Delhi District Court
Hon'Ble High Court Of Delhi In 2003 Vii Ad ... vs . on 2 August, 2011
IN THE COURT OF MS. MADHU JAIN,
ADDITIONAL SESSIONS JUDGE01, NORTH, DELHI.
FIR No.: 384/2006
PS: : Model Town
U/s: 364A/34 IPC
S.C. No.: 19/2007
Case ID No.02401R1210512006
In the matter of:
State
Versus
Jogender Singh
S/o Sh. Raghuvir Singh
R/o V.P.O Khedi Sadh, P.S. Sapla,
District Rohtak, Haryana
Jitender Singh
S/o Sh. Kartar Singh
R/o Gram Gangana, P.S. Baroda
District Sonipat, Haryana (Since PO)
Date of receiving in Sessions Court : 07.05.2007
Arguments Heard : 02.08.2011
Date of Judgment : 02.08.2011
JUDGEMENT
Case Of Prosecution:
1. On 13.6.2006 complainant Sanjay Saini came to police station Model Town and gave his statement that on 12.6.2006 his wife had informed him on telephone that she is going to market and would come back till 6/7 S.C. No.: 19/2007 1/23 p.m. but she did not return for the whole night. On 13.6.2006 at about 9.20 a.m. when he called at the mobile phone of his wife, someone picked up the phone and thereafter disconnected the same. Thereafter at about 11.20 a.m. his wife called him and told him to bring Rs. 25,000/ alongwith the shares and cheque book at the place told by her. As per the complainant, he had heard the voice of one male who was telling him to come with the ransom amount of Rs. 10 Lacs at Rohtak Border. Complainant showed his suspicion that his wife might have been kidnapped and on the basis of complaint of complainant, case U/s 364 A IPC was registered at police station Model Town. Two separate teams of police were organized and both the teams alongwith the complainant reached at Rohtak border but no one came at Rohtak Border for taking the ransom. On 14.6.2006 complainant alongwith his wife Neeru Saini came to the police station and stated that his wife had come back to home after running from the clutches of kidnappers in the late night. Victim Neeru Saini gave her statement that on 12.6.2006 she had received a call on her mobile phone that her warrants have been issued and the caller called her at Peeragarhi Flyover with Rs. 10,000/. She reached at Peeragrahi chowk where one Santro Car came and she was made to sit in that car and the person sitting inside the car showed his identity card to her in which Joginder , Traffic Police was mentioned. That person took out her cash amount of Rs. 10,000/, gold chain, gold rings and gold ear rings alongwith her purse and they took the car towards Rohtak side. As per the victim, the persons sitting inside the car also gave her beatings and demanded Rs. 10 Lacs from her. They further asked her to call her husband S.C. No.: 19/2007 2/23 to bring money, cheque book and ATM Card at Rohtak Border. She called her husband accordingly and thereafter two of the accused persons left the car for taking money from the husband of victim and remaining two persons kept sitting inside the car. After sometime victim got the chance to escape and she ran away from the clutches of kidnappers and reached at her home.
After recording the statement of victim, further investigation of the case was handed over to SI R.P. Singh who during the course of investigation, arrested accused Joginder and Jitender Singh and the santro Car as well as Maruti Car which had been used in the commission of crime were recovered at the instance of accused persons. IO recorded the statement of witnesses and made efforts to trace out other coaccused persons but they could not be traced and after completion of investigation challan against accused Joginder Singh and Jitender was filed in the court.
2. Since the offence U/s 364A IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case U/s 364A/34 IPC was made out against both the accused persons. Charge was framed against them to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 10 witnesses in all.
S.C. No.: 19/2007 3/23 Formal Witnesses:
5. PW1 is Sh. Manish Aggarwal who is the registered owner of Santro Car no. DL6CA963 and has stated that he sold the above said Santro Car to Jogender Singh S/o Sh. Raghubir Singh through dealer A.M. Car House.
6. PW3 is ASI Babita, the duty officer who recorded the FIR and proved the same as Ex. PW3/A.
7. PW4 is Smt. Saroj who has stated that accused Joginder is the cousin brother of her husband. Upto 2003, accused Joginder lived in her family and in the year 2003 he got married and thereafter started living separately.
