Delhi District Court
State vs . Jamshed @ Gunga & Ors. Page No. 1 Of 34 on 13 April, 2022
SC NO. 51976/16 13.04.2022
IN THE COURT OF MS. KIRAN GUPTA : ADDITIONAL
SESSION JUDGE - 03 : NORTH WEST DISTRICT : ROHINI
: DELHI
SC No. 51976/16
FIR NO. 159/11
PS Bhalswa Dairy
U/S 364A/323/347/34 IPC
State
Vs
Jamshed @ Gunga & ors.
CNR NO. DLNW01-000267-2011
(a) Session Case No. 51976/16
(b) Date of offence 14.09.2011
(c) Accused Jamshed @ Gunga
S/o Nawab
R/o A-57, Rajeev Nagar, Bhalswa Dairy,
Delhi
Mohd. Sami
S/o Mainuddin
R/o F-19/1, Rajeev Nagar, Bhalswa
Dairy, Delhi
Ali Sher @ Khan @ Mulla Ji
R/o N-36, A/211, Jhuggi CD Park,
Jahangir Puri, Delhi
(d) Offence u/S 364A/323/347/34 IPC
State Vs. Jamshed @ Gunga & ors. Page No. 1 of 34
SC NO. 51976/16 13.04.2022
(e) Plea of accused Not Guilty
(f) Final Order All the three accused persons are
acquitted for the offence u/S.
364A/323/347/34 IPC.
(g) Date of institution 24.12.2011
(h) Date when 11.04.2022
judgment was
reserved
(I) Date of judgment 13.04.2022
JUDGMENT
1. All the three accused persons are facing trial for the offence U/s. 364A/347/323/34 IPC.
BRIEF FACTS
2. The case of prosecution is that on 14.09.2011, DD no. 71 B was received. The complainant Shivji Sahu gave the complaint that his son Lalit had come to Delhi from Darbanga, Bihar on 13.09.2021. On 14.09.2021 after taking tea in the morning, he left on the motorcycle bearing no. DL 4S ND 8437. At around 1 pm, he received call on his telephone no. 9711095226 from mobile number 9891066248 of his son that he has been kidnapped. His son made him speak to someone, who demand ransom of Rs. 20 lacs for releasing his son. He received similar calls 2-3 times. On the basis of his complaint, State Vs. Jamshed @ Gunga & ors. Page No. 2 of 34 SC NO. 51976/16 13.04.2022 present FIR was lodged u/S. 364A IPC.
2.1 During investigation on 15.09.2011, search of victim was made in area of PS Bhalswa Dairy and Jahangir Puri. As per the prosecution, the kidnappers called the complainant Shivji and demanded Rs. 20 lacs and thereafter settled for Rs. 10 lacs. They called him with ransom money in Jahangir Puri near Kushal Cinema, where police raiding party was deployed in plain clothes. No one came to collect the ransom money. After that complainant was again threatened and asked to bring money at Bhalswa Jheel. Police officials were deployed in plain clothes at that place, however, the kidnappers did not appear to collect the ransom money.
2.2 On the same day, information was received from PS Samaypur Badli that Lalit is present in the police station. Lalit was found there present under supervision of Ct. Bhegraj PS Samaypur Badli. HC Beghraj stated that one of his informer Mohd. Sami called him and told that one wanted criminal of his area is in Bhalswa Dairy and if he can come, the said wanted criminal can be nabbed. On this, when he went to Bhalswa Dairy, Mohd. Sami alongwith another person handed over one person saying that he is the wanted criminal. On interrogation, the said person was found to be Lalit who is not wanted in any cases of PS Samaypur Badli.
State Vs. Jamshed @ Gunga & ors. Page No. 3 of 34SC NO. 51976/16 13.04.2022 2.3 During inquiry, Lalit revealed that he was kidnapped by
those persons. Statement of Lalit was recorded, who stated that one Ali Sher whom he knows previously alongwith some of his friends came to him in the area of Jahangir Puri and took him to CD park to discuss something. There he started beating him and asked him to call his father on phone. Ali Sher asked for ransom. He was calling one of his associates as Sami and other as Pehlwan @ Gunga.
2.4 On 16.09.2013, search of Ali Sher, Sami and Gunga @ Pehlwan was made. Gunga @ Pehlwan and Sami were called at police station and during investigation both of them disclosed that they alongwith Ali Sher and one of their friend had kidnapped Lalit and demanded ransom money. They were arrested and their disclosure statements were recorded. The RC of motorcycle no. DL 4S ND 8437 and voter ID card of Victim Lalit was recovered from Jamshed @ Gunga. The Maruti car used in the commission of the offence was recovered from Mohd. Sami. The phones used by Mohd. Sami and Jamshed on 14-16.09.2011 were seized for evidence. Accused Jamshed @ Gunga refused for TIP, while accused Mohd. Sami was correctly identified by victim Lalit. During PC remand, pointing out memo was prepared at the instance of these accused persons. The other co-accused Ali Sher was absconding. He was got declared PO. The Maruti car was found registered in the name of Mohd. Sami. After investigation, chargesheet was initially filed against accused State Vs. Jamshed @ Gunga & ors. Page No. 4 of 34 SC NO. 51976/16 13.04.2022 Jamshed @ Gunga and Mohd. Sami u/s. 364A/347/323/34 IPC.
