Delhi District Court
State vs Jitender Dutt Sharma on 31 January, 2024
IN THE COURT OF SH. PANKAJ ARORA:
ADDL. SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA:DELHI
SESSIONS CASE NO. 350/18
CNR No. DLNE01-004569-2018
FIR No. 589/2018
P.S. New Usmanpur
U/s : 342/385/387/364A/120B/34 of IPC
STATE
Versus
(1) Jitender Dutt Sharma
s/o Sh. Satya Prakash Sharma
r/o H. No. E-13, Aman Mohalla,
Johri Pur, Ambedkar Vihar, Delhi
Permanent address:
H. No. 63, Village Sakarpura
Post Chiroti, Ghaziabad, UP
(2) Mohit Malik
s/o Sh. Jaswant Singh
r/o VPO Lank PS, Distt. Shamli
UP-247776
(3) Athar Hasan
s/o Sh. Amirul Hassan
r/o H. No. E-140, Gali no. 2
20 Foota Road, Madina Masjid,
Chand Bagh, Delhi
(4) Ishtakar
s/o Sh. Mohd. Anwar
r/o H. No. 1967, Gali no. 19,
New Mustafabad, Delhi
(5) Vijay Kumar
s/o Sh. Pramjeet Lal
r/o VPO Langotian, Tehsil R. S. Pura,
Distt. Jammu
SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 1 of 34
Date of Institution : 30-10-2018
Date of Argument : 31-01-2024
Date of Judgment : 31-01-2024
JUDGMENT
1. Brief facts of the present case are that on 26-07-2018 at about 10:30 pm, Ms. Sonam w/o Shiva @ Shivaji came at PS New Usmanpur and reported that she was housewife and residing as tenant at A-1/70, Gali no. 1, Harsh Vihar, Delhi. Her husband Shiva @ Shivaji was working in a jewelry shop situated at A- 2/104, Gali no. 4, Harsh Vihar as helper. On 25-07-2018 at about 11:30 am her daughter Rupali, aged 9 years, came towards her while crying and reported that some people took her father along with them. Then, her father shook hand with them and thereafter, her father asked her to leave for home. In order to confirm the above-stated information, she called from her mobile phone to mobile phone no. 8510035178 of her husband, which was picked up by some unknown person, who stated that her husband has been brought for the purpose of inquiry. However, that person did not reveal the place where her husband was at that time. Thereafter, she kept on trying but mobile phone of her husband was found switched off. On 25-07-2018 at about 11:30 pm, her husband called her and asked her not to be worried as he would be returning on the next day. On 25-07-2018, she made efforts to trace her husband but could not find any clue. On 26-07-2018 at about 12:30 pm, she spoke to her husband, who stated that he would be coming back soon but he did not turn up till evening. At about 5:30 pm, she called her husband who asked her to arrange for Rs. one lakh immediately. Meanwhile, some other SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 2 of 34 person picked up the phone of her husband and stated that if she wanted to get her husband released then, she would have to make arrangement of Rs. one lakh at the earliest. She stated to that person how she would be able to arrange Rs. one lakh then, that person asked her to arrange only Rs. 60,000. She tried to make arrangement for the money and she lastly talked with her husband at about 8:30 pm, whereupon the person who was close to her husband, asked her to bring Rs. 60,000 at Hotel D-Aqua, Shastri Park, Usmanpur. She went to Hotel D-Aqua, Shastri Park and tried to search her husband but her husband's mobile phone was found switched off. She became nervous and came at PS New Usmanpur. Her statement was reduced into writing. On the basis of her statement, the present FIR was registered for the offence punishable u/s 385 of IPC and investigation was marked to Inspector Vijay Kumar (hereinafter referred to as IO). Thereafter, IO constituted a raiding team comprising of ASI Chena Ram, Ct. Rohtash, Ct. Manoj, Ct. Arun Dangi, and himself. Thereafter, IO along with raiding team and complainant reached at D-Aqua hotel, in front of DDA Park, Shastri Park and started searching the vehicles which were passing through the road in order to search victim Shiva @ Shivaji. At about 1:30 am, one car make WagonR bearing no. DL1CU-5431 of gray colour was found stationed at DDA Park, Shastri Park. Upon checking the car, HC Jitender and Ct. Mohit and four other persons, whose names later on revealed as Vijay Kumar, Athar Hasan, Ishtakar and victim Shiva @ Shivaji were found sitting inside the car. HC Jitender was sitting on the driver seat and Athar Hasan was sitting besides him and the remaining persons were sitting on the rear seat. The complainant Ms. Sonam SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 3 of 34 identified her husband namely Shiva @ Shivaji. Efforts were made to search some independent public witnesses but they could not be found due to bad weather as it was rainy season and it was drizzling and lightening. All the above-stated five accused persons were overpowered and arrested. The WagonR car was seized vide seizure memo Ex. PW1/G. The accused persons were interrogated and during interrogation, accused persons confessed about their plan to kidnap the victim Shiva @ Shivaji. Site plan was prepared. Mobile phone of the accused persons were seized. They were produced before the Ld. Duty MM who had observed the prima facie ingredients of offence u/s 364A of IPC were also made out and therefore, accused persons were remanded to JC. After consultation with senior police officials, section 342/387/120B of IPC were also added. Efforts were made to collect the CCTV footage but no CCTV footage of 26-07-2018 was found. The mobile numbers of accused persons and victim were sent to Nodal Officers of concerned company to obtain CDRs. All relevant DD entries in connection with the incident were seized. The details of registered owner of the car was obtained from the RTO and it was found registered in the name of accused Jitender.
