Delhi District Court
55 Reliance Has Been Placed On Ashish vs . Sttae 2002 (3) Jcc 1883, on 6 November, 2007
1
IN THE COURT OF SHRI H.S.SHARMA, ADDL.SESSIONS JUDGE, DELHI.
S.C. NO. 74/01/06
FIR No. 558/2000
P.S Ashok Vihar
STATE
VERSUS
1 PUNIT SUNEJA
S/O SHRI RAMESH KUMAR
R/O B-80, SFS MIG FLATS,
ASHOK VIHAR, PHASE-IV, DELHI.
2 VINEET SUNEJA
S/O SHRI RAMESH KUMAR
R/O B-80, SFS MIG FLATS,
ASHOK VIHAR, PHASE-IV, DELHI.
3 NITIN AGGARWAL
S/O ARUN KUMAR
R/O WZ-16, PUNJAB GARDEN,
EAST PUNJABI BAGH, DELHI.
4 RAM BAHADUR @ PAPPU PAHARI
S/O SHRI MAN BAHADUR
R/O A-4, ID HOSPITAL,
K.W.CAMP, DELHI.
5 SAURABH GUPTA
S/O ARUN KUMAR
R/O 4/22, JAI PARK
EAST PUNJABI BAGH, DELHI.
6 JATIN KHARAB (Since acquitted on 18.05.2004)
S/O JOGINDER
R/O 15/27, EAST PUNJABI BAGH, DELHI.
7 GANGA DASS @ AJAY KUMAR @ KALLA (Since expired)
S/O SHRI RAMESH
R/O D-8, SFS MIG FLATS,
ASHOK VIHAR, PHASE-IV, DELHI.
Date of Institution : 04.01.2001
Date of receipt of this case in this Court : 01.09.2006
Date of Arguments : 22.10.2007
Date of Decision : 06.11.2007
2
Shri R.K.Tanwar, Addl.P.P for the state.
Shri K.C.Chopra and Shri Subhash Aggarwal, Advocates for accused Nitin.
Shri Adesh Jai Kishan, Advocate for accused Punit & Vinit.
Shri Adesh Jai Kishan, Advocate (Amicus Curiae) for accused Ram Bahadur.
JUDGMENT
Accused Punit, Vinit, Nitin, Ram Bahadur, Ganga Das, Saurabh & Jatin were challaned by the police to face trial for their having committed offences punishable under Sections 364A r/w Section 120-B IPC as they had kidnapped Nidhi Jain on 22.09.2000 at about 11.00AM for ransom. 2 Accused Jatin was acquitted on 18.05.2004. Accused Ganga Das has since died.
3 The chain of events had been described in two parts. 4 Nidhi Jain (PW1) has narrated the facts as to how she had been kidnapped by 4 persons, for ransom. Her father Narender Jain (PW2) has stated as to how the telephonic calls had been received and how the amount had been paid to the Kidnappers. Therefore, instead of mentioning the facts as contained in the report under Section 173 Cr.P.C, I am mentioning the depositions of these two witnesses (in brief) so that their statements are not required to be repeated.
35 The prosecution case in brief is that Nidhi (PW1) had been doing computer course in STG computer Institute (in short institute), Shakti Nagar Extension. On 22.09.2000, she had gone to attend the institute in her Honda City Car No.UP-14-J4060. She had reached there at about 9.00AM or 9.05AM. After attending her classes, she had come out of the institute. The time was around 11.00AM. She had gone near her car. One of her class mates, namely, Jatin had met her in the classroom. Suddenly, a black coloured Ceilo Car came near her car. One person got down from the car. She was pushed on the rear seat of the car. One more boy was sitting inside the car (on the rear seat). Two persons were on the front seat. She was placed in between the two persons on the rear seat of the car. Her mobile phone bearing no.98100039990 was snatched. She had cried. Thereafter, she was asked to contact her family members on phone. She was asked to tell her family members that Rs.30 lacs be paid as ransom amount otherwise, she would be killed and thrown in the Nala.
6 The second call was made by Nidhi Jain to her father when the vehicle had reached a house. Ultimately, she was left at 4.30AM and was dropped near Oberoi Hotel.
7 Nidhi Jain has appeared as PW1 and has substantiated these facts. She has identified accused Punit, Vinit, Ram Badur & Ganga Ram as the 4 persons who were present in the car. It was accused Ram Bahadur who, according to Nidhi Jain, had got down and had pushed her inside the car. Accused Vinit was driving. Accused Punit was sitting on the front seat. Accused Ganga Das was sitting on the rear seat.
