Delhi District Court
State vs 1) Jagminder, @ Happy, S/O Ranjit Singh, on 25 September, 2009
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IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS
JUDGE: (EAST) FTC : KARKADOOMA COURT: DELHI.
SESSIONS CASE No. 66/08
FIR No. 175/01
U/S: 120-B/364-A/343/353/307/34 IPC
under Section 25/27 Arms Act.
P.S: New Ashok Nagar
STATE Versus 1) Jagminder, @ Happy, S/o Ranjit Singh,
R/o 14, Canadian Enclave, Firozpur Road,
Ludiana, Punjab.
2) Sandeep Ahlawat, S/o Satbir Singh,
R/o 89, Binda Pur, Uttam Nagar, Delhi.
3) Subhash Chander, S/o Hari Chand,
R/o 335, New Housing Board Enclave,
Sirsa, Haryana.
4) Prabhat Singh, S/o Chander bir,
R/o Village Daduwa, P.S. Shikarpur,
Bulandshahar, U.P.
5) Jitender@ Jeetu, S/o Santokh Singh,
R/o K-106, Krishna Park, Tilak Nagar,
Delhi.
6) Ajeet Singh, S/o Brij Pal,
R/o Village Chithera, Dadri,
Gautam Budh Nagar, U.P.
7) Bijender @ Dhile, S/o Brahm Singh,
R/o Village Issarheri, District Jhajjar,
Haryana.
8) Smt. Lata Vohra, W/o Satish Vohra,
A-138, Shankar Garden, Vikas Puri,
New Delhi.
9) Vijay Pal @ Kala, S/o Nafe Singh,
R/o RZ 34A Sita Puri, Dabri,
New Delhi.
10) Mukesh, S/o Late Sh. Bijender,
R/o C-399-400, Kachhi Colony, Ber Sarai,
Behind Old Campus, JNU, New Delhi.
DATE OF INSTITUTION : 01.02.2002
JUDGEMENT RESERVED ON : 08.09.2009
JUDGEMENT DELIVERED ON : 22.09.2009
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JUDGMENT
1. The prosecution case in brief is that on 22.6.01 Inspector Ishwar Singh of Anti Extortion Cell of Crime Branch received an information that one Brahm Pradhan a notorious criminal had kidnapped one person and was asking for ransom from the victims family to release him. As per the information Brahm Pradhan and his associates may come to the factory of the victim located in Sector-6, Noida for collection of ransom amount. A team consisting of 15-20 police officials was constituted under the supervision of ACP Ishwar Singh and ACP HPS Cheema. They reached Sector-6, Noida and apprehended two associates of Brahm Pradhan who led them to premises No. D-49, Gahdoli Dairy Farm, Delhi. A police team raided the said premises. The exchange of fire took place in which Brahm Pradhan received fatal injuries. The victim Amit Gogia was rescued from there and four accused persons were arrested in the evening of the same day and at their instance Santro car of the victim was recovered. Two other accused persons were arrested subsequently being the associates of the gang of Brahm Pradhan having their involvement in the kidnapping of Amit Gogia and demand of ransom from his family. After investigation police filed chargesheet U/s 364A/186/353/332/343/506/307/120B/34 IPC & 25/27 Arms Act.
2. After committal of the case to this court arguments on the point of charge were heard by my Ld. Predecessor. Charges U/s 120B/364A/343 read with Section 120B IPC were framed against all the 10 accused persons. In addition to that charges U/s 353/307/34 IPC were framed against accused Subhash Chander, Jagminder Singh @ Happy, Sandeep Ahlawat and Prahlad Singh. Further charges U/s 25 and 27 of Arms Act were framed against accused Sandeep Ahlawat, 3 Subhash Chander and Jagminder @ Happy. All the accused persons pleaded not guilty to these charges and claimed trial.
3. Accused Vijay Pal and Mukesh were arrested subsequently and charges against them U/s 120B/343/364A IPC were framed subsequently on 21.8.02 and 12.9.05 respectively.
4. In support of its case prosecution examined forty four witnesses. The details and nature of witnesses examined by the prosecution are as follows-:
(I) Public Witnesses PW6 Pawan Taneja maternal uncle of victim Amit Gogia.
PW7 Pramod Kr. who had let out the premises being the property agent to accused persons. PW8 Rajeev Sondhi landlord of the house in question where Amit Gogia was kept after his abduction. PW9 Sh. Sunil Kr. Gogia father of Amit Gogia. PW10 Amit Gogia victim of this case. PW12 Smt. Shilpa Gogia W/o Amit Gogia. PW13 Rajender an attendant in the parking of Safdarjung Hospital from where car of the victim was recovered on 24.6.01 who proved his signatures on the memo Ex.PW13/A. PW16 Brij Kishore neighbourer of the spot i.e. Ghadoli Dairy Farm and PW 19 Satender Kr. also a neighbourer to the spot.
(II) Police Witnesses (who raided the premises i.e. B- 49, Ghadoli Dairy Farm) PW 14 ASI Abdul Kadir, he proved sketch of the two revolvers as Ex.PW14/A and 14/B and seizure memo Ex.PW14/C and D. PW15 ASI 4 Suresh Kumar, he proved seizure memo of the car No. DL 4CN 1438 as Ex.PW15/A. He was cross examined as PW39. PW29 as ACP HPS Cheema. PW 31 is Inspector Rajender Baxi, he proved sketches of the recovered weapons as Ex. PW31/A and Ex.PW31/B and seizure memo Ex.PW31/C and Ex.PW31/D. The arrest memo Ex.PW31/E vide which victim Amit Gogia was taken into police custody. PW 32 is ACP Ishwar Singh, he proved seizure memo of his service revolver Ex.PW32/A. PW 42 is Inspector Ishwar Singh, he proved recovery of the empty cartridges received from the gallery as Ex.PW42/A and seizure memo of the pulanda containing these cartridges as Ex.PW42/B and rukka as Ex.PW42/C. PW43 is Inspector Arvind Kumar.
(III) Police Witnesses (Anti-kidnapping Section, Crime Branch, Dev Nagar) PW23 Inspector Sanjay Singh reached at the spot subsequently, he proved the report regarding release of the dead body of Brahmn Pradhan to his heirs as Ex.PW23/A, application for conducting post mortem Ex. PW23/B, Form No. 25.35B as Ex.PW23/C, statements of Om Prakash, Rajesh and Bijender as Ex. PW23/D and F. PW34 Insp. Virender Kr. reached at the spot on the directions of senior officers. He is the investigating officer of this case. He proved seizure memo of the official weapons of the police officials ACP HPS Cheema, Inspector Ishwar Singh, Inspector K.P. Singh, ASI Abdul Kadir, HC Jasbir Singh, ACP Ishwar Singh, Inspector Rajender Baxi and SI Arvind Kumar as Ex. PW34/A1 to A7 and Ex.PW32/A, site plan Ex.PW34/B, memo Ex.PW34/C vide which blood samples were lifted for earth control from different places. The memo Ex.PW34/D vide which the black strip handed over by SI Arvind was taken into possession, memo Ex.PW34/E and F vide which bullet pieces lying at different places at the spot were taken into possession, memo Ex.PW34/G vide which some pieces of 5 bone chine and one bisleri bottle was taken into possession, Ex.PW34/H vide which mobile phone, SIM card, charger and police uniform was taken into possession, memo Ex.PW34/J vide which motorcycle No. DL 5SA 6316 was taken into possession, arrest memo of accused Jagminder Ex.PW34/A1 and his personal search memo, Ex.PW34/A2, arrest memo of accused Subhash Ex.PW34/L1 and his personal search memo Ex.PW34/L2, arrest memo of accused Jagminder Ex.PW34/M1 and his personal search PW34/M2, arrest memo of accused Ajeet Singh Ex.PW34/N1 and his personal search memo Ex.PW34/N2, arrest memo of Prabhat Ex.PW34/O1 and personal search memo Ex.PW34/O2, arrest memo of accused Sandeep Ahlawat Ex. PW34/P1 and personal search memo Ex.PW34/P2. Disclosure statement of accused Subhash Pahwa Ex.PW34/Q1, disclosure statement of accused Sandeep Ahlawat Ex.PW34/K2, disclosure statement of accused Jagminder @ Happy Ex.PW34/Q3, disclosure statement of accused Prabhat Singh Ex.PW34/Q4, disclosure statement of accused Jitender Kr. Singh Ex.PW34/Q5 and disclosure statement of accused Singh Ex.PW34/Q6, seizure memo Ex.PW34/R and Ex.PW34/S vide which bullet pieces and wooden pieces were taken into possession. The site plan prepared by draftsmen SI Mahesh Kumar on 27.6.01 as Ex.PW34/T, seizure memo Ex.PW34/U vide which 7 cartridges cases lifted from the spot by ballistic expert were taken into possession. PW36 is SI Karan Singh, he accompanied IO to the spot. PW41 is ASI Rajbir Singh, he also accompanied IO SI Virender Kumar to the spot. He proved seizure memo Ex.PW41/A vide which helmet was taken into possession.
(IV) Other Police Witnesses PW21 ASI Naresh Kumar was posted at inter-state crime cell, 6 Chanakya Puri, on the directions of his seniors, he constituted raiding party and apprehended accused Bijender and Lata Vohra travelling in Maruti Zen car No. DL 2CN 9914 at 11 Murti. He proved personal search of accused Bijender vide memo Ex.PW21/A, the seizure memo of the car vide memo Ex.PW21/B. PW17 HC Jyoti reached at 11 Murti, Chanakya Puri and conducted search of the accused Lata Vohra vide memo Ex.PW17/A. PW27 HC Sanjeevan was member of the raiding party which apprehended accused Bijender and Lata Vohra. PW2 is SI Naresh Kumar Draftsman, he proved scaled site plan of the spot Ex.PW2/A. PW5 is ASI Chet Ram finger print expert, he lifted chance prints from the bone china plates and from bisleri bottle and he proved his report Ex.PW5/A. On 24.6.01 he lifted chance prints from Santro Car DL 4CM 5073 and proved his report Ex. PW5/B. PW11 is HC Ram Niwas who was posted as PCR incharge of Romeo 41 who reached at the spot on receiving information from control room at no.100. PW20 is Ct. G. Ganeshan who was summoned at the spot and took 55 photographs at the instance of IO Inspector Virender Kumar, he proved photographs Ex.PW20/1 to PW20/55 and proved the negatives as Ex.PW20/56 to PW20/110. PW30 is SI Ram Krishan who took accused Jagminder and Sandeep Ahlawat to GTB Hospital for taking blood samples, he proved seizure memo of samples Ex.PW30/A. PW33 is HC Jaswant Singh, he proved DD No. 17A as Ex.PW33/A. On assignment of this DD to him he reached at the spot. From spot he went to LBS Hospital and attained MLC of the unknown person who was declared brought dead and handed over said MLC to Inspector Ishwar Singh. PW35 is ASI Shobha Ram of Haryana Police, he moved an application before the Magistrate seeking voice sample of accused Subhash. PW37 is HC Neelam, she proved DD No. 17A as Ex.PW33/A. PW40 is HC Vijay of Haryana Police, he produced accused Subhash before Karkardooma Courts from Gurgaon for taking his voice samples.