On analysis of CDRs, the mobile no. 8510035178 (Idea) was found subscribed in the name of Shivaji and it was found that the mobile location of Shivaji on 25.07.2018 at about 11:00 am was at Gagan Cinema. After 11:00 am, the mobile location of Shivaji was at Shastri Park near Police Station New Usman Pur. Four calls were made from the said mobile phone to the phone of complainant Sonam. Mobile No. 8826725737 (Airtel) was found registered in the name of complainant Sonam. On analysis, she SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 4 of 34 made 8 calls on the mobile phone of Shivaji from 11:26 am on 25-07-2018 to 9:30 pm dated 26-07-2018. The last four digit of mobile no. of accused Athar Hasan was 1631 of Airtel and mobile location was at Gagan Cinema. On 25-26.07.2018, location was at Shastri Park, near PS Usmanpur. Through this mobile phone, accused was in touch with co-accused persons Jitender, Ishtikar and Vijay. The said mobile phone was registered in the name of Baijanti Yadav w/o Shiv Narayan r/o Kabir Nagar. They tried to search Baijanti but she was not found. The last four digit of mobile no. 0930 (Vodafone) of accused Vijay Kumar was found registered in the name of Sakina w/o Muzibur r/o T-Hut, Seelampur. She was examined in this case and she stated that accused Vijay Kumar represented himself before her as officer of Delhi police and working in PS Seelampur and he obtained her Aadhar Card and took the above-said SIM on the said Adhar Card. He recorded her statement in this regard and obtained relevant CDRs. It was revealed there was various calls between accused Vijay Kumar and other accused persons. Location of accused Vijay was at Gagan Cinema at relevant time. The last four digit of accused Jitender was 5155 (Jio) and said mobile phone was registered in the name of accused Jitender and his location was at Gagan Cinema at relevant time. Duty roster and relevant DD entries of police officials Jitender and Mohit were seized. Permission u/s 197 of Cr.P.C. regarding police officials was obtained. After scrutiny from Prosecution Branch and after discussion with senior officers, Section 364A of IPC was also added. After completion of necessary formalities, chargesheet u/s 342/385/387/364A/120B/34 of IPC was filed against accused persons in the court of Ld. Ilaqa MM.
SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 5 of 34COMMITTAL
2. After completion of necessary formalities, chargesheet was filed in the Court of Ld. Ilaqa MM. After taking cognizance, compliance of section 207 of Cr.P.C., the present case was committed to the Courts of Sessions vide order dated 26/10/2018 of Ld. ACMM/NE/KKD/Delhi. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court.
CHARGE
3. After hearing the arguments and finding that prima facie case was made out against all the accused persons for the offence punishable u/s 364A and 120B of IPC was also made out against the accused persons, charges were framed by ld. Predecessor against accused persons vide order dated 05-02-2019, to which accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as 11 witnesses. PROSECUTION EVIDENCE
4. (i) PW1 Sh. Shiva @ Shivaji is the victim in this case. He deposed that on 25.07.2018 at about 11/11:30 am, he had left his house to purchase vegetables from the market. When he was passing through Gagan Cinema, one person who was unknown to him, met near Gagan Cinema and told him that one person, sitting in the nearby car was calling him. Thereafter, the said person took him near a car which was parked near Gagan Cinema where 2-3 persons already sitting in the car made him sit in the car and immediately, they blind folded his eyes with cloth piece (meri ankho par kapda bandh diya). After that, they took out his mobile phone make Samsung from his wearing shirt's pocket. After that they started the said car and roamed him in the car here SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 6 of 34 and there. After about 1 or 2 hours, they made a call from his phone to his wife and made him to talk and his wife asked him as to where he was. He told his wife that he would come back in the evening. After that they kept him confined in the car at different places.
On the next day evening, those persons handed over his mobile phone to him and dropped him near Seelampur Red Light after removing the cloth piece from his eyes. He switched on his mobile phone and after 5-10 minutes, he received a call from his wife on his phone. She asked him about his whereabouts and he told her that he was at Seelampur Red Light. His wife advised him to stay there as she would come after some time. After some time, his wife came to him and asked him about the matter. He narrated her the entire facts. His wife took him to PS New Usmanpur where they met the police. Police made inquiry from them and also recorded their statements and he narrated the facts in his statement to the police. He had not told the name of the person who met him near Gagan Cinema and took him to the car. He also did not know those persons who were sitting in the car. He deposed that he can identify those persons if shown to him.
All the five accused persons standing in the dock were shown to the witness and he stated that neither of them was present in the car nor the person who brought him to the car was present in the court.
He did not know as to why those persons had blind folded him and took him in the car and confined him in the car for the said period. He did not know the make and registration number of the car in which he was confined by those persons. He did not know anything else about this case.
SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 7 of 34The witness was cross-examined by Ld. Addl. PP for the State and during cross-examination, he affirmed that he was working at the jewelery shop of one Manish at A-2/104, Gali No.4, Harsh Vihar, Delhi. He denied the suggestion that on 25- 07-2018 at 11:10 am, his known person namely Athar Hasan had called him at Gagan Cinema. He denied that thereafter, he along with his daughter Rupali aged about 9 years had reached at Gagan Cinema or that when they reached there, Athar Hasan met him there and shook hand with him or that thereafter, Athar Hasan made him sit in WagonR car no. DL-1CU-5431. He further denied that one HC Jitender (accused present in the court today) was sitting in the car and he had asked another person sitting in the car whose name he came to know as Istikar to drop his daughter Rupali at his house. He denied that thereafter, the said Istikar had left from there with his daughter Rupali or that said Istikar had come back to the car and started driving the car. He further denied that when he was made to sit in the car, Constable Mohit, Vijay Kumar, Athar Hasan and Istikar (who were present in the court) were also present in the car. He denied that at that time Constable Mohit and HC Jitender were in uniform of Delhi Police. He denied that accused Jitender and Mohit made inquiry from him in the running car and told him that "Tum Chori Ka Sona Kharidate Ho or Pehle Bhi Kai Baar Giraftar Ho Chuke Ho". He further denied that thereafter, all the aforesaid accused persons made him roaming in the car at different places or that they threatened him and said "Agar Tujhe Chhutna Hai to Aik Lakh Rupey Ka Intjam Kar warna tujhe mar kar tere hath pair tod denge or tujhe jhute mukadme me aisa fasaienge ki kabhi jindagibhar bahar nahin ayega". He denied SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 8 of 34 that at that time all the aforesaid persons had also beaten him. He also denied that on 25.07.2018 at about 11:30 hours, accused Athar Hasan had made a phone call to his wife from his mobile phone or that at that time, he had told to his wife from his mobile phone that he was alright and would