Delhi District Court
Sc No.57377/16 State vs Hoshiyar Singh Etc Pages: 1/16 on 22 March, 2018
IN THE COURT OF SHRI RAMESH KUMAR: ADDL SESSIONS
JUDGE NORTH DISTRICT: ROHINI COURTS: DELHI
S.C. No. 57377/2016
FIR No. 575/2014
P.S. S.P. Badli
U/S : 364A/394/397/120B IPC
State
Versus
1. Hoshiyar Singh
S/o Maha Singh
R/o Sunil Colony
Gali No.6, Burari, Delhi
2. Sunder .....(Discharged on charge)
S/o Kailash
R/o E-392, MCD Colony,
Azadpur, Delhi.
3. Vikram Saini .....(Discharged on charge)
S/o Mahender Singh
R/o H.No. 895/28-B Block,
Sant Nagar, Delhi.
4. Joginder Singh @ Yoginder
S/o Raghubir Singh
R/o Village Kheri Sadh,
PS Sampla, Distt. Rohtak (HR)
5. Rakesh @ Raku
S/o Mai Chand
R/o H. No. 12, New Roshanpura
Najafgarh, Delhi.
Date of filing of Charge-sheet :12.09.2014
Date of Receipt of case : 16.10.2014
Date of arguments : 22.03.2018
Date of Decision: : 22.03.2018
SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 1/16
JUDGMENT
1. Formal indictment against accused persons, namely, Hoshiyar Singh, Joginder Singh @ Yogender and Rakesh @ Raku, is that, on or before 07.06.2014, time and place not known, all the accused persons with co-accused Kapoor Singh Dahiya (absconding) agreed to do an illegal act by illegal means, namely to abduct or kidnap complainant Deepak Sharma for ransom and besides the above said agreement, on the intervening night , of 07.06.2014 and 08.06.2014, at House No. B-319, Rohini Heights Apartments, Sector 29, Rohini, Delhi, within the jurisdiction of PS Samaypur Badli, all the accused, kept said Deepak Sharma and his friend Sunil Kumar Goyal in detention and threatened them to kill to compel them to pay a ransom to them, pursuant to said agreement to commit the offence of kidnapping for ransom etc, U/s 364A IPC and thereby committed an offence punishable U/s 120B(1) IPC. Further, on the intervening night of 07.06.2014, and 08.06.2014, at House No. B-319, Rohini Heights Apartments, Sector 29, Rohini, Delhi, within the jurisdiction of PS Samaypur Badli, all the accused persons alongwith accused Kapoor Singh Dahiya (absconding) in furtherance of the object of said criminal conspiracy kept Deepak Sharma and his friend Sunil Kumar Goyal, in detention after their kidnapping or abduction and threatened to kill, at the point of pistol or by their conduct gave rise to a responsible apprehension that above mentioned persons, namely, Deepak Sharma and Sunil Kumar Goel, may be put to death, to compel them to pay a ransom, thereby committed an offence punishable U/s 364A IPC read with section 120B IPC. Further, on the aforesaid date, time and place, all the accused persons alongwith co-accused Kapoor SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 2/16 Singh Dahiya (absconding) in furtherance of their common intention committed robbery of mobile phones, ATM Cards and some cash punishable U/s 392 IPC and voluntarily caused hurt to said Deepak Sharma and Sunil Kumar Goyal, and at that time of committing the said offence , all the accused persons used a deadly weapon, namely a pistol or made an attempt to cause their death and thereby all the accused persons committed an offence punishable U/s 394/34 r/w section 397 IPC.
2. Accordingly, all the accused persons were charged for the offences punishable U/s 120B (1) IPC, 364A r/w Section 120B IPC and 394/34 r/w section 397 IPC, to which they all pleaded not guilty and claimed trial. Thereafter, case was fixed for prosecution evidence.
3. In the prosecution evidence, prosecution has examined ten witnesses i.e. PW1 SI Manish Kumar Bhardwaj, PW2 Sh Rakesh Kumar Goyal, PW3 Inspector Anil Kumar, PW4 HC Shiv om, PW5 WHC Renu, PW6 Shri Sunil Kumar, PW7 Sh Rajesh, PW8 W/Ct Savita, PW9 Sh Naresh Kumar and PW10 ASI Kanwar Pal.