2.5 Thereafter, accused Ali Sher was arrested on 24.05.2013 and after investigation supplementary chargesheet was filed against him u/S. 364A/347/323/34 IPC.
CHARGE
3. After hearing arguments on point of charge, finding prima facie case against all the three accused persons, requisite charge u/s 364A/347/323/34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Prosecution in order to proved its case has examined-- witnesses:
POLICE WITNESSES
4. PW1 HC Virender Huda proved endorsement Ex.PW1/A on the rukka and copy of FIR as Ex.P1/B. 4.1 PW2 Ct. Pooran Singh proved the DD no. 71B as State Vs. Jamshed @ Gunga & ors. Page No. 5 of 34 SC NO. 51976/16 13.04.2022 Ex.PW2/A. 4.2 PW18 HC Vikas proved the memo regarding the efforts made for searching the stolen mobile of victim Lalilt as Ex.PW18/A. He deposed that accused Jamshed gave supplementary statement Ex.PW18/B in his presence. Pursuant to the disclosure statement, he pointed out the room at gali no.7, Rajiv Nagar where victim was confined by him and co accused from 14.09.2011 to 15.09.2011 vide memo Ex.PW18/C. PW19 HC Sukhbir ,PW20 SI Vikas Pannu, PW23 HC Samarver Singhand and PW25 Narender Kumar
5. They deposed that after receipt of DD no. 71B Ex.PW2/A, they met Shivji Sahu. PW 20 recorded his statement as Ex.PW3/A and endorsed the same as Ex.PW20/A. He got the FIR registered through PW19 HC Sukhbir. Thereafter, they alongwith complainant went in search of Lalit and his motorcycle. They deposed that complainant Shivji Sahu received various calls for ransom. They proved the arrest memo of accused Mohd. Sami and Jamshed as Ex.PW23/A and Ex.PW23/E; their personal search memos as Ex.PW23/B and Ex.PW23/F and their disclosure statements as Ex.PW25/B and Ex.PW23/DA. They deposed that one mobile phone each which was recovered from possession of accused Jamshed and State Vs. Jamshed @ Gunga & ors. Page No. 6 of 34 SC NO. 51976/16 13.04.2022 Mohd. Sami were seized vide memo Ex.PW23/G and Ex.PW23/D. The maruti Car by which accused Mohd. Sami came to PS bearing no.DL3CK-1337 was seized vide memo Ex.PW23/C. 5.1 PW20 further deposed that accused Jamshed led him and Ct. Vikas to the house of Shripal vide pointing out memo Ex.PW18/C. He prepared the site plan of said house Ex.PW20/C. He proved the memo Ex.PW18/A. He got recorded the statement of Aarif U/s. 164 Cr.P.C. Thereafter, he obtained subsequent opinion regarding injuries of Lalit vide application Ex.PW20/D. He identified the RC of the motorcycle bearing no. DL4SND8437 as Ex.P1, voter ID card recovered from possession of accused Jamshed as Ex.P2 and the photographs of Maruti car 800 recovered from possession of accused Mohd. Sami as Ex.PW9/B. He identified the case property PX and PY and proved the arrest memo and personal search memo of accused Jamshed alias Gunga
6. PW21 HC Meghraj and PW22 Ct. Rahul deposed that on 15.09.2011 at about 1.30 p.m., he received an information from secret informer through telephone that he can get one wanted criminal in a theft case of SP Badli apprehended. The said secret informer again called him and informed that he was keeping vigil on the said wanted criminal. Since it was raining and he was not having any car with him, secret informer came to him in his car at PS SP Badli. On State Vs. Jamshed @ Gunga & ors. Page No. 7 of 34 SC NO. 51976/16 13.04.2022 the instructions of SHO, he alongwith Ct. Rahul and the informer reached at Durga Chowk, Bhalswa Dairy in the car of the informer . At Durga Chowk , one person handed over one boy to PW21 saying that the said boy was the wanted criminal. On interrogation, he revealed his name as Lalit. While PW21 asked him to sit inside the car, Lalit told to the said person " pahelwan ji aap mujhe police ke hawale kyun kar rahey ho, maine kya galti ki hai.; Thereafter, he alongwith Ct. Rahul, informer and Lalit came back to PS SP Badli in the car of the informer and informer left them in his car. After checking the record of PS SP Badli, he came to know that Lalit was not wanted in any case of PS SP Badli. On inquiry, he disclosed that he had been kidnapped and the kidnappers had asked ransom of Rs.10 lacs from his father. He permitted Lalit to call his father. Thereafter, he was handed over to SI Vikas. He identified accused Jamshed as the person who had handed over the custody of Lalit to him at Durga Chowk. He identified the accused Shami as the secret informer.
7. PW24 HC Shridhar deposed that on 25.11.11 accused Jamshed @ Gunga was arrested while he was admitted at BSA hospital vide arrest memo Ex.PW24/A.
8. PW26 SI Ajay Kumar proved the arrest memo of accused Ali Sher as Ex.PW26/A and his personal search memo as Ex.PW26/B. He proved the DD no.492 dated 24.05.2013 recorded at State Vs. Jamshed @ Gunga & ors. Page No. 8 of 34 SC NO. 51976/16 13.04.2022 PS Bahera , Distt. Darbangha where the accused was aarrested vide Ex.PW26/C and the DD no.486 dated 24.05.2013 regarding his arrival alongwith staff as PS Bahera as Ex.PW26/D1.