come back till tomorrow. He denied that thereafter accused Mohit and Jitender had left from the car and accused Istikar drove the car or that thereafter accused Vijay Kumar and Athar Hasan kept him confined throughout the night in the said car at a lonely place near Usmanpur Park. He denied that on 26.07.2018 at about 5:30 pm all the accused persons had threatened him to break his limbs or that pressurized him to make a call to his wife to bring Rs. one lakh. He further denied that at that time he told to the accused persons that arrangement of Rs. one lakh could not be made, at which accused Jitender (Hawaldar) told him "thik hai sath hazar rupey apni patni se manga lo". He denied that thereafter at about 8.30 pm, his wife made a phone call at his mobile phone which was picked up by accused Jitender or that at that time accused Jitender told her to reach at D-Aqua Hotel, Shastri Park near Usmanpur with Rs. 60,000/- within 2-3 hours. He further denied that thereafter, accused Jitender disconnected the call and handed over the mobile phone to accused Athar Hasan. He denied that thereafter, at about 1:30 am, IO Inspector Vijay Kumar along with his wife Sonam and other police staff had came to them near D-Aqua Hotel near DDA Park where WaganR car was parked. He denied that at that time, he along with accused persons were sitting in the car or that at that time on seeing him, his wife had identified him as her husband Shiva. He denied that thereafter IO Inspector Vijay Kumar had apprehended all five accused SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 9 of 34 persons with the help of accompanying police staff or that due to bad weather, all of them were taken to PS New Usmanpur which was at a distance of 80-100 metre. He further denied that thereafter at the PS, accused Athar Hassan, Jitender, Mohit, Vijay Kumar and Ishtikar were interrogated and arrested by the IO in his presence or that their arrest memos and personal search memos were prepared by the IO. He denied that at that time from the possession of accused Athar Hassan, his dual mobile phone make Samsung was recovered or that IO had prepared pullanda of the mobile phone or that after sealing the same with the seal of 'VK', the mobile phone was taken into possession by the IO. He denied that seal after use was handed over to Ct. Arun Dangi. He denied that the car used in the commission of crime was also taken into possession by the IO. He denied that at that time, IO had recorded statement of Sonam and she was relieved. He denied that thereafter, case property was deposited in the mallkhana or that after that he along with other police staff had left the PS with IO for further investigation or that thereafter IO had prepared site plan of the place of apprehension of WagonR car. He further denied that thereafter, all the accused persons had pointed out the place of occurrence or that at that time IO had also prepared the site plan of place of occurrence or that after that he was directed by the IO to reach at PS Usmanpur and he himself left for the court. He denied that after coming back from the court, IO had recorded his statement or that after that in his presence Const. Arun Dangi had returned the seal to him. He denied that he had stated all these facts in his statement.
PW1 further denied the suggestion that arrest memo of accused Athar Hasan as Ex. PWI/A, arrest memo of accused SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 10 of 34 Jitender as Ex. PW1/B, arrest memo of accused Mohit Malik as Ex. PW1/C, arrest memo of accused Vijay Kumar as Ex. PW1/D, arrest memo of accused Istakar as Ex. PW1/E, seizure memo of mobile phone Samsung as Ex.PW1/F, seizure memo of WagonR Car no. DL-1CU-5431 as Ex. PL1/G, site plan of the place of occurrence as Ex. PW1/H, pointing out memo of place of occurrence by accused Vijay Kumar as Ex. PW1/A, pointing out memo of the place of occurrence by accused Istikar as Ex. PW1/J, pointing out memo of the place of occurrence by accused Jitender as Ex. PW1/K, pointing out memo of the place of occurrence by accused Athar Hasan as Ex. PW1/L, pointing out memo of the place of occurrence by accused Mohit as Ex. PW1/M bear his signature at point A respectively. He denied that he had signed all these memos prepared by the IO in his presence. He volunteered that his signatures were obtained by the IO on several blank papers and those might be the same papers. He denied that accused Athar Hasan, present in the court, had met him near Gagan Cinema and made him sit in the WagonR car. He denied that accused Ishtikar, present in the court, had taken his daughter to drop her at his house at the instance of accused Jitender. He denied that accused Mohit and Jitender, present in the court, were present in the WagonR car in uniform of Delhi Police and threatened him to arrange Rs. one lakh otherwise, they would implicate him in any case. He denied that accused Vijay Kumar and Athar Hasan, present in the court, had confined him in WagonR car at lonely place near Usmanpur Park. He denied that all the accused persons present in court on that day had kidnapped him for ransom and also threatened and beaten him. He denied that he has been won over by or on behalf SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 11 of 34 of accused persons hence, he was deposing falsely in order to save the accused persons and not disclosing the true facts before the court.
The witness was not cross-examined by ld. Defence counsel despite having given the opportunity.
(ii) PW2 Ms. Sonam is the complainant and wife of victim. She deposed her husband Shiva @ Shivaji was working as helper at the jewelery shop at A-2/104, Gali No. 4, Harsh Vihar, Delhi. On 25.07.2018 at about 11:30 am, her husband had left the house for purchasing vegetables. She was waiting for him but he did not come for about 2½ hours. She tried to make call to her husband on his mobile phone but it was found switched off. After that, she left her house to see her husband and when she reached at Sunder Nagri, she saw two police officials present there. She told them about her missing husband and they advised her to make 100 number call to police. After that, she came back to her house and made 100 number call to police from her mobile no. 8826725757. After that, she again made call to her husband and at that time, her husband attended the call and told her not to worry and he would come back to the house next day.
On next day evening, she again made call to her husband and at that time, her husband told that he was present at Seelampur Red Light. After that, she left her house and reached Seelampur Red Light where her husband met her and told her about the incident happened with him. After that, she along with her husband reached at PS New Usmanpur and told about the incident to police. At that time, police official present there made inquiry from them and obtained her signatures on some papers. Some of the papers were blank and some were SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 12 of 34 written but the contents of those papers were not read over to her by the police. She deposed that she can identify her signatures on those papers, if shown to her. The complaint made by her as Ex. PW2/A was shown to her and she identified her signature at point A. She also identified her signature on the personal search memo of accused Athar Hasan as Ex. PW2/B, personal search memo of accused Vijay Kumar as Ex. PW2/C, personal search memo of accused Mohit Malik as Ex. PW2/D, personal search memo of accused Jitender as Ex. PW2/E, personal search memo of accused Ishtikar as Ex. PW2/F at points A respectively. She also identified her signature on arrest memo of accused persons namely Athar Hasan, Jitender, Mohit Malik, Vijay Kumar and Ishtikar at point B respectively.