8 Narender Jain (PW2) who is the father of Nidhi Jain, has deposed that Nidhi Jain had left at about 9.00AM for the institute. At about 11.30AM, one Anupam had informed on phone that Nidhi Jain had been kidnapped. Anupam had made the call from the institute. This phone was attended by Ankur, a nephew of Narender Jain. Ankur in turn had informed Narender Jain. Thereafter, Narender Jain had left in his Maruti Esteem. Ankur & Ajay the nephews of Narender Jain were with him. On the way, he had received a telephonic call of his wife. He then got down from the Esteem Car and came back to his house in a TSR. Ankur & Ajay proceeded towards the institute. At his (N.K.Jain's) home, a ransom call of Rs.30 lacs had been received. Another call had been received at about 1.30PM. Narender Jain was asked to come with a mobile. Since, the amount had been reduced from Rs.30 lacs to Rs.10 lacs, therefore, Narender Jain was asked to bring Rs.10 lacs at Chest Clinic, Gulabi Bagh at 11.00PM. He was also asked to come all alone in a TSR. Narender Jain had given his mobile phone no.9810012726 to the Caller. In the mean time, police of Police Station Ashok vihar had come. The police officials had asked Narender Jain to keep the amount in a suitcase. They had 5 asked him to put his signatures on the first and the last currency notes of the packets. At about 11.15PM, a call was received by Narender Jain, when he was near Chest Clinic that he (Narender Jain) should come to Narula, Connaught Place. He reached there. There was another call and this time, he (Narender Jain) was asked to come to Raja Garden Chowk. When he was on Maya Puri Chowk, three wheeler his scooter was intercepted by a white coloured Maruti Zen. Two wheeler scooter bearing no.DL-4S-6933 had also come there. The car was not having any number plate. However, a sticker of 'Soni' was on the screen. A person got down from the car. Another person got down from the two wheeler. Both of them had asked him to hand over the bag. They had told Narender Jain that if, the amount is not given, they will shoot. Therefore, Narender Jain had handed over the packet to one of the persons who had got down from the Zen. Narender Jain was also shown a pistol. After delivering the bag, Narender Jain had come back to his house at about 3.30AM or 3.45AM. Nidhi Jain had contacted Narender Jain on phone. She told him (Narender Jain) that she was at Oberoi Hotel. Narender Jain then went there and brought her back. Statements of Nidhi Jain and Narender Jain were then recorded. Police officials then asked Narender Jain to accompany them to show the places where he had gone. He (Narender Jain) then took the police officials with him to show the places. When they were near Punjabi Bagh the Maruti Zen with 'Soni' sticker was found. Since, Narender Jain had identified that car as the one from which the boys had got 6 down and collected the bag, therefore, the car was checked. The boys were found in it. The two boys were Nitin & Saurabh. From possession of Nitin, 7 bundles (Ex.PX1 to Ex.PX7) of currency notes of Rs.50,000/- each were recovered. Two bundles (Ex.PX8 & Ex.PX9) of currency notes of Rs.50,000/- each were recovered from possession of accused Saurabh. Maruti Zen car is Ex.P-3. Necessary formalities of seizure of the amount and the car were completed. These two accused were interrogated. Nitin & Saurabh then took the police party to a house in Punjabi Bagh, from where Ceilo Car Ex.P2 was recovered. 3 persons namely accused Vinit, Puneet and Ram Bahagur were found in that car. They were arrested. From possession of accused Vinit a suitcase Ex.PY containing 8 bundles (PX10 to PX17) of Rs.50,000/- each were recovered. From possession of accused Ram Bahadur one bundle Ex.PX18 of Rs.50,000/- was recovered. From possession of accused Punit one bundle Ex.PX19 of Rs.50,000/- was recovered. A toy gun Ex.P4 lying in the Ceilo Car was recovered. Mobile phones Ex.P1 and P5 and the two wheeler scooter were also recovered. On the first and last currency notes of these bundles , there were signature of Narender Jain.
9 During investigation, a few hairs lying in the Ceilo Car were seized. Chance finger prints were also lifted from the Ceilo car. These accused had then taken the police party to the house of accused Jatin. It is the prosecution case that it was Jatin who had told these accused that Nidhi Jain 7 was daughter of a rich person. Specimen hairs of Nidhi Jain were also taken. Specimen finger prints of accused Vineet, Puneet, Ganga Dass and Ram Bahadur and Nidhi were taken and got compared with the chance prints. 10 During investigation TIP of accused Puneet, Vineet Ganga Dass and Ram Bahadur was got conducted.
11 Accused Vinit and Ram Bahadur were correctly identified by Nidhi Jain in the TIP conducted on 30.09.2000 by Shri M.s.Dateer, the then Ld.MM. 12 Accused Punit had refused to join the TIP on 26.09.2000. The chance finger prints had also tallied with the specimen finger prints of accused Puneet and Ram Bahadur.
13 After completion of investigation, the accused were challaned. 14 They have been charged Under Sections 364A read with Section 120-B IPC.
15 All the accused had pleaded not guilty and claimed trial. 16 In order to substantiate the charge prosecution has examined 34 witnesses in all.
817 Nidhi Jain (PW1) is the victim. I have already mentioned her statement as to what has been deposed by her. Similarly the evidence of Narender Jain (PW2) has also been mentioned earlier. 18 Constable Budh Bose (PW3) has deposed that on 30.10.2000, the sample hairs of Nidhi Jain were taken vide memo Ex.PW1/1. 19 ASI Sanjeev (PW4) has deposed that on 06.12.2000, he had gone to Police Station Maurice Nagar and brought one sealed pulanda containing mobile phone. He gave it to the MHC(M), 20 Constable Rajesh (PW5), Inspector Jagbir (PW9), SI Satya Prakash (PW26) are the witnesses of arrest of the accused and the recoveries of the currency notes as well as the cars and mobile phones. 21 HC Sardool (PW6) has deposed that on 22.09.2000, he was on duty at police post Bharat Nagar. He was informed that a girl has been kidnapped in a Ceilo Car without no. plates. He had chased the car but in vain. He had informed it on wireless.
22 Constable Giriraj (PW7) has deposed the fact that he had collected the registration particulars of the Ceilo car and the two wheeler scooter. The car was found to be in the name of accused Vinit. The scooter in question was 9 found to be in the name of accused Nitin.