9. PW28 SI Kamlesh Kumar filed the charge sheet against accused Ali Sher as PO on 18.05.2012.
10. PW29 HC Mahesh Kumar deposed that he arrested accused Alisher on 27.05.2013 in the present FIR vide memo Ex.PW5/A and recorded his disclosure statement Ex.PW29/B
11. PW30 HC Sokinder Kumar proved the pointing out memo of the 1 st floor of the house of Shripal in gali no.7, Rajiv Nagar where victim Lalit was kept after abducting at the pointing out of accused Jamshed alias Gunga as Ex.PW30/A. MEDICAL EVIDENCE
12. PW4 Dr. Neeraj Chaudhary proved the MLC of Lalit as Ex.PW4/A. WITNESSES RELATING TO THE CAR
13. PW5 Trilok Chand Joshi is the registered owner of State Vs. Jamshed @ Gunga & ors. Page No. 9 of 34 SC NO. 51976/16 13.04.2022 Maruti Car bearing no. DL 3CK 1337. He deposed that he sold the car to Mr. Suresh Kumar on 02.12.2010. He proved the original delivery receipt as Ex.PW5/A. 13.1 PW10 Suresh Kumar deposed that he purchased a Maruti car 800 bearing no. DL3CK 1337 from Trilok Chand Joshi for a sum of Rs.19,000/- vide delivery receipt Ex.PW5/A and sold it to Vipin Gulati vide delivery receipt Ex.PW9/A. He identified the photographs of the car as Ex.PW9/B. 13.2 PW9 Vipin Gulati deposed that he purchased a Maruti car 800 bearing no. DL3CK 1337 from Suresh Kumar and sold it to Mohd. Sami vide delivery receipt Ex.PW9/A. He identified the photographs of the car as Ex.PW9/B WITNESSES RELATING TO THE MOBILE PHONE OF VICTIM AND RESPECTIVE NODAL OFFICERS
14. PW7 Parmanand Sahu deposed that his relative Shivji Sahu came to him and asked him to give copy of voter ID for the purpose of purchasing the SIM card as he was not having any proof regarding residence of Delhi. He affixed his passport size photographs on CAF form Ex.PW7/B and handed over the copy of voter Id card Ex.PW7/A after putting his signatures.
State Vs. Jamshed @ Gunga & ors. Page No. 10 of 34SC NO. 51976/16 13.04.2022 14.1 PW8 Amar Nath Singh, Alternate Nodal Officer proved
the CAF of mobile no.9891066248 registered in the name of Lalit Kumar as Ex.PW8/A, photocopy of ID card as Ex.PW8/B, CDR for the period from 13.09.2011 to 28.10.2011 as Ex.PW8/C, certificate U/s 65B of Indian Evidence Act as Ex.PW8/D. He proved the CAF of mobile 9540576447 registered in the name of Mohd. Sami as Ex.PW8/E , photocopy of ID card as Ex.PW8/F, CDR for the period from 13.09.2011 to 28.10.2011 as Ex.PW8/G, certificate U/s 65B of Indian Evidence Act as Ex.PW8/H. 14.2 PW14 Israr Babu, Alternate Nodal Officer proved the CAF of mobile no.9999482748 registered in the name of Vimla as Ex.PW14/A , CDR for the period from 13.09.2011 to 16.09.2011 as Ex.PW14/B, certificate U/s 65B of Indian Evidence Act as Ex.PW8/C. He proved the CAF of mobile 9711095226 registered in the name of Permanand Sahu as Ex.PW14/D, CDR for the period from 13.09.2011 to 16.09.2011 as Ex.PW14/E, certificate U/s 65B of Indian Evidence Act as Ex.PW14/F. 14.3 PW15 Rajeev Sharda, Alternate Nodal Officer proved the CAF of mobile no.9350385603 registered in the name of Jagdish as Ex.PW15/A , CDR for the period from 13.09.2011 to 16.09.2011 as Ex.PW15/B, certificate U/s 65B of Indian Evidence Act as State Vs. Jamshed @ Gunga & ors. Page No. 11 of 34 SC NO. 51976/16 13.04.2022 Ex.PW15/C. 14.4 PW16 Subodh Narayan Jha, Nodal Officer proved the CAF of mobile 9599066200 registered in the name of Jamshed as Ex.PW16/A, CDR for the period from 13.09.2011 to 16.09.2011 as Ex.PW16/B, the location chart as Ex.PW16/C, certificate U/s 65B of Indian Evidence Act as Ex.PW16/D. FORMAL WITNESSES
15. PW11 Bhupinder Singh, Ld. MM proved the statement of witness Arif recorded U/s. 164 Cr.P.C. as Ex.PW11/B, the application of the IO as Ex.PW11/A, the certificate as Ex.PW11/C and the application for supply of copy as Ex.PW11/D. 15.1 PW12 Sh. Sunil Gupta, Ld. MM proved the statement of witness Lalit recorded U/s. 164 Cr.P.C. as Ex.PW12/B, the application of the IO as Ex.PW12/A, the certificate as Ex.PW12/C and the application for supply of copy as Ex.PW12/D. He also proved the TIP proceedings of accused Jamshed alias Gunga as Ex.PW12/ E to Ex.PW12/H and of accused Mohd. Sami as Ex.PW12/I to Ex.PW12/L State Vs. Jamshed @ Gunga & ors. Page No. 12 of 34 SC NO. 51976/16 13.04.2022 WITNESSES RELATING TO THE ROOM WHERE VICTIM LALIT WAS KEPT AFTER KIDNAPPING
16. PW 6 Sh. Rajpal deposed that Smt. Laxmi is his cousin sister and is the owner of house no.91/93 B Block, Rajiv Nagar, Bhalswa Dairy. His sister had let out the said house to different tenants including Arif. He deposed that he does not remember the date when the police came in the said house. He did not see anything as to what had happened and with whom police came there. His sister Laxmi resides at village Haziapur, District, Alipur, UP. The said witness was declared hostile by the Ld. APP.