She further deposed that she did not know as to who had taken away her husband and for what purpose. Besides this, she did not know anything else about this case.
The witness was cross-examined by Ld. Addl. PP for State as she was resiling from her earlier statement and during cross- examination, she denied the suggestion that she had lodged her complaint Ex. PW2/A at PS against the accused persons. She denied that complaint Ex. PW2/A was read over to her or that she had signed the same after gone through its contents. She denied that on 25.07.2018 at about 11 am, when she was present at her house, her daughter Rupali aged about 9 years had come to her from outside while weeping or that she told her that some person had taken away her father with them. She denied that she also told her that those persons first of all had shaken hand with her father after that her father asked her to go back to the house or that thereafter, her father went away with those persons or that SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 13 of 34 only thereafter, she had made phone call at the mobile phone number 8510035178 from her mobile phone or that at that time the call was received by some unknown person who told her that they had brought her husband for some inquiries or that at that time they did not disclose any place to her. She denied that she had stated these facts in her complaint.
She further denied the suggestion that on 26.07.2018 at about 12:30 pm, when she had talked to her husband, at that time he had told her that he was coming soon to the house but he did not come till evening. She denied that thereafter, she again made call to her husband at about 5.30 pm or that at that time he told her to make arrangement of Rs. one lakh immediately. She denied that in the meanwhile some other person had taken mobile phone from her husband or that said person told to her "tu apne pati ko chhudana chahti hai to turant aik lakh rupay ka intjam kara". She further denied that at that time, she had told the said person as to from where she would arrange Rs. one lakh at which the said person told her to make arrangement of Rs. 60,000/-. She denied that thereafter, she started making arrangement of aforesaid money. She denied that thereafter, she had lastly talked with her husband at about 8.30 pm or that at that time the other person told her on mobile phone of her husband to come with Rs. 60,000/- at Hotel D-Aqua, Shastri Park or that thereafter, she had reached Hotel D-Aqua, Shastri Park, Usmanpur and made efforts to search her husband but he was not found there and his mobile phone was also found switched off. She denied that thereafter, she scared and reached at PS Usmanpur or that after reaching at the PS, she had narrated all those facts to the police in her complaint. She further denied that on 27.07.2018, she had joined SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 14 of 34 investigation of this case with IO Inspector Vijay Kumar or that on that date, she had accompanied him alongwith ASI Chena Ram, Const. Rohtash, Const. Arun Dangi to D-Aqua Hotel near DDA Park in Shastri Park or that after reaching there IO had checked various cars or that at about 1.30 am one gray colour car bearing no. DL-1C-U- 5431 was checked in which six persons were found sitting including her husband and she had told the IO that he was her husband Shiva. She denied that she came to know the names of other person sitting in the car as HC Jitender, Const. Mohit, Athar Hasan, Vijay Kumar and Ishtikar. She denied that all the five persons were overpowered and apprehended by the police and due to bad weather they were brought to PS Usmanpur or that they were interrogated by the IO in her presence or that after interrogation, they were arrested by the IO in the present case. She denied that she had signed the arrest memos and personal search memos only after the same were prepared by the IO in her presence after the arrest of aforesaid five accused persons. She denied that at the time of arrest of accused Athar Hasan, mobile phone make Samsung of her husband was recovered from him or that in her presence, IO had prepared pulanda of the said mobile phone or that after sealing the same with the seal of VK, same was taken into possession by the IO vide seizure memo Ex. PW1/F. She denied that at that time at about 12:30 pm, her supplementary statement was also recorded by the IO to whom she had stated the aforesaid facts.
The attention of PW2 was drawn towards the accused persons standing in the dock namely Jitender, Mohit Malik, Athar Hasan, Ishtikar and Vijay Kumar and she denied that SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 15 of 34 accused persons present in the dock were apprehended from the car by the police in which her husband was found sitting with them. She denied that she has been won over by or on behalf of accused persons hence she was deposing falsely in order to save the accused persons and not disclosing the true facts before the court.
The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(iii) PW-3 ASI Rambir Singh deposed that on 26-07- 2018, he was posted as ASI in PS New Usmanpur and working as Duty Officer. At about 11:40 pm, Inspector Raj Kumar Shah, SHO New Usmanpur gave him rukka for registration of case and he got registered the FIR u/s 385/34 of IPC Ex. PW3/A and made endorsement on the rukka vide Ex. PW3/B. He also made kayami DD no. 39A regarding registration of FIR.
The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(iv) PW-4 Retd. HC Ompal deposed that on 25-07-2018 and 26-07-2018, he has performed his duties as Santri at PS New Usmanpur from 12 pm to 8 am. During his duty, HC Jitender and Ct. Mohit, posted at PS New Usmanpur, had not brought any suspect or accused person in the name of Shiva @ Shivaji to lock up. On 27-09-2018, the IO of the present case Inspector Vijay Kumar had made inquiry from him and recorded his statement. He identified HC Jitender and Ct. Mohit in the court.