8. PW5 is Sh. G.S. Oberoi who has stated that on 6.6.2006 he sold the Santro Car no. DL6CA 9631 to accused Joginder Singh through Kapoor Motors.
9. PW8 is Sh. R.K. Goel, ACMM, Dwarka Courts who conducted TIP of accused Joginder and proved the same as Ex. PW8/C.
10. PW10 is Head Constable Pramod Kumar, the MHC(M) who has proved the entries regarding deposition of case property in the malkhana. Material Witnesses:
11. PW2 is Constable Santosh Kumar who was with the IO during the arrest of accused Jitender and Joginder and has proved the memos in this regard.
12. PW6 is Smt. Neeru Saini, Complainant/victim of the present S.C. No.: 19/2007 4/23 case who has stated about the incident that took place with her and has also identified the accused in the court.
13. PW7 is Sh. Sanjay Saini, husband of the victim who lodged the missing report of his wife and has also stated about the incident of kidnapping of his wife by the accused persons.
14. PW9 is Retired SI R.P. Singh, IO of the case who conducted the investigation of this case and has proved the memos etc.
15. During the trial of the case, accused Jitender absented himself and thereafter was declared PO.
16. Statement of accused Joginder U/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in the present case. He further chose not to lead evidence in defence.
17. I have heard Ld. APP for the state as well as Ld. Defence counsel and have carefully perused the record.
CONCLUSION:
18. In the present case, the charge that has been framed against the accused is that he alongwith other coaccused persons abducted Smt. Neeru Saini and gave her beatings and also threatened to kill her in order to compel her to pay a ransom of Rs. 10 lacs.
19. PW1 in the present case is one Manish Aggarwal who is the registered owner of Santro Car no. DL6CA963 and deposed that he had sold the above said Santro Car to Jogender Singh S/o Sh. Raghubir Singh through dealer A.M. Car House and he also received the delivery receipt S.C. No.: 19/2007 5/23 from the dealer.
20. PW6 in the present case is Smt. Neeru Saini who is the victim of the case. She deposed that she does not remember the exact date but it was June 2006. At about 11 a.m. or 12.00 noon, she received call of someone on her mobile phone. She further stated that she does not remember her mobile number on which she was informed that she has been called in the police station. Also she was not informed in which police station the callers had called her. She stated that it was further told to her on her mobile phone that she has to bring some money as a higher police officer has called her and the abovesaid call was received at her house. Thereafter she went to Peeragrahi Chowk where two persons met her. Right from the start of the testimony of PW6, the facts narrated by PW6 seems to be a story which is highly improbable. PW6 is unable to tell her own mobile number on which she received the call. She has stated that she was directed to come to the police station but she was not informed in which police station she was required to come. As per PW6 she was asked to bring some money as a higher police officer had called her but neither the details regarding the reason for the money demanded by the caller nor any other facts have been mentioned by her. It seems that the witness on her own went to Peeragarhi Chowk . This fact that she received a call on her mobile phone it seems was not told by her to any of her family members or even to her husband. PW6 is a married lady aged about 42 years when she gave her deposition in the court in year 2009 which means that she was around 38/39 years of age in the year 2006 when this incident took place. She was a mature lady but it seems that she S.C. No.: 19/2007 6/23 did not bother to tell all these facts regarding the call and demand of money by some higher police officer to anyone at her house or to her husband and she herself on her own went to Peeragarhi Chowk. She has further stated that two persons met her there and they made her to sit in a Santro Car but she does not remember the number of that car. She further has identified one of those two persons i.e. accused Joginder who made her sit in the Santro car. She has stated that those persons told her that they are taking her to the higher police officer. Again this witness has neither given the name nor any other particular of that higher police officer. It seems that PW6 was acquainted with those persons and therefore she herself accompanied them. She has further stated that those persons took the vehicle towards Rohtak and after crossing Bahadur Garh, they made to sit two more persons in their car. PW6 is a mature lady. It seems that she even did not bother to ask about the particulars of that higher officer whether he was of Haryana, Rohtak or of Delhi or why she was being taken to Rohtak or Bahadurgarh. If she was required to meet the higher police officer at Delhi only, then why she did not raise any noise or did not cry for help when the car was being taken to Bahadurgarh or Rohtak, Haryana. She has stated that those two persons were having