16.1 PW13 Laxmi deposed that earlier she was residing at her house at A-93, Gali no.7, Rajiv Nagar, Bhalswa Dairy with her family. After death of her husband Shripal, she went to her village. Her elder brother Rajpal was residing on the ground floor of house no. A-93. As and when he let out the first floor of the said house, he sent rent to her in village. Her brother told her about a year back that he had let out the first floor to one Arif at monthly rent of Rs.1,000/- per month. Arif stayed in her house for about two months and thereafter, he vacated the house. Neither rent agreement was executed between her and Arif nor she was issuing any rent receipt to him. She was also declared hostile by the Ld. APP.
State Vs. Jamshed @ Gunga & ors. Page No. 13 of 34SC NO. 51976/16 13.04.2022 16.2 PW27 Arif deposed that he alongwith his parents used to
reside at house no.70, A block, Bhalswa Dairy. Since construction work was going on in the said house, he had taken one room on rent on the first floor of the house of Smt. Laxmi Devi. He used to drive auto and leave the tenanted premises in the morning and used to come in the late night. He had not given the key of said room to anybody at that time. He was also declared hostile by the Ld. APP.
MATERIAL WITNESSES
17. PW 3 Shiv Ji Sahu is the complainant and PW17 Lali is the / Victim. The testimony of these witnesses shall be discussed detail in the later part of the judgment.
STATEMENT OF ACCUSED PERSONS
18. After completion of prosecution evidence, all incriminating material as appearing in the evidence was put to all the three accused persons under Section 313 Cr.P.C. They stated that they have been falsely implicated in the present case. They chose not to lead any DE.
State Vs. Jamshed @ Gunga & ors. Page No. 14 of 34SC NO. 51976/16 13.04.2022 FINDINGS AND ANALYSIS OF EVIDENCE
19. Heard ld APP for the State, Ld Defence Counsel and perused the complete charge sheet. It is a settled proposition of criminal law that prosecution is supposed to prove its case by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubt. The case of the prosecution has to fall or stand on its own legs and it can not drive any benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubt never shifts and always remains on the prosecution.
20. The accused persons are facing trial for the offence u/S 364A/347/323/34 IPC. Section 364A of Indian Penal Code reads as under: "Kidnapping for ransom etc. "1 Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or 2 [any foreign State or international inter- governmental organisation or any other person] to do or abstain from State Vs. Jamshed @ Gunga & ors. Page No. 15 of 34 SC NO. 51976/16 13.04.2022 doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.] 20.1 The essential ingredients of S 364A IPC are:
(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and
(ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or;
(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom.
20.2 Thus after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section 364A cannot be sustained
21. The material witnesses of prosecution are PW3 Shiv ji Sahu and PW17 Lalit. The other material witnesses are PW6 Rajpal, PW13 Laxmi Devi and PW27 Mohd. Aarif.
State Vs. Jamshed @ Gunga & ors. Page No. 16 of 34SC NO. 51976/16 13.04.2022 22. PW3 Shivji Sahu deposed that on 13.09.2011, his son
Lalit came to Delhi to meet him. On 14.09.2011, he left in the morning for Jahangir Puri to get his mobile phone repaired on his bike no. DL8437. At about 1 p.m, some one gave a call from mobile phone of Lalit on his mobile phone stating that his son was with him and made him talk with his son. When he spoke to his son, he told him that he had been kidnapped and asked him to talk with the kidnapper. He could not tell the name of his kidnapper. The kidnapper asked him to pay ransom money of Rs.20 lacs failing which he threatened to kill his son. Thereafter, he received 2-3 similar calls. He called the police and gave complaint Ex.PW3/A. 22.1 He deposed that on 14.09.2011, kidnapper asked him to come at Kushal Cinema. He waited there for more than half an hour but the kidnapper did not come. On the instructions of the police, who was with him, he was made to sit in a rickshaw and moved towards the PS. After about half an hour, he again received call from the kidnapper. He called him at Bhalswa Jheel. He went there with police men in civil uniform but kidnapper did not come. At about 7 p.m., he received call from Beghraj, PS SP Badli that his son is at PS. He informed IO at PS Bhalswa Dairy. The police from Bhalswa Dairy brought his son from PS S P Badli to PS Bhalswa Dairy.
State Vs. Jamshed @ Gunga & ors. Page No. 17 of 34SC NO. 51976/16 13.04.2022 22.2 He during his cross-examination deposed that he cannot
tell from the voice of the caller on the mobile phone whether the call was by his son or some other person. He did not inform about kidnapping of his son Lalit to his elder son Ajit Kumar. He admitted that when he talked to his son on phone when he was at PS SP Badli, he did not disclose the name of kidnapper to him. He deposed that prior to the incident, accused Jamshed and Mohd. Sami were known to him. He deposed that when his son Lalit was brought from PS SP Badli to PS Bhalswa Dairy at about 9 p.m., at that time, he was at his house.