23 Lady constable Brijesh (PW8) has deposed that on 22.09.2000, while she was in PCR, she had received an information at 10.56AM that a girl has been kidnapped in Opel Astra without number plate and this information had been given on phone by one Anupam. The information had been communicated by the lady constable to her department. 24 SI Tilak (PW10) has deposed about arrest of Ganga Ram. As mentioned earlier, Ganga Ram has since expired.
25 Narender Singh (PW11) was the finger Prints expert. On 23.09.2000, he had developed 20 chance finger prints from Ceilo Car. 26 Ranjeet (PW12) was the director of the institute. He has deposed that Nidhi Jain had attended the institute on 22.09.2000. The certificate of her attendance is Ex.PW12/A. Photostat copy of the attendance sheet is Ex.PW12./B. Jatin was also a student of the institute. On that day, Nidhi Jain had been kidnapped.
27 Uttam (PW12) was the domestic servant in the house of Mr.Vijay Malhotra. He has deposed that he knew accused Vinit and Punit. They had come there at about 1.00 or 1.15PM in a Ceilo Car. They had demanded 10 water. When the water was supplied, they had immediately closed the door of the car.
28 Vijay Malhotra (PW14) has deposed that at about 11.30/12.00PM, he had seen accused Vinit near his house. A Ceilo Car was lying parked near his house. Uttam (PW13) was his servant.
29 Lady constable Madhubala was posted as DD Writer in Police Station Ashok Vihar. On 22.09.2000 at about 11.05AM, she had received the call of kidnapping of a girl of 23/24 years in a black coloured car. She had made entry in DD no.25/B. Its copy is Ex.PW15/A. 30 Anupam (PW16) had been working as a Centre Co-ordinator in the institute. He has deposed that on 22.09.2000, he had reached the institute at about 10.45AM and had met Nidhi Jain. Thereafter, he had gone inside. A person had come from outside and told him that the girl who had gone out, had been kidnapped. He (witness) informed the police on phone. He also informed the parents of Nidhi Jain.
31 Sunil (PW17) was working as a painter in the Kothi No.A-1/10, Shakti Nagar, Delhi. On 22.09.2000, his workers were sitting outside the Kothi. They had told him (Sunil) that some persons had picked a girl. Sunil 11 went to the institute and informed the officials of the institute. 32 Raj Kumar (PW18) a watchman in the Kothi of Vijay Malhotra (PW14) has deposed that a car had been parked inside the boundary. There were 3 boys in it. One of them was Vinit. The car had been taken by the police at 8.00AM. However, in the cross-examination, this witness had corrected himself and stated that the car had been taken by the police. He further deposed that he knew accused Vinit from before. 33 Shri R.K.Singh (PW19), Security Officer in Airtel company. He had produced the computer prints of mobile phone numbers 9810225911 & 9810012726. The same are Ex.PW19/A & Ex.PW19/B. These were seized vide memo Ex.PW19/C. Ex.PW1/D is the print out of phone no.9810039990. 34 ACP S.K.Batra (PW20) was the given up by the prosecution. 35 Gyanender (PW21) was the senior finger print expert. He had compared the specimen finger prints of accused Vinit, Punit, Ram Bahadur, Ganga Dass and Nidhi Jahin with the chance prints Q-1 to Q-20. The chance prints Q-19 had tallied with S-6 i.e., the specimen finger prints of accused Ram Bahadur. The report in this regard Ex.PW21/A which is signed by the Director after it was prepared by the witness. The opinion given by the witness is 12 Ex.PW21/B. The specimen finger prints of accused Punit had tallied with the chance prints Q-7. The report Ex.PW21/C bearing the signature of the director was prepared by the witness. His opinion is Ex.PW21/D. 36 Vikas Jain (PW22) is the cousin of Nidhi Jain. He has deposed that on that day, he was informed by Ajay that Nidhi Jain had been kidnapped. It was 11/11.30AM. He went to Narender Jain and informed him. He also gave his mobile phone no.9810012726 to Narender Jain. It was used by Narender Jain for calling and receiving the called. He had also given a copy of the bills of this phone to Narender Jain.
37 Ankur (PW23) is another cousin of Nidhi Jain. He had received the telephonic call at 11.30AM from Anupam (PW). He and Ajay Jain had gone to Narender Jain. Thereafter, they had left for the institute. However, on the way, a message of mother of Nidhi Jain had been received that there was a ransom call of Rs.30 lacs. Therefore, Narender Jain got down and went to his house. However, he and Ajay had gone to the institute where they were told by the persons present there as to how Nidhi Jain had been taken in a Ceilo Car. She had been dragged by two persons. Police officials had come there and his statement was recorded dated is Ex.PW23/A. 38 Inspector Giri Raj (PW24) had partly investigated the case on 13 08.11.2000. He had recorded the statements of a few witnesses and had filed the challan.
39 Arvind Rawat (PW25) has deposed that Maruti Zen no.DL-6-CC- 3396 was owned by one Ashok Son of Prem Nath.
40 SI Satya Prakash (PW26) had investigated the case. On receipt of copy of DD no.25-B, he had gone to the institute and recorded statement Ex.PW23/A of Ankur. He made endorsement Ex.PW26/A and got the case registered. He prepared the site plan Ex.PW26/B. 41 W/ASI Manjeet Kaur (PW27) was the Duty Officer in Police Station Ashok Vihar. On receipt of rukka, she had recorded the FIR, copy of which is Ex.PW27/A. 42 Manju Jain (PW28) is the mother of Nidhi Jain. She has deposed the fact that on 22.09.2000, Nidhi Jain had gone to the Institute. She has also deposed that on receipt of a ransom call, she had intimated her husband who had left with Ankur Jain for the institute.