pistols and they showed her the pistol and removed her purse and wearing jewelery which were one gold chain, two gold karas, one pair of ear rings and a gold ring and her purse containing Rs. 25,000/ alongwith her mobile phone were also snatched by the accused persons. Thereafter accused persons took her in an agricultural field and she was left in the vehicle. This fact further shows that even at that time, PW6 did not S.C. No.: 19/2007 7/23 make any noise neither she cried for any help. Even when her purse and jewelery were snatched by the accused persons at the point of pistol and thereafter accused started taking the car in agricultural field and she was left in the vehicle, PW6 neither raised any noise nor she cried for any help . She has further stated that she asked them to let her go to her house but accused Joginder started beating her and accused Jitender also gave beatings to her. Accused Jitender drew out a pistol and hit the same on her head and he also fired a bullet towards sky in the air and all the four accused persons remained teasing her during the whole night and they also raped her. As per PW6 the accused persons told her that they have to purchase land and asked her to bring money of Rs. 10 lacs or more and they directed her to make telephone call to her husband and she made the telephone call to her husband. Thereafter accused persons took away her mobile phone after making call to her husband and the accused persons also called her husband somewhere but she does not know when they had called her husband. PW6 has further stated that accused Joginder and Jitender went to meet her husband and remaining two accused persons remained with her in the agriculture field. Those two accused persons made her to sit in the same car and moved the car. During the way, they slowed down the vehicle and she got down from the vehicle and ran away. She knocked the door of a house but she does not know the name of the place and nobody came out from the house. There was a tea shop near that house. They made her sit in a vehicle for letting her to Bahadur Garh and from Bahadur Garh, she boarded a public bus and got down from the bus at ISBT. Thereafter she hired an auto S.C. No.: 19/2007 8/23 and went to her house. Her husband has already got lodged the FIR and from her house she went to police station Model Town. The police recorded her statement and thereafter police took her several times for showing the place of occurrence i.e. fields but she could not locate the same. She further stated that her no medical examination was got done by the police and she can identify the car in which the accused persons took her if shown to her. After seeing the Santro Car in the court, this witness has stated that the Santro car seems like the same car as it is of same silver colour in which she was abducted by the accused persons but she is not sure about the identity of the car as its mirror is broken and inner condition is also not proper. The witness herself is not sure about the identity of the car in which she was abducted by the accused persons. Furthermore it seems that the witness has exaggerated the whole story. In her statement given to the police she had nowhere stated that she was also raped by the four accused persons whereas in the court she has stated that she was also raped by the four accused persons. In the present case no medical examination of the victim/prosecutrix was got conducted by the IO despite the fact that she has stated that the accused gave beatings to her. She was hit on her head with a pistol and was also raped by all the four accused persons. Despite all these facts no medical examination of the prosecutrix had been got conducted by the IO. The prosecutrix has stated that she was not medically examined by the police officials whereas as per the IO, the prosecutrix herself refused for her medical examination. The medical examination of the prosecutrix would have lead to corroboration of the fact that she was beaten by the accused S.C. No.: 19/2007 9/23 persons and was also raped by the accused persons but no such medical examination of the prosecutrix/victim has been got conducted by the IO. The prosecutrix/victim is a lady aged around 38/39 years . Why she also did not insist for her medical examination is not explained by her. Not only there is no medical examination of the prosecutrix/victim but also there are major improvements in the statement of prosecutrix/victim given to the police and that given in the court. Also there are major contradictions in her cross examination. As per PW6 she received the telephone call on her mobile phone but she is not able to tell the number of her mobile phone in the court. In her cross also she has stated that she does not remember now her mobile number. She has also stated that she used to receive the telephone calls from the kidnappers before the date of kidnapping and they used to ask her to buy material from them and they had also given their visiting card to her. It seems that neither any such visiting card has been given by the prosecutrix/victim to