Delhi District Court
State vs Vineet Bajaj on 22 January, 2007
1
IN THE COURT OF RAJIV MEHRA
ADDL. SESSIONS JUDGE: DELHI.
S.C. No.60/06
FIR No.422/04
P.S. Karol Bagh
Under Section 364A/328/120B/34 IPC
State
VERSUS
1. Vineet Bajaj
S/o Dina Nath,
R/o Marwadi Bazar,
Samasti Pur,
Bihar
2. Ram Sagar
S/o Sito,
R/o Village Mispeth,
District Samasti Pur,
Bihar
JUDGMENT
Two accused in this case are facing trial for the charge under Section 120 IPC/ 364A read with Section 120B 2 IPC and 328/120 IPC on the allegations that they alongwith two of their associates one of whom was a juvenile facing separate inquiry kidnapped Mohit Kapur S/o Vinod Kapur on 19.6.2004 kept him in the concealed confinement at IIIrd Floor of A-357, Pandav Nagar, Delhi from where he was recovered by the police on 23.6.2004 at the instance of one of the accused Vinit Bajaj when he was found in custody of other co-accused Ram Sagar and Mohd. Hussain. During this period a ransom call of Rs.10 Lac for the release of Mohit was made to his father Vinod Kapur.
2. The case has been initiated on the FIR registered on the statement of Vinod Kapur made at 5.50 am on 20.6.2004 at PS Karol Bagh. In this complaint it was disclosed by the complainant that he is running a business of sale and purchase and repair of sewing machines and having his shop at Regar Pura, Karol Bagh. At most of the times complainant remains in field and the the shop is looked after by his wife and his son Mohit. The further allegation is that on 19.6.2004 the complainant left for the field business and Mohit Kapoor went to 3 the shop. In the noon hours wife of the complainant took lunch tiffin for Mohit after which he left the shop on his motorcycle No. DL4SN- 2146 saying that he is going to Patel Nagar to see some machines. When Mohit did not return his mother made telephone calls on his mobile phone which was coming switched off. The complainant was informed by his wife. When complainant returned to his house in the evening, at about 9.05 pm he received a telephone call from the mobile phone of Mohit and caller informed him that Mohit has been kidnapped and he was asked to arrange Rs.10 lac for his release within 40 hours and a threat was also given that incase any cleverness is shown Mohit would be cut into pieces. It was informed by caller of the phone that motorcycle of Mohit is parked at Kakrola Mode (turning).
3. Upon the aforesaid complaint FIR Ex.PW11/A was registered by the police under Section 364A. In the course of the investigation police collected the mobile phone call details of Mohit for the period during which he was kidnapped. This led to the police to a point that immediately prior to his kidnapping on 4 19.6.2004 amongst other calls Mohit also had received frequent calls from a Mobile Phone No.9811237176. The details of this telephone No.9811237176 led to a point that on this telephone number most of the calls were conversed during that period from telephone No.35218250. The study of the call details of telephone No.35218250 led to the police to the address of one Rohit who disclosed that this telephone No.35218250 was in use by one of his friend Vinit Bajaj one of the two accused facing trial herein. On the intervening night of 22/23.6.2004 through Rohit accused Vinit Bajaj was called at Aggarwal Sweet House, Patel Nagar on the pretext that his mother is not well and he need some money for the treatment as he is taking her to Ganga Ram Hospital. When accused Vineet reached at Patel Nagar he was identified by Rohit. He was apprehended and phone No.35218250 was recovered from him. Accused Vineet Bajaj led the police party to the IIIrd Floor of H.No. A-357, Pandav Nagar from where Mohit Kapur was recovered from the custody of accused Ram Sagar and Mohd. Hussain. The recovery of Mohit Kapoor has been witnessed by two independent public persons namely Phool Chand and Sanjay Sharma who were 5 occupants of the different floors in the same house. From that place police also recovered two bottles of Katmin 50. One bottle was filled and other was half filled. 10 bottles of steraline water were also recovered. One injection vial with atropine sulphate was also recovered. Two plastic cover of the injection syringe and one injection syringe was also recovered. Five strips of diazapam were also recovered from there. In two of the strips there were 10 tablets, in one strip there were four tablets and two other strips were completely empty. These things were taken into possession vide memo Ex.PW8/A. In the course of the investigation the exhibits were sent to CFSL and result confirm their contents. Charge sheet was filed under Section 364A/328/120B/34 IPC.