4. PW1, SI Manish Kumar Bhardwaj, is Finger Print Expert. He deposed that, on 08.06.2014, he was posted as Finger Print Expert, Crime Team, Outer District and, on that day, on receipt of information, he alongwith Incharge Crime Team, SI Anil Kumar, Photographer HC Shiv Om reached B-319, Rohini Height Apartment, Sector 29, Rohini, Delhi, where the spot was inspected and four chance prints were developed and lifted by him. He proved the Crime Scene Report as Ex.PW1/A. He further deposed that after lifting the SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 3/16 chance prints the same were sent to Finger Print Bureau, Kamla Market, New Delhi. He had been cross-examined, at length, but nothing material came out from the same.
5. PW2, Sh Rakesh Kumar Goyal, has deposed that he is the owner of Alto Car Number HR-06U-5864 and, on 07.06.2014, he had given his aforesaid Alto Car to his brother Sunil Kumar and incident of kidnapping and robbery took place with him. He took his aforesaid Alto Car on superdari vide superdaginama Ex. PW2/A. This witness also produced the said car,, which has been exhibited as Ex.P1. In the cross-examination, he had stated that his brother Sunil had taken his car, after taking his permission, on 07.06.2014 at about 11/12 in the morning. He further stated that he had not accompanied his brother in the car to Delhi. PW2 further deposed that his brother took his permission telephonically asking him for the keys of car to go to Delhi. His wife had handed over the keys of the car to him. He did not meet his brother personally on that day. He was not aware who else had accompanied him in the car. He further stated that he could not tell as to how many persons had accompanied his brother. PW2 further deposed that he had received a call from PS S.P. Badli, about the incident at Delhi, but he did not know the name and designation of the police official, but the said police official had made him talk with his brother, who started weeping on telephone and he rushed to Delhi. He further stated that he had met his brother at PS after reaching, Delhi, on 08.06.2014. He did not meet any other person in the PS, as he did not know any other person.
6 PW3, Inspector Anil Kumar, deposed that, on 08.06.2014, SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 4/16 he was posted as Incharge, Crime Team, outer District and, on that day, on receipt of information, he alongwith SI Manish Kumar, Finger Print Proficient, Photographer HC Shiv Om and other staff reached at B-319, Rohini Height Apartment, Sector-29, Rohini, Delhi, where he inspected the spot and spot was got photographed and SI Manish had lifted finger prints from the spot. He prepared the Crime Team Report Ex.PW1/A. In the cross-examination, this witness stated that they did not confiscate anything in this case, at the spot. The flat, where they had gone, is a residential flat. There were three bed rooms in the said flat. They had lifted four finger prints from that flat, which were lifted from the room in which the articles were lying. The finger prints were lifted only from the said room. There was one plastic table, on which articles i.e. cold drink, plastic bottle, plastic disposable glasses were lying, on the said table. He further deposed that it took about an hour for them to inspect the scene of crime. He further deposed that Ex. PW1/A was prepared by him, in his handwriting. The details mentioned in column no.9, of Ex.PW1/A, were filed in by him, as per the information given to him by the IO. He further deposed that it took them about one and half an hour to reach at the spot, after receiving the call, at about 5.15 pm on 08.06.14. This witness denied all the suggestions put to him.
7. PW4, HC Shiv Om, was posted as photographer in the crime branch. He had deposed that, on 08.06.2014, he was posted as Photographer in the Crime Team, Outer District and, on that day, on receipt of information, he alongwith Incharge Crime Team SI Anil Kumar, Finger Print Proficient SI Manish Bhardwaj and other staff reached at B-319, Rohini Height Apartment Sector-29, Rohini, Delhi, SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 5/16 where the spot was inspected, at the instance of SI Ved Parkash Bhardwaj and the chance print was lifted by SI Manish Bhardwaj and he took eight photographs of the spot. He proved the same as Ex.PW4/A to Ex.PW4/8 and also proved the negatives as Ex.PW4/B (colly). In the cross-examination, he stated that it took them one hour to complete their examination of the spot and taking of photographs. He took four photographs of the finger prints developed by SI Manish Kumar. Out of these four finger prints developed, one was developed from the water bottle and remaining three finger prints were developed from plastic glasses. He further stated, in the cross- examination, that, at the spot, in the abovesaid flat, there was one plastic table, one folding cot and one mattress. He further stated that aforesaid articles were not seized, in his presence. When they left the spot the local police remained there. He further deposed that whole area of the flat including the staircase and the bathroom was inspected. The bathroom was situated on the right side of the entrance of the flat. The third flat was situated on the third floor. He further deposed that no neighbour was called, in his presence.