7(V) Medical Witnesses PW1 is Dr. Rakesh Singh, CMO, LBS Hospital. He proved MLC Ex.PW1/A of the dead body of unknown person brought by PCR in the hospital. PW18 is Dr. L.C. Gupta who proved post morterm report of Brahmn Ex.PW18/A. PW38 is Dr. M.L. Bhati, he proved MLCs of accused Subhash and Prabhat as Ex.PW38/A and B. (VI) Other Witnesses PW3 is Sidharth Kumar mortuary attendant of Lal Bahadur Shastri Hospital, he proved the seizure memo Ex.PW3/A vide which parcel containing clothes of deceased were taken into possession by IO. PW4 Anil Wadhwa is the Dealing Asstt., Janakpuri who produced the record regarding registration of motorcycle No. DL4CN 1438 as Ex.PW4/1 to Ex.PW4/37. PW22 Naresh Kumar is a record clerk of RTO, Loni, he produced the record pertaining to vehicle No. DL 5CA 6316.
5. As already noted, accused Mukesh was got arrested subsequently. Out of the 44 witnesses examined by the prosecution in the main case, 30 witnesses were re-examined and offered to him for cross-examination. In addition to the witnesses examined in the main case, prosecution examined PW11 HC Bhagwati Prasad. He proved arrest memo and personal search memo of accused Mukesh Ex.PW11/A and B respectively. PW13 HC Bheem Singh, he proved inspection memo Ex.PW13/A. PW25 Sh. K.C. Warshney Sr. Scientific Officer cum Ex-officio Chemical Examiner, FSL, Rohini, he proved his detailed report of 26 parcels Ex.PW25/A. IMPORTANT NOTE-: 30 out of 33 witnesses examined after arrest of accused Mukesh were already examined in the main case, new Exhibit numbers were given to the documents produced by these witnesses but 8 to avoid confusion in the body of the judgment Exhibit nos. given in the main case will be considered and discussed.
6. After putting incriminating evidence the accused persons, their statements U/s 313 Cr. P.C. were recorded, in which they denied all the prosecution evidence and took the defence of false implication in this case. Accused Vijay Pal, Bijender, Subhash, Jagminder, Sandeep and Prabhat lead defence evidence.
7. In defence evidence accused Vijay Pal examined DW1 Raj Kumar. Accused Bijender examined DW2 Abhimanyu. Accused Subhash examined DW3 Dr. Sanjay Kumar Bansal and DW4 Sanatan Singh. Accused Jagminder also examined DW3 Dr. Sanjay Kumar Bansal in his defence. Accused Jitender examined DW5 Sanjay Kishore Sharma. Accused Sandeep examined DW6 Satya Bhan Singh and accused Prabhat examined DW7 Amit.
8. Heard arguments of Ld. Additional PP Sh. Rakesh Mehta, Sh. Mohd. Hasan Ld. Amicus Curie for accused Jagminder and Sh. G.K. Bharti Ld. Defence Counsel for accused Lata Vohra. Both these Defence Counsels also filed written submissions. The remaining accused persons did not show any intention to do oral arguments. They all stated that their written submissions are already lying filed.
9. Ld. APP submitted that testimonies of all the witnesses examined are consistent. Out of the 10 accused persons, two were arrested from Noida, four were arrested from the spot and two were arrested on the same day from Chanakya Puri & at their instance car of the victim Sh. Amit Gogia was recovered. Accused Rakesh and Vijay Pal were also the member of Brahm Pradhan gang and the victim Amit 9 Gogia was kidnapped under a criminal conspiracy is hatched by all the accused persons. Ld. APP further contended that criminal conspiracy is always hatched in privacy and it is not possible to produce direct evidence on it and it has to be gathered from circumstantial evidence on record.
10. On the other hand Sh. Mohd. Hasan Ld. Amicus Curie for accused Jagminder contended that accused was falsely implicated in this case and the weapon shown to have been recovered from his possession was subsequently planted upon him. Sh. G.K. Bharti Ld. Defence Counsel for Lata Vohra contended that the entire incident alleged by prosecution was a story concocted by Crime Branch of Delhi Police with the objective to shot the known gangster Brahm Pradhan dead. He submitted that tapes containing recordings and conversation between Sunil Gogia and kidnappers were available with the investigating agency but no voice identification was got done. It is argued that PW29 ACP HPS Cheema has admitted during his cross that Brahm Pradhan has done kanyadan of Shilpa wife of the victim Amit Gogia, which further falsify the version of the incident as stated by the prosecution. It is argued that as per the prosecution story accused Lata Vohra knew that Amit is in custody of Brahm Pradhan and she offered Sunil Gogia father of the victim to get Amit Gogia released after contacting the kidnappers, but prosecution has failed to bring any evidence to this effect on record.
11. Also perused the written submissions filed on record by the other accused persons. All have inter-alia taken the plea of false implication in this case by lifting them either from their house or from their work place.
1012. Almost all the accused persons has contended that despite easy availability at no stage of the alleged entire rescue operation of Amit Gogia and subsequent arrest of accused Bijender and Lata Vohra from Chanakya Puri no public witness was joined. It is admitted case of the prosecution that accused Jitender and Ajeet Singh were apprehended from Sector-6, Noida and accused Jagminder Singh, Sandeep Ahlawat, Subhash Chander and Prabhat Singh were apprehended from the spot B-49, Ghadoli Dairy Farm which is a thickly populated area. All the police officials, stated to have participated in the rescue operation has deposed that all efforts were made to join public witness but no one agreed.
13. The Law is settled that mere fact that no independent public witness could be joined did not mean that evidence of the prosecution witness came under shadow of doubt. In Akmal Ahmed Vs. State of Delhi, 1999 (2) RCC 297: (1999 Cri LJ 2041) (SC), it was held that, it is now well settled that the evidence of search or seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C. 696 : (1988 Cri LJ 848) it was held that-:
"The prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil 11 dispute, between two individuals, and not involve themselves in it."
14. It is also contended by almost all the accused persons that there are contradictions in the statements of police officials who raided the premises at Ghadoli Dairy Farm from where victim Amit Gogia was rescued. It is the plea of the accused persons that all the contradictions are major going to the root of the matter and creates strong doubt on the version of incident deposed by these witnesses. There is no denial of the fact that major contradictions shatter the prosecution case and creates doubt about the authenticity and veracity of the statement of the witnesses. Whether contradictions pointed out by accused persons are major or minor will be seen while appreciating the evidence in subsequent paras. Regarding contradictions, the Apex Court in Marwadi Kishore Parmanand Vs. State of Gujarat (1994) SCC (Cri 1294) has observed in para 31, as follows-:
31. The evidence of a witness deposing about a fact has to be appreciated in a realistic manner having due regard to all the surrounding facts and circumstances prevailing at or about the time of occurrence of an incident. Some contradictions and omissions even in the evidence of a witness who was actually present and has seen the occurrence are bound to occur even in the natural course. It is a sound rule to be observed that where the facts stated by an eye-witness substantially conform to and are consistent on material points from the facts stated earlier to the police either in FIR or case dairy statements and are also consistent in all material details as well as on vital points there would be no 12 justification or any valid reason for the Court to view his evidence with suspicion or cast any doubt on such evidence.........
15. The Ld. APP has urged that all the accused persons has been charged for the offence U/s 364A/343/120B and as per prosecution case all the accused persons hatched the criminal conspiracy under the leadership of known criminal Brahm Pradhan. It is submitted that conspiracy is always hatched in privacy and it is not possible to get direct evidence on it. In criminal conspiracy the standard of evidence required and manner of its appreciation was discussed by the Apex Court in Suman Sood @ Kanwaljit Kaur Vs. State of Rajasthan (2007) (6) SCR 499. The relevant observations of the Apex Court in para 48 to 52 are as follows-:
48. In Halsbury's Laws of England, (4th Ednn.; Vol.11; para 58) ; it has been stated:
"Conspiracy consists of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indication offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The actus reus in a conspiracy is 13 the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other."
49. In Bhagwan Swarup V. State of Maharashtra, (1964)2 SCR 368: AIR 1965 SC 682; this Court stated:
"The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence; it can be established by direct evidence or by circumstantial evidence". (emphasis supplied)
50. In Baburao Bajirao Patil V. State of Maharashtra, (1971)3 SCC 432, this Court observed that there is seldom, if ever, that direct evidence of conspiracy is forthcoming. Conspiracy from its very nature is conceived and hatched in complete secrecy, for otherwise the whole purpose would be frustrated.
51. In Kehar Singh V. State (Delhi Administration), (1988)3 SCC 609: AIR 1988 SC 1883, Shetty, J. said:
"Generally a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of 14 various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same and or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. "
52. In Nazir Khan V. State of Delhi, (2003)8 SCC 461:
AIR 2003 SC 4427: JT 2003 (Supp) 1 SC 200, this Court observed:
"Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set 15 before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference".
16. Recently Hon'ble Justice Pradeep Nandrajog of Delhi High Court in a common order in Crl.A.-19/07, Crl.A-51/07, Crl.A-121/07, Crl.A.-139/07, Crl.A.144/07 and Crl.A.65/07 (date of decision 27.8.09) has summed up the law of conspiracy. The para 134 of the judgment is as follows :-
"134. After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled out :-
A. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (See the decision of Supreme Court reported as State Vs. Nalini (1999) 5 SCC 253).
B. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. It is not necessary that all 16 conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to pay may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (See the decisions of 17 Supreme Court reported as Yash Pal Mittal Vs. State of Punjab AIR 1977 SC 2433 and State Vs. Nalini (1999) 5 SCC 253).
C. It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.
D. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do or cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to 18 prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (See the decisions of Supreme Court reported as Shivnarayan Laxminarayan Joshi V/s. State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Husain Maniyar Vs. State of Maharashtra AIR 1981 SC 1062 and Kehar Singh Vs. State AIR 1988 SC 1883).
E. A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vica versa.
F. Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co-conspirators. In short, the section can be analysed as 19 follows:
(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other ; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-
conspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh Vs. State of Maharashtra AIR 1957 SC 747).