43 Surender (PW29) was the Security Guard at the house no.2/63 Punjabi Bagh. However, he did not suport the prosecution inspite of cross- examination of Addl.P.P. 14 44 Anil Wadhwan (PW30), the official of the registering Authority has deposed that the Ceilo Car no.9L-CD-9388 was registered in the name of Vinit and scooter no.DL-4-SQ-9693 was registered in the name of Nitin. 45 HC Ajab Singh (PW31) has deposed against accused Ganga Das, who has since expired.
46 Shri M.S.Datir, the then Ld.MM (PW32) has proved the TIP proceedings against accused Ganga Dass, Vinit, Punit & Ram Bahadur. Accused Ganga Dass had refused to join the TIP vide proceedings Ex.PW32/A. Accused Ram Bahadur & Vinit had been correctly identified by Nidhi Jain on 30.09.2000. Vide proceedings Ex.PW32/G and Ex.PW32/H Accused Punit had refused to join the TIP vide his statement dated 26.09.2000. The proceedings are Ex.PW32/K. This witness has further deposed that he had recorded statement Ex.PW32/N of Nidhi Jain under Section 164 Cr.P.C. 47 Shri DS.Chakutra (PW33) senior Scientific officer had compared the hairs of Nidhi Jain with hairs found inside the Ceilo Car. According to him, the hairs were similar. His report is Ex.PW33/A. 48 HC Ram Diya (PW34) was the MHC(M) on the relevant dates. 15 49 After closure of evidence of prosecution, the accused were examined under Section 313 Cr.P.C.
50 They have denied prosecution case in its entirety. No specific plea was taken by any of the accused except Ganga Dass & Nitin. 51 In defence accused Nitin has examined two D.Ws, namely, Rajeev (DW1) and Satish (DW2).
52 I have heard Ld. Addl.P.P for the State and Ld. Counsel for the accused.
53 I have heard Ld. Counsels for the accused. I have perused the memo of arguments filed on behalf of accused Nitin, Punit, Vinit & Ram Bahadur. I have also gone through the judgments relied on by Ld. Counsel for the accused.
54 First of all, I shall take up the judgments relied on by Ld. Counsel for the accused.
55 Reliance has been placed on Ashish vs. Sttae 2002 (3) JCC 1883, V.Joseph vs. State AIR 1993 (SC) 1892, Jyoti Lal vs. Deepak Dutt 1995 CLJ 930, Gunanidhi vs. State 1984(1) Crimes 948, Harnam Singh vs. State AIR 1954 Punjab 286, Rajesh Dalal vs. State Cr. Appeal No.800/03 decided on 16 04.10.2007 by our own Hon'ble High Court, Smt.Shashi vs. Gopal 1983(2) VIII Crimes 308, Durga Devi vs. State 2000(3) RLR (Crl.) 373, Bal Kishan vs. State 1987 CLJ 479, Manepalli vs. State 1999 CLJ 4375, Manpreet vs. State 2004 (1) JCC 1, State of Haryana vs. Ram Singh (2002) 2SCC 426, Turab vs. Emperor 30 CLJ 1935 Page 166, Radha Kishan Vs. State 87 (2000) DLT 106, Prem Bahadur vs. State 1978 CLJ 945, Safi vs. State 1993 (1) RCC 622, Balakrushi vs. State AIR 1971 SC 804 & Santa Singh vs. State AIR 1956 SC 526.
56 A judgment cannot be relied on in a mechanical manner without having identical and similar facts. In this regard I am quoting observations of the Hon'ble Supreme Court as made in "State Financial Corporation vs. M/s Jagdamba Oil Mill" AIR 2002 SC 834:-
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the facts situation of the decision on which reliance is placed. Observations of courts are not to be treated as Euclid's theorems nor as provisions of the Statute. These observations must be read in the context in which they appear. Circumstantial flexibility, one additional or different fact may make a world of difference between the conclusions in two cases."
In Rafiq vs. State 1980 SCC (Crl.) 946, it was held that "ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in the two cases. The facts and circumstances often vary from case to case.
Therefore, regardless of the specific circumstances of a crime and criminal milieu, some strands of probative 17 reasoning which appeal to a Bench in one reported decision cannot be mechanically extended to another case".
57 The judgments relied on by Counsel for the accused had dealt with the factual situation appearing in those cases. So far as the law laid down in these judgments is concerned, there is no dispute. In fact, there can be none. In these judgments, it was held as under :-
(a) The accused is presumed to be innocent and suspicion is not a substitute of proof.
(b) If the part of the statement is unbelievable from the rest of the statement, then the entire statement is to be disbelieved.
© Cross-examination is a part of evidence. Any admission made in the cross-examination, cannot be brushed aside.
(D) If the police officials had had sufficient time and opportunity to affect the recovery, the delayed recovery of the articles shall make their evidence weak.
(E) Contradictory evidence is not to be believed. (F) A witness who had not been declared hostile and at the same time,
did not support the prosecution, his statement is binding on the prosecution.
(G) Delay in lodging the FIR or sending its copy to the Magistrate is fatal.
(H) If the photographs of the accused with names written thereon are published in the newspapers, the TIP of those accused is farce. If the seal with which the articles recovered from the accused are not handed over to an independent witness and remains with the I.O., the possibility of tempering with the case property cannot be ruled out.
(I) If no independent witness is joined during the investigation, the evidence of recovery witnesses becomes doubtful.
