Delhi District Court
State vs :- 1- Surrender @ Sonu, on 27 October, 2007
1
IN THE COURT OF SH. BHARAT
PARASHAR:ASJ:FTC:ROHINI:DELHI
S.C.NO.31/06
STATE VERSUS:- 1- SURRENDER @ SONU,
S/O SH. TARA CHAND,
R/O VILL. SHAHAR MALPUR,
PS SMALKHA,
DISTT. PANIPAT.
2- KIRAN,
W/O LATE MAJOR PRATAP SINGH,
R/O 134, SAINIK VIHAR,
SARASWATI VIHAR,
DELHI.
3- RAMROOP,
S/O SH. MOHAN LAL,
R/O 468, VILLAGE DARYAPUR
KALAN,
PS NARELA,
DELHI.
4- ANIL KUMAR @ BHAGAT SINGH @
BHAGATA,
S/O SH. PRATAP SINGH,
R/O VILLAGE KUNDALI,
PS RAI, SONEPAT, (SINCE EXPIRED)
HARYANA.
2
5- SURJEET @ BITTOO,
S/O SH. DAYARAM,
R/O VILLAGE BALAH,
PS ASAND, DISTT. KARNAL,
HARYANA.
6- JITENDER @ AMAN @ JITU,
S/O SH. RAJENDER SINGH,
R/O VILLAGE RASOI,
PS RAI, DISTT. SONEPAT,
HARYANA.
7- NARENDER,
S/O SH. MOHAN LAL,
R/O H.NO.468, VILLAGE DARIYAPUR,
DELHI.
FIR NO.52/98
U/S 368 IPC, R/W SECTION 364/120B IPC, 412 IPC,
120B/364A/365/392/397 & 212 IPC.
PS MODEL TOWN.
JUDGMENT
Briefly stated the case of the prosecution as unfolded by the report U/S 173 Cr.PC is as under :
On 9-2-1998 at about 10.30am one Sanjeev Batra left his house at Model Town, Delhi in his ISUZU Car bearing No. TSI- 7319 along with his driver Uma Shanker and a gardener Ram 3 Narayan for his factory at village Rasoi, District Sonepat, Haryana. However, when their car had just gone about a kilometer from his house then suddenly one maruti-1000 car bearing No.DL4CB-6720 came in front of his car and forced it to stop. In the meantime, one Maruti-800 car also came and stopped behind their car. From out of the said cars, three persons came down and while one of them forced driver Uma Shanker to go to the rear seat and himself sat on his seat and one of them sat along with Ram Narayan on the left front seat. The third person sat on the rear seat holding both Sanjeev Batra and Uma Shanker on the point of a pistol. The other two persons were also having pistols in their hands. All the three cars thereafter started moving. Suddenly, the maruti 1000 car lost track and the person, who was driving the car of Sanjeev Batra immediately called him on his mobile phone saying "BITTOO KAHA RAI GAYA, JAHA ELLAJ KARAYA THA VAHA MILTEY HAI". Accordingly, when ISUZU car of Sanjeev Batra went towards Rohini and stopped near a petrol pump there suddenly the said 4 maruti 1000 car also came. The cars thereafter started moving towards Wazirabad side and during this time the person, who was driving the ISUZU car of Sanjeev Batra again made a phone call to someone and stated "Madam Kaam Ho Gaya". In the meantime, one Sunil Malhotra, a financial manager of the company of Sanjeev Batra i.e M/s Kiran Overseas Limited made a phone call on the mobile phone of Sanjeev Batra and upon it accused persons told Sanjeev Batra to tell him that he will make a return call after reaching his factory.
The cars thereafter proceeded towards Ghaziabad side from over Wazirabad bridge and on the way Sanjeev Batra was told that he has been kidnapped and will be released only after a ransom of rupees two crores is received in lieu thereof. At near Hapur Road, Sanjeev Batra was shifted in their own car i.e. Maruti-1000 car by the accused persons. Two of the accused persons, namely, Surjeet @ Bittoo and Anil @ Bhagta however took his driver and gardener, namely, Ram Narayan and Uma Shanker along with them in the ISUZU car. The two 5 cars thereafter parted ways. After travelling for some distance both Ram Narayan and Uma Shanker were told to go back with the ISUZU Car. Thereafter, accused persons also had a talk with the wife of Sanjeev Batra i.e. Smt. Sangeeta Batra at her house on telephone and they told her that she should arrange a sum of Rs.2 crores by the evening failing which Sanjeev Batra will be killed.