17. To establish its case prosecution has examined seven witnesses of the Anti-Extortion Cell, Crime Branch, R.K. Puram, New Delhi. Out of these seven witnesses PW-42 Inspector Ishwar Singh is the main witness, as it was he who had received information about kidnapping of Amit Gogia by Brahm Pradhan. He deposed that for the last one or two days he had information that Brahm Pradhan had abducted a person and ransom calls were being made by him. On 22.6.01, during morning hours, he received an information that Brahm Pradhan and his associates may come to the factory of the victim located in Sector, 6, Noida for collection of ransom amount. He informed his senior officers regarding this information. One team consisting of 15- 20 police officers was prepared, under the supervision of Ishwar Singh ACP and HPS Cheema ACP. They all boarded six private vehicles and 20 left for the spot at 11 a.m., after getting arms and ammunition issued. They reached Sector-6, Noida, U.P. He alongwith SI Suresh Kumar, Ct. Dalbir and Ct. Chander Vijay were deputed near B-135, Sector-6, Noida, U.P. They were watching factory of the victim. At about 3.30 or 4 p.m, one Zen Maruti Car bearing registration No. DL-3C1348 was found roaming there in suspicious circumstances. Accused Jitender Singh @ Jitu was driving the vehicle and accused Ajeet was sitting by his side in that car. The car was stopped and both the accused persons were overpowered. Both the accused were taken in police custody and interrogated. They disclosed that Amit Gogia was detained in premises No. B-49, Ghadoli Dairy Farm and they can point out that premises. He passed on this information to other members of the team on wireless set. It was decided that they will meet at Kondli turn. All the members of the police party reached at Kondli turn alongwith both the accused. Accused Jitender Singh @ Jitu was made to sit in a vehicle with tinted glasses and was taken towards the premises No. B-49, Ghadoli Dairy Farm. He pointed out the house. Thereafter he was brought back at Kondli turn. Thereafter police party was divided into two groups, one was to reach the premises at B-49, Ghadoli Dairy Farm and the other was to cordon that house. He, ACP Ishwar Singh, ACP HPS Cheema, Inspector Rajinder Baxi, Inspector K.P. Singh, SI Arvind Kumar, HC Jasbir Singh, ASI Abdul Kadir and Ct. Ajeet were to reach at the premises where victim Amit Gogia was detained and other police officers were to cordon the house in question. They boarded their vehicles and reached near B-49, Ghadoli Dairy Farm. They climbed the stairs and found an iron gate located on the first floor premises, bolted from inside. He pulled the door and it opened. The opening of the door made some noise and firing started from inside. He administered warning to the occupants of the premises, detailing that they were the officers of the Crime Branch of Delhi Police and had reached there for 21 rescue of Amit Gogia and he asked the offenders to surrender but despite that firing continued. He fired in the gallery of the house in retaliation. He alongwith Inspector Rajinder Baxi entered into the gallery of the house while firing from their respective service weapons. Inspector Rajinder Baxi tried to push the door of the front room and he pushed the door of the side room. During that period 2-3 rounds were fired from the side of the offenders prior to the point of time they had pushed the doors of the rooms. When he and Inspector Baxi pushed the door, at that juncture two shots were fired from inside which hit the upper portion of the door. At that time ACP HPS Cheema and HC Jasbir went inside the room for his help. ASI Abdul Kadir also reached there. Brahm Pradhan who was injured at that time was overpowered. One .30 bore pistol was lying by his side. Accused Ashok Pahwa was overpowered by ACP HPS Cheema and one .30 bore pistol was recovered from his possession. Both the accused persons namely Brahm Pradhan and Ashok Pahwa were injured at that time. In the meanwhile he was told by Inspector Rajinder Baxi that in another rooms two offenders were injured in the police firing and victim Amit Gogia was successfully rescued.
18. Police Control Room was informed. PCR van reached there and all the four injured persons were sent to hospital. Accused Jagminder and Sandeep received injuries in the other room. Accused Brahm Pradhan and accused Ashok Pahwa were having bullet injuries on their body. He prepared sketches of the weapons recovered from the possession of accused Brahm Pradhan and Ashok Pahwa. Weapon recovered from the side of Brahm Pradhan was having one cartridge in its chamber and the other weapon was having a cartridge in its magazine were taken out and sketch of these cartridges was prepared. These two weapons were converted into separate parcels and sealed 22 with the seal of "IS" and were taken into possession. Thereafter he was taken to another room by Inspector Rajinder Baxi who handed over him one weapon saying that it was recovered from accused Sandeep. He prepared its sketch. Two live cartridges of 9 mm were produced and sketch was prepared. Pistol and cartridges handed over to him by Inspector Rajinder Baxi were converted into a cloth parcel and was duly sealed and was taken into possession. Inspector Rajinder Baxi also produced .30 bore pistol alongwith a cartridge of the same bore stating that it was recovered from accused Jagminder. Sketch of the pistol and cartridge was prepared and after putting it into a pulanda and sealing with the seal of "IS" it was taken into possession. He searched the other room and recovered four spent cartridges which were put into a cloth parcel and sealed with the seal of "IS" and were taken into possession. These empty cartridges of .9 mm were recovered from gallery which was put into a cloth parcel and after sealing it were taken into possession. When he searched the floor of the room where operation was conducted by him 10 cartridges were recovered, out of those 7 were of .30 bore and 3 were of .9 mm bore. These spent cartridges were converted into a separate parcel and after sealing it were taken into possession.
19. In the meantime, officers of the Crime Branch reached there and further investigation was assigned to the officers posted at Dev Nagar Branch. He prepared rukka and sent it to P.S. New Ashok Nagar through Ct. Dalbir for registration of the case. He prepared a memo of recovery of victim Amit Gogia at the instance of Inspector Rajinder Baxi. His service weapon was taken into possession by Inspector Virender Kumar. During examination-in-chief of this witness case property was put to him and he identified the pistol Ex.P-2 and empty cartridges Ex.P- 3 as the same which was recovered from the possession of accused 23 Jagminder @ Happy, pistol Ex.P-4 and cartridges Ex.P-5/1 to Ex.P-5/4 as the same which were recovered from the possession of accused Sandeep, pistol Ex.P-36 as the same which was recovered from the possession of accused Pahwa, pistol Ex.P-37 and two cartridges Ex.P- 38/1 to Ex.P-38/2 as the same which were recovered from the side of Brahm Pradhan and pistol Ex.P-8 as the same which was his service pistol.
20. PW42 has given the name of accused as Ashok Pahwa whereas correct name is Subhash Pahwa. Ashok and Subhash are common names. Memory of a person fades with passage of time. This wrong mentioning of the first name of the accused is insignificant.
21. Other witness of the Anti-Extortion Cell, Crime Branch i.e. PW-14 SI Abdul Qadir, PW-15 SI Suresh Kumar, PW-29 ACP HPS Cheema, PW-31 Inspector Rajinder Baxi, PW-32 ACP Ishwar Singh and PW-43 Inspector Arvind Kumar deposed almost on the similar lines as deposed by PW-42 Inspector Ishwar Singh.
22. An other important witness whose testimony needs to be discussed at length is PW-34 Inspector Virender Kumar who reached at the spot after the rescue operation of victim Amit Gogia was completed and all the accused persons were apprehended. He deposed that he was posted at Anti Kidnapping Section of Crime Branch Dev Nagar. On the directions of senior officers he reached at B-49, Ghadoli Dairy Farm. At the spot ACP Ishwar Sigh, ACP Cheema, Inspector Ishwar Singh and other police officials met him. Injured had already been shifted to LBS Hospital. Crime Team officers also reached at the spot. He observed that empty shells were lying in the gallery as well as in the two rooms. Blood was also lying on several places. Inspector Ishwar Singh was 24 recording rukka. Eight police officials had used their official weapons to nab the culprits, he seized those official weapons. He put those weapons in separate cloth parcels and put the seal of VK and seized those parcels. Four parcels duly sealed with the seal of IS were given to him by Inspector Ishwar Singh alongwith the recovery memos belonging to accused persons namely Subhash Pahwa, Sandeep Ahlawat and Jagminder Singh. Crime Team officials had lifted chance prints from the spot and spot was also photographed by them. He prepared site plan at the instance of Inspector Ishwar Singh. He lifted blood samples from different places. He also lifted earth control from different places and in total lifted eight sampled from the spot. After putting his seal he took those parcels into possession. SI Arvind handed over to him black strip which was taken into possession. He took bullet pieces lying on different places at the spot into his possession and converted them into a parcel and after putting his seal of VK took them into possession. He took three pieces of bone china and bisleri bottle in his possession. He also took mobile phone SIM card, charger, police uniform, one maruti zen No. DL-4CM-1438, one motorcycle No. DL-5SA-6316 in possession. He took custody of all the four accused persons apprehended from the spot. Accused Lata Vohra and Bijender were arrested by ASI ASI Naresh Kumar. All the accused persons were produced before the Court and taken into police remand upto 26.6.01. He recorded disclosure statement of accused Subhash Pahwa, Sandeep Ahlawat, Jagminder, Prabhat Singh, Jitender Singh and Ajeet Singh.
23. PW 34 also deposed that on the basis of the disclosure statement accused Bijender, police party was led to the parking of Safdarjung Hospital and at his instance a Santro Car No. DL-4CN-5073 was recovered. The key of the vehicle and parking slip was already recovered from the personal search of accused Bijender Singh. He 25 called finger print expert. The vehicle was inspected by the finger print expert and chance prints were taken. The mirror on which chance prints were found was removed and the car was taken into possession.
24. On 25.6.01, he summoned ballistic expert and got the spot inspected. On the directions of ballistic expert the door of the toilet where bullet pieces were found inserted was cut and taken into possession. On 27.6.01 the site plan was got prepared by draftsman SI Mahesh Kumar by calling him at the spot. On 29.7.01, he took into possession to cassettes produced by father of victim. On 13.8.01, accused Sandeep and Jagminder were produced before a doctor at GTB Hospital and their blood samples were taken by the doctor and the samples were preserved and taken into possession. Both the cassettes produced by Sh. Sunil Gogia were played and its transcription was prepared. On 16.8.01 he moved an application to get the voice test of the accused persons done but accused Subhash Pahwa refused for his voice test. On 13.9.01 he obtained sanction of the DCP for prosecution of accused for the offences punishable u/s. 25 of the Arms Act as contemplated in section 39 of the Arms Act. The complaint as contemplated u/s. 195 Cr. PC was filed before ACMM made by DCP Crime and Railways Sh. Mukand Upadhyay. Data of mobile phones used by accused Subhash Pahwa, Jagminder, Sandeep etc. were collected from Airtel Company. Data of mobile used by Sunil Gogia was also collected from Airtel Company and it revealed that accused persons were in constant touch with the phone used by Sunil Gogia from 18.6.01 to 22.6.01.
25. Accused Mukesh and Vijay Pal were absconding and both were declared proclaimed offender in the month of February'02. Accused Vijay Pal was arrested by AATS South West District and he 26 formally arrested accused Vijay Pal in this case. He obtained two days police custody remand of accused Vijay Pal from the Court. He got recovered an identity card of Delhi police constable on which photo of accused Vijay Pal was imprinted from the house of accused Vijay Pal at Dabri Extension. The identity card was taken into possession, victim Amit Gogia and his father Sunil Gogia did not join TIP. He preparred supplementary chargesheet in respect of accused Vijay Pal and filed in Court. The case property was put to the witness and he correctly identified Ex.P-7 to P-14, the service revolvers seized from the possession of the police officials. He also identified the Ex.P-15 to P-22, P-23, P-23/1 and P23/2, and Ex.P24, the parts of the uniform seized from the spot, Ex.P-25/1 to P-25/4, four mobile phones recovered from the spot, Ex.P-26, the piece of cloth recovered from spot, Ex.P-27 a bisleri bottle, Ex.P-28/1 to P28/3, three plates of bone china recovered from spot is also identified, Ex.P-29/1 to P-29/3 , three cartridge cases recovered from the spot, Ex.P-30/1 to P-30/7 containing 7 cartridge cases lifted from the spot by the Ballistic Expert. He further identified Ex.P-31 are the bullet pieces seized from the spot in the presence of Crime Team Officers from the door of the toilet. He also identified Ex.P- 22/1 and P-22/2, two wooden pieces taken from the spot after cutting the door of the last room, Ex.P-33 wooden pieces of lower portion of door, Ex.P-34/1 and P-34/2, two wooden pieces of door having exit and entry mark of bullet. He further identified Ex.P-1 and P-2, the cassettes of T-series given to him by Sunil Gogia.