18(J) Pointing out of the places of the occurrence by the accused is in fact amounts to their confession and it cannot be pressed into service. Delay in sending the seized articles to FSL is fatal. (K) Joint statements of the accused resulting in the recovery cannot be used under Section 27 unless it is shown as to by whom the statement had been made first.
(L) If the seal with which the seized articles is not handed over to an independent person, chances of tempering with the articles are not ruled out.
(M) Delay in recording the statements of material witnesses creates doubt.
58 Now, I shall take the two judgments on which Counsels for the accused have heavily relied. They are Rajesh Dalal vs. State (Supra) and Durga Devi vs. State (Supra). In Rajesh Dalal's case (Supra), the allegations had been made, by name, by the mother in law of the accused. There had been previous litigations between them. In those circumstances, the delay in lodging the FIR, doubt about the escape of the child from the clutches of the accused and other surrounding circumstances were taken into consideration by the Hon'ble High Court to arrive at a conclusion that it appeared to be stage managed.
59 In Durga Devi's case (Supra), the parents of the deceased had not supported the prosecution. It was a case under Section 304B/498A IPC. The uncle of the deceased had stated that saree of the deceased had caught fire 19 while preparing tea. Since, the witness was not declared hostile, therefore, the Hon'ble High Court had taken into account that particular deposition of Roop Narain (PW7), against the prosecution.
60 In this case, I will have to find out as to whether such an occurrence, as claimed by the prosecution witnesses, had taken place or not. Thereafter, I will have to find out as by whom the offence had been committed.
61 It is unbelievable that the entire show of kidnapping was stage managed. Nidhi Jain was not inimical to any of the accused. It is not the plea of the accused that they, with connivance of Nidhi Jain, in order to earn the money quickly, had indulged in this particular act. As mentioned earlier, their plea is that of denial.
62 In order to prove that Nidhi Jain had in fact been kidnapped on 22.09.2000 at about 11.00AM from in front of the institute, the prosecution has relied on the statements of Nidhi Jain (PW1). It finds necessary corroboration from the statements of HC Sardul (PW6), Lady constable Brijesh (PW8), Ranjeet (PW12), Lady constable Madhu Bala (PW15), Anupam (PW16), Sunil (PW17), Vikas Jain (PW22), Ankur Jain (PW23) and Smt. Manju Jain (PW28) besides Narender Kumra Jain (PW2). 20 63 The police officials or for that matter, the independent witnesses (other than Nidhi Jain, her parents and her cousin) would not have come forward to support any stage managed show. Therefore, I hold that Nidhi Jain had in fact been kidnapped, as claimed by her and the other witnesses. 64 The question arises by whom she had been kidnapped? Whether she had been kidnapped by accused Punit, Vinit, Ram Bahadur & Ganga Dass, as is the prosecution case.
65 It is the prosecution case that these 4 accused had actually participated in the kidnapping of Nidhi Jain. The occurrence had taken place on 22.09.2000 at about 11.00AM. Nidhi Jain was not knowing these culprits from before. The argument that there was a delay in lodging the FIR as it had been delivered to the Ilaka Magistrate on 26.09.2000 is of no value. it would have some force had the FIR been lodged by Nidhi Jain. However, it is not so. The FIR, copy of which is Ex.PW27/A had been registered on the basis of the statement Ex.PW23/A of Ankur Jain (PW23). In his statement, he had simply mentioned that his cousin Nidhi Jain had been kidnapped by a few boys. Since, he was not a witness of the occurrence, therefore, he had simply narrated the facts as to how he came to know about the kidnapping of Nidhi Jain and how he had left for the institute (along with Narender Jain and Ajay Jain). Therefore, the late delivery of the FIR to the Ilaka Magistrate is 21 inconsequential.
66 Accused Punit, Vinit & Ram Bahadur had been apprehended on 23.09.2000 itself. In their statements under Section 313 Cr.P.C, these accused have not put forth any specific plea. These accused have not produced any defence evidence. No enmity has been alleged, suggested or proved by these accused against Nidhi Jain. It has been held by the Hon'ble Supreme Court in Kundalik vs. State 1980 SCC page 900 that "where there is no previous enmity, the chances of false implication are ruled out altogether". 67 The argument of these accused that they had been shown to the witnesses as well as on the TV is of no help. In the first instance, all these 3 accused had been asked to join the TIP. Accused Ram Bahadur and Vineet had been correctly identified by the witness Nidhi Jain on 30.09.2000 as is evident from the TIP proceedings Ex.PW32/G & Ex.PW32/H respectively. Both these accused could have stated before the Ld.MM (Shri M.S.Datir, PW32) that they had been shown to Nidhi Jain and therefore, their TIP would be nothing but a farce. Once, they had taken a chance at that time, therefore, now, they cannot be permitted to find flaws in the TIP. It appears that these two accused took a gamble. Had Nidhi Jain failed to idenfy them, they would have gladly accpetd the outcome of TIP. Further, Nidhi Jain has categorically denied her having been shown the photographs of the accused either in the newspaper or on the 22 TV. I repeat that both these accused, if they were so sure that Nidhi Jain had seen them in the newspaper or on TV and would be in a positioin to identify them in the TIP, could have stated these facts before the Ld.MM (PW32). However, it is not so.
68 Now, so far as the accused Punit is concerned, he has refused to join the TIP vide proceedings Ex.PW32/K. His statement is worth reproduction. Before the Ld.MM (PW32) he had stated as under :-
"I do not want to participate in the TIP because police officials had already got me identified from the witnesses".