23. PW 17 Lalit Kumar deposed that on 14.09.2011, he went on his motorcycle bearing registration no.8437 to the mobile shop situated at Jahangir Puri from where his brother had purchased the mobile phone in order to get it repaired. The said shop was found closed. When he was coming back on his motorcycle, he received a call of his father. He stopped the motorcycle to receive the call. The speaker of his phone was not in a working order. While he was talking with his father, he saw Ali Sher who is resident of their village at Bihar came alongwith 2-3 persons. He asked him to accompany them as he wanted to talk with him about the village and they took him towards the jhuggis of City Park, Jahangir Puri. He alongwith other associates started beating him with fists and leg blows. He failed to identify accused Jamshed @ Gunga and Mohd. Sami as the persons State Vs. Jamshed @ Gunga & ors. Page No. 18 of 34 SC NO. 51976/16 13.04.2022 who had accompanied Ali Sher during his testimony recorded before lunch time on 04.04.2013. However, after lunch time, when his examination in chief was further recorded, he deposed that he was given a blow on his head with a hot iron rod type weapon by Gunga alias Pahelwan. He deposed that he also took the RC of the motorcycle and his Voter ID card and mobile phone from his pocket.
23.1 He further deposed that Alisher asked him to call his father from his mobile phone. Alisher talked to his father that he was in his custody and if his father wanted to get him released, he should give Rs.20 lacs to him and disconnected the phone. Then, they gave him beatings and put a black coloured cloth on his face. He was taken to some unknown place in a white colour Maruti car in which they all came and met him at Jahangir Puri. Ali sher again spoke to his father and inquired whether arrangement of money is done or not. After negotiations, he agreed for Rs.10 lacs, the car was being driven by person whom Ali sher was calling as Sami. He identified accused Sami in the Court.
23.2 He deposed that his father was called near Kushal Cinema , Jahangir Puri with ransom amount. On 15.09.2011, he was taken by accused Ali Sher and Sami. His face was covered with black colour cloth. When they reached the halfway to Kushal cinema , accused Ali Sher received a call from some person who informed State Vs. Jamshed @ Gunga & ors. Page No. 19 of 34 SC NO. 51976/16 13.04.2022 about the presence of the police, hence, he was taken back to the room where he was kept. He was given beatings by Ali sher and some other person. Accused Gunga and Sami were not present at that time. Ali Sher again called his father and demanded Rs.10 lacs and asked him to bring the amount at Bhalswa lake on 16.09.2011. While they were on the way, they again received information about presence of police, hence, he was taken back to the said room. In the evening of the same day i.e. 16.09.2011, accused Gunga took him to Durga Chowk. At Durga chowk, maruti car in which he was kidnapped was parked in which two persons were sitting out of which, one was in police uniform . He was also made to sit in the park. Sami was driving the car and he was left at PS SP Badli. Thereafter, Sami and Gunga went away. Police officials after inquiry, called his father who came alongwith police officials of PS Bhalswa Dairy. He deposed that his statement U/s.164 Cr.P.C. Ex.PW12/B was recorded. He identified the room where he was kept vide memo Ex.PW17/A. He proved the TIP proceedings as Ex.PW12/1. He deposed that he could not identify the accused persons during the pre-lunch session as they were sitting in the last in the court and he could not see them because of other persons sitting in the Court.
23.3 PW17 during his cross-examination deposed that the cloth was put on his face by the accused after he was made to sit in the car and he remained cover till he was taken to some unknown place.
State Vs. Jamshed @ Gunga & ors. Page No. 20 of 34SC NO. 51976/16 13.04.2022 He admitted that he did not stated the fact of presence of accused Sami in the car on 15.09.2011 in his statement Ex.PW12/B. He deposed that on 15.09.2011, when he was taken by Ali Sher to Kushal Cinema, accused Sami and other persons were also present in the car. He admitted that he did not state the factum of presence of accused Sami in the car to the Ld. MM in his statement Ex.PW12/B. He deposed that since his face was covered with cloth at that time, he could guess by the voice only that accused Sami was also present in the car. He deposed that he was left at PS Samay pur Badli by accused Ali sher at about 4 or 5 p.m. 23.4 When he was asked that since his face was covered with the cloth when he was taken to the place where he was kept after kidnapping, he deposed that he did not take police to the said place but instead, police took him to the said place. He deposed that the site plan of the said place was not prepared in his presence. He was asked to sign some papers in the PS. He remained confined in the said room for one day. He admitted that the ran-sum money was not paid to the accused persons.
KIDNAPPING AND CALL FOR RANSOM
24. It has come up in the testimony of PW3 that someone gave a call to him from the mobile phone of his son Lalit on State Vs. Jamshed @ Gunga & ors. Page No. 21 of 34 SC NO. 51976/16 13.04.2022 13.09.2011 at 1 p.m. stating that his son Lalit was with him and made him talk with his son. When he spoke to Lalit, he told him that he had been kidnapped and asked him to talk to the kidnapper. PW3 deposed that Lalit did not tell the name of the kidnapper. PW17 Lalit during his testimony deposed that when he was talking with his father on the phone, he saw that one Ali Sher who is the resident of their village at Bihar, came alongwith 2-3 other persons. On seeing them, he stopped talking with his father and disconnected the phone. Alisher asked him to accompany them as he wanted to talk about the village and took him to the jhuggis of City Park, Jahangir Puri and they all beat him with fists and leg blows. He further deposed that accused Alisher asked him to call his father from the mobile phone, whose number he does not recollect.