Thereafter, Sanjeev Batra was taken by the accused persons to village Dariapur, Delhi. The accused persons also took away Rs.8 lakhs which Sanjeev Batra was carrying in two bags viz Rs.6 lakhs in one bag and Rs.2 lakhs in the other bag. At village Dariapur, Sanjeev Batra was confined in a room in the house of Ramroop and Narender, the two brothers. From out of the robbed amount of Rs.8 lakhs and other belongings of Sanjeev Batra viz his dairy, Rayban glasses, a sum of Rs.10,000/- was given by accused Surrender, who was driving the ISUZU car of Sanjeev Batra to his accomplice accused Anil @ Bhakta (since deceased). At village Dariapur, a sum of Rs.20,000/- was given to accused Ramroop with the assurance that he will be 6 given further amount of money later in the day. Later on, accused Surrender also gave a sum of Rs.1.50 lakhs to one other accused Jitender and a sum of Rs.25,000/- was given each to accused Narender, Anil @ Bhakta and to Bittoo @ Surjit. The dairy and goggles of Sanjeev Batra were also given to accused Ramroop. After distributing the money as above, accused Surrender left the place at about 10pm in the night.
In the meantime, Smt. Sangeeta Batra informed about the said call for ransom received by her to her financial manager, namely, Sunil Malhotra, who went to PS Model Town and lodged a complaint in this regard. A case was accordingly got registered by Addl. SHO, PS Model Town, namely, Inspt. Vipin Nayyar. In the meantime, DCP-NW also directed other police officials of his district to render assistance in the investigation of the present case.
Thereafter, on 10-2-1998 Inspt. SP Tyagi of Special Branch received a secret information about the presence of accused Surrender at H.No.134, Sainik Vihar, Delhi belonging to one Kiran. Inspt. SP Tyagi accompanied with SI Rajesh Rathi 7 and other police staff accordingly went to H.No.134, Sainik Vihar and from where after some time they saw accused Surrender coming out. At the pointing out of secret informer accused Surrender was overpowered by the police party. H.NO.134, Sainik Vihar was searched, but Sanjeev Batra could not be found over there. From there Inspt. SP Tyagi however come to know that one other accomplice of accused Surrender, namely, accused Kiran had fled away from the spot in a maruti car bearing No.DL3CC-3810 belonging to one of her neighbourers. He accordingly requested DCP-NW to flash a message in this regard in the area. Incidentally, after sometime accused Kiran was also apprehended by Inspt. Hari Kishan Dahiya, the then SHO, PS Ashok Vihar from near Wazirpur Industrial Area opposite Khadi Gram Udyog while travelling in maruti car no.DL3CC-3810. Upon checking she was found to be carrying a sum of Rs.1.60 lakhs in a white polythene bag besides another sum of Rs.5,600/- in cash in her black colour bag along with some credit cards, cheque book, a packet of cigarettes and one yellow colour metal piece and a yellow 8 colour sticker of M/s Kiran Overseas Exports was also found tucked in one of the wads of currency notes. Information in this regard was accordingly conveyed to Inspt. SP Tyagi, who reached the spot. Accordingly, accused Kiran was arrested in this case and all the money so recovered along with other articles were also taken into possession by him. Thereafter accused Surrender upon seeing that his co-accused Kiran has also been apprehended broke down and made a disclosure statement admitting his guilt in the incident and also disclosed that Sanjeev Batra has been confined in a house at village Dariapur. Accordingly, the police party thereafter went to village Dariapur and while accused Kiran was kept sitting inside the vehicle but, accused Surrender led the police party to the said house of Ramroop and from where Sanjeev Batra was recovered from inside a room. Accused Ramroop was also arrested from over there and at his instance Rs.20,000/- besides a pair of Rayban sunglasses and a dairy belonging to Sanjeev Batra were recovered. Accused Ramroop was also accordingly arrested in this case and all the aforesaid articles were taken 9 into possession. The police party thereafter came back to H.No.134, Sainik Vihar, Delhi and from second floor of the house accused Surrender got recovered a mobile phone make "Sony", a black colour leather bag containing Rs.1.5 lakhs with bank seal and also having signatures of Sunil Malhotra accountant of Sanjeev Batra, a SBI cheque book in the name of M/s Kiran Overseas and some other bank documents and cash vouchers belonging to M/s Kiran Overseas. Sanjeev Batra not only identified all the aforesaid articles as belonging to him but also identified the signatures of Sunil Malhotra on the said wads of notes. All the articles were accordingly taken into possession after sealing into a pullanda. Thereafter, accused Kiran was also interrogated and she too made a disclosure statement admitting her guilt in the present case and stating that car no.DL4CB-6720 was given to the accused persons by her and that after abduction of Sanjeev Batra accused Surrender @ Sonu even confirmed to her about the successful completion of the operation of abduction. She thereafter from an almirah at the first floor of her house got recovered papers 10 of the said car besides a sum of Rs.2,36,500/- from a blue colour polythene bag and which wads of notes were also having signatures of Sunil Malhotra as were also identified by Sanjeev Batra. She thereafter also got recovered certain other documents belonging to M/s Kiran Overseas from a nearby dustbin. The said documents were also taken into possession.
