Delhi District Court
State vs . on 30 August, 2018
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - 05
EAST DISTRICT KARKARDOOMA COURTS:DELHI
FIR No.: 179/11
PS : Preet Vihar
U/Ss. : 364A/34 IPC
S. C. No. : 1147/16
STATE
Vs.
1. Dharmender Kumar @ Lovely
S/o Sh. Rajpal Singh
R/o H.No. E8/499, Nehru Vihar
Dayalpur, Delhi.
2. Mohd. Akram
S/o Mohd. Islam
R/o H.No. E8/499, Nehru Vihar
Dayalpur, Delhi.
3. Mahesh Chand Sharma
S/o Sh. Devender Kumar Sharma
R/o H.No. 262/263, FBlock
Laxmi Nagar, Delhi.
4. Dinesh Sisodia
S/o Sh. Vijay Kumar
R/o 498/4C, Gali No. 4, Rama Block
Bhola Nath Nagar, Shahdara
Delhi.
5. Kuldeep Kumar @ Meddy
S/o Sh. Murri Lal
SC No. 1147/16 Page 1 / 22
R/o H.No. D1/7, Patel Vihar
Karawal Nagar, Delhi - 94.
6. Rahul Singh
S/o Sh. Veerpal Singh
R/o H.No. B434, Gali No. 24
Gawdi Extension, Bhajanpura
Delhi - 53.
Date of Assignment : 05.11.2011
Date on Arguments : 21.07.2018
Date of Judgment : 30.08.2018
JUDGMENT
1. The present case was registered on the complainant of Sh. Lovenish, friend of the victim Rakesh Rajput. CASE OF THE PROSECUTION
2. As per the case of the prosecution, a call vide DD No. 7A was received at Police Control Room at about 0038 hours on 16.07.2011 regarding missing of one Rakesh Rajput. Thereafter, at about 0421 hours another PCR call vide DD No. 10A was received regarding kidnapping of the friend of the caller, namely Lovenish Kumar, who is the complainant of the case. His SC No. 1147/16 Page 2 / 22 statement was recorded by the police. As per the complaint, on 15.07.2011 the complainant along with victim Rakesh Rajput had gone to V3S Mall, Vikas Marg, at about 7.00 p.m. There accused Ajay met them and told Rakesh that they have suffered loss in the business and the persons namely Mahesh from whom they had taken the money was pressurizing him for returning the money. After some time Mahesh reached there and demanded his Ten Lacs Rupees then and there from Ajay and Rakesh. Rakesh told him to return his money after sometime as they had suffered loss in business, but Mahesh did not let them go and fourfive more persons, out of whom one was Dinesh Sisodia, joined Mahesh. Thereafter, the complainant saw that Mahesh, Dinesh and their associates were taking away Rakesh in a Santro car. Thereafter, a common friend of the victim and the complainant, namely Deepak Garg, received a ransom call stating that victim Rakesh is in their custody and caller demanded Rs. Ten Lacs as ransom. Thereafter, police was informed and case u/s 364 A/34 IPC was registered and investigation was carried out. SC No. 1147/16 Page 3 / 22
3. Accused Mohd. Akram and Dharmender were arrested when they were trying to take away the ransom money. Accused Mahesh Chand Sharma and Dinesh Sisodia were also arrested on 16.07.2011 and accused persons Kuldeep Kumar and Rahul Singh were arrested later on.
4. After completion of investigation, chargesheet was filed against all the six accused persons, for the offences punishable under section 364A/34 IPC.
5. After supply of copies etc., Ld. M.M committed the case to the court of Sessions.
CHARGE
6. All the six accused persons vide order dated 28.02.2014 were ordered to be charged for the offences punishable under sections 364A/34 IPC. The Charge was framed on 13.03.2014 Accused persons pleaded not guilty to the charge against them and claimed trial.
PROSECUTION EVIDENCE
7. In support of its case, the prosecution examined twelve SC No. 1147/16 Page 4 / 22 witnesses.
8. PW1 is Dr. Onkar Singh Tomar. At the relevant time, he had conducted the medical examination of the victim Rakesh Rajput, Ajay Kumar and the MLCs in this regard are Ex. PW1/A and Ex. PW1/B. The treatment cards of Ajay Kumar and Rakesh Rajput are Ex. PW1/C and Ex. PW1/D.