69 It was never the claim of even this accused before the Ld.MM that the photographs had been seen by Nidhi Jain either in the newspaper or in the TV.
70 Much has been emphasized on the TIP of these accused. However, all the arguments are devoid of merits. It has now been repeatedly held that TIP is not a substantive piece of evidence. It is only a corroborative piece of evidence. Conviction on the basis of identification of the accused by a witness in the Court has been up held by the Hon'ble Supreme Court even in those cases where during investigation no TIP has been held. 23 71 In Dastagir vs. State 2004 11 AD (SC) 462 where the victim had been raped and no TIP had been conducted. The accused were convicted even in the absence of TIP. It was held that the Prosecutrix had had sufficient time and occasion to see the accused.
72 In Viveshwaran vs. State 2003 IV AD (SC) 502, the Prosecutrix had not identified the accused even in the Court. There was no TIP. She had stated that the accused was a constable. On the basis of the nature of evidence, even in those circumstances, the accused was convicted. 73 In State vs. Surender AIR 2007 SC 2312, the accused had refused to join the TIP and the injured had identified the accused in the Court. An adverse inference was taken against the accused. 74 In the present case, the occurrence had taken place during the day time. Nidhi Jain had been kidnapped at about 11.00AM. The accused (Punit, Vinit, Ram Bahadur & Ganda Dass) were in the car. Nidhi Jain had had sufficient time and opportunity to see all these accused. She was close to them. It is not the case of the accused that they were having their faces muffled at the time of occurrence. It was not suggested to Nidhi Jain that culprits were having their faces muffled. In fact, the issue of identification takes a back seat if the suggestion given to Nidhi Jain is taken into account. In the cross- 24 examination dated 10.07.2001 (conducted on behalf of Punit & Vinit), it was suggested to her that "she had not been forcibly pushed into the vehicle and nor was she forced for that and she had voluntarily sit in the vehicle". It was also suggested to her that she was not taken in the Ceilo Car Ex.P-2 but it was some different car of Ceilo Car make of black colour. It was also suggested to her that she was asked to take campa and she had taken it - 2 or 3 times. How these accused knew these facts? 75 These suggestions, in a way, give an idea as to what defence was in the minds of these accused at the time of cross-examination of Nidhi Jain. 76 In our case, accused Ram Bahadur and Vinit had been correctly identified by Nidhi Jain, in the TIP. Accused Punit had refused to join the TIP. 77 I go a step further. There is no documentary evidence on record to show that the photographs of the accused had been published in the newspaper or that they were shown in the TV. Rather in the newspaper cutting available on the judicial file, the accused are shown with their faces muffled. Similarly, when these accused were produced before the Ld.MM on 24.09.2000, their faces were muffled. If the Investigating Officer for any reason had taken these accused to the press and had shown these accused with their faces uncovered to the public, it was his act of dereliction of duty for 25 which the complainant or for that matter, the prosecution cannot be made to suffer. Reliance can be placed on State vs. Hari Mohan AIR 2001 SC 142 & Dharmender Singh vs. State 2002 IV AD (SC) 203.
78 Nidhi Jain has been cross-examined at length. Her cross- examination had been recorded on 3 dates and it runs into 11 typed pages. However, Ld. Counsel for the accused were unable to pin point any flaw in her statement justifying the jettisoning of her statement. As mentioned earlier, no enmity has been suggested or proved. This is so far as the actual participation of accused Vinit, Punit & Ram Bahadur is concerned. Accused Ganga Dass has since expired.
79 Now, so far as accused Nitin and Saurabh are concerned, the argument is that there is no evidence of conspiracy. There is no evidence of their actual participation. They have been falsely implicated. PW13 by stating that car had been taken away at 8.00AM to the Police Station gives a serious blow to the prosecution. In this regard, the Counsels had heavily relied on Durga Devi's case (Supra). I have already dealt with that particular judgment.
80 It is to be seen from the statement of a witness recorded under Section 161 Cr.P.C as to what he was to depose before the Court. If for any reason, he deposes a fact which is not in his statement under Section 161 26 Cr.P.C, then merely because, he was not cross-examined by the Public Prosecutor it would not render his statement reliable, qua that particular fact particularly when the other evidence belies his such claim. 81 Otherwise also, this particular part of his deposition cannot be read in isolation. It is well settled that statement of a witness is to be read as a whole. It has to be read in the context in which it has been made. It has to be read with other evidence available on the record. See Inder Singh vs. Delhi Administration 1978 PLR 227 (SC). In this case, it was observed as under:-
"The credibility of testimony, oral or circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. Why it is necessary that proof beyond reasonable doubt should be adduced in all the criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial ; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hyper sensitivity to eliminate a rare innocent being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fullproof concoction".
82 Uttam (PW13) had not stated in his statement under Section 161 Cr.P.C as to at what time, the vehicle had been taken away by the police officials. Otherwise also, this stray statement that the vehicle had been taken 27 away at 8.00AM (as against the claim of the prosecution that it had been taken away at 11.00AM) is insignificant and in consequential in view of the defence of the accused.
83 In the present case, accused Nitin and Saurabh had been apprehended by the police when the police officials along with Narender Jain (PW2) had left to see the places where Narender Jain had delivered the ransom amount.