the IO nor she had deposed about this fact to the IO that previously also she used to receive the calls from the kidnappers. She has also admitted that she was acquainted with the accused persons even before the day of her kidnapping and accused had met her earlier in the market of Model Town Delhi but she did not tell this fact to the police officials that she was familiar with the accused persons prior to the incident. PW6 is able to remember the fact that she was taken to Bahadurgarh in the car but it seems that to the IO she was not able to tell the location. She has stated that from Piragarhi the car was taken towards Bahadurgarh and she does not know from Bahadurgarh where the accused S.C. No.: 19/2007 10/23 took her but they were talking between themselves about Rohtak. She has further stated that her mobile was taken by the accused persons. Though in the present case both the cars have been seized by the IO but it seems that from none of the accused persons mobile phone of PW6 have been recovered or seized by the IO. This witness has further stated that she did not produce any receipt of her gold ornaments before the IO. The witness has stated that her gold ornaments, purse, mobile phone and Rs. 25,000/ were also taken away by the accused persons but during the investigation of the whole case, neither there is any recovery of the gold ornaments nor the purse or mobile phone of the prosecutrix/victim had been recovered from the accused persons. This witness has further stated that when she came back to her house then on the next day, she met her husband. It appears very improbable that husband of PW6 did not meet PW6 for the entire day when she returned to her house after being abducted. Even as per PW6 she did not bother to call her husband when she came back to her house. It is also highly unbelievable that PW6 did not call her husband for the whole day when she returned back to her house after being kidnapped. She has stated that she saw her husband on the next day in the police station itself at about 12.00 noon or 12.30 p.m. She has further stated that her husband did not come for the whole day to their house after her reaching at the house. She has further stated that from the time when she was kidnapped and when she met her husband in the police station, she had talked to her husband about 3/4 times from the mobile which was given by the accused persons. Initially in her examination in chief she had stated that she called her husband from her S.C. No.: 19/2007 11/23 mobile phone and thereafter the mobile was taken by the accused persons but subsequently she stated that the mobile was given by the accused persons. She has again stated that she made calls both from her mobile which was snatched by the accused persons and from the mobile which was given to her by the accused persons and from her mobile she talked to her husband 2/3 times. She has further stated that she did not tell her husband that she was kidnapped. On the one hand, PW6 has stated that accused demanded ransom from her and asked her to call her husband to bring money and on the other side she has stated that she did not tell all these facts to her husband. Thereafter she volunteered that the accused were giving danda blows on her legs and on her head. They had kept the pistol and did not allow her to tell her husband that she has been kidnapped. All these seems to be a concocted story as it is highly unnatural that PW6 was given danda blows on her legs and head and also pistol was kept on her head still she did not shout for any help even while talking on phone with her husband. PW6 has further stated that she talked four times directly on the mobile phone of her husband. She has further stated that the night on which she ran away from kidnappers, she went to police station at about 1011 p.m. in the night and police made inquiries from her in the night but her statement was recorded on the next day. PW6 has further stated that her clothes were not torn at the time when she reached at her home. It is also highly improbable that PW6 who was given beatings and was also raped by the four accused persons, her clothes remained intact during this whole period of beatings and rape. She has further stated that there was injury on S.C. No.: 19/2007 12/23 her head when accused hit pistol on her head and there was also burn marks of cigarette on her body and also the marks of beatings which the accused gave to her. But it seems that despite so many signs of injury on her body, PW6 was not taken for any medical examination nor PW6 bothered to get herself medically examined from any doctor. She has further stated that she had shown her injury marks to one lady police official. PW6 has further stated that her husband did not ask her anything about the incident and told her that he knows everything and does not want to ask anything. If husband of PW6 knew everything about accused persons or their location or about the factum of kidnapping then why he did not take the police with him in search for the accused persons is also unexplained by the prosecution.