9. PW2 is Sh. Lovenish Kumar. He is the complainant of the case. He has deposed that he is the friend of victim Rakesh Rajput. On 15.07.2011 at about 7.00 p.m., he had gone with Rakesh Rajput to V3S Mall. There 34 persons came and Rakesh Rajput had business talks with them and after sometime, Rakesh Rajput left with them by saying to PW2 that he would be back within 1520 minutes, but he did not come back. Thereafter, PW 2 Lovenish Kumar made a call to Rakesh Rajput from his mobile, but could not talk to him as his phone was switched off. Thereafter, PW 2 called their common friend namely Deepak Garg who advised him to inform police. Accordingly, PW2 made call to 100 number. Deepak Garg also asked PW2 Lovenish to SC No. 1147/16 Page 5 / 22 reach Sarai Kale Khan Bus stand. PW 2 Lovenish reached Sarai Kale Khan Bus Stand, but did not find Deepak Garg there. After sometime PCR Van reached Sarai Kale Khan Bus Stand and police inquired from PW2 about Rakesh Rajput. He stated the above said facts to police. He has further deposed that ASI Satbir had obtained his signatures on some blank papers. On seeing the complaint Ex. PW 2/A, PW2 Lovenish Kumar deposed that the said paper was blank at the time when it was signed by him. He has further deposed that none of the persons who had come to meet Rakesh Rajput at V3S Mall was present in the Court.
10. PW2 Sh. Lovenish Kumar has further stated that on the next day Rakesh Rajput had met him and told him that he had gone with those persons for settlement of some money dispute.
11. PW2 Lovenish Kumar has been crossexamined by the Ld. Addl. PP as he resiled from his statement recorded u/s 161 Cr.P.C. During his crossexamination by the Ld. Addl. PP, he denied that on 16.07.2011, he got lodged complaint Ex. PW2/A with the police or that had signed the same. He had denied the contents of SC No. 1147/16 Page 6 / 22 the complaint Ex. PW2/A. He has denied that at V3S Mall, accused Mahesh had come to them or that in a threatening way asked Rakesh Rajput for his Rs. Ten Lacs then and there or that Rakesh had told him to give the said amount after sometime due to loss in the business. Even in his crossexamination by Ld. Addl. PP for the State, he did not support the prosecution case.
12. PW3 is Sh. Deepak Garg. He deposed that Rakesh Rajput was known to him and Lovenish Kumar is his friend. He further stated that in the year 2010 he received a call but he does not remember the date or the month, he had received a telephone call from the mobile number of Rakesh and the caller had threatened him to pay Rs. Ten lacs for release of Rakesh. Deepak Garg told the fact of receiving a ransom call to Lovenish who told him that Lovenish was with Rakesh at Delhi and had made a call to police at 100 number. He further stated that after receiving a phone call from PS Preet Vihar, he went there, where the police threatened him and he was made to sign on some blank papers. The mobile phone of Deepak Garg was seized by the police on SC No. 1147/16 Page 7 / 22 which he had received the ransom call. The next day, Deepak Garg received a call from Rakesh who informed him that he had been kidnapped by some persons and now he had returned back.
13. PW3 Deepak Garg has been crossexamined by the Ld. Addl. PP for the State as he had resiled from his statement recorded u/s 161 Cr.P.C. In his crossexamination by the Ld. Addl. PP, he denied that his statement u/s 161 Cr.P.C. was recorded on 16.07.2011. He also denied that he had been informed by Lovenish that Rakesh had been forcibly kidnapped on 15.07.2011 outside PSK. He admitted that he had made effort of arranging money from some persons and also informed the incident of kidnapping of Rakesh to his wife and his brother. He denied that on acting upon the instructions of the police, he got Rakesh released from the accused persons or that got the accused caught. In his crossexamination by Ld.Addl. PP for State, he did not support the prosecution case.
14. PW4 is Sh. Pawan Singh. He is the Nodal Officer Idea Cellular Ltd. During the investigation, his office had provided SC No. 1147/16 Page 8 / 22 CDRs of mobile phone numbers 9540616071 and 9540000558 to the police for the period w.e.f. 15.07.2011 to 16.07.2011. The certified copies of call details records of above said mobile numbers are Ex. PW 4/A and Ex. PW 4/C. Certificate u/s 65 B of Indian Evidence Act is Ex. PW4/E.
15. PW5 is Sh. Israr Babu. He is the Alternate Nodal Officer of Vodafone Mobile Services. He has produced the CAF, CDRs along with certificate u/s 65 B of Indian Evidence Act pertaining to mobile numbers 9582589741 and 9999765513 for the period from 15.07.2011 to 16.07.2011. The certified copies of CDRs of mobile no. 9582589741 and 9999765513 for said period are Ex. PW 5/A and Ex. PW 5/C respectively. Certificate u/s 65 B of Indian Evidence Act qua mobile nos. 9582589741 and 9999765513 are Ex. PW 5/E and Ex. PW5/F respectively.