The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
(v) PW5 ASI Chena Ram deposed that on 27.07.2018, he was posted at PS New Usmanpur as ASI. On that day, he along SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 16 of 34 with IO Inspector Vijay Kumar, Ct. Manoj, Ct. Rohtash, Ct. Arun along with complainant Sonam visited D-Aqua Hotel, Near DDA Park, Shastri Park, Delhi where IO checked several cars. Thereafter at about 1:30 am, IO checked one car of gray colour having number DL-1CU-5431 make WagonR in which six persons were sitting, out of which two were police officials i.e. HC Jitender and Ct. Mohit of PS Usmanpur and four were public persons. IO inquired from four public persons and came to know that accused Athar Hassan, Vijay Kumar and Ishatkar and victim Shiva were sitting there. On seeing, complainant Sonam identified her husband Shiva. All were apprehended with the help of them. The weather was not so good, all the persons were brought to PS New Usmanpur and interrogated. One mobile phone make Samsung was recovered from accused Athar Hassan. Complainant identified and stated that mobile phone belonged to her. IO prepared pullanda of the said mobile phone and sealed with the seal of VK. The same was taken into possession vide seizure memo. Accused persons namely Athar Hassan, HC Jitender, Ct. Mohit, Vijay and Ishatkar were arrested and personally searched. Thereafter, he alongwith staff and IO along with accused persons visited D-Aqua Hotel, DDA Park, Shastri Park where IO prepared site plan of the spot. Thereafter, they reached at Gagan cinema where IO prepared site plan of the spot. Thereafter, accused persons were produced before the court and sent to JC. Seal after use was given to Ct. Arun. Case property was deposited with malkhana. Ct. Arun returned seal to IO.
Ld. Addl. PP for State put some leadings questions to the witness and he affirmed that car make WagonR no. DL-1CU- 5431 was taken into possession at D-Aqua Hotel, Near DDA SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 17 of 34 Park, Shastri Park. He affirmed that IO had recorded disclosure statement of all accused persons. He affirmed that IO recorded statement of complainant Sonam. He affirmed that accused persons had pointed out the place of occurrence and pointing out memo was prepared. He also affirmed that IO had recorded statement of Shiva. He deposed that all the five accused persons namely Athar Hassan, Jitender (HC), Mohit (constable), Vijay and Ishatkar were present in court.
The witness identified one mobile phone make Samsung DUOS as Ex. P1 and WagonR car no. DL1CU-5431 Ex. P2 produced by accused Jitender as the same car which was seized during investigation in his presence when 5 accused persons namely Athar Hasan, Vijay Kumar, Ishatkar, HC Jitender and Constable Mohit were apprehended with victim Shiva in the said car. The car is Ex.P2.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(vi) PW6 Ct. Rohtash deposed that on 27-07-2018, he was posted at PS New Usmanpur as Constable. On that day, he along with IO Inspector Vijay Kumar, Ct. Manoj, ASI Chena Ram, Ct. Arun Dangi along with complainant Sonam visited D- Aqua Hotel, Near DDA Park, Shastri Park, Delhi where IO checked several cars. Thereafter at about 1:30 am, IO checked one car gray of colour having number DL-1CU-5431 make WagonR in which six persons were sitting, out of which two persons were police officials i.e. HC Jitender and Ct. Mohit of PS Usmanpur and four were public persons. IO inquired from four public persons and came to know accused as Athar Hassan, Vijay Kumar and Ishatkar and victim Shiva were sitting there. On SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 18 of 34 seeing, complainant Sonam identified her husband Shiva. All were apprehended with the help of them. The weather was not so good, all the persons were brought to PS New Usmanpur. Accused persons were interrogated by the IO. They were arrested and personally searched. One mobile phone of Samsung Duos was recovered from accused Athar Hassan. Complainant Sonam identified and stated that mobile phone belonged to her. IO prepared pullanda of the said mobile phone and sealed with the seal of VK. The same was taken into possession vide seizure memo. WagonR car was also taken into possession. Seal after use was given to Ct. Arun Dangi. IO had recorded the disclosure statement of all accused persons. IO had recorded statement of Sonam. Case property was deposited in Malkhana. Thereafter, he along with staff and IO alongwith accused persons visited to D Aqua Hotel, DDA Park, Shastri Park where IO prepared site plan of the spot where accused were arrested and car was seized vide Ex. PW6/A. Thereafter, they reached at Gagan Cinema where IO prepared site plan of the spot. Thereafter, accused persons had pointed out the place of occurrence and pointing out memo was prepared by the IO. IO recorded the statement of Shiva. Accused persons were produced before the court and sent to JC. Ct. Arun returned the seal to IO. He identified all the five accused persons namely Athar Hassan, Jitender (HC), Mohit (constable), Vijay and Ishatkar present in court.
He identified the mobile phone make Samsung Duos as Ex. P-1 and six photographs of WagonR car bearing no. DL1CU5431 as Mark PW6/X (colly).
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 19 of 34(vii) PW-7 HC Arun deposed that he joined the investigation with the IO/Insp. Vijay Kumar. He alongwith IO and other constable when to some hotel at Shastri Park where IO asked them to check the cars as there were many cars parked in a ground. After checking the cars, several persons were sitting in their respective cars and in one of the cars, IO took out some persons. He did not remember the exact number of persons and brought them to the PS. He did not remember much as in 2020, he suffered from Corona and due to this, he had lost his memory in this regard. He could not identify the accused persons due to aforesaid loss of memory.
The witness was cross-examined by ld. Addl. PP for State as he was resiling from her previous statement. During cross- examination, he did not remember whether ASI Chena Ram, Ct. Rohtash and complainant Sonam accompanied them to D-Acqua Hotel near DDA Park, Shastri Park. He volunteered that as far as he remember, Ct. Manoj accompanied them. He did not remember whether while checking the cars at about 1:30 am, six persons were found sitting in one car bearing No. DLICU5431 of gray colour. He did not remember whether amongst the said six persons, HC Jitender, Ct. Mohit and other accused persons namely, Athar Hasan, Vijay Kumar, Ishtakar and victim Shiva were also sitting in the said car. He did not remember whether victim Shiva was identified by his wife Sonam i.e. the complainant. He affirmed that IO apprehended all the persons who were sitting inside the car and they took them to PS Usmanpur. He did not remember whether IO arrested the said six persons and prepared arrest memo, personal search memo and conviction slip in his presence. He could not say whether one SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 20 of 34 mobile phone make Samsung Duos was recovered from Athar Hasan which belonged to the victim and same was seized by the IO. He did not remember whether recorded disclosure statement of accused persons. He did not remember whether IO recorded statement of complainant Sonam. He did not remember whether any case property was deposited in the malkhana. He did not remember whether IO prepared any site plan regarding apprehension of WagonR car in which alleged six persons were found. He did not remember whether IO prepared any identification memo regarding place of incident. He did not remember whether they returned to the PS and IO recorded statement of Shiva. He affirmed that IO took his signatures on certain papers, however, he did not remember what those papers were.