8 PW5, W/HC Renu, deposed that, on 08.06.2014, she was posted at PS S.P. Badli as Duty officer, from 8.00 am to 4.00 pm, and on that day, on the receipt of a rukka , brought by Ct Vikas and sent by SI Ved Parkash. she recorded the FIR of the present case and further investigation was assigned to SI Ved Parkash. She proved the copy of FIR as Ex.PW5/A and her endorsement on the rukka as Ex.PW5/B. She also proved the certificate U/s 65B of IPC as Ex.PW5/C. Nothing material came out from the cross-examination of this witness.
SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 6/16 9 PW6 Sunil Kumar deposed that he was in private business and Deepak Sharma S/o Shri Madan Lal Sharma was his friend , who was also residing at Panipat near Parsuram Mandir, in H. No. 1737. His friend, Deepak Sharma, had told him that one person by the name of Yogender had met him, who offered to do business with him and had also called him three/four times by telephone and Deepak also told that said Yogender had called him, on 07.06.2014, at sector-18, Rohini, Delhi near Crime Branch Office. He alongwith Deepak Sharma in his Alto Car Number HR-06-U-5864 reached at Sector-18, Crime Branch Office, about 8.30 pm. Two persons met them there. One of them was Yogender , who had already met with Deepak Sharma previously and the another person was meeting for the first time and Deepak started talking with them regarding business and, thereafter, they both asked them to go to sector-29, Rohini, Delhi at their house for further business discussion and in sector-29, they took them to a flat in a building. Two more persons were also present in the aforesaid flat, where, he alongwith Deepak and said Yogender and one another person went into that flat.
10 This witness further deposed that he and Deepak were taken to a flat at Sector-29 by said Yogender and one another person. Two more persons were also present in the aforesaid flat. He and Deepak were closed in a room and one person threatened them by showing pistol and they both were given beatings and they threatened them that they will made a video of them and they asked Deepak to call all money, lying at his house and they made Deepak to call at his house from his phone. Rajesh Sharma servant of Deepak left with money as per the demand of those persons told by Deepak SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 7/16 but Rajesh Sharma was stopped by the Haryana police. Two of the persons left to collect the money and rest two persons remained with him and Deepak at the aforesaid room, where they both were locked. Those two persons had also taken away his ATM Card and they compelled him to disclose the PIN Number of his ATM Card. At about 3.00 am, both the aforesaid persons returned back and threatened him and Deepak that they did not receive money and they would kill them and they tied their eye with a bandage and they took away his mobile phone and of Deepak and they drove his vehicle on their own. PW6 further deposed that, there were five persons in the vehicle and one was driving the motorcycle and they stopped at unknown place. He became suspicious that they would kill them as they did not get money and he removed bandage from his eyes. He and Deepak were made to get down from the car and they started objecting with them for the money and they also grappled with them and they started making noise and, because of the residential area. some persons reached there and called the police. Those four persons left their motorcycle, number of which, he did not remember and his Alto Car and fled away from the spot. Police reached there and registered the case on the statement of Deepak Sharma and also inspected both the places i.e. Sector 18 , Rohini and Sector-29, Rohini. Crime team also inspected the spot. His car no. HR-06U-5864 and the recording system recovered from the car were taken into possession vide seizure memo Ex.PW6/A and Ex PW6/B, respectively, and both bore his signature at point A. Thereafter, he and Deepak Sharma were medically examined at BSA hospital. This witness had not identified the accused persons, in court and had specifically stated that the aforesaid persons, who took hostage of him and Deepak and SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 8/16 had beaten them and robbed them of their ATM and money, were not present in the court. Accused persons were specifically pointed to this witness, but he refused to identify the accused persons, being the personnels, who took hostage of him and Deepak and this witness categorically stated that all the three accused