25. From testimony of PW17, it is evident that he knew Alisher very well. Despite the same, it has remained unexplained as to why he did not disclose to his father the name of his kidnapper as Ali Sher when as per testimony of PW3, the kidnapper made him talk with Lalit at around 1 p.m on 13.09.2011. Even PW3 during his cross- examination admitted that when he talked with Lalit while he was at PS S.P.Badli, he did not tell as to who had left him at PS S.P.Badli and he did not disclose the name of the accused persons despite the fact that Alisher was already known to PW17 Lalit.
State Vs. Jamshed @ Gunga & ors. Page No. 22 of 34SC NO. 51976/16 13.04.2022 26. PW 17 has deposed that accused Alisher took him
towards the jhuggis of City Park, Jahangir Puri and he alongwith other associates started beating him with fists and leg blows. He was given a blow on his body with a hot iron rod type weapon by Jamshed @ Gunga. The place where the victim was beaten by the accused persons is a public place. It is beyond comprehension that when the accused persons beat him and also took RC of his motor cycle, Voter ID card and mobile phone from his pocket, he did not raise voice for any help. He deposed that Alisher talked to his father and demanded ransom amount of Rs.20 lacs. Even at that time, when the victim came to know that he has been kidnapped, he did not raise his voice or sought help from the passerbys.
27. PW3 has deposed that the call for ransom was made from the mobile of PW17 Lalit. Though the prosecution has examined various Nodal officers with certain CDR details, however, the relevance of the said CDR details has not been explained by the prosecution. There is no evidence on the aspect that any call was made from the said numbers to PW3 for ransom. The prosecution has miserably failed to show the relevance of examining so many Nodal officers.
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RECOVERY OF THE VICTIM LALIT
28. As per the case of prosecution, victim Lalit was handed over to police officials of PS SP Badli by accused Jamshed alias Gunga and Mohd Sami. Though PW 17 has deposed that he was kidnapped by these accused persons alongwith co accused Alisher, however, it has remained unexplained as to why he did not inform PW21 and PW22 , the concerned police officials of PS SP Badli, to whom he was handed over at a public place about the alleged kidnapping and ransom call by the accused persons. It is beyond comprehension that the accused persons after kidnapping the victim Lalit and despite not receiving any ransom amount, instead of releasing him, especially called Ct. Beghraj of PS S.P. Badli and thereafter, handed over the custody of Lalit to Ct Beghraj themselves. Infact, it has come up in the testimony of PW21 Ct. Beghraj that accused Mohd. Sami who was the informer took him from police station to the place where co-accused Jamshed alias Gunga handed over the custody of victim Lalit and thereafter, Mohd. Sami himself left Ct. Beghraj and Lalit at PS S.P.Badli. The most hilarious part is that victim Lalit even at that time did not disclose to Ct. Beghraj that he was kidnapped by these two persons and their other associates.
28.1 It is also beyond imagination that the accused persons after kidnapping and making ransom calls, would themselves call the State Vs. Jamshed @ Gunga & ors. Page No. 24 of 34 SC NO. 51976/16 13.04.2022 police officials and hand over the custody of the victim. The other interesting facet is that PW21 HC Beghraj and PW22 Ct. Rahul deposed that when Pahelwan @ Gunga handed over the custody of victim Lalit to them, Lalit told them ' Pahelwan ji aap mujhe police ke hawale kyun kar rahe ho, maine kya galti ki hai'. First of all, it is beyond comprehension that the kidnapper would himself specially call the police and hand over the victim to the police and Secondly, it is unconceivable that a person/ victim who had been kidnapped for ransom, when is being handed over to the police would say to the kidnapper that why he is being handed over to the police. Instead of being happy that he was released from the custody of the kidnappers, he was pleading to them as to why he is being handed over to the police and he was inquiring about his fault in this regard from his alleged kidnappers.
28.2 It is also beyond comprehension that accused Jamshed alias Gunga and Mohd Sami after kidnapping the victim, would themselves hand over the custody of the victim to the police officials despite the fact that they were already aware that the police is after them, which is evident from the testimony of PW17 that he was taken back from Kushal Cinema and Bhalswa lake by the kidnappers when they came to know about the presence of the police from accused Jamshed and Mohd Sami. The manner in which the victim Lalit was recovered raises doubt as to whether he was actually kidnapped or not State Vs. Jamshed @ Gunga & ors. Page No. 25 of 34 SC NO. 51976/16 13.04.2022 and as to whether the kidnappers are the accused persons or not.
EVIDENCE AS TO THE PLACE WHERE THE VICTIM WAS KEPT AFTER KIDNAPPING
29. As per the case of prosecution, the victim Lalit was kept at the house of Sripal by accused Jamshed @ Gunga after kidnapping. The prosecution has relied upon the testimony of PW6 Rajpal, PW13 Laxmi and PW27 Arif to prove that the said room which belonged to Laxmi was let out to Arif by Rajpal, brother of Laxmi. That Arif gave it to accused Jamshed for two days on his request.