CONSPIRACY 84 The argument that there is no evidence of conspiracy against accused Nitin and Saurabh, therefore, they are to be acquitted is misconceived. There can never be direct evidence of conspiracy. A conspiracy is always hatched in seclusion. If the conspirators cry hoarse on the roof top, it can never be a conspiracy. It is to be inferred from the circumstances. Reliance can be placed on Sajju vs. State of Kerala 2000 VIII AD (SC) 437. It is the case of the prosecution that from the possession of these two accused bundles of currency notes (Ex.PX-1 to Ex.PX-9) had been recovered. Narender Jain (PW2) had no axe to grind. The case of accused Jatin was distinguishable from these two accused in as much as nothing was recovered from him and except his own confession, there was no evidence.
28INDEPENDENT WITNESSES 85 Much has been said about the non joining of independent witnesses. It is not a legal requirement. It depends on circumstances of the case. In the present case, the police officials had taken Narender jain (PW2) to point out the places covered by him. The police officials were not having secret information. They had no inkling that they will be finding the car, the accused and the currency notes. Further, there would not have been any use of joining an independent person after apprehension of the accused as, in that case, those witnesses would have been condemned by the defence on the ground of not being the witnesses of actual recovery. Still further, Narender Jain (PW2) cannot be described to be false witness. In Dilip Singh vs. State of UP AIR 1953 SC 364, the Hon'ble apex Court has observed as under :-
"a witness is normally considered independent unless he or she springs from sources which are likely to be tainted and and that usually means unless the witness has caused such an enmity against the accused to wish to implicate him falsely".
86 In the present case, Nidhi Jain and Narender Kumar Jain were not knowing the accused from before. They were not inimical to any of the accused. They have stated the facts in a straight forward manner. They have passed through the acid test of gruelling cross-examination and have come out unscathed. Their evidence inspires confidence.
2987 This argument is also without any merit.
CORROBORATION 88 In every case, it is insisted that there should be some corroborative evidence. As mentioned earlier, every case has its own facts. In the present case, there is direct evidence of Nidhi Jain, so far as accused Punit, Vineet and Ram Bahadur are concerned. There is direct evidence of Narender Kumar Jain, so far as Nitin and Saurabh are concerned, Nidhi Jain and Narender Kumar Jain are independent witnesses. They are truthful. Their evidence inspires confidence. There is no material to disbelieve them. In fact, not even a single argument was advanced to persuade the Court to describe both these witnesses as untruthful and inimical. Besides the direct evidence, there is ample corroborative evidence. Accused Vineet and Ram Bahadur were duly identified in the TIP. Accused Puneet had refused to join the TIP for no good reasons. Bundles of currency notes (Ex.PX-1 to Ex.PX-19) bearing signatures of Narender Jain on the first and last currency notes were recovered from these accused. The recovery of the ransom amount immediately after the registration of the case justifies drawing of an inference against all these accused that all of them had conspired to kidnap Nidhi for ransom. Surprisingly, none of the accused has explained as to how they came in possession of the bundles of currency notes. It was not a small amount. Narender Jain would have been a fool to part with such a substantial amount 30 for no good reasons. It would have been a risky affair for him to provide huge amount to the police to be planted on the accused. He would have been doomed had the accused or anyone of them claimed this amount and substantiated his claim by leading reliable evidence. 89 Then there is evidence of Shri Gyanender Singh (PW21), the finger print expert. The chance print Q-7 of accused Punit had tallied with the specimen print S-10. Similarly, the chance print Q-19 had tallied with the specimen finger print S-7 (wrongly typed as X-7) of the accused Ram Bahadur. The opinions Ex.PW21/B & Ex.PW21/D are clear in this regard. The reports Ex.PW21/A & Ex.PW21/C are also crystal clear. It is now well settled that the science of comparison of finger prints is a perfect science and there is no scope for any wrong conclusion. Reliance can be placed on Jaspal Singh vs. State AIR 1979 SC 1708.
90 The argument that the during trial Ceilo car did not have window glass panes, therefore, there could not have been chance prints, is as hollow as the air. The chance prints were lifted immediately after the occurrence. See the evidence of Narender Singh (PW11). The in-charge of crime team or for that matter the other police officials did not know as to who were the culprits. It is not the case of the accused Ram Bahadur and Puneet that they had been forced to affix their finger prints on the glass panes. 31 91 The Cielo Car has been proved to be owned by accused Vineet. It had been parked near the house of Vijay Kumar Malhora (PW14). Uttam (PW13) had seen accused Puneet and Vineet in that car. He knew them before. He had supplied water on demand. The accused had closed the door of the car immediately after taking the water. The prosecution, in this case has tried to build its case brick by brick. Clinching evidence has been brought. Uttam's evidence indicates as to what was happening in the car. Puneet was to explaint about the movements of the car.
92 The two wheeler scooter involved in the occurrence had been proved to be of accused Nitin. It was for him to tell as to what were the movements of the scooter on 22.09.2000/23.09.2000. Both these accused have simply denied the prosecution story.
93 Then there are the print outs of phone numbers 9810039990 which had been with Nidhi Jain at the time of her kidnapping and had been used by the accused to contact her family members. The print out is Ex.PW19/D. The landline phone in the house of Nidhi Jain was having the number 3951144. The bills are Ex.PW2/Y-1 to Ex.PW2/Y-4. The phone number of Ankur was 9810130301. The phone number of Vikas (PW22) was 9810012726. He had given it to Narender Kumar Jain to receive the calls. The print out is Ex.PW19/B. The print out of phone number 9810225911 is 32 Ex.PW19/A. If these print outs are read out together, it will be clear that on 22.09.2000, calls had been repeatedly made from 10.45 onwards to phone no.9810130301, 9810012726 & 395144. .