21. PW7 Sanjay Saini is the husband of victim i.e. PW6. He has stated that on 12.6.06 his wife was not available at their house in the evening time when he came to the house. He was making telephone call on her mobile number but her mobile phone was switched off. He thought that the battery of the mobile phone of his wife might have been down and he remained making telephone calls to her throughout the night after every 5 or 10 minutes but every time her mobile phone was switched off. He also made telephone to the friends, relatives and the known persons of his wife to ask about the whereabouts of his wife but nobody knew about her. He further stated that during the night time in between 12 p.m. And 1.00 a.m. he went to police station Model Town and narrated the above said facts to the police and the police told him to come in the morning as they expected that his wife may come. In the next morning, he went to the house of his inlaws S.C. No.: 19/2007 13/23 and narrated the above said facts to them. He stated that he and his in laws were making telephone call on the mobile phone of his wife and once his mobile phone was connected with the mobile phone of his wife but after 15 to 30 seconds the mobile phone was disconnected and nobody was responding on the mobile phone of his wife. Thereafter he and his in laws again went to police station Model Town in the morning at about 10 a.m. and the police recorded his statement. The police had organized a raiding party and in the meantime he again received a telephone call from the mobile phone of his wife. His wife was speaking on the mobile phone. She was sobbing and she asked him to bring entire cash, jewelery, cheque book and ATM card at the place where the persons will call him. Thereafter a male person talked with him and asked him to bring Rs. 10 lacs. PW7 asked that person about the place where he had to come on which that person told him that he will tell the exact location of the place afterwards and asked PW7 to reach at Bahadur Garh boarder. PW7 again received a call from the mobile phone of his wife on his mobile phone and one male person was speaking. That person asked him as to why he had not reached at the border of Bahadur Garh on which he told him that his vehicle has broken down and he will be reaching soon. Thereafter he alongwith police party left the police station for Bahadur Garh after 12 noon. During the way to Bahadur Garh he again received a telephone call on his mobile from the mobile of his wife and the caller was abusing him and uttered,"Lagta hai tere ko iski jaan pyari nahi hai, tu paisa Leker abhi tak aya nahin aur lagta hai tu ayega bhi nahi" . After reaching Bahadur Garh border, he remained making telephone S.C. No.: 19/2007 14/23 on the mobile of his wife but every time her mobile phone was switched off. PW6 who is the wife of PW7 has no where stated that the accused persons made call to her husband from her mobile in her presence or demanded ransom of Rs. 10 Lacs. She has stated that she never told her husband that she has been kidnapped. She has nowhere stated either in her entire examination in chief or in her cross examination that she told her husband to bring the entire cash, jewellery, ATM Card or cheque book. But PW7 has given an entire different version. He has stated that he received a telephone from the mobile phone of his wife and once his wife and thereafter some male person asked her to bring cash of Rs. 10 Lacs. He has further stated that he remained making telephone call on the mobile phone of his wife but every time her phone was switched off. He alongwith the police party remained waiting at Babadurgarh Border but nobody came there and after sometime he again received a telephone call from the mobile phone of his wife and the caller directed him to move towards Rohtak and to reach near a college just before Rohtak. PW7 has stated that the person had also told him the name of the place but he does not remember the name of the place. It is very strange that a person who has kidnapped the wife of PW7 had told PW7 the name of the place where he was required to reach alongwith the cash amount but PW7 forgot the name of that place. PW7 has further stated that he alongwith the police party reached there and he connected his mobile phone on the mobile phone of his wife but he had no signal in his mobile and no talk could be done on his mobile phone. Thereafter he and the police person who was in plain cloth went to a nearby STD and made a S.C. No.: 19/2007 15/23 telephone call on the mobile phone of his wife but nobody was responding from the mobile of his wife although her mobile phone was ringing. Thereafter he alongwith the police party remained waiting for that person for about half an hour and thereafter they proceeded ahead towards Rohtak. In the Rohtak city, he again made a telephone call on the mobile phone of his wife and the phone was connected and the person who was speaking on the mobile phone started abusing him and asked him as to why he had moved from the appointed place. Thereafter that person directed him to reach at a place on the road leading to Sonepat but PW7 again does not remember the name of that place. Thereafter he and the police party went at the place after 6 p.m. and remained waiting for that person. In between 6 p.m. And 6.30 p.m. a maruti car of blue color came there. That car took a round around them and moved towards the village. Thereafter he again received a telephone call and the caller directed him to move ahead. He alongwith the police party reached in the village and stood on a bus stop in the village. He again received a call from the mobile phone of his wife and the caller directed him to reach at railway gate (fatak) of that village. In the meantime, the battery of his mobile phone slowed down and therefore he made a call from the nearby STD on the mobile of his wife. The mobile phone was ringing but nobody was responding. Thereafter the police official who was with him gave his mobile phone to him and he made telephone call to that person on the mobile phone of his wife and that person told him that he had not reached on the railway line on which he told that he is just reaching there. Thereafter that person started talking from some other phone on the S.C. No.: 19/2007 16/23 mobile phone which was of the police official who was with him. By