16. PW 6 is Sh. Chander Sekhar Nodal Officer, Bharti Airtel Ltd. He has filed certified copy of CDRs of mobile phone numbers 9560520780 and 9971301736 which are Ex. PW 6/A and Ex. PW6/C. The certificate u/s 65 B of Indian Evidence Act with SC No. 1147/16 Page 9 / 22 regard to above said mobile numbers is Ex. PW 6/E.
17. PW 7 is Rajeev Ranjan Nodal Officer, Tata Teleservices Ltd. He filed certified copy of CAF (Ex. PW 7/B colly) and CDR (Ex. PW 7/C) of mobile number 9212545495 for the period from 15.07.2011 to 16.07.2011. The certificate u/s 65 B of Indian evidence Act of the said mobile number is Ex. PW 7/D.
18. PW8 is Sh. Yogesh Tripathi. He is the Alternate Nodal Officer, Reliance Communication Ltd. He has filed certificate in respect of CDR of mobile no. 9350881908 Ex. PW 8/C and the copy of CAF of the said number is Ex. PW 8/D.
19. PW9 is Inspector Pankaj Malik. He had received the PCR call vide DD No. 7A on 16.07.2011 at about 12.30 a.m. regarding missing of a person. Another call was received qua kidnapping of a person and demand of ransom. The informant was Lovenish Kumar who had reached PS Preet Vihar along with his associate Deepak. On the statement of Lovenish Kumar, FIR in this case was registered and the investigation of the same was marked to SI Nirbhay Kumar. He further deposed that SC No. 1147/16 Page 10 / 22 complainant had told the IO that the kidnappers had demanded Rs. Ten Lacs as ransom which was negotiated to Rs. Five lacs. Associate of complainant namely Deepak also told that the negotiating talks were done on his phone and he could arrange only Rs. One Lac. Thereafter, a raiding party was formed which consisted of complainant Lovenish, Deepak, SI Nirbhay Kumar, ASI Satyabir, ASI Brahmpal, Ct. Pradeep and Inspector Pankaj Malik. Rs. One lac in two bundles, containing 100 notes in the denomination of Rs. 500/ were produced by Deepak. PW 7 Insp. Pankaj Malik and Deepak had signed upon both the sides of said bundles which were kept in a black colour bag and was handed over to Deepak vide handing over memo Ex.PW3/A. The raiding party following the instructions of the kidnappers reached Bhajanpura. Following the directions of kidnappers, Deepak alighted from the vehicle and stood at footpath turning towards Karwal Nagar from Bhajanpura / Wazirabad Road. Accused Dharmender and Akram came there on motor cycle. Akram was driving the motorcycle. As soon as accused Dharmender took the SC No. 1147/16 Page 11 / 22 bag from Deepak, they were apprehended by the police along with the bag at the spot. PW7 Insp. Pankaj Malik further deposed that in the meantime, victim Rakesh Rajput came at the spot and told the police that there were two other kidnappers who have fled away leaving him at the spot.
20. PW10 is ASI Pradeep Teotia. He was one of the member of raiding party. He has deposed on the similar lines as that of PW9 Insp. Pankaj Malik with respect to formation of raiding party, apprehension of accused Dharmender and Akram from the spot and setting of the victim Rakesh Rajput free by the kidnappers.
21. PW 10 ASI Pradeep Teotia has further deposed that victim took the police to the house where he was kept by the kidnappers and got accused Mahesh Chand arrested. One Maruti Esteem car which had been used in the kidnapping of the victim was seized at his instance vide seizure memo Ex. PW 10/A. Another car make Santro was also seized at the instance of the victim vide memo Ex. PW 10/B. Thereafter, at the instance of accused Mahesh SC No. 1147/16 Page 12 / 22 Chand and victim Rakesh Rajput, accused Dinesh was arrested vide arrest memo Ex. PW 10/C. From the possession of accused Dinesh one cheque, one driving license and one letter of Ajay Kumar were recovered and the same were seized vide memo Ex. PW 10/D. The pointing out memos are Ex. PW 10/H and PW 10/J. The seizure memo of motorcycle is Ex. PW10/K.
22. PW11 is Sh. Manoj Kumar. He deposed that he had joined the investigation of the case on 26.09.2011. He had gone to FSL Rohini, Delhi, where voice samples of four accused persons and of Deepak Garg were recorded by FSL Officials. Ex. PW 3/F is the seizure memo qua seizure of voice specimen in audio cassettes of the above said five persons.
