45. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
46. In the present case, due to the contradictions and inconsistencies in the testimonies of PW-6 Naiyar Alam, PW-9 Mohd. Anis and PW-11 Amjad Khan serious doubts have been created on the prosecution story and two views are possible in FIR No. 214/2015 PS: Civil Lines Page No. 28 of 29 State Vs. Subhash Rai & Anr.
this case and hence the benefit of the same must go to the accused persons.
47. In the light of aforesaid discussion, this court is of the considered opinion that the testimonies of PW-6 Naiyar Alam and PW-9 Mohd. Anis are not clear, cogent, credible and trustworthy and same are not corroborated by other material evidence.
48. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of offences punishable uner Section 364A/34 IPC against accused persons namely Subhash Rai and Ranjeet Karmakar beyond reasonable doubt.
49. Accordingly in view of the aforesaid discussion, accused persons namely Subhash Rai and Ranjeet Karmakar are hereby acquitted for offences punishable under Section 364A/34 IPC.
50. Bail bonds of the accused persons except bail bonds filed under section 437A CrPC stands cancelled. Their sureties stands discharged. Case property, if any, be released to the rightful owners.
File be consigned to Record Room after due compliance.
Digitally signed by VIRENDER VIRENDER KUMAR
Announced in the open court KUMAR KHARTA
Date: 2024.02.24
on 24th day of February, 2024 KHARTA 15:55:15 +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI:24.02.2024
FIR No. 214/2015
PS: Civil Lines Page No. 29 of 29
State Vs. Subhash Rai & Anr.