that time it became dark and they waited there for 1015 minutes. PW7 further stated that the area was a remote area and nobody was coming and going there except one or two cycle riders, there was also no street light at the place so they returned to the first place from that place as the remaining police party was waiting there. The police party which was waiting there had detained the blue colour maruti car which was taking rounds. PW7 further stated that in that maruti car 45 persons were sitting when he saw that car at the first instance but when police had detained that car only one person was sitting on the driver seat and that person got down from the car and on seeing the police, he ran away and could not be apprehended. That car was taken into possession by the police and thereafter he alongwith the police party searched those persons in the market but they could not be traced out. Thereafter they moved back towards Delhi and reached at Rohtak at about 1.30 p.m. When they were taking dinner in Rohtak in a Dhaba at that time a phone call was received on the mobile phone of someone and the police informed him that his wife had reached at the house of his inlaws and thereafter they came back to Delhi. From the entire testimony of PW6 and PW7, it is clear that the mobile calls were made on the mobile phone of PW6 by PW7 repeatedly and PW7 also received calls on his mobile phone from the mobile phone of his wife. But except for a 63 pages call details which has been marked as Mark 'C' in the court, neither the IO nor the prosecution has bothered to file any call detail on record of PW6, PW7 or of accused persons in the court. This mark 'C' is the call detail S.C. No.: 19/2007 17/23 record of one mobile phone number 9213240311. But it is not clear to whom this mobile phone belongs. Whether it belongs to PW6 or PW7 or any of the accused persons. Neither PW6 nor PW7 in their testimony have deposed about their mobile numbers or the mobile numbers of each other in the court. Neither any Nodal Officer of any mobile company has been cited as witness in the present case by the IO nor the same has been examined by the prosecution to prove the fact on record as to whom this mobile phone belongs. Whether this mobile number belongs to PW6 or PW7 or to any of the accused persons. Neither there is anything on record which shows that such and such mobile number belongs to PW6, such and such mobile number belongs to PW7 and such and such mobile number belongs to accused persons and they all were talking with each other on the date of incident for all these 2/3 days. PW7 has stated that he received the call from the mobile of his wife but IO even did not bother to file on record any documentary proof to show that the number from which PW7 was receiving calls was of PW6. He has not filed any document on record to prove the fact that PW7 received calls on his mobile phone from the mobile of his wife on the date of incident. For the accused also, IO has filed nothing on record to show that these mobile number belong to PW7 or to any of the accused persons or that they made calls from these phone numbers on the mobiles of each other.Neither these call details which runs into 63 pages has been proved on record by the prosecution as per the guidelines laid down by Hon'ble High Court of Delhi in 2003 VII AD (Delhi) 1 titled as State Vs. Mohd. Afzal.
S.C. No.: 19/2007 18/23
22. Call details record in the present case was the main evidence against the accused persons to show their locations who shared their talks with PW6 or PW7 but IO it seems has not made any efforts to collect any evidence to show that such and such mobile number belongs to accused persons or to PW6 or to PW7 or that they were in contact with each other on the date of incident.
23. PW6 has stated that she straightaway came to her house after she ran away from the clutches of kidnappers but PW7 has stated that his wife reached at the house of his in laws and not to their house. Neither PW6 is able to tell her mobile number in the court nor her husband is able to give the mobile number of his wife in the court. PW7 though is able to tell his own mobile number but he his not able to tell what was the mobile number of his wife during those days. The incident is stated to have taken place in the month of June 2006 and the call details of dated 12.6.2006 which has been filed on record by the prosecution, does not show that any call were made from the mobile phone number 9213240311 to mobile number 9213775057 on 12.6.2006 except for two calls. As per the testimony of PW7 he was again and again receiving calls from the mobile phone of his wife on 13.6.2006 but no call details of 13.6.2006 has been filed on record by the IO which belies the case of prosecution. Though there is no evidence on record that mobile number 9213240311 belongs to PW6 i.e. wife of PW7 nor PW6 or PW7 have given the mobile phone number of PW6 in the court but during the cross examination of PW7 a suggestion has been given by the accused himself to PW7 that cell phone number of his wife during those days was S.C. No.: 19/2007 19/23 9213240311. This is the same mobile number the details of which have been filed on record by the IO for the period 1.3.2006 to 12.6.2006. Even if we take these call details to belong to PW6 still these call details does not help the case of prosecution as from these call details it is clear that PW7 is totally telling lie in the court as he has stated that he was receiving calls on his mobile from the mobile phone of his wife repeatedly but from the call details of mobile phone filed on record, it is clear that except for one or two calls no other call were made from the mobile phone of PW6 to the mobile phone of PW7. PW7 in his cross has given entire new facts and has stated that when the battery of the cell phone of his wife got discharged then the kidnappers started calling him through their mobile phone. He has further stated that except for the kidnappers none other talked to him from the cell phone of his wife during the raid. PW7 has stated that his wife was not medically examined by the police and he himself get her examined. But no such medical record has been filed or proved on record by the prosecution. PW7 has further stated that he never asked anything about the kidnappers or what had happened with her from his wife.