26. PW36 SI Karan Singh and PW41 ASI Rajbir Singh accompanied IO PW34 Inspector Virender Kr. to the spot. PW41 also joined investigation of this case along with PW34 Inspector Virender Kr. IO on 23.6.01 and 25.6.01. As per him on 5.7.01 on the directions of IO he took exhibits of this case from malkhana of P.S New Ashok Nagar to 27 FSL, Malviya Nagar, but some objections were raised by the CFSL, officials and those pieces could not be deposited there. He deposited those pieces in malkhana in intact condition and entered in daily dairy register to this effect.
27. PW-10 Amit Gogia is the person who was kidnapped on 17.6.01 from the crossing of Pankha Road and was subsequently rescued by the Crime Branch, Delhi Police on 22.6.01 from B-49, Ghadoli Dairy Farm. He was the most important witness in this case for the purpose of prosecution as from the time of his kidnapping on 17.6.01 till his rescue on 22.6.01, he remained amongst the kidnappers and he must have seen and heard the conversation of some of the kidnappers. But this witness has not supported the prosecution at all. PW-10 has deposed that he is running a factory of Electronics manufacturing at B- 135, Sector-6, Noida. On 16.6.01 his wife Shilpa had gone to her parental house at Vikas Puri and from there she was to attend the Ramayan Paath which was to be held in the house of Smt. Lata Vohra, her mother's friend. On 17.6.01 at about 10.30 or 11 a.m he was going in his Santro Car No. DL-4CM-5073 in the house of Smt. Lata Vohra to pick his wife Shilpa, where Bhog of Ramayan Paath was to be held. When he reached at the crossing of Pankha Road at about 11 a.m, one Maruti Zen, number of which he do not remember and one motorcycle rider came from back side and overtook his car. The Zen Car also hit his car from back. Before he could react, occupants of the Zen Car stopped him after coming in his front. Three persons from the Zen car stepped down and one or two out of them showed him the identity card of police. Before he could react two of them dragged him on the back seat of his car and put revolvers on his both sides. Third person sat on the driver seat of his car and started driving it. They got his head down in the car. They also threatened him not to speak or make any alarm 28 otherwise they will shoot him. They drove his car for about half an hour. He does not know where he was taken. After about half an hour they changed the vehicle and again he was made to sit in the same car by which they had hit back of his car. When he was shifted to an other car a patti was tied on his eyes. Thereafter he was made to sit in the corner of a room. He was made to sit there for long periods and he was hearing the voice of 3-4 persons. He was being escorted by two persons as and when he was required to ease himself. One day one person told him that he was being taken to be released and he was taken to some unknown place. There also he was made to sit in the corner of the room and was threatened continuously. Later on, one person again assured him that he will be definitely released today. After 2 or 3 days he heard the noise of the police officials, those officials were giving warning that they have surrounded them from all sides and asked them to come out. Thereafter bullet firing took place for 2-3 minutes. He heard the noise of hue and cry. Police came there and removed strip from his eyes. He was too much perplexed to see any person except the police. He was taken to PHQ where News conference was held. His father was also present there. He was taken to his residence by his father. Next day of his release he had gone to P.S. Dev Nagar and he had accompanied the police to the place from where he was kidnapped. He pointed out the place. He was declared hostile and cross-examined by Ld. Addl. PP for state. Despite elaborate cross-examination Ld. APP has failed to bring anything favourable to the prosecution case on record regarding identification of the accused persons.
28. It is one of the main contention raised by the accused persons that there are major contradictions in the statements of the officials of the crime team regarding the manner in which rescue operation was conducted at H.No. B-49, Ghadoli Dairy Farms, which 29 raises serious doubts regarding the authenticity of the version of incident as deposed by various police officials. On perusal of the testimonies of the members of the team of the police officials which raided the premises certain contradictions are apparent. The relevant point to be considered is whether these contradictions are major putting shadow of doubt on the entire rescue operation or veracity of these witnesses. PW42 Inspector Ishwar Singh has deposed that while entering into the premises he asked the offenders to surrender but they filed upon them. He along with PW31 Inspector Rajender Bakshi entered the gallery of the house while firing from their respective service weapons. He and Inspector Baxi pushed the door and at that time two shorts were fired from inside. PW 29 ACP HPS Cheema, HC Jasbir and PW14 ASI Abdul Kadir also reached there. Brahm Pradhan was overpowered and was injured at that time and accused Subhash Pahwa was overpowered by ACP HPS Cheema and one .30 bore pistol was recovered from his possession. He was told by PW31 that in other room two offenders got injured in the police firing and Amit Gogia was successfully rescued. It is important to mention here that this witness has nowhere deposed about the presence of accused Prabhat or his apprehension. However PW31 Inspector Rajender Bakshi deposed that PW42 Inspector Ishwar Singh pushed the door and the bolt got broken and accused Jagminder started firing from inside the house. PW29, PW42 entered the left side room returning the fire. PW42, he and Inspector K.P. Singh, ASI Brahm Prakash, HC Satish and PW43 SI Arvind Kumar entered the front room from the gallery by breaking the door. Accused Jagminder and Prabhat were having weapons in their hands and were firing at the police party. They also returned fire and apprehended accused Jagminder, Prabhat and Sandeep. As per PW31, PW42 Inspector Ishwar Singh simultaneously entered in both the rooms which is quite impossible. Probably the team comprised ACP Ishwar Singh and Inspector Ishwar 30 Singh, due to this reason he fails to name the proper person while deposing. As per PW 42, he and PW31 pushed the door whereas as per PW31 it was only PW42 who pushed the door.
29. PW14 ASI Abdul Kadir and PW15 ASI Suresh Kr. who were members of the raiding party has not disclosed the details of the raid. Their testimonies are also silent to the effect that which police officer stormed which room.
30. PW29 ACP Cheema is other important prosecution witness. He deposed that as soon as they entered the said premises they found themselves in a gallery. There was one room at one side and other room in front of it. As soon as they took their positions fire was opened at them from front room. Inspector Ishwar Singh administered warning informing the occupants of the house that they are from crime branch. Fire also came from room. PW32 ACP Ishwar Singh and PW31 Inspector Rajender Bakshi pushed the door of the front room with great force. He, PW42 Inspector K.P. Singh and PW14 entered the side room. He overpowered accused Subhash Pahwa. Accused Brahmn Pradhan tried to snatch revolver from possession of HC Jasbir and at that juncture exchange of fire took place and Brahm Pradhan sustained injuries. The testimony of PW42 Inspector Ishwar Singh and other police officials who raided the premises is silent to the effect that Brahm Pradhan tried to snatch revolver from possession of HC Jasbir and sustained injuries in exchange of fire in that juncture.
31. There are some contradictions in the statements of PW32 ACP Ishwar Singh and PW42 Inspector Ishwar Singh regarding the details of the raid conducted by the police team. As per PW32 when they entered the gallery accused Jagminder fired a shot at PW42 from 31 the pistol kept in his right hand. Whereas PW42 has nowhere stated if any fire was aimed at him by accused Jagminder. He has only stated that shots were fired during incident.
32. These are the only contradictions which has come to light on detailed scrutiny of the statements of these police officials. It is important to keep in mind while appreciating the statements of these witnesses that almost 8 police officials has aided the premises, which is a very small house on the first floor. The entire operation must have happened in few minutes. With this background, to my mind it is not possible for a police official who is member of a team to tell with precision that what act was done by which police official. It was not a film script wherein a specific role has been assigned to each and every police official of the raiding party. Under the circumstances as discussed above, it is apparent that police officials must have acted and reacted to the need of the hour and after lapse of 4-5 years it is not expected from police officials to give the minute details of the raid. To my mind these are minor contradictions which deserves outright rejection.
33. Regarding the apprehension of the accused persons the testimonies of these witnesses are consistent to the effect that accused Subhash Pahwa and Brahm Pradhan were in one room and other room was occupied by accused Jagminder, Sandeep and Prahlad. Almost all these witnesses were unanimous in their statements that accused Subhash Pahwa was apprehended by PW29 ACP HPS Cheema. On the broader details of the raid, which led to gunning down of Brahm Pradhan and apprehension of 4 accused namely Jagminder, Subhash Pahwa, Sandeep Ahlwat and Prabhat, the testimonies of these police officials are consistent and corroborate each other.
3234. The other contention raised by accused persons is that the said operation was stage managed, police wanted to kill Brahm Pradhan and all the other accused were already in the custody of the police and to cover up their illegal act of killing Brahm Pradhan, Crime Branch has concocted this false story. Now I am going to discuss the circumstantial evidence brought on record by the prosecution to prove genuineness of the said rescue operation.
35. Ex.PW2/A is the site plan/map prepared by PW2 SI Mahesh Kumar, Draftsman, Crime Branch showing various bullet marks on wall and doors of the premises which goes to prove that heavy exchange of fire took place between the accused persons and the police party.
36. Ex.PW25/A is the report of Sh. K.C. Warshney , Sr. Scientific Officer (Ballistics), Forensic Science Laboratory, Delhi, on 26 parcels containing the service weapons of the police officials, illicit weapons stated to have been recovered from the possession of the accused persons, the empty shells of the cartridges recovered from the spot and pieces of wooden boards having bullet mark holes. Before appreciating this report it is required to be seen the kind of weapon, carried by the police officials and recovered from possession of the accused. As per IO PW 34 total 8 weapons of the police officials were seized. Out of these 8 police officials ACP HPS Cheema, ACP Ishwar Singh and Inspector Ishwar Singh were carrying service pistol of 9mm. All the other 5 police officials who participated in the raid were having revolvers of .38 bore.
37. Now let us see the weapons recovered from Brahm Pradhan and other accused persons. As per PW14/C .30bore pistol with two live cartridges was recovered besides Brahm Pradhan. As per PW14/D .30 33 bore pistol was recovered from possession of accused Subhash Pahwa. As per Ex.PW31/C 9mm pistol was recovered from the possession of accused Sandeep. As Per Ex.PW31/D .30 bore pistol was recovered from the possession of accused Jagminder.
38. Ex.PW2/B pertains to recovery of 10 fired cartridges recovered from the left hand side room. Out of these cartridges, 7 are .30 bore and 3 fired cartridges are of 9mm. As per Ex.PW42/A, 3 fired cartridges were recovered from gallery of the first floor. As per Ex.PW34/E four fired cartridges were recovered from the front room in the premises. The report Ex.PW25/A proves that service weapons of the police officials and weapons recovered from the possession of accused Jagminder, Subhash and Sandeep were used. It is specifically mentioned in the report that the recovered fired cartridges were fired through pistols.