29.1 It is pertinent to mention herein that all these three witnesses have been declared hostile by the Ld. APP. PW6 deposed that the house no.91/93 belongs to his sister Laxmi. PW 13 Laxmi deposed that the room was let out by her brother Rajpal to one Arif. Arif during his examination in chief deposed that he had taken the room of Laxmi on rent. The keys of the said room was never given by him to anybody at that time. Thus, as per testimony of PW27, the room was in his possession and he never handed it over to accused Jamshed. Even otherwise, the room which was given on rent was at first floor of house no.91/93, A-block Rajiv Nagar, Delhi. However, PW27 in his statement U/s. 164 Cr.P.C Ex.PW11/B and during his cross-examination by Ld. APP deposed that he had given the keys of State Vs. Jamshed @ Gunga & ors. Page No. 26 of 34 SC NO. 51976/16 13.04.2022 the room at K-95/96 to Jamshed Gunga and not of house no. 91/93.
29.2 In fact PW 17 deposed that the site plan of the place where he was kept after kidnapping was not prepared in his presence by the police despite the fact that he had pointed out the place i.e the house where he was kept by the accused persons. He was asked to sign some papers in the police station and at that time, he had signed a paper on which site plan had been prepared. As discussed above, PW17 during his cross-examination has admitted that he did not take the police officials to the place where he was kept after kidnapping but it is the police officials who took him to the said place. This speaks volume about the manner of investigation.
IDENTIFICATION AND ARREST OF ACCUSED PERSONS JAMSHED GUNGA AND MOHD. SAMI
30. PW 20 deposed that after recording the statement of victim Lalit, in the early hours of 16.09.2011, he made search of accused Jamshsed and Mohd. Sami but they could not be found. On 16.09.2011, when they were searching accused Mohd. Sami in his residential area, his mother met them and on his request. She called accused Mohd. Sami and informed that police of PS Bhalswa Dairy is searching him. He told that he will reach PS Bhalswa Dairy. When he reached Bhalswa Dairy, he in good faith was asked to call his State Vs. Jamshed @ Gunga & ors. Page No. 27 of 34 SC NO. 51976/16 13.04.2022 associate Jamshed alias Gunga to PS. Accused Mohd. Sami after getting assured that no action will be taken against him, called Jamshed alias Gunga at PS Bhalswa Dairy. After sometime, accused Jamshed alias Gunga also came at PS Bhalswa Dairy. They both were interrogated in isolation. Voter ID card of victim Lalit and original RC of the motorcycle of the victim was recovered from the possession of accused Jamshed vide memo Ex.PW25/A. They both were arrested and their disclosure statements Ex.PW25/B and Ex.PW23/DA respectively were recorded. The Maruti car no. DL3 CK 1337 by which Mohd Sami had come to PS was also seized vide memo Ex.PW23/C. 30.1 Admittedly, both the accused Jamshed and Shami were arrested in the PS when they were called for investigation in the present FIR. The manner in which both these accused persons have been arrested speaks volume about the conduct of the investigating officers. Accused Mohd Sami is the same person to whom PW21 Ct. Beghraj has identified as the informer. As discussed above, Mohd. Sami is the informer, who had left PW21 Ct. Beghraj and PW17 Victim Lalilt at PS S.P.Badli in the same car which was used in the commission of the offence. Not only this, he again went to PS Bhalswa Dairy in the same car which was used in the commission of the offence in order to facilitate the IO to recover it from him. It is further beyond human imagination that accused Jamshed would carry State Vs. Jamshed @ Gunga & ors. Page No. 28 of 34 SC NO. 51976/16 13.04.2022 the voter ID card and original RC of the motorcycle of the victim to the police station in order to facilitate the IO to recover it from him. The recovery of the voter ID card and original RC of motorcycle of victim Lalit seems to be implanted upon accused Jamshed @ Gunga subsequently. The reason for the same is the improvement in the testimony of PW17 Lalit. PW17 during his examination in chief recorded after post-lunch session on 04.04.2013, improved upon to depose that accused Gunga alias Pahelwan took out the RC of the motorcycle, his vote ID card and mobile phone from his pocket. The allegation that accused Gunga took out all these articles from his pocket does not find mention in his statement u/s 164 CrPC given to the Ld. MM on 17.09.2011 Ex.PW12/B. It seems that PW17 has deliberately improved upon his testimony in the court recorded on 04.04.2013 after post lunch session.
30.2 The other most important aspect is the identification of these two accused persons in the Court. PW17 during his testimony recorded on 04.04.2013 before lunch session failed to identify both accused Mohd. Sami and Jamshed Gunga. However, during post lunch session, he improved upon his statement and identified both the accused persons. He was duly confronted with various portions of his statement given in the Court and his statement Ex.PW12/B (u/S. 164 Cr.P.C. recorded before ld. MM) and Ex.PW17/X (u/s 161 CrPC). The contradictions are as follows:
State Vs. Jamshed @ Gunga & ors. Page No. 29 of 34SC NO. 51976/16 13.04.2022 a. That he was given blow by iron rod by accused persons. b. The factum of presence of accused Sami in car on 15.09.2011. 30.3 Infact PW17, in his statement Ex.PW12/B has stated that
accused Sami and Gunga informed the kidnappers that police is present at Kushal Cinema, hence, they took him back.