24. The testimonies of both these witnesses i.e. PW6 and PW7 does not inspire confidence and it seems to be a concocted story. For the sake of repetition, it may be mentioned that neither there is any medical record of PW6 proved on record nor the call details of PW6 or PW7 or any of the accused persons have been filed or proved on record by the IO.
25. PW2 is Constable Santosh Kumar who was with the IO during the arrest of accused Joginder and Jitender. The accused persons were not S.C. No.: 19/2007 20/23 apprehended at the spot. Though PW6 has admitted in her cross that she was acquainted with the accused persons prior to the date of incident but from the report U/s 173 Cr.P.C. it is clear that FIR is not by name. In such circumstances, after the arrest of accused persons the TIP of accused persons was also got conducted by the IO. If PW6 was acquainted with the accused persons and she had met them prior to the date of incident also then why she in her statement given to the police did not take the name of both the accused persons has not been explained by the prosecution. So far as Santro car is concerned then PW6 has stated in the court that she cannot say with precision that it is the same Santro Car in which she was kidnapped by the accused persons.
26. During the TIP both accused Joginder and Jitender refused for their TIP . TIP is merely a corroborative piece of evidence and is not substantive piece of evidence. In the present case though for the refusal of accused persons, an adverse inference is to be drawn against them but at the same time it is also to be seen as to whether in the present case the prosecution otherwise has been able to prove its case against the accused beyond shadow of doubt which they have miserably failed to prove.
27. PW9 is Retired SI R.P. Singh who is the IO of the case . He has stated that he made inquiries from the parental house of Neeru Saini but they stated that they did not receive any call from Neeru Saini and thereafter on 14.6.2006 Neeru Saini came to the police station alongwith her husband and gave her statement whereas as per both PW6 and PW7, PW6 went to police station alone. According to PW9 , PW6 refused for her medical examination S.C. No.: 19/2007 21/23 stating that she had not received any visible injury on her body whereas as per PW 6 and PW7 police did not get conducted her medical examination and husband of PW7 himself got medically examined his wife but even those medical documents of PW6 has not been filed or proved on record by the prosecution. According to IO, PW6 told him that she had not received any visible injury on her body whereas in the court she has stated that she was given danda blows on her legs and head by the accused persons and accused also hit pistol on her head.
28. Except for the Santro Car and Maruti Car, no other recovery has been effected by the police officials in the present case. PW6 has stated that her purse, cash, mobile phone and gold ornaments were also taken away by the accused persons but it seems that police officials did not make any efforts to recover the mobile phone, purse, cash amount or gold ornaments of PW6 from the accused persons. Testimony of PW9 is also full of so many contradictions that it is not possible to rely upon the same without being corroborated by the testimony of other witnesses. So far as the other witnesses i.e. testimony of PW6 or PW7 are concerned then as already discussed above, their testimonies are also full of contradictions and it is not possible to believe the same.
29. In such circumstances, it cannot be said that prosecution has been able to prove its case against the accused beyond reasonable doubt. As such accused is given benefit of doubt. He is acquitted of the offence. He is on bail. In view of the new amended section 437A of Cr.P.C., the bail bond already furnished by the accused is extended for the period of 6 months with S.C. No.: 19/2007 22/23 the condition that he shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal filed by the state against the judgement within a period of 6 months. Case property be confiscated to the state after the expiry of period of revision/appeal, if any.
30. Accused Jitender is PO and prosecution is at liberty to reopen the case as and when accused Jitender is arrested.
31. File be consigned to record room.
(MADHU JAIN) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. On 02.08.2011 S.C. No.: 19/2007 23/23