4. Charge as aforesaid was framed against the accsued vide order dated 31.1.2005. Both the accused denied the charge.
5. Both accused in their defence plea taken by them in their statement under Section 313 Cr.PC have alleged their false implication.
6
6. To support its case prosecution has examined 19 witnesses. Vinod Kapur has been examined by the prosecution as PW1. Mohit has been examined as PW3 and his mother has been examined as PW4. Other witnesses are PW5 Phool Chand and PW10 Sanjay Sharma resident of First Floor of House No. A-357, Pandav Nagar who were joined by the police party when Mohit was recovered from IIIrd Floor, of A-357, Pandav Nagar on 23.6.2004. PW13 Ct. Jasvinder Singh is the witness who had made study of the telephone calls of telephone of Mohit and other telephones including 9811237176 and 35218250. The police has also included Rohit as a witness who was examined as PW16. PW19 Dr. Padmini had examined Mohit after his release. IO SI Baljit Singh has been examined as PW17. The other witnesses are police officers connected with the investigation.
7. In his testimony victim Mohit Kapur has supported the case of the prosecution saying that he was having talks with Nasir Ahmed for sale purchase of sewing machines and Nasir 7 Ahmed was interested in selling some machines. On 19.6.2004 he received 5-6 calls from Nasir to visit him with regard to those machine. On that day at about 2.00 pm after his mother came to the shop he left the shop on his motorcycle No.DL4SN-2146 to Meet Nasir at Patel Nagar. He reached Satyam Cinema where Nasir was present alongwith accused Vinit. Nasir asked him to accompany Vinit as he would show me the machines. Vinit Bajaj sat on pillion seat and brought him to House No.A-357, Pandav Nagar where Nasir alongwith Ram Sagar and Mohd. Hussain was already present there. After reaching to that place he was given some cold drink. Some drug was mixed in the cold drink which was bitter in taste and he drank the same. After drinking the same he fell headache. After 10 minutes another cold drink i.e. Limca was given to him which was also bitter in taste and after drinking the same he was not able to stand on his legs. After that accused Vinit closed his mouth by coming behind and other three accused persons who were also present there caught hold his hands. He was not able to move himself. Thereafter accused Vinit Bajaj gave him an injection after which he lost his senses and when he regained his senses he was given 8 an injection and he was also given biscuits to eat. Accused Vinit Bajaj also told him that until my father would pay the ransom he will keep me confined there. As per PW3 accused Vinit Bajaj threatened him that he would be killed if money is not given to them. He further deposed that he was directed to sleep on his right side and due to which his hands and legs were swollen. It has been further deposed by PW3 that he was given injection and also tablets with little water. On 23.6.2004 police came and got him released.
8. The statement of the complainant Vinod Kapur examined as PW1 is also on the same lines to support the case of the prosecution that on 19.6.2004 he was conveyed by his wife that Mohit has not reached and his mobile phone is switch off and at about 9.05 pm he received a telephone call from the mobile phone of Mohit whereby a demand of Rs.10 lac was made and was threatened that in case of cleverness Mohit would be cut to pieces. He was also informed about the parking of the motorcycle of Mohit at Kakrola Mod. This fact was confirmed by him through his employee Parkash Lal. He also had received 9 a second call on 20.6.2004.
9. The prosecution has also examined Rohit as PW16 who has deposed that police had come to him on 23.6.2004 and as per the instructions of SI Baljit he called Vinit Bajaj on his reliance mobile pretending his mother is serious and he is taking her to Ganga Ram Hospital and asked him to coming to Aggarwal Sweets at Patel Nagar where on his identification he was apprehended by SI Baljit. The statement of Dr. Padmini PW19 is also relevant. She has examined Mohit after his recovery and according to her Mohit was having puncture mark upon his left forearm.
11. According to the defence the evidence on record from nowhere prove the case of the prosecution against any of the two accused for either of the charge. According to the defence counsel Mohit was faking his own kidnapping. He was in the habit of drugs and accused have been falsely implicated.
12. On the other hand APP submits that this plea of 10 faking kidnapping by Mohit was not a part of cross examination. According to him the statement of Mohit prove that he was kidnapped and he further identifies the accused as the person involved in the incident. He further submits that the statement of the father prove the call of the ransom and fact of recovery of accused from the IIIrd Floor of House No. A-357, Pandav Nagar through the statement of Mohit, PW5 Phool Chand and PW10 Sanjay Sharma beside the statement of the IO. According to him the case was registered immediately on 19.6.2004 without delay and the study of the mobile telephone calls in this regard as made by PW13 further support the case of the prosecution.