39. PW19 Satbir Singh is resident of D-52/53, Ghadoli Dairy Farm. He has deposed that on 22.6.01 at about 4.15 p.m he heard the noise of firing and went near H.No. B-49, Ghadoli Dairy Farm. Police came there and he came to know that one person was released by the police from the custody of miscreants. PW19 is an independent neutral witness . His testimony further supports the prosecution version that actually police party conducted raid and an exchange of fire took place between the police and the accused persons.
40. PW10 is Amit Gogia which was kidnapped and rescued by the police party from B-49, Ghadoli Dairy Farm. This witness has neither identified the persons who kidnapped him from Pankha Road nor the persons who kept him captive at B-49, Ghadoli Dairy Farm. After declaring this witness hostile prosecution has cross-examined him.
34During his cross examination he has deposed that at about 2-3pm he heard the voice of police officials who were giving warning that they had surrounded them from all sides and police further asked them to came out. Thereafter bullet firing continued for 2-3minutes. He also heard noise of hue and cry. Police came there and removed the cloth tied on his eyes and the witness further deposed that at that time he was to much perplexed that he could not see any person except the police. Though PW10 has failed to identify any of the accused persons as the perpetrators of crime against him but he has supported the prosecution version in clear words that police officials had given warning to accused persons to come out and exchange of fire took place at the premises which led to his rescue.
41. Ex.PW5/B is the report of Finger Print Bureau matching chance finger prints lifted from spot i.e. B-49, Ghadoli Dairy Farm and Santro car of the victim Amit Gogia, with the sample finger prints of the accused persons. The entire prosecution case is silent that when and of which accused sample finger prints were taken to match with the chance prints lifted from the site. Thereby, the report Ex.PW5/B is not being considered.
42. The facts and circumstances discussed above speaks volume about the genuineness of the rescue operation conducted by the police. It also stands established that accused persons were armed with pistols and they were determined to execute the criminal conspiracy planned by them. The recovery of police uniforms vide memo Ex.PW34/H from the spot i.e. B-49, Ghadoli Dairy Farm also give credence to the prosecution story that Amit Gogia was kidnapped from Pankha Road by showing him forged police identity cards by the accused persons. The factum of kidnapping, recovery of the victim and 35 demand of ransom stand fully established from the evidence led by the prosecution.
43. In the background of the various facts and circumstances discussed above, I am proceeding to decide case of each accused serial-wise on the strength of prosecution evidence and the defence taken by him.
JAGMINDER SINGH @ HAPPY
44. Against this accused PW-14 ASI Abdul Qadir has deposed that this accused was apprehended from spot. PW-29 ACP HPS Cheema has deposed that this accused with Sandeep and Prabhat was arrested from other room. PW-31 Inspector Rajinder Baxi has deposed that this accused was having a gun in his hand and was firing at the police party. A .30 bore pistol was recovered from him. He identified Ex.P-2 the pistol and Ex.P-3 the cartridge recovered from this accused. PW-32 ACP Ishwar Singh deposed that when they entered gallery this accused opened fired at Inspector Ishwar Singh. Accused tried to run and was overpowered with .30 bore pistol. PW-42 Inspector Ishwar Singh deposed that accused received injuries in the other room. PW-43 Inspector Arvind Kumar deposed that accused was having arm in his hand. One pistol made in Pakistan was recovered from him. During his cross-examination this witness stated that when they tried to enter into the room this accused tried to close the door.
45. The statements of all the prosecution witnesses are consistent that accused fired at the police party which had reached there to rescue Amit Gogia. Accused has cross-examined all the prosecution witnesses but nothing worth mentioning has come on record either to 36 discredit the testimony of that particular witness or to prove innocence or false implication in this case.
46. In his statement recorded u/s. 313 Cr. PC accused has taken the defence that on 21.6.01 he had gone to workshop of Subhash Pahwa to get his vehicle repaired, some police officials came there in civil dress, they started beating Subhash Pahwa and he intervened and he was given one or two fist blows by Inspector Ishwar Singh. On 22.6.01, he was taken to Mayur Vihar Phase-III and thereafter he and Subhash Pahwa were arrested in this case. In his defence accused has also examined DW-3 Dr. Sanjay Kumar Bansal, who deposed that on 19/20.6.01 he was getting the A/C of his car repaired at Kailash workshop, some altercation took place between two police officials in uniform with some other persons on one hand and accused Subhash and Jagminder on the other hand. They took both the Jagminder and Subhash with them. There is contradiction regarding date of the alleged incident in the statement of accused recorded u/s. 313 Cr.PC and statement of DW-3. This fact itself shows that DW-3 is a tutored witness. The other defence taken by accused in his written submissions is that he was falsely arrested by the police as he had the knowledge of fake encounter done by the police officials and police does not want that any person should depose against it regarding the fake encounter. How and where accused happened to see the alleged false encounter and how he happened to be there, has no where been explained by the accused. Accused has thereby failed to establish the defence taken by him.
47. In view of the evidence discussed above it stands established beyond reasonable doubt that accused under criminal conspiracy with the other co-accused, kidnapped Amit Gogia for ransom on 17.6.01 and 37 held him captive at B-49, Ghadoli Dairy Farm from where he was successfully rescued by the police on 22.6.01. It also stands established beyond reasonable doubt that he was found in possession of illicit arm i.e. Ex.PW31/D and this arm was used by him against the police party which had come there to get the victim Amit Gogia rescued in discharge of their duties. It further stands established that accused being armed with illegal weapon fired on the police party with the intention or knowledge that the fire done by him may prove fatal for any police official. Offences u/s. 120B/364A read with section 120 B IPC, u/s. 343 read with section 120B, offences u/s. 307/353/34 IPC and 27 Arms Act stands established against the accused.
SANDEEP AHLAWAT
48. Against this accused PW-31 has deposed that he apprehended this accused alongwith other accused Jagminder and Prabhat. He identified pistol Ex.P-4 and cartridges Ex.P-5/1 to PW5/2 recovered from this accused. PW-32 ACP Ishwar Singh has deposed that accused was overpowered with 9 mm pistol. PW-42 Inspector Ishwar Singh has deposed that accused received injuries in the other room. PW-43 Inspect Arvind Kumar has deposed that accused was having arm in his hand and he was in possession of an Italian pistol with one cartridge in its chamber.
49. During his cross-examination PW42 ACP Ishwar Singh has stated that he was having 9 mm pistol with him with 10 live cartridges. None from public was joined in the raiding party. He has stated that accused Jagminder @ Happy was arrested from the spot alongwith other three accused persons in his presence. PW-42 Inspector Ishwar Singh during his cross-examination by this accused has stated that 38 before conducting the raid no public witness was joined. The dimension of the room was 13 by 14 feet and when they opened the door, one or two shots were fired on them. He cannot specify as to whose bullet hit Brahm Pradhan. Similarly PW-43 Inspector Arvind Kumar was cross- examined by this accused at length. During his cross-examination PW- 43 has specifically stated that when room was lying opened accused Sandeep alongwith co-accused Jagminder fired from the front room. Accused Sandeep had fired one shot when accused Jagminder had fired many shots on the police. Accused Prabhat and accused Jagminder sustained bullet injuries in the legs. He denied the suggestion that accused Sandeep was lifted from his house and was framed in this case after causing injuries on his person. Despite elaborate cross-examination of these police officials, accused has failed to bring on record any contradictions in their statements.
50. During his statement recorded u/s. 313 Cr. PC the accused has taken the defence that on 22.6.01 at about 10/11 a.m. two policeman came to his house who were in civil dress and they took him alongwith them to P.S New Ashok Nagar. They enquired from him about Brahm Pradhan and framed him in this case. In his defence evidence accused has examined DW-6 Sh. Satya Bhan Singh. Without giving the specific date in his deposition he told the same story as stated by accused in his statement recorded u/s. 313 Cr.PC. In addition to that this witness has stated that the police people had told him that they were taking accused Sandeep to P.S. Uttam Nagar and after sometime he and his brother went to P.P. Uttam Nagar where they came to know that accused was not called there for interrogation.
51. If accused was illegally taken away by the police officials then why no complaint in this regard was made with P.S. Uttam Nagar. It is 39 also nowhere disclosed by the accused that how and where the injuries sustained by him were allegedly inflicted by the police officials. The defence taken by accused clearly is an afterthought.
52. In view of the evidence discussed above it stands established beyond reasonable doubt that accused under criminal conspiracy with the other co-accused, kidnapped Amit Gogia for ransom on 17.6.01 and held him captive at B-49, Ghadoli Dairy Farm from where he was successfully rescued by the police on 22.6.01. It also stands established beyond reasonable doubt that he was found in possession of illicit arm i.e. Ex.PW31/C and this arm was used by him against the police party which had come there to get the victim Amit Gogia rescued in discharge of their duties. It further stands established that accused being armed with illegal weapon fired on the police party with the intention or knowledge that the fire done by him may prove fatal for any police official. Offences u/s. 120B/364A read with section 120 B IPC, u/s. 343 read with section 120B, offences u/s. 307/353/34 IPC and 27 Arms Act stands established against the accused.
ACCUSED SUBHASH CHANDRA
53. This accused was active participant in the criminal conspiracy hatched amongst the accused persons to kidnap Amit Gogia for ransom. PW-8 Sh. Rajeev Singh is the Landlord of the premises No. B-49, Ghadoli Dairy Farm where rescue operation was done by the police. He deposed that he is the owner of this house and he asked Pramod Kumar who was working as property dealer to give his house on rent for Rs.2500/- per month. On 19.6.01, Pramod arranged his meeting with tenants Mukesh and Subhash. He handed over the keys of his house to Pramod and Rs.5000/- was given in advance to him. PW-8 has correctly 40 identified accused Subhash as the same person to whom this premises was rented out. The testimony of this witness goes unchallenged as he was not cross-examined by any accused despite due opportunity.
54. PW-14 ASI Abdul Qadir has deposed that accused was apprehended from spot. PW-29 ACP HPC Cheema has deposed that he overpowered this accused. PW-32 ACP Ishwar Singh has stated that accused Subhash was arrested from other room. IO of the case PW-34 Inspector Virender Kumar has stated that accused refused for his voice test when produced before the Court. PW-42 Inspector Ishwar Singh has stated that ACP Cheema has overpowered this accused and one .30 bore pistol was recovered from his possession.
55. This accused has cross-examined all the prosecution witnesses material as well as formal, but he has failed to bring anything on record either proving contradiction in the statement of witnesses or which may help him in establishing his defence. During his statement u/s. 313 Cr. PC accused has taken the defence that he used to deal in sale/purchase of old cars. He was having his workshop at Bare Sarai. Inspector Ishwar Singh used to sent his vehicle for repair and never paid money for that. On 20.6.01 Maruti Zen of Inspector Ishwar Singh came in his workshop for repair of A/C, he repaired it and its bill was Rs.9000/-. When his constable came for delivery of the vehicle he demanded money. He was abused and vehicle was taken away by the constable. In the evening hours Inspector Ishwar Singh came to his shop, started abusing him. He told Inspector Rajender Baxi that he will lodge a complaint against Inspector Ishwar Singh. On 21.6.01, he was called at Crime Branch, R.K. Puram but he did not go. At about 3 p.m, he was going to his workshop and at Red Light, Village Jiya Sarai, two constables met him and told him that Inspector Ishwar Singh is calling 41 him. He brought them to his workshop. In the meantime Inspector Ishwar Singh also reached there. The constables assaulted him. Jagminder @ Happy was sitting in his workshop. They both were put in the police gypsy and were taken to R.K. Puram and after 1½ hours they were taken to P.S. New Ashok Nagar and beaten there. From there he was taken to hospital and framed in this case.