persons, who were present in the Court. had not done anything wrong with him at any point of time and he had nothing to depose against them. He further deposed that nothing has been seized from sector-29 and sector-18 in his presence. No motorcycle was seized in his presence. His signatures were obtained by the police on various blank papers. He identified the car, bearing No. HR-06U-5864, as Ex.PW6/P1. This witness was cross-examined by Ld Addl PP for the State, as he did not support his statement recorded previously but he denied all the suggestions put to him. He denied that he did not make any statement to the police. He also denied that Motorcycle No. DL-9SU-4295 were seized by the police, used by the accused persons, from near H. NO. B-6/67, Sector-18, vide seziure memo Ex.PW6/C or that empty bottles of water Soda, and Campa, locks, bidi and cigarette and Namkeen were taken into possession vide seizure memo Ex.PW6/D or that baseball bat and Parna, from aforesaid place, at sector-18, from the car no. HR-06U-5864 was taken into possession vide memo Ex.PW6/E, after sealing the same, or that his signatures were obtained, when the aforesaid documents were blank and he could not identify any motorcycle, recording system, empty bottles of water Soda and Campa, locks, bidi and Cigarette, Namkeen, baseball bat and While parna, even if shown to him. He also denied that all these articles were used by the accused persons in assaulting him and Deepak Sharma or that aforesaid articles were seized in their presence SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 9/16 or that he intentionally refused to identify the same. He also denied the suggestion that he was afraid of accused persons and he did not join the TIP proceedings and claimed that he could identify the accused persons from their photographs. Further, all the material suggestions put to this witness were specifically denied by this witness.
11 PW7, Rajesh, deposed that he was working for the last three years with Deepak Sharma from the day of incident. On 07.06.2014, on receipt of a phone call, made by Deepak, from Delhi to bring the money/cash amount, whatever available in the house and as such he had collected Rs. 6 lacs from the mother of Deepak and reached near Barsat Road, where police officials of Haryana Police stopped him and not allowed him to take cash. The aforesaid cash amount was received back from PS City on return of Deepak.
12 PW8 W/Ct Savita has deposed that, on 08.06.2014, she was posted at Police Control Room , ITO, New Delhi and was working on Channel No. 146 from 8 pm to 8 am. At about 4:18:56 hrs, a call was received from mobile no. 9289499847. It was a male caller, who informed " Rohini Sector-18, B-6/69, Millennium Apartment ke saamne, hamari balcony mein do aadmi ghus aaye hain, keh rahe hai ke hamare piche gunde pade hue hai, police bheje,". She filled the PCR form Ex.PW8/A and passed on the said information on channel for necessary action. The certificate, U/s 65B of Indian Evidence Act, is Ex.PW8/B given by Sh Harish Chander Pathak, Nodal officer, bearing his signature at point A. 13 PW9, Sh Naresh Kumar, Record Clerk, Transport SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 10/16 Authority, produced the record of summoned motorcycle bearing registration no. DL-9SU-4295 and, as per the record, the owner of Motorcycle No. DL-9SU-4295 was Mahesh Kumar son of Sh Inder Pal Singh R/o A-62, Manglapuri-II, Palam Colony, New Delhi, and he was the first owner of the said motorcycle. He proved the record as Ex.PW9/A (Colly) 14 PW10, ASI Kanwar Pal, was working as Duty officer, on 06.07.2014, at PS S.P Badli, from 4 pm to 12 night, and, on that day, at about 10.23 pm, on receipt of information, from Special Staff , ASI Anil Kumar telephonically, about the arrest of accused Joginder @ Yogender and Rakesh @ Raku U/s 41.1 (a) Cr.PC, in the present case and their production in the concerned court of PS Vijay Kumar on the next day and to sent the concerned IO, he recorded the DD no. 57A in DD register and informed the SHO, in this regard. He also produced the original DD register and proved the attested copy of DD no. 57A as Ex.PW10/A. 15 After the prosecution examined all these ten witnesses, nothing material came out against the accused persons, hence, PE was closed. As nothing incriminating had come on record, hence, statement of accused persons was also dispensed with.
16 I have heard Ld Addl PP for State and Ld counsel for the accused persons and have carefully perused the record file and have gone through the material placed on record.