13. Both the parties have been heard at length ad record have been perused carefully.
14. In a criminal trial it is needless to say that duty is upon the prosecution to prove the case beyond reasonable doubt. The defence on the other hand may take as many as plea as may be open to them from the record. PW3 Mohit is the main witness in the present case. In his examination in chief he has 11 deposed about his kidnapping but his cross examination is also relevant where he has stated that his legs were tied. Police however, did not recover any such tying object from the room. PW3 has admitted in the cross examination that in the room he has passed urine. The cross examination of PW17 on this point shows that no faceal or urine matter was seen by him in the room. PW3 states that he was kept in a room which was kept half open. It may be seen from the statement of PW5 Phool Chand who was one of the witness to the recovery of PW3 on 23.6.2004 that H.No.A-357, Pandav Nagar is a three storey building occupied by different tenants with a single entry and common stairs. He and PW10 Sanjay Sharma have denied of heard anything suspicious during the period between 10.6.2004 to 23.6.2004. In cross examination PW5 said when he went to the room Mohit was conscious and sitting there.
14. In view of the location of the premises and the fact that it was all occupied and any moment any of the occupant may approach to the room at terrace which was in common use of all the occupants it would be the most unlikely that victim boy 12 aged about 19 years would be kept in a kidnapped position by any of the accused by keeping room half open. This rather signifies that probability is more of staying the victim boy with consent and without being use of any force. At the same time it would be relevant to note that where PW3 was kept no arm, ammunition or any danda has been recovered by the police which again is a factor more favourable to the plea of defence raised by the accused. At the same time PW3 was given this suggestion though he denied that he was in the habit of drugs. PW19 Dr. Padmini had examined the victim. She was not asked to preserve any viscera. Nothing abnormal was found by Dr. Padmini as may be seen from her report Ex.PW19/A except some punctured marks when she examined Mohit. Nowhere the statement of PW19 or her report suggest that these marks of any forcible drugging or self inflicted drugging. These circumstances make it difficult to believe it to be a case of kidnapping.
15. At the same time the case of the prosecution is that accused Vinit Bajaj was found in possession of telephone no. 13 35218250. Defence has challenged this part of the prosecution version. As per the statement of PW17 SI Baljit Singh this phone was recovered from the accused when he came to Aggarwal Sweet House, Patel Nagar. This telephone as disclosed by PW2 Nodal Officer from Reliance Infocom Ltd was in the name of one Imtiyaz R/o Shadipur. Imtiyaz has not been made as a witness and PW16 Rohit kaul nowhere says about the recovery of this telephone from the possession of accused Vinit Bajaj when he was apprehended on 23.6.2004 in his presence by the police. In view of these circumstances this recovery of telephone from accused Vinit Bajaj becomes highly doubtful and case of the prosecution cannot be accepted on the point of recovery of telephone no. 35218250 from the possession of accused Vinit Bajaj
16. According to the complainant Vinod Kapur he was informed that motorcycle was parked at Kakrola Mode and his employee Parkash Lal verified this fact. Parkash Lal is not a witness and in his absence the statement of PW1 or PW17 SI Baljit has no relevance to prove this fact.
14
17. The offence under Section 328 as well as under
Section 364A are serious offences. The degree to convince the Court is higher. The evidence required is of a nature which leaves no room of doubt. However, on appreciation of the evidence in this case it cannot be inferred that prosecution has been able to prove its case against the accused to that extent. At every stage the prosecution evidence is lacking in one or the other material aspect to reasonably connect the accused with the commission of the offence. The chain was breaking at number of place. The statement of PW3 does not inspire the confidence at all. He is a young boy of 19 years of age and it would be difficult to believe that he would be kept confined in a half close room in a house approachable to the other members of the building all the time without any mark or use of force against his person or without the help of any arm or ammunition.
18. In view of this position the whole case of the prosecution for the offence under Section 328 as well as 364 A or for that matter for the offence of conspiracy to be taken as 15 highly doubtful and is only to be rejected. Both the accused are acquitted of the respective charges against them. They be released forthwith if not wanted in any other case. File be consigned to record room.
Dictated and announced in the open Court on 22.1.2007.
( RAJIV MEHRA ) ADDL. SESSIONS JUDGE: DELHI.