The apprehension memo Ex.PW6/A, seizure memo of mobile phone Samsung Ex.PW1/F, seizure memo of Wagon Car Ex.PW1/G, disclosure statement of accused Athar, Vijay, Ishtakar, Mohit and Jitender Ex. PW7/A (colly), site plan of the place of incident Ex.PW1/H, identification memos Ex.PW1/1, Ex.PW1/J, Ex.PW1/K, Ex.PW1/L, Ex.PW1/M, handing over memo of victim, personal search memos Ex.PW2/B, Ex.PW2/C, Ex.PW2/D, Ex.PW2/E and Ex. PW2/F were shown to the witness who correctly identified his signatures at point B on all the documents. However, he stated that he did not remember as to when these documents were prepared. He volunteered that IO took his signatures in the PS. He could not identify all the accused persons despite being pointed out by the Ld. Addl. PP for State.
He affirmed that IO recorded his statement, however, he SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 21 of 34 did not remember its contents. The statement u/s 161 Cr.P.C. Mark PW7/X of the witness was read over to him and he stated that he did not remember the said facts. He denied the suggestion that he was deliberately not remembering the said facts.
The witness was not cross-examined by the accused persons despite having given the opportunity.
(viii) PW8 ACP Raj Kumar Saha deposed that on 26-07- 2018, he was posted as SHO, PS New Usmanpur. On that day, one complainant Sonam came to PS and gave him a written complaint and he attested the same at point C. He prepared a rukka Ex. PW8/A and gave the same to Duty Officer who registered the FIR. He also issued certificate u/s 65B of Evidence Act pertaining to FIR Ex. PW8/B. During investigation, he got issued duty roster of staff of PS dated 25-07- 2018 and 26-07-2018 as Ex. PW8/C (colly).
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(ix) PW-9 Shakeena deposed that in the month of June, 2017, she was selling cigarette tobacco etc. in her stall near Sanatan Dharam Mandir and behind Seelampur Police Station. She deposed that she did not know anything about this case.
She was cross-examined by Ld. Addl. PP for State as she was resiling from her previous statement.
During cross-examination by Ld. Addl. PP for State, she denied the suggestion that in the month of June, 2017, she knew a person by the name Vijay Kumar who used to come to her cigarette stall to purchase cigarette etc. She denied that in the month of June, 2017, Vijay Kumar came to her stall and told her that he was having Aadhar card of Jammu and he needed an SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 22 of 34 Aadhar card of Delhi to procure an urgent mobile SIM Card and he asked her to give photocopy of her Aadhar card and accordingly, considering him a police official of Seelampur as told by him to her, she gave him the photocopy of her Aadhar card. She denied that Vijay Kumar took her to Chawala Communication shop, situated just opposite to her stall across the road where she gave her thumb impression and got issued the Vodafone SIM and gave the same to Vijay Kumar. She denied that IO showed her the photographs of that Vijay Kumar to whom she identified to be the same to whom she had given her SIM Card and the photocopy of the Aadhar Card.
She failed to identify the accused Vijay Kumar despite being pointed out and being suggested by the Ld. Addl. PP for the State to be the person to whom she gave photocopy of the Aadhar card as well as vodafone SIM. She denied that she was deposing falsely as she has been won over by the accused.
The witness was not cross-examined by Ld. Defence counsel for accused persons despite having given the opportunity.
(x) PW10 Inspector Vijay Kumar deposed that in the intervening night of 26/27-07-2018, he was posted in PS New Usman Pur. At about 12:15 am, Ct. Rohtash brought one rukka and copy of FIR and he was accompanied with the complainant Sonam. Ct. Rohtash handed over him the said documents and told that the investigation of the said case was marked to him. After perusal of the said documents, he came to know that the husband of Sonam, namely, Shivji @ Shiva has been abducted and a ransom amount has been asked for. The complainant Sonam told them that she has been asked to bring ransom money by the assailants at D Aqua Hotel, New Usmanpur which was SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 23 of 34 very near to the police station New Usmanpur. He formed a raiding team consisting of Ct. Rohtash, Ct. Manoj, Ct. Arun Dangi, ASI Chena Ram and himself. They along with complainant departed from the PS towards the D Aqua Hotel. When they reached near Aqua hotel, they searched many vehicles which were passing through near the said hotel. At around 1:30 am, he noticed one car being parked in a park near the said hotel. They went inside the park and surrounded the said car. They noticed that on the driving seat of the said car, one Head Constable of PS New Usman Pur namely, Jitender Dutt Sharma was sitting. Total 6 persons were sitting inside the said car including Jitender Dutt Sharma. On interrogation, they came to know that the person who was sitting on the front passenger seat was namely Athar Hasan and on the rear seat of the said car, 4 persons were sitting Ct. Mohit of PS New Usman Pur, Vijay Kumar (dismissed Constable of Jammu and Kashmir Police), Ishtikar and who was kept sitting on the floor of the car. Shivaji identified by his wife Sonam i.e. the complainant to be her husband who was abducted. The registration no. of the said car was DL1CU5431 of make WagonR. At that time, there was some drizzling. We searched for the public person in order to make them join the investigation. However, as it was late night time. Hence, nobody was found present. Without wasting further time, they took all the said persons found inside the car alongwith the said car to the PS as it was very nearby to the said PS. He interrogated accused Athar Hasan, Vijay Kumar, Ishtikar, Jitender and Mohit. Thereafter, at about 8 am, he arrested accused persons vide arrest memos Ex.PW1/A to Ex.PW1/E and personal search of accused persons were conducted vide personal search memo SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 24 of 34 Ex.PW2/B to Ex. PW2/F. He seized mobile phone of accused Athar Hasan vide seizure memo Ex.PW1/E and the manner of recovery was mentioned in seizure memo itself. One mobile phone make Vivo was recovered from the personal search of accused Athar Hasan as mentioned in the personal search memo of accused. At the instance of all accused persons, car bearing No. DLICU-5431 was recovered and same was seized vide seizure memo Ex. PW1/G. He recorded disclosure statement of accused persons vide Ex.PW7/A (colly). One Samsung mobile phone and SIM was recovered from the personal search of accused Vijay Kumar and details has been mentioned in personal search memo. He recorded statement of complainant u/s 161 Cr.P.C. and thereafter, she was released. He also prepared site plan