17 Ld Counsel for the accused persons argued that PW6, SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 11/16 namely, Sunil Kumar, who is a public witness and also a victim, in the present case, has not deposed anything against the accused persons. It has further contended that PW6, Sunil Kumar, is unable to identify any of the accused persons as the persons, who took hostage of him and Deepak and had beaten them and robbed their ATM and money. It has further been argued that, despite being pointed out towards accused persons, this witness, specifically denied their involvement in the present case and categorically stated that all the accused persons, who were present in the Court had not done anything wrong with him at any point of time and he had nothing to depose against them. It is further contended that PW Deepak Sharma, who is the complainant in the present case, could not be traced out, despite various opportunities given and could not be produced before the Court. It is further contended that looking at the evidence of PW6 Sunil Kumar and the fact that complainant has not been traced, no purpose would be served by examining the other witnesses, as all other witnesses are formal in nature. It is further contended that looking at the facts and circumstances of the case, all the accused persons are entitled for acquittal.
18 On the other hand, Ld Addl PP has contended that PW6 is the star witness in this case. He has narrated the entire incident and had also specifically named accused Yogender in his chief- examination. It is further contended that the testimony of the material witness cannot be rejected in toto and on close scrutiny there is ample evidence and the case of the prosecution should be accepted. It is further contended that there is connecting evidence on record and from the evidence brought on record, and the material SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 12/16 placed on record, and looking at the entire facts and circumstances, it is clear that, in the given circumstances, no other person, other then accused persons could have committed such offences.
19 Ld Addl PP has relied on Syed Akbar V State of Karnataka, wherein it has been held that "declaring a witness hostile is no ground by itself to reject his testimony in toto. His testimony if not shaken on material points in cross-examination, cannot be brushed side.
20 Further Ld Addl PP has relied upon State of UP Vs. Ramesh Prasad Misra, wherein the Supreme Court has held that, "the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted"
21. Sections 364A/394/397 and 120B of IPC are reproduced herein below for ready reference:-
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 reasonable 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 foreign state or international inter-governmental organisation or any other person to do 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 SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 13/16 to fine.
394 Voluntarily causing hurt in committing robbery-If any person, in committing or in attemption to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or caused grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
120B. Punishment of criminal conspiracy.-(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
22 In Narain V. Gopal, AIR 1960 SC 100, Supreme Court has held that "In Criminal case, it is accepted principle of criminal jurisprudence that burden of proof is always on prosecution. It never changes. This conclusion is derived from fundamental principle that, the accused should be presumed to be innocent till he is proved guilty beyond reasonable doubt and accused has got right to take benefit of some reasonable doubt.
SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 14/16 23 In Vijayee Singh V State of U.P, AIR 1990 SC 1459, it has been observed by the Hon'ble Supreme Court, that, "if the accused succeeds in creating reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part gets discharged and he would be entitled to be acquitted.
24. In the present matter, PW6, Sunil Kumar is the main witness. In his chief-examination, he had deposed the entire incident of kidnapping and demanding of ransom but on the point of identification, he had failed to identify the accused persons as the same, who had kidnapped him and his friend Deepak Sharma and demanded ransom from Deepak Sharma and threatened to kill them. Complainant, Deepak Sharma, is not traceable, despite giving many opportunities. Summons were issued through the IO concerned, and the summons were received back with the report that the witness is not residing at the given address for the last two years and their house is lying locked. Hence complainant could not be produced in the witness box, to depose. I have gone through the statement of the remaining public witnesses and police witnesses on record, and even if same are taken on its face value, nothing incriminating can be proved against the accused persons, in the absence of identification by the main witness, and in the absence of the testimony of Deepak Sharma.
25. In view of the above, and considering the overall facts and circumstances and the discussions made herein above, in my opinion, the identity of the accused persons has not been proved and prosecution has not been able to prove its case beyond reasonable doubt. Accordingly, Hoshiyar Singh, Joginder Singh @ Yogender and SC No.57377/16 State Vs Hoshiyar Singh etc Pages: 15/16 Rakesh @ Rakku, are acquitted for the offences punishable U/s 120B(1) IPC, U/s 364A IPC and 394/34 read with section 397 IPC.
Announced in the open court (Ramesh Kumar)
on 22nd of March, 2018 Additional Sessions Judge-05
North Distt: Rohini Courts:
Delhi
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