56. This accused has examined two witnesses. DW-3 Dr. Sanjay Kumar Bansal whose testimony has already been discussed earlier while appreciating evidence against accused Jagminder. DW-4 Sh. Satnam Singh deposed that on 20.6.01 he noticed that there were two police officials in uniform and 2-3 in civil dress. Some conversation was going on between accused and police officials and after sometime they took away accused with them. During cross-examination of Inspector Ishwar Singh who was examined as PW-42, only this suggestion has been given by the accused that he was lifted from his workshop at Jiya Sarai, New Delhi. The other part of the alleged story as told by this accused during his statement u/s. 313 Cr. PC and by DW-3 and DW-4 has no where been put or suggested to this witness during his cross- examination. It shows that defence taken by accused is an afterthought.
57. In view of the evidence discussed above it stands established beyond reasonable doubt that accused under criminal conspiracy with the other co-accused, kidnapped Amit Gogia for ransom on 17.6.01 and held him captive at B-49, Ghadoli Dairy Farm from where he was successfully rescued by the police on 22.6.01. It also stands established beyond reasonable doubt that he was found in possession of illicit arm i.e. Ex.PW14/D and this arm was used by him against the police party which had come there to get the victim Amit Gogia rescued in discharge of their duties. It further stands established that accused 42 being armed with illegal weapon fired on the police party with the intention or knowledge that the fire done by him may prove fatal for any police official. Offences u/s. 120B/364A read with section 120 B IPC, u/s. 343 read with section 120B, offences u/s. 307/353/34 IPC and 27 Arms Act stands established against the accused.
PRABHAT SINGH
58. Against this accused PW-31 has deposed that he was having gun in his hand and was fired at the police party. A 9 mm pistol was recovered from him. However, during his cross-examination PW-31 has stated that nothing was recovered from this accused. PW-32 ACP Ishwar Singh has deposed that this accused was apprehended from same room with Jagminder and Sandeep. PW-42 Inspector Inshwar Singh has not named this accused during his examination-in-chief but during his cross-examination he has stated that nothing was recovered from possession of accused Prabhat. PW-43 Inspector Arvind Kumar has deposed that accused was present in the room with co-accused Sandeep and Jagminder and was empty handed.
59. PW-29 ACP HPS Cheema has deposed that accused Jagminder @ Happay alongwith two other offenders sustained injuries in the exchange of fire and later on names of the offenders revealed as Sandeep and Prabhat.
60. Statements of all the police officials are consistent regarding apprehension of the accused from the spot i.e. B-49, Ghadoli Dairy Farm at the time of the rescue operation. Only a minor contradiction has come up in the statement of PW-31 as during his examination-in-chief he has deposed that 9 mm pistol was recovered from the accused whereas during his cross-examination he has clarified that nothing was 43 recovered from this accused. Even as per the prosecution case there was no recovery of any arm from the possession of this accused. To my mind the contradiction in the statement of PW-31 is very minor and needs no consideration.
61. During his statement u/s. 313 Cr. PC accused has taken the defence that he was lifted from his father's sister's house located at Moti Bagh on 22.6.01 at about 11 a.m. He was question whether Mukesh was known to him and he answer in affirmative. Mukesh is son-in-law of his father's sister and he was taken away by the police and framed in this case. In his defence evidence he has examined DW-7 Amit who is son of maternal uncle, he deposed that on 22.6.01 accused came to his house. At about 8 p.m. two persons came in civil dress and enquired about Prabhat. They took away Prabhat with them. On following day he came to know that accused Prabhat was implicated in a case. During cross-examination he stated that he did not lodge any complaint to any authority concerning lifting of accused Prabhat by the officers of the Special Staff. The conduct of this witness appears abnormal, if his cousin i.e. accused Prabhat was taken away by the police without any reason from his house then why he did not enquire about him or lodge any complaint against it.
62. As per accused, during his statement u/s. 313 Cr. PC he was lifted from his father's sister's house at 11 a.m whereas as per PW-7 accused was lifted from his house by the police officials at 8 p.m. This contradiction in the time when accused Prabhat was allegedly lifted from his father's sister's house shows that defence taken by accused deserves outright rejection being ill founded.
63. In view of the evidence discussed above it stands established 44 beyond reasonable doubt that accused under criminal conspiracy with the other co-accused, kidnapped Amit Gogia for ransom on 17.6.01 and held him captive at B-49, Ghadoli Dairy Farm from where he was successfully rescued by the police on 22.6.01. It further stands established that accused sharing common intention with his co-accused namely Jagminder, Sandeep Ahlawat and Subhash Chandra who were armed with illegal weapon fired on the police party with the intention or knowledge that the fire done by him may prove fatal for any police official. Offences u/s. 120B/364A read with section 120 B IPC, u/s. 343 read with section 120B and offences u/s. 307/353/34 IPC stands established against the accused.
JITENDER @ JEETU AND AJEET SINGH
64. Both these accused persons are similarly placed as far as the case of the prosecution against them is concerned. As per PW-42 Inspector Inshwar Singh he alongwith PW-15 SI Suresh Kumar and other two police officials were deputed near B-135, Sector-6, Noida, U.P., where Brahm Pradhan and his associates were expected to come for collection of ransom amount. At about 3.30 or 4 p.m. one Zen Maruti Car having Registration No. DL-3C-1348 was found roaming there in suspicious circumstances. Accused Jitender Singh @ Jeetu was driving the vehicle. He was made to stop the car and was over powered. Accused Ajeet was sitting in the car by his side. They were taken in police custody and interrogated. They disclosed that Amit Gogia was detained in premises No. B-49, Ghadoli Dairy Farm and pointed out that premises. During his cross-examination PW-42 has stated that it is not mandatory to obtain permission from higher officers to conduct raid in NCR Zone. He stated that local police was not informed.
4565. PW-15 SI Suresh Kumar deposed that he was with Inspector Ishwar Singh at B-135, Sector-6, Noida. Both these accused persons were roaming there several times in Maruti Zen No. DL-4CM-1438 of while colour. During his cross-examination PW-15 stated that accused Jitender was driving the car. Statements of both these witnesses are consistent except minor variation in the car number mentioned by them. Both has been cross-examined by the accused persons but nothing has come on record either to discredit these witnesses or to create doubt about their movement at that relevant time around in Sector-6, Noida near factory premises No. B-135.
66. The defence taken by accused Jitender during his statement u/s. 313 Cr. PC is that he was lifted form his house on 22.6.01 and taken to Crime Branch Office and was framed in this case. Almost similar is the defence taken by accused Ajeet Singh stating that he was lifted from the premises No. K-106, Krishna Park, Tilak Nagar and was framed in this case. In defence evidence both these accused has examined DW5 Sh. Sanjay Kishore Sharma. This witness has deposed that Jitender is his neighbourer and accused Ajeet is his driver. He used to go to his office at K-106, Krishna Park Extension, Tilak Nagar at 9.30 a.m daily. On 22.6.01 at about 10 a.m. he noticed that two police officials in uniform and four in civil dress and both these accused persons were taken by them. On asking accused Jitender told him that he was being taken for interrogation. Accused persons were taken in two Maruti Zens and next day he came to know through newspaper about the kidnapping case. During cross-examination DW-5 has stated that he did not lodge any complaint against any authority concerning, lifting of the accused persons by the police in his presence.
67. From the statements of PW-9 Suniol Kumar Gogia, father of 46 Amit Gogia and PW-10 Amit Gogia himself, it is clear that there was demand of huge ransom amount for release of Amit Gogia. As per the prosecution case PW-42 Inspector Ishwar Singh was having information that a ransom amount will be paid to Brahm Pradhan at factory of victim i.e. B-135, Sector-6, Noida. As already discussed PW-42 Inspector Ishwar Singh, PW-15 SI Suresh Kumar, both officers of Anti-Extortion Cell, Crime Branch alongwith other two police officials had taken position near B-135, Sector-6, Noida. There both these accused were found roaming in Zen Maruti Car No. DL-3C-1348 in suspicious circumstances. From there they were apprehended, interrogated and they led the police party to the premises No. B-49, Ghadoli Dairy Farm from where the victim Amit Gogia was rescued after the police operation.
68. In the case of Suman Sood @ Kanwaljit Kaur (Supra), the Apex Court has observed that essence of conspiracy is that there should be an agreement between persons to do one or other act described in the section and the said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. The conspiracy can be established by direct evidence or by circumstantial evidence. In Kehar Singh Vs. State ( Delhi Administration), AIR 1988 SC 1883, the Apex Court has observed that generally a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same, however, there should be some kind of physical manifestation of agreement.
69. The presence of the accused around B-135, Sector-6, Noida under suspicious circumstance, their disclosure and pointing out of B-49, Ghadoli Dairy Farm from where victim Amit Gogia was recovered after exchange of fire between the accused persons available there and the 47 police party, is enough circumstantial evidence to establish that both these accused persons were part and parcel of the criminal conspiracy under which accused Amit Gogia was kidnapped for ransom and was held captive at B-49, Ghadoli Dairy Farm. As father of the victim Sh. Sunil Kumar was expected to give ransom money to accused persons, it was due to this reason both these accused were found roaming around B-135, Sector-6, Noida.
70. In view of the aforesaid reasons it stands established beyond reasonable doubt that both these accused were under criminal conspiracy with the other accused persons and has kidnapped Amit Gogia on 17.6.01 and held him captive at B-49, Ghadoli Dairy Farm. Thereby offences u/s. 120B/364A read with section 120B and u/s. 343 read with section 120B IPC stands established against both these accused persons.
BIJENDER @ DHILE
71. The case of the prosecution against this accused is that he was sharing criminal conspiracy with his father Brahm Pradhan and other accused persons. Under this criminal conspiracy Amit Gogia was kidnapped on 17.6.01 and was held captive at B-49, Ghadoli Dairy Farm. After the rescue operation, on the basis of the disclosure statement made by four accused persons arrested from there this accused was apprehended with co-accused Lata Vohra from the area of Chanakya Puri and at his instance the Santro car of victim Amit Gogia was recovered from the parking of Safdarjung Hospital.
72. PW-21 ASI Naresh Kumar deposed that he was posted at Interstate Crime Cell, Chanakya Puri on 22.6.01. ACP Ravi Shankar 48 gave him directions to nab abductors who will go to Uttam Nagar via 11 Murti from Connaught Place, New Delhi at about 5 p.m in vehicle No. DL-2CN-9914. He formed a raiding party consisting of PW-27 Ct. Sanjivan and other police officials. At about 5 p.m. the said car came from the side of Blind Hospital, it was made to stop. Accused Bijender was driving it and accused Lata was sitting on the back seat. Lady HC Jyoti was summoned who conducted personal search of accused Lata. Personal search of accused Bijender was conducted and vehicle was seized. From there accused and vehicle were taken to P.S. New Ashok Nagar and handed over to Inspector Virender of Crime Branch. During his cross-examination PW-21 failed to identify accused Bijender and he wrongly identified accused Prabhat Singh as Bijender.