of place of apprehension of accused persons vide Ex.PW6/A. He also prepared pointing out memo at the instance of all accused persons vide Ex.PW1/I to M. He prepared site plan at the instance of victim vide Ex. PW1/H. He also prepared handing memo of victim vide Ex.PW10/X1. Accused persons were sent to JC. He recorded statement of victim Shivaji u/s 161 Cr.P.C. He obtained his seal of Ct. Arun. He recorded statement of witnesses. He obtained mobile numbers of Jitender and Mohit from PS and accused Ishtiyak from a secret informer. All the mobile numbers of accused and victim were sent to Nodal Officer to obtain CDR. Complainant informed him that he made call at 100 no. on 25.07.2018 around 5:31 pm. He made enquiry in this regard from PS and collected DD no. 97B and 101B of PS Nand Nagari as Ex. PW10/X2 and Ex. PW10/X3. The facts regarding action taken regarding the said DD entries was mentioned in separate register vide Ex. PW10/X4. He recorded SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 25 of 34 statement of HC Ravinder and ASI Sunil. He obtained the details from RTO regarding the car in the name of Jitender and same is Ex.A8. He also obtained PCR form as Ex. PW10/X5. He also obtained CDRs of mobile no. 8510035178 (Idea) subscribed in the name of Shivaji. On analysis of the CDR and CAF, it was found that the mobile location of Shivaji on 25.07.2018 at about 11:00 am was at Gagan Cinema. After 11:00 am, the mobile location of Shivaji was at Shastri Park near Police Station New Usman Pur. Four calls were made from the said mobile phone to the phone of complainant Sonam. Mobile No. 8826725737 (Airtel) was found registered in the name of complainant Sonam. On analysis, she made 8 calls on the mobile phone of Shivaji from 11:26 am on 25-07-2018 to 9:30 pm dated 26-07-2018. The last four digit of mobile no. of accused Athar Hasan was 1631 of Airtel and mobile location was at Gagan Cinema. On 25- 26.07.2018, location was at Shastri Park, near PS Usmanpur. Through this mobile phone, accused was in touch with co- accused persons Jitender, Ishtikar and Vijay. The said mobile phone was registered in the name of Baijanti Yadav w/o Shiv Narayan r/o Kabir Nagar. They tried to search Baijanti but she was not found. The last four digit of mobile no. 0930 (Vodafone) of accused Vijay Kumar was found registered in the name of Sakina w/o Muzibur r/o T-Hut, Seelampur. She was examined in this case and she stated that accused Vijay Kumar represented himself before her as officer of Delhi police and working in PS Seelampur and he obtained her Aadhar Card and took the above- said SIM on the said Adhar Card. He recorded her statement in this regard and obtained relevant CDRs. It was revealed there was various calls between accused Vijay Kumar and other SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 26 of 34 accused persons. Location of accused Vijay was at Gagan Cinema at relevant time. The last four digit of accused Jitender was 5155 (Jio) and said mobile phone was registered in the name of accused Jitender and his location was at Gagan Cinema at relevant time. The last four digit of accused Ishtiyak was 5865 (Idea) and said mobile phone was registered in the name of accused Ishtiyak and his location was at Gagan Cinema at relevant time. The last four digit of accused Mohit was 1856 (Vodafone) and said mobile phone was registered in the name of accused Mohit and his location was at Shastri Park near adjoining PS Usmapur at relevant time. He also obtained duty roster of accused Jitender and Mohit vide Ex.PW8/C (colly) He also collected relevant DD entries of accused Jitender and Mohit Ex.PW10/X6 (colly). He also obtained permission u/s 197 Cr.P.C. Mark PW10/X7. He identified the accused persons in the court.
He correctly identified the photographs of car bearing No. DLICU-5431 Mark PW6/X (colly); one Samsung mobile phone black colour bearing IMEI No. 367264061855830 which was recovered from accused Vijay; another mobile phone make Vivo belonging to accused Athar Hasan as mentioned in seizure memo; one white colour Samsung mobile phone bearing IMEI No. 352971075126389 as belonging to accused Athar Hasan. The above-said case property is Ex. PX1 (colly).
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xi) PW11 HC Raj Kumar deposed that on 25-07-2018, he was posted at PS New Usman Pur and his duty hours were from 8 am to 8 pm. He called accused Mohit through his mobile SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 27 of 34 no. 9868669811, who informed him that he was going outside for his personal work.
To a leading question by Ld. Addl. PP for State, he could not say that mobile no. of Mohit was 9582141856 due to lapse of time. He denied the suggestion that he was intentionally not disclosing the number. He did not remember the exact date when his statement was recorded by IO.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
The accused persons did not dispute the execution of superdarinama of vehicle No. DL1CU-5431 dated 22.11.2018 by Sh. Satya Prakash Sharma along with annexed/ supporting documents as Ex.A1. They further admitted the CAF, CDR, Location Chart and certificate u/s 65B of mobile no. 8510035178 pertaining to Sh. Shivaji as Ex. A2 (colly); CAF, CDR, Location Chart and certificate u/s 65B of mobile no. 8826725737 pertaining to Ms. Sonam as Ex. A3 (colly); CAF, CDR, Location Chart and certificate u/s 65B of mobile no. 8076875155 pertaining to Jitender Dutt Sharma as Ex. A4 (colly); Cover Letter, CAF, CDR, Location Chart and certificate u/s 65B of mobile no. 9582141856 pertaining to Mohit Malik as Ex. A5 (colly); Cover Letter, CAF, CDR, Location Chart and certificate u/s 65B of mobile no. 8447460930 pertaining to Ms. Sakina as Ex. A6 (colly); Cover Letter, CAFs, CDRs, Location Charts and certificate u/s 65B of mobile nos. 7042678468 and 8130831631 pertaining Sh. Jitender Sharma and Ms. Baijanti Yadav as Ex. A7 (colly); MLO report regarding vehicle WagonR registration DL1CU5431 in the name of Sh. Jitender Sharma as Ex. A8; statement of PW Ct. Ravi Rai u/s 161 Cr.P.C. dated 27.09.2018 SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 28 of 34 as Ex.A9; Statement of PW HC Yashveer u/s 161 Cr.P.C. dated 27.09.2018 as Ex.A10; Statement of PW HC Hari Ram u/s 161 Cr.P.C. dated 27.09.2018 as Ex.All; Statement of PW Ravinder u/s 161 Cr.P.C. dated 24.09.2018 as Ex.A12; Duty Roster of PS Staff as Ex.PW8/C (Colly); Roznamcha as Ex.PW10/X6 (colly); PCR Call form as Ex.PW10/X5; Document Ex.PW10/X4, DD no. 97B and 101 B as Ex. PW10/X2 and Ex.PW10/X3; Order u/s 197 Cr.P.C. issued on 09.05.2019 vide no. F- 7/76/2018/HP- 1/ESTT./1796 to 1799 against Jitender Dutt Sharma and Mohit Malik (sanction letter) by O.P. Misra, the then Special Secretary Home, Mark PW10/X7 as Ex.A13. Therefore, the examination of concerned witnesses, who were cited to prove the above- mentioned documents, was dispensed with.