CONTRADICTIONS 94 Ld. Counsel for the accused have pointed out contradictions with regard to the times at which the ransom calls had allegedly been made. In the first instance, I am unable to find out any such contradictions. Secondly, Nidhi Jain, (PW-1), Narender Kumar Jain (PW-2) and Manju Jain (PW-28) had stated the times by approximation. They were not required to keep an eye on their watches to remember by heart as to what was the exact time of receipt of the ransom calls. The contradictions of such a nature particularly when the witnesses are examined after sometime and are cross examined at length, are bound to occur. Only those contradictions which go to the root to the case and shake the very foundation of the prosecution story are to be taken into account. In Mehmood Vs. State 1991 RLR 287 our own Hon'ble High Court had observed as under:
"Minor contradictions are bound to occur as human memory is likely to fade due to lapse of time. Description of an occurrence depends on power of observation, power of retention and power of reproduction. Ancilliary matters, unconnected with the case, have no effect. Discrepancies which do not go to the root of the case cannot be given weight or undue importance. These are bound to occur even in a statement of truthful and honest witness. Discrepancies occur due to error of observation, normal errors of 33 memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. If they do not touch the core of the case, they are to be ignored".
95 In Joseph Vs. State AIR 2000 SC 1608 it was observed as under:-
"Unless the contradictions and discrepancies are so material and substantial and that too in respect of vitally relevant aspects or the facts deposed, the witnesses cannot be straight away condemned and their evidence discarded in its entirety".
96 In the present case, Nidhi was aged 22 years at the time of commission of offence. She was studying. She had never faced or imagined such an incident. Similarly, Narender Kumar Jain had never expected such an incident. They had been horrified because of the circumstances. A huge demand of ransom had been made. There was threat to the life of Nidhi in case the amount is not paid. All these circumstances were sufficient for these witnesses to keep in mind the material facts. They were neither required to remember the times of the ransom calls nor was it expected from them. SPECIFIC PLEAS:-
97 As mentioned earlier, none of the accused except Ganga Dass and Nitin had taken any specific plea. Although, Ganga Dass has died during pendency of the trial yet I am reproducing his plea to have an idea as to what connection he was having with accused Vineet. It does give an idea as how the conspiracy had been hatched. The plea of accused Ganga Dass is as under:- 34
" I was working with Vineet Suneja as a labourer and I was lifted from my house by the police and was taken to the house of Nidhi Jain where I was shown to Nidhi Jain. I have been falsely implicated in this case".
98 The prosecution case is that accused Ganga Dass had been apprehended on 29.09.2000 Under Section 41.1(a) Cr.P.C while he was about to dispose of the stolen mobile phone.
99 The plea of accused Nitin is as under:-
"In fact on 23.09.2000 at about 6.30AM- 7.00AM I was apprehended from my residence. At that time, Saurabh, Vineet, Puneet and Ram Bahadur were also present along with the police and I was falsely implicated in the present case".
100 It suffers repetition that none of the accused has disclosed as to why the public witnesses have deposed against them. DEFENCE EVIDENCE:-
101 Accused Nitin has produced two witnesses in defence. They are Rajiv Chawla (DW1) and Satish Sehgal(DW-2). Both these witnesses have stated that on 23.09.2000 accused Nitin had been taken away by police officials in the morning. 3-4 more boys were with the police officials. Although, the D.Ws also deserve the same treatment as the prosecution 35 witnesses and the defence witnesses cannot be discarded solely on the ground of their being defence witnesses yet in the present case, these two D.Ws, who are neighbours of accused Nitin are pitted against truthful prosecution witnesses, therefore, I am not accepting their evidence. OTHER MISCELLANEOUS SUBMISSIONS:-
102 It is not a case of recovery of smack or contraband articles. The handing over of the seal or its retention or its being with the IO till the time of dispatch of the articles to CFSL, which in the cases of contraband articles, assumes significance, is insignificant in the present case. 103 It is not the no. of witnesses which decides a criminal case. It is the quality of evidence which is material. It is for this reason that we have section 134 of the Evidence Act which provides that no particular no. of witnesses shall in any case be required for the proof of any act. The glory of criminal law is that most of the cases are decided on the oral testimony. If the testimony is truthful, unblemished, does not suffer from any infirmity and has passed the acid test of cross examination, conviction can be sustained on the basis of even a single witness.
104 Now so far as the non examination of owner of Maruti Zen or the three wheeler scooter driver or the driver of Narender Kumar or the acquittal 36 of accused Jatin are concerned, the same are inconsequential. One of the arguments of Counsel for the accused was as to when Narender Jain had been in a TSR, its no. was with the police officials, therefore, the TSR could have been traced out by the police officials. I repeat that the paramount concern in such like cases and particularly of the parents is the safe return and recovery of their ward. The parents are not interested in the apprehension of the culprits. Cases are not unknown where the culprits, even after taking the ransom amount, have killed the victim.
105 In view of the above discussion, I hold that the accused had conspired to kidnap Nidhi for ransom. The amount had been paid to them. Some of the amount had been recovered from them. The prosecution version appears to be truthful. Their does not appear to be any infirmity in it, justifying rejection of the statements of the witnesses. 106 Accordingly, I convict all the accused, Punit, Vinit, Nitin, Ram Bahadur & Saurabh under Sections 120-B IPC & 364-A r/w Section 120-B. Announced in the open court (H.S.SHARMA) On this day of 6th November 2007 ASJ/DELHI All pages signed