23. PW 11 Manoj Kumar has been crossexamined by the Ld. Addl. PP as he had resiled from his statement u/s 161 Cr.P.C. In his crossexamination by the Ld. Addl. PP, he admitted that Deepak Garg and accused persons had signed upon seizure memo, but do not remember the names of the accused persons. The cassettes containing original voice samples are Ex. PX1 (colly.) SC No. 1147/16 Page 13 / 22 and the copies of said cassettes is Ex. PW2 (colly.). The CDs of the said voice samples were seized by the IO vide seizure memo Ex. PW 3/F.
24. PW12 is Inspector Nirbhay Kumar. He is the Investigating Officer of the case. He deposed that on 16.07.2011, he was handed over the copy of FIR by Duty Officer with original rukka of the case. The friend of the victim, namely Deepak Garg had come to the police station and informed him that kidnappers had demanded Rs. Ten Lacs on his mobile phone and after negotiation, they agreed to receive Rs. Five Lacs for releasing victim Rakesh Rajput. Thereafter, Deepak Garg handed over Rs. One Lac in two bundles, containing 100 notes in each bundle, of Rs. 500/ denomination. First and last currency notes of both the bundles were signed by Deepak Garg and SHO Pankaj Malik and the same were kept in black colour bag which was handed over to Deepak Garg, to be given to accused persons as ransom. Thereafter, raiding party was organized in order to apprehend the accused persons. The raiding party reached the spot and the SC No. 1147/16 Page 14 / 22 accused persons namely Dharmender and Akram were apprehended at the spot and were arrested by the police vide arrest memo Ex. PW 3/D and Ex. PW 3/E respectively. Victim Rakesh Rajput was set free by the accused persons.
25. Later, PW12 SI Nirbhay Kumar had interrogated accused Dharmender and Akram and their disclosure statements are Ex. PW12/C and Ex. PW12/D, respectively. Accused Mahesh Chand was also arrested vide arrest memo Ex. PW 3/C at the instance of victim Rakesh Rajput and his personal search was conducted vide memo Ex. PW 12/E. Mahesh Chand was also interrogated by the IO and his disclosure statement is Ex. PW 12/F. The disclosure statement of accused Mahesh Chand led to the apprehension of accused Dinesh Sisodia who was arrested by the IO and his personal search was conducted vide memo Ex.PW 12/G. Accused Dinesh Sisodia also made disclosure statement Ex. PW 12/H. The documents which were recovered in his personal search were seized vide memo Ex. PW 10/D. Later on accused Rahul and Kuldeep were apprehended and arrested vide memo Ex. PW 12/J SC No. 1147/16 Page 15 / 22 and Ex. PW 12/N respectively. Their personal search were conducted vide memo Ex. PW 12/ K and Ex. PW 12/O. Disclosure statements Ex. PW12/L of accused Kuldeep Kumar and Ex. PW 12/P of accused Rahul were recorded by the IO. The mobile phone belonging to victim Rakesh Rajput which was used in conversation with the friends and relatives of the victim was recovered from accused Rahul Singh and was seized vide memo Ex. PW 12/Q. One motorcycle which was recovered at the instance of accused Kuldeep was seized vide seizure memo Ex. PW 12/M.
26. The investigating officer has further deposed that the transcript of conversation which took between Deepak Garg and the abductors between the night of 1516.07.2011 is Ex. PW 3/G. The bag containing the currency notes of sum of Rs. One Lac was seized by the IO vide seizure memo Ex. PW 3/B. Thereafter, the IO prepared the chargesheet and filed it before the Court concerned.
SC No. 1147/16 Page 16 / 22 STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.
27. Statements of the accused persons were recorded under section 313 Cr.P.C., wherein, they denied the allegations against them and stated that they are innocent and have been falsely implicated in this case. None of the accused person led evidence in defence.
28. I have heard Sh. Gaurav Pandey Addl.P.P for the State and Sh. Shitiz Sharma Advocate for all the accused persons. I have also gone through the case file.