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statement of accused persons were recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused persons, which were denied by them. They stated that they are innocent and have been falsely implicated in this case. Accused Athar Hasan stated that he was lifted by the police from his house. Accused Istakar stated that he was falsely implicated by the police. Accused persons did not opt to lead evidence in defence. FINAL ARGUMENTS
6. This court has heard the arguments and perused the record. It is submitted on behalf of accused persons that the prosecution has failed to prove its case beyond reasonable doubt. The star witness of the prosecution namely PW1 Shiva @ Shivaji and PW2 Ms. Sonam have turned hostile. The remaining witnesses examined by the Prosecution are formal and corroborative in SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 29 of 34 nature.
On the other hand, Ld. Addl. PP for the State submits that the testimony of all the prosecution witnesses is sufficient to bring home the guilt of accused persons beyond reasonable doubts. PW1 and PW2 have turned hostile later on as they were won over by the accused persons.
FINDINGS OF THE COURT
7. Before analyzing the prosecution and defence evidence adduced in the present case, this court deems it proper to refer to provisions of law and citations of Superior courts, which are found to be applicable to the facts of the present case.
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 4 [any foreign State or international inter- governmental organization 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 to fine.
120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 1 [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.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
8. It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court that:-
"In a criminal trial, it is for the prosecution to establish its SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 30 of 34 case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
09. In Data Xiva Naique Desai and Another vs. The State, AIR 1967 Goa, Daman and Diu 4, the Hon'ble Supreme Court reiterated the well-known principles of the criminal jurisprudence which are reproduced as under:
"The learned Judge would be advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime: (i) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between several guilty persons should escape than that one innocent person suffer; and (iv) the hypothesis of delinquency should be consistent with all the facts proved."
10. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637, it was held by the Hon'ble Apex Court that, "in criminal cases mere suspicion, however, strong, cannot take the place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof."
11. Moreover, in Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court had observed as follows:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views 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. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 31 of 34 case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real.
It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not ruled out altogether."
12. It is observed that entire police machinery was set into motion by PW2 Ms. Sonam who has got the present FIR registered for the offence punishable u/s 385 of IPC claiming extortion and abduction of her husband Shiva @ Shivaji and demand of ransom by unknown persons for securing release of her husband. During investigation, all the accused persons were apprehended and arrested in her presence. Her abducted husband Shiva @ Shivaji was also traced in her presence at DDA Park, Shastri Park in WagonR car bearing no. DL1CU-5431. However, in her deposition dated 01-08-2019, she has completely disowned SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 32 of 34 the case of the Prosecution. Even though she has identified her signatures on the arrest memos and personal search memos prepared by the IO at the spot, however, she claimed that her signatures were taken on blank papers. She denied all the incriminating suggestions, put by Ld. Addl. PP for the State, appearing from her original complaint Ex. PW2/A. The abducted person namely Shiva @ Shivaji has also not supported the case of the Prosecution. In his deposition dated 01-08-2019, even though he has narrated the incident about his abduction and wrongful confinement in a car, however, neither he revealed the registration number of the said car nor he identified the accused persons standing in the dock as the culprits who had abducted him. He categorically stated that none of the accused persons standing in the dock were present in the car nor the person who brought him to the car was present in the court on that day. Interestingly, at the time of recording of deposition of PW1 Shiva @ Shivaji, all the accused persons were produced from JC. In the opinion of this court, no substantive evidence has been led by the Prosecution indicating commission of alleged offence of abduction for ransom by the accused persons.
13. Apart from the oral testimony of PW1 and PW2, the prosecution has placed reliance upon the call detail records. It is well settled that call details records may be an important and effective piece of evidence, which may facilitate and assist the courts in ascertaining the presence of different participants in commission of an offence, the same can only be taken as supporting or a corroborative piece of evidence, and conviction cannot be made solely on the basis of CDRs.
14. The remaining witnesses got examined by the Prosecution SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 33 of 34 are only formal and corroborative in nature. The disclosure statement of accused persons recorded by the police official is inadmissible in evidence in view of Section 25 of Indian Evidence Act.
DECISION OF THE COURT
15. It is well settled that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor of the accused persons. The prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. Accordingly, taking into consideration the facts and circumstances of the case, accused persons namely Jitender Dutt Sharma, Mohit Malik, Athar Hasan, Ishtakar and Vijay Kumar are hereby acquitted of the charges punishable u/s 364A and 120B of IPC. File be consigned to record room after compliance of section 437A of Cr.P.C.
ANNOUNCED IN THE OPEN COURT
ON 31-01-2024 PANKAJ Digitally signed by PANKAJ
ARORA
ARORA Date: 2024.01.31 16:54:56
+0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/ 31012024
SC No. 350/18 State Vs. Jitender Dutt Sharma Etc. Page 34 of 34