73. PW-27 HC Sanjivan deposed similar facts leading to apprehension of this accused. PW-27 deposed that after apprehension of the accused persons they left them in the police station and returned to their office. During his cross-examination PW-27 has stated that he had stated before the IO that informer came in the office of Crime Branch at Chanakya Puri and informed the Inspector that persons who belong to the team of Brahm Pradhan and had kidnapped Ajeet Jogi will come that day.
74. Statements of PW-21 and PW-27 are in contradiction to each other on many aspects. Firstly as per PW21 oral instructions were given to him by ACP Ravi Shankar to nab the abductors whereas as per PW- 27 informer had come in the office of Crime Branch, Chanakya Puri and informed the inspector. PW-27 is also not sure about the name of the person kidnapped by the gang of Brahm Pradhan. Secondly, as per PW-21 directly from the spot both the accused and the car were taken to Police Station New Ashok Nagar and handed over to Inspector Virender 49 of Crime Branch, whereas as per PW-27 they brought both the accused to the police station.
75. PW-34 Inspector Virender Kumar has deposed that accused Lata Vohra and Bijender were arrested by ASI Naresh Kumar. In pursuance of disclosure statement of accused Bijender, police party was led to the parking of Safdarjung Hospital and at his instance a Santro car No. DL-4CN-5073 was recovered.
76. PW-13 Rajinder was employed as attendant in the parking lot of Safdarjung Hospital. He deposed that on 24.6.01 police officials alongwith two more persons had come to the said parking place and enquired about one car. He told them that the car in question was lying parked there for about one week. The two public persons who were accompanying the police had not told anything about the car in his presence. PW-13 failed to identify any of those public persons who accompanied to the police out of the accused persons present in the Court. He was declared hostile and cross-examined by Ld. APP. During his cross-examination he denied the suggestion that accused Bijender is the same person who had come in the parking alongwith the police.
77. The very basis of the apprehension of this accused alongwith co-accused Lata Vohra i.e. the secret information received by ACP Ravi Shankar (as deposed by PW-21), is under shadow of doubt. As per PW-21 they apprehended the car driven by accused Bijender at 5 p.m on 22.6.01. Though exact timing of the rescue operation done by the police at B-49, Ghadoli Dairy Farm has not been disclosed by any of the police official who participated in the rescue operation but as per PW-42 accused Jitender and Ajeet were apprehended at about 3.30/4 p.m. from sector 6 Noida. They were interrogated and they pointed out B-49, 50 Ghadoli Dairy Farm to the police where rescue operation was conducted by the police. Even presuming all these events may have happened in quick succession but at least police must have taken an hour to complete this operation. It is the case of the prosecution that accused persons who were apprehended from the spot in injured condition were taken to the Hospital. On one hand police was busy in the rescue operation at B-49, Ghadoli Dairy Farm at about 5 p.m and on the other hand police also had information that accused Bijender and Lata Vohra who are members of Brahm Pradhan gang will pass through 11 Murti, Chanakya Puri. The timing of the apprehension of this accused alongwith Lata Vohra creates serious doubts on the prosecution story. Moreover, PW-21 ASI Naresh Kumar and the parking attendant PW-13 Rajinder has failed to identify this accused.
78. As already discussed the conspiracy is always hatched in secrecy but prosecution is required to bring some evidence to establish agreement between the conspirators and doing of some overt act by the alleged conspirators to fulfill their objective. It was through recovery of the car on the behest of this accused, which was driven by Amit Gogia at the time of his kidnapping, prosecution want to link this accused with the conspiracy. As the recovery of car of the victim at the behest of this accused remains unproved, in my opinion, prosecution has failed to prove guilt of this case beyond reasonable doubt.
LATA VOHRA
79. The prosecution case against this accused is that she was part and parcel of the conspiracy to kidnap Amit Gogia for ransom and acting under this conspiracy she arranged Ramayan Paath in her house and pressed Smt. Shilpa Gogia wife of victim Amit Gogia to call Amit 51 Gogia to attend the function at her house on 17.6.01. It was on 17.6.01 when Amit Gogia was coming to the house of this accused, he was kidnapped on the way. This accused is also stated to be close to Brahm Pradhan and she had offered to mediate between Sh. Sunil Gogia, father of Amit Gogia and Brahm Pradhan to settle the ransom demand.
80. PW-9 Sunil Gogia was declared hostile and cross-examined by the prosecution. During his cross-examination he has admitted that in his statement on 20.6.01 he has told that Lata Vohra had given her telephone number to him. He further admitted that on telephone Lata Vohra had told him that Brahm Pradhan was well known to her and that she will get his son released after contacting the kidnappers. PW-9 however denied the suggestion that Lata Vohra is the same lady who had got settled the amount of ransom of Rs.5 crores to Rs.2 crores in connivance with Brahm Pradhan.
81. PW-12 Smt. Shilpa Gogia wife of Amit Gogia has deposed that Lata Vohra used to visit her parental house being a kitty member. On 16.6.01 she had gone to her parental house to live with her mother. One week prior to the occurance Lata Vohra had invited her on telephone to attend Ramayan Paath on 16.6.01. On 17.6.01 her husband made a call to her telling that he is coming to take her to her matrimonial house. When her husband did not come for about two hours, she made a call at her matrimonial house to know about the whereabouts of her husband and her in-laws told her that her husband had already left. She also made a telephone call on the mobile of her husband but there was no response. She was declared hostile and cross-examined by Ld. APP. During cross-examination she admitted that she had come to her parental house on 16.6.01 and thereafter she had attended the Ramayan Paath held by Lata Vohra. She also 52 admitted that next day at about 11 a.m Amit made her a call informing that he was on the way and likely to reach at Vikas Puri within 10-15 minutes. PW-12 Smt. Shilpa denied the suggestion that accused Lata Vohra had asked her parents as well as her father-in-law that she was well known to Brahm Pradhan and she can get Amit released after entering into negotiations with those criminals and will also get settled the ransom amount. However, she admitted during cross-examination that on 22.6.01 in night hours Amit had returned to the house without any harm.
82. As already discussed prosecution has failed to prove the apprehension of this accused alongwith accused Bijender @ Dhile from Chanakya Puri on 22.6.01 at about 5 p.m by the police party headed by PW-21 ASI Naresh Kumar beyond reasonable doubt. Thereafter as PW- 9 Sh. Sunil Kumar Gogia and PW-12 Smt. Shilpa Gogia has not supported the prosecution, there remains no shred of evidence against this accused.
MUKESH & VIJAY PAL
83. The prosecution case against these two accused persons is mainly based upon the disclosure statements made by accused Jagminder, Sandeep Ahlawat, Subhash Pahwa and Prabhat, wherein they have disclosed the names of these two accused persons as part and parcel of the conspiracy. Accused Subhash Pahwa in his disclosure statement Ex.PW34/Q-1 stated that both accused persons were participants in the conspiracy to kidnap Amit Gogia for ransom. He has also disclosed that Amit was taken to a house at Khoda Colony which was used by accused Mukesh and Vijay Pal. Accused Sandeep Ahlawat in his disclosure statement Ex.PW34/Q-2 has also disclosed 53 about involvement of accused Vijay Pal and Mukesh in this entire conspiracy. Similarly, accused Jagminder in his disclosure statement Ex.PW34/Q-3 has disclosed about involvement of both these accused persons in the conspiracy and kidnapping of Amit Gogia. He has stated that both these accused had shifted Amit Gogia on 19.6.01 to Ghadoli Dairy Farm. Almost similar is the disclosure statement made by accused Prabhat Singh which is Ex.PW34/Q-4 disclosing involvement of these two accused persons in this conspiracy.
84. PW-8 Sh. Rajeev Sondhi who is owner of the premises No. B- 49, Ghadoli Dairy Farm, though has named accused Mukesh and Subhash as his tenants but he has failed to identify accused Mukesh as one of the tenant.
85. Except these confession statements of co-accused prosecution has failed to bring an iota of evidence against these two accused persons.
CONCLUSION
86. In view of the aforesaid reasons discussed above, I hold accused Jagminder @ Happy, Sandeep Ahlawat and Subhash Chandra guilty for the offences u/s. 120B/364A read with section 120 B IPC, u/s. 343 read with section 120B, offences u/s. 307/353/34 IPC and 27 Arms Act. Further I hold accused Prabhat Singh guilty for the offences u/s. 120B/364A read with section 120 B IPC, u/s. 343 read with section 120B and offences u/s. 307/353/34 IPC. Further I hold that accused Jitender @ Jeetu and Ajeet Singh guilty for the offences u/s. 120B/364A read with section 120B and u/s. 343 read with section 120B IPC. All the accused persons are convicted accordingly.
5487. However against accused Bijender @ Dhile, Smt. Lata Vohra, Vijay Pal @ Kala and Mukesh prosecution has failed to prove the charges beyond reasonable doubt. These accused persons are accordingly acquitted.
88. The accused persons who are convicted will be heard on quantum of sentence.
Announced in the open Court ( SANJAY GARG ) on 22nd day of September, 2009. Addl. Sessions Judge (East) FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURTS; DELHI.SESSIONS CASE No. 66/08 FIR No. 175/01
U/S: 120-B/364-A/343/353/307/34 IPC under Section 25/27 Arms Act.
P.S: New Ashok Nagar STATE Versus Jagminder, @ Happy, S/o Ranjit Singh, R/o 14, Canadian Enclave, Firozpur Road, Ludiana, Punjab.
ORDER ON SENTENCE
1. I have heard Sh. Nitin Goel, advocate Ld. Amicus Curiae for the convict and Ld. Addl. PP for the state.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. Ld. 55 Amicus Curiae for the convict submits that the convict has a family constituting his wife and old parents. His father is suffering from heart ailment. It is argued that by profession he is a Computer Engineer and is of young age of 32 years. He submits that lenient view be taken against the accused while awarding sentence.
3. The incident of kidnapping of ransom are on the rise. The provision u/s. 364A was inserted by the Legislature w.e.f 22.5.1993 to deter the potential criminals. The manner in which victim was kidnapped in broad day light, kept as captive in a residential area and stiff resistance was given to the police officials by a retaliatory fired, reflects how dreaded this convict and his other associates are. In my opinion, the perpetrators of this crime deserves no leniency. The offence u/s 364A is punishable with death or imprisonment for life plus fine. In my opinion, this case is not a rarest of rare cases and it is not appropriate to award capital punishment to the convict.