31. There are not only material contradictions in the testimony of PW 17 regarding the presence/involvement of accused Mohd. Sami and Jamshed Gunga but at the same time, he has failed to identify these accused persons during his initial testimony (pre lunch session) in the Court. It seems that after the post lunch session, he has deliberately identified both these accused persons.
32. There is not only contradiction regarding the role and presence of the accused Jamshed and Mohd. Sami but there is also contradiction in the testimony of PW17 as to who left him at PS S P Badli. As per PW21 and PW22, accused Jamshed handed over the custody of Lalit to them whereas PW17 Lalit has deposed that he was left at PS SP Badli by accused Ali Sher at about 4/5 p.m. Considering the aforesaid facts and circumstances and contradictions, the benefit of doubt must be bestowed upon these accused persons.
State Vs. Jamshed @ Gunga & ors. Page No. 30 of 34SC NO. 51976/16 13.04.2022 ACCUSED ALI SHER
33. As per the case of prosecution, accused Ali Sher was arrested from Darbangha, Bihar. PW26 deposed that on 21.05.2013, he alongwith other police officials, went to Darbangha, Bihar in search of accused Ali Sher. On 24.05.2013, they reached at PS Bahera , Distt. Darbangha, Bihar. From there, two Sub Inspectors and two ASIs of PS Bahera accompanied them to Dhanaura Shakri Road. On the said road at Lallua Chowk, they met one secret informer at 3.15 p.m. who told them accused Ali Sher would go towards Shakri from Lalula Chowk today. He asked 3-4 passers by to join investigation but all refused without telling their names and addresses. At around 4.15 p.m., they saw one by wearing white T Shirt coming from Dhanaura side and on the pointing out of informer, he was apprehended. On interrogation, he revealed his name as Alisher. He was arrested U/s. 41(1)C Cr.P.C. He gave disclosure statement regarding involvement in the present case. Thereafter, he was arrested in the present case on 27.05.2013 SI Hazari Lal and HC Mahesh Kumar vide memo Ex.PW29/A. PW29 deposed that IO recorded the disclosure statement of accused as Ex.PW29/B. 33.1 It has come up in the testimony of PW26 that when accused Alisher was arrested, a lot of public persons were present and they were asked to join the investigation but they refused and left State Vs. Jamshed @ Gunga & ors. Page No. 31 of 34 SC NO. 51976/16 13.04.2022 without telling their names and addresses. PW29 during his cross- examination admitted that the disclosure statement of the accused was recorded outside the Court of the concerned MM. Some litigants and witneses were present there and IO requested them to join the investigation but none agreed. No attempt appears to have been made by the PW 21/IO Insp. Mohinder to associate any member of the public to the arrest of the accused. Non joining of public witnesses at the time of arrest of accused Ali Sher and at the time of recording his disclosure statement is fatal to the case of prosecution, more specifically in view of the testimony of PW17 Lalit. PW17 Lalit during his testimony had admitted that Ali Sher was known to him as he is of the same village. As discussed above, despite the fact that Ali Sher was known to the victim and he was made to talk with his father when the first ransom call was made, he did not disclose the name of accused Ali Sher to his father at that time and subsequently to Ct. Begraj when he was taken to the police station. Since, Ali Sher belonged to the same village and was known to victim Lalit, the chances of his false implication cannot be ruled out. Considering the aforesaid facts and circumstances, the benefit of doubt arising out of such inefficient investigation, must be bestowed upon the accused.
CONCLUSION
34. The prosecution has failed to lead convincing evidence State Vs. Jamshed @ Gunga & ors. Page No. 32 of 34 SC NO. 51976/16 13.04.2022 even on such parameter including the circumstantial evidence to establish that there was agreement between accused persons to commit any of such offence. The prosecution has failed to prove the significance of the various CDR details relied upon through the testimony of various Nodal officers. As per prosecution, the ransom call was made from the mobile phone of the victim. Though various call records are placed on record, however, there is no evidence to the effect that other ransom calls were made from the numbers of the accused persons. The evidence on this aspect is totally missing. Even otherwise, the story of the prosecution is too flimsy that the kidnappers after kidnapping the victim Lalit and asking for the ransom amount, being well aware of the fact that the police was searching for the kidnappers of victim Lalit, daringly called the police officials of PS Samay Pur Badli and accused Mohd. Sami and Jamshed Gunga themselves handed over the custody of Lalit to Ct. Beghraj of PS SP Badli. Not only this, accused Mohd. Sami himself went to drop Ct. Beghraj and Victim Lalit to PS S.P.Badli. Interestingly, victim Lalit during their journey to the PS did not disclose to Ct Beghraj that Mohd. Sami is one of the kidnappers and other kidnapper is Jamshed Gunga who had handed over his custody to Ct. Beghraj. It seems that the police officials in order to solve the present FIR, have falsely implicated the accused persons.
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35. On the basis of above discussion, since the prosecution has failed to prove any charges against the accused persons, all the three accused persons are acquitted for the offence u/S 364A/347/323/34 IPC. All accused persons shall furnish bond in terms of S. 437-A Cr.P.C.
File be consigned to record room.
ANNOUNCED IN THE (KIRAN GUPTA)
OPEN COURT ON 13.04.2022 ADDITIONAL SESSIONS JUDGE-03
NORTH WEST DISTRICT
ROHINI COURTS, DELHI
State Vs. Jamshed @ Gunga & ors. Page No. 34 of 34