ARGUMENTS ON BEHALF OF PROSECUTION
29. The Ld. Addl. PP for the State submitted that though the victim and the PW2 Lovenish Kumar, the complainant of the case and the PW 3 Deepak Garg, friend of the victim have not supported the case of the prosecution, even then the case of the prosecution stands proved from the complaint Ex. PW 2/A. It was contended that from the statement of PW3 Deepak Garg recorded u/s 161 Cr.P.C., it is proved that the accused persons had kidnapped the victim Rakesh Rajput and had sought ransom of SC No. 1147/16 Page 17 / 22 Rs. Ten Lacs for setting him free. It was submitted that from the material available on record, the case of the prosecution has been proved. It was also contended that the case is also proved from the statements of the police witnesses in whose presence, the victim was recovered from the possession of accused persons. ARGUMENTS ON BEHALF OF DEFENCE
30. On the other hand, the Ld. Counsel for the accused persons submitted that the accused persons are innocent and they have been falsely implicated in this case. It was contended that they have nothing to do with the commission of the offence, as alleged by the prosecution. It was contended that the victim of the case i.e. Rakesh Rajput who has alleged to have been kidnapped by the accused persons has not given his statement to this effect. Nor the material witnesses of the case, i.e. the complainant PW2 Lovenish Kumar in whose presence victim was kidnapped nor the friend of the victim i.e. PW3 Deepak Garg in whose presence the victim was allegedly recovered from the accused persons have supported the case of the prosecution. Therefore, the prosecution SC No. 1147/16 Page 18 / 22 has failed to prove its case and therefore, the accused persons are required to be acquitted.
DISCUSSION AND CONCLUSION
31. As per the case of the prosecution, Rakesh Rajput is the victim of the case who had been kidnapped by the accused persons. So, he is the most material witness of the case, but he has not been examined by the prosecution case as he was reported to be not traceable.
32. The next material witness is PW2 Sh. Lovenish Kumar, he is the complainant of the case. As per prosecution case, in the presence of Sh. Lovenish Kumar, the accused persons have allegedly kidnapped Rakesh Rajput. He is the only eye witness of the kidnapping of Rakesh Rajput. Apart from him, there is no other eye witness of kidnapping. The perusal of his deposition shows that he has not supported the prosecution case in any manner. He has also been crossexamined by the Ld. Addl. PP for the State, but in his crossexamination nothing has come out, which can be of any help to the case of prosecution. SC No. 1147/16 Page 19 / 22
33. Therefore, in view of the above discussion, it is clear that there is no evidence to prove the kidnapping of Rakesh Rajput.
34. PW3 Deepak Garg is another material witness. The victim was known to him. As per the prosecution case, Deepak Garg had received the ransom call from the accused persons who have asked him to arrange Rs. Ten Lacs for the release of Rakesh Rajput. As per prosecution case, victim Rakesh Rajput was released from the custody of the accused persons in his presence. However, in his deposition, he has not supported the case of the prosecution in any manner. Deepak Garg has been cross examined by the Ld. Addl. PP for the State. Even in his cross examination by the Ld. Addl. PP for the State, nothing has come on record which could be of any help to the prosecution case.
35. As per prosecution case, the victim Rakesh Rajput was recovered from the custody of the accused persons namely Dharmender and Akram, by PW9 Inspector Pankaj Malik. PW 10 is ASI Pradeep Teotia and PW12 is Inspector Nirbhay Kumar. It is important to note that there are some material contradictions SC No. 1147/16 Page 20 / 22 in their statements. PW9 Inspector Pankaj Malik has stated that he left the police station at about 6.00 a.m. on 16.07.2011, whereas, PW10 ASI Pradeep Teotia has stated that he left the police station on 16.07.2011 at about 8.00/9.00 p.m. However, on asking a leading question by the Ld. Addl. PP, he admitted it to be correct that the raiding party left the police station in the morning of 16.07.2011. This aspect has not been clarified by the prosecution. The PW 12 Inspector Nirbhay Kumar could not identify accused Dharmender in his examination in chief. Admittedly, the place from where the victim Rakesh Rajput was recovered from the custody of the accused persons was a busy place, but no independent person prior to the recovery of the victim was joined in the raiding party nor after the arrest of the accused persons any independent person was joined in the proceedings. Therefore, under these circumstances, the statements of the said police witnesses become doubtful.
36. In view of the above discussion, I am of the concerned view that the prosecution has not been able to prove its case SC No. 1147/16 Page 21 / 22 beyond reasonable doubt. Accordingly, the accused persons are acquitted. Their bailbonds are cancelled. Sureties are discharged.
37. File be consigned to Record Room.
(This judgment has been typed directly by the Sr. P.A. on my dictation). Digitally signed by
SURINDER SURINDER
Announced in open Court on KUMAR KUMAR SHARMA
Date: 2018.08.30
SHARMA
30.08.2018 18:02:51 +0530
(SURINDER KUMAR SHARMA)
Additional Sessions Judge 05
East District, KKD Courts, Delhi(ch)
SC No. 1147/16 Page 22 / 22