4. Keeping in view the custody period and nature of the offences proved the convict is sentenced as under :-
For the offence u/s. 364A read with section 120B he is sentenced to life imprisonment and shall also be liable to pay fine of Rs.5000/-, in default to undergo SI for 6 months. For the offence u/s. 343 read with section 120B IPC he is sentenced to undergo imprisonment for 2 years and pay fine in a sum of Rs.1000/-, in default to undergo SI for one month. For the offence punishable u/s. 120B IPC for kidnapping for ransom victim Amit Gogia in pursuance of conspiracy, he is sentenced to undergo imprisonment for life and pay fine in a sum of Rs.5000/-, 56 in default to undergo SI for 6 months. For the offence punishable u/s. 307 read with section 34 IPC, he is sentenced to imprisonment for 7 years and to pay fine in a sum of Rs.3000/-, in default to undergo SI for 3 months. For the offence punishable u/s. 353 read with section 34 IPC he is sentenced to undergo imprisonment for 2 years and fine in a sum of Rs.1000/-, in default to undergo SI for one month. For the offences punishable u/s. 27 Arms Act, 1959, he is sentenced to undergo imprisonment for 3 years and fine in a sum of Rs.1000/-, in default to undergo SI for one month. All the sentences will run concurrently.
5. Benefit of section 428 Cr. PC shall be given to the convict as per law. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG ) on 25st day of September, 2009. Addl. Sessions Judge (East) FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURTS; DELHI.SESSIONS CASE No. 66/08 FIR No. 175/01
U/S: 120-B/364-A/343/353/307/34 IPC under Section 25/27 Arms Act.
P.S: New Ashok Nagar
STATE Versus Subhash Chander, S/o Hari Chand,
R/o 335, New Housing Board Enclave,
Sirsa, Haryana.
57
ORDER ON SENTENCE
1. I have heard the Ld. Defence counsel Sh. U.K. Rai for the
convict and Ld. Addl. PP for the state.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. The Ld. Defence counsel submitted that convict it the only bread earner of the family comprising wife, two children and mother. His wife has slip disc problem. His daughter is doing M.Sc and going to be married in March'10. His son is student of B. Sc 2nd year. He has no previous criminal record. It is argued that he deserves a lenient view while awarding sentence. It is stated that he has already remained behind bar for 3 years and 2 months as an under trial in this case.
3. The incident of kidnapping of ransom are on the rise. The provision u/s. 364A was inserted by the Legislature w.e.f 22.5.1993 to deter the potential criminals. The manner in which victim was kidnapped in broad day light, kept as captive in a residential area and stiff resistance was given to the police officials by a retaliatory fired, reflects how dreaded this convict and his other associates are. In my opinion, the perpetrators of this crime deserves no leniency. The offence u/s 364A is punishable with death or imprisonment for life plus fine. In my opinion, this case is not a rarest of rare cases and it is not appropriate to award capital punishment to the convict.
4. Keeping in view the custody period and nature of the offences proved the convict is sentenced as under :-58
For the offence u/s. 364A read with section 120B he is sentenced to life imprisonment and shall also be liable to pay fine of Rs.5000/-, in default to undergo SI for 6 months. For the offence u/s. 343 read with section 120B IPC he is sentenced to undergo imprisonment for 2 years and pay fine in a sum of Rs.1000/-, in default to undergo SI for one month. For the offence punishable u/s. 120B IPC for kidnapping for ransom victim Amit Gogia in pursuance of conspiracy, he is sentenced to undergo imprisonment for life and pay fine in a sum of Rs.5000/-, in default to undergo SI for 6 months. For the offence punishable u/s. 307 read with section 34 IPC, he is sentenced to imprisonment for 7 years and to pay fine in a sum of Rs.3000/-, in default to undergo SI for 3 months. For the offence punishable u/s. 353 read with section 34 IPC he is sentenced to undergo imprisonment for 2 years and fine in a sum of Rs.1000/-, in default to undergo SI for one month. For the offences punishable u/s. 27 Arms Act, 1959, he is sentenced to undergo imprisonment for 3 years and fine in a sum of Rs.1000/-, in default to undergo SI for one month. All the sentences will run concurrently.
5. Benefit of section 428 Cr. PC shall be given to the convict as per law. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG ) on 25st day of September, 2009. Addl. Sessions Judge (East) FTC, Karkardooma Courts:59
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURTS; DELHI.SESSIONS CASE No. 66/08 FIR No. 175/01
U/S: 120-B/364-A/343/353/307/34 IPC under Section 25/27 Arms Act.
P.S: New Ashok Nagar
STATE Versus Prabhat Singh, S/o Chander bir,
R/o Village Daduwa, P.S. Shikarpur,
Bulandshahar, U.P.
ORDER ON SENTENCE
1. I have heard the Ld. Defence counsel Sh. A.K. Sharma for the convict and Ld. Addl. PP for the state.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. The Ld. Defence counsel submitted that convict is a farmer and he is the only earning member of his family. His old parents, wife and three children are dependent upon him for their livelihood. His old parents are undergoing neurological treatment from Ram Manohar Lohia Hospital.
He has previous criminal record. Even during the course of trial is conduct was very good. He has already remained behind bar for 3 years and 4 months as an under trial in this case. He deserves a lenient view while awarding sentence to him.
3. The incident of kidnapping of ransom are on the rise. The provision u/s. 364A was inserted by the Legislature w.e.f 22.5.1993 to 60 deter the potential criminals. The manner in which victim was kidnapped in broad day light, kept as captive in a residential area and stiff resistance was given to the police officials by a retaliatory fired, reflects how dreaded this convict and his other associates are. In my opinion, the perpetrators of this crime deserves no leniency. The offence u/s 364A is punishable with death or imprisonment for life plus fine. In my opinion, this case is not a rarest of rare cases and it is not appropriate to award capital punishment to the convict.
4. Keeping in view the custody period and nature of the offences proved the convict is sentenced as under :-
For the offence u/s. 364A read with section 120B he is sentenced to life imprisonment and shall also be liable to pay fine of Rs.5000/-, in default to undergo SI for 6 months. For the offence u/s. 343 read with section 120B IPC he is sentenced to undergo imprisonment for 2 years and pay fine in a sum of Rs.1000/-, in default to undergo SI for one month. For the offence punishable u/s. 120B IPC for kidnapping for ransom victim Amit Gogia in pursuance of conspiracy, he is sentenced to undergo imprisonment for life and pay fine in a sum of Rs.5000/-, in default to undergo SI for 6 months. For the offence punishable u/s. 307 read with section 34 IPC, he is sentenced to imprisonment for 7 years and to pay fine in a sum of Rs.3000/-, in default to undergo SI for 3 months. For the offence punishable u/s. 353 read with section 34 IPC he is sentenced to undergo imprisonment for 2 years and fine in a sum of Rs.1000/-, in default to undergo SI for 61 one month. All the sentences will run concurrently.
5. Benefit of section 428 Cr. PC shall be given to the convict as per law. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG ) on 25st day of September, 2009. Addl. Sessions Judge (East) FTC, Karkardooma Courts:
DELHI.
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURTS; DELHI.
SESSIONS CASE No. 66/08 FIR No. 175/01 P.S: New Ashok Nagar STATE Versus Ajeet Singh, S/o Brij Pal, R/o Village Chithera, Dadri, Gautam Budh Nagar, U.P. ORDER ON SENTENCE
1. I have heard the Ld. Defence counsel Sh. Devender Singh for the convict and Ld. Addl. PP for the state.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. The Ld. Defence counsel submitted that convict is a family man having family constituting his wife, three school going children and old parents. It is stated that he has no previous criminal history. It is stated that he has already spent 18 months as an under trial in this case. It is stated that a lenient view be taken against him while awarding sentence.
3. The incident of kidnapping of ransom are on the rise. The 62 provision u/s. 364A was inserted by the Legislature w.e.f 22.5.1993 to deter the potential criminals. The manner in which victim was kidnapped in broad day light, kept as captive in a residential area and stiff resistance was given to the police officials by a retaliatory fired, reflects how dreaded this convict and his other associates are. In my opinion, the perpetrators of this crime deserves no leniency. The offence u/s 364A is punishable with death or imprisonment for life plus fine. In my opinion, this case is not a rarest of rare cases and it is not appropriate to award capital punishment to the convict.
4. Keeping in view the custody period and nature of the offences proved the convict is sentenced as under :-
For the offence u/s. 364A read with section 120B he is sentenced to life imprisonment and shall also be liable to pay fine of Rs.5000/-, in default to undergo SI for 6 months. For the offence u/s. 343 read with section 120B IPC he is sentenced to undergo imprisonment for 2 years and pay fine in a sum of Rs.1000/-, in default to undergo SI for one month. For the offence punishable u/s. 120B IPC for kidnapping for ransom victim Amit Gogia in pursuance of conspiracy, he is sentenced to undergo imprisonment for life and pay fine in a sum of Rs.5000/-, in default to undergo SI for 6 months. All the sentences will run concurrently.
5. Benefit of section 428 Cr. PC shall be given to the convict as per law. Copy of judgment and this order be given to the convict free of cost.
File be consigned to record room.
Announced in the open Court ( SANJAY GARG ) 63 on 25st day of September, 2009. Addl. Sessions Judge (East) FTC, Karkardooma Courts:
DELHI.64
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : KARKADOOMA COURTS; DELHI.SESSIONS CASE No. 66/08 FIR No. 175/01
P.S: New Ashok Nagar STATE Versus Jitender@ Jeetu, S/o Santokh Singh, R/o K-106, Krishna Park, Tilak Nagar, Delhi.
ORDER ON SENTENCE
1. I have heard the Ld. Defence counsel Sh. Devender Singh for the convict and Ld. Addl. PP for the state.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view may be taken against the convict. The Ld. Defence counsel submitted that convict is a family man having family constituting his wife, three school going children. His eldest daughter is 17 years of age and studying in 12th class. His son is 15 years of age and studying in 9th class. His 2nd daughter is 10 years of age and studying in 4th class. It is stated that he has no previous criminal history.
It is stated that he has already spent 3 years 4 months as an under trial in this case. It is stated that a lenient view be taken against him while awarding sentence.
3. The incident of kidnapping of ransom are on the rise. The provision u/s. 364A was inserted by the Legislature w.e.f 22.5.1993 to deter the potential criminals. The manner in which victim was kidnapped in broad day light, kept as captive in a residential area and stiff resistance was given to the police officials by a retaliatory fired, 65 reflects how dreaded this convict and his other associates are. In my opinion, the perpetrators of this crime deserves no leniency. The offence u/s 364A is punishable with death or imprisonment for life plus fine. In my opinion, this case is not a rarest of rare cases and it is not appropriate to award capital punishment to the convict.
4. Keeping in view the custody period and nature of the offences proved the convict is sentenced as under :-
For the offence u/s. 364A read with section 120B he is sentenced to life imprisonment and shall also be liable to pay fine of Rs.5000/-, in default to undergo SI for 6 months. For the offence u/s. 343 read with section 120B IPC he is sentenced to undergo imprisonment for 2 years and pay fine in a sum of Rs.1000/-, in default to undergo SI for one month. For the offence punishable u/s. 120B IPC for kidnapping for ransom victim Amit Gogia in pursuance of conspiracy, he is sentenced to undergo imprisonment for life and pay fine in a sum of Rs.5000/-, in default to undergo SI for 6 months. All the sentences will run concurrently.
5. Benefit of section 428 Cr. PC shall be given to the convict as per law. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG ) on 25st day of September, 2009. Addl. Sessions Judge (East) FTC, Karkardooma Courts:
DELHI.66