Thereafter while all the case property articles were deposited in the malkhana, accused Surrender @ Sonu also pointed out the place of occurrence to the police officials. Accused Surrender, who was put in a muffled face was also produced before the court and his application for TIP was moved and during the course of which both the witnesses Ram Narayan and Uma Shanker correctly identified him.
Subsequently, it also came to the notice of Inspt. SP Tyagi that the said car bearing No.DL4CB-6720 was found lying abandoned in the area of Police Post-Bawana, Police Station- Narela and Hct. Kaptan Singh of PS Narela had seized and deposited the said car in the malkhana U/S 66 DP Act. The said car was then got transferred and from inside the said car even 11 a leather bag containing photo I-cards of Sanjeev Batra and his wife Smt. Sangeeta Batra besides some other documents belonging to Sanjeev Batra were also recovered. Inspt. SP Tyagi also examined various other witnesses through whom the said car which was originally registered in the name of M/s JP Enterprises was purchased by one Narender Sharma and who further sold the car to accused Kiran.
Thereafter, on 19-3-98 Sanjeev Batra again made a complaint with the police that the other co-accused persons of accused Surrender were still threatening him and were asking for money from him. Upon this while a separate case was registered at PS Model Town vide FIR No.111/98 but, on the same day a trap was laid and accused Anil @ Bhakta along with one other person, namely, Satender was arrested. As accused Anil @ Bhakta was also involved in the present case so, his disclosure statement was also recorded.
Thereafter, on 30-3-1998 SI Devender Saini of Operation Cell, NW District arrested accused Surjit @ Bittoo in one other case FIR No.107/98, U/S 307/34 IPC of PS Narela. He 12 too also made a disclosure statement about his involvement in the present case and was accordingly arrested in this case. An application for his TIP was also moved before the court but, he refused to participate in the same. Thereafter, his police custody remand was obtained and he also led the police party to the place from where accused Sanjeev Batra was kidnapped and accordingly pointing out memo was prepared. Thereafter, he led the police party to village Nangal, District Sonepat and from a room over there in the house of one Anita, he got recovered a green colour polythene leather bag having a monogram of M/s Kiran Overseas from beneath the cow dung cakes. The said bag was also taken into possession.
Subsequently, on 6-4-98 SI Ramesh Kumar of Crime Branch arrested accused Jitender in case FIR No.94/98, PS Sadar Baazar and he also made a disclosure statement stating about his involvement in the present case. He was accordingly arrested in this case and was put up for judicial TIP where PW Uma Shanker correctly identified him. However, the robbed amount could not be recovered from at the instance of 13 accused Jitender or accused Surjit @ Bittoo despite their police remand. Subsequently, Inspt. SP Tyagi collected the bank documents of M/s Kiran Overseas and upon completion of necessary further investigation he prepared the challan and submitted the same to court for trial.
Upon committal of the case to the court of sessions, charge for the offence U/S 120B IPC was framed against accused Surrender, Surjit, Anil Kumar, Jitender, Kiran and Ramroop besides charge for the offence U/S 364A/365/120B IPC and for the offence U/S 392/397/120B IPC was also framed against accused Surrender, Anil Kumar, Surjit and Jitender. Charge for the offence U/S 365/364A/120B IPC and for the offence U/S 412 IPC was also framed against accused Ramroop. A separate charge for the offence U/S 212 IPC and also for the offence U/S 412 IPC was framed against accused Kiran and charge for the offence U/S 368/364/120B IPC was also framed against accused Narender. All the accused persons however pleaded not guilty to the charges so framed against them and claimed trial.14
Prosecution in order to prove its case examined 38 witnesses. Accused persons were thereafter examined U/S 313 Cr.PC. They however refused to lead any evidence in their defence.
At this stage, it will be worthwhile to mention that during the course of trial one of the accused, namely, Anil @ Bhakta expired and the proceedings against him thus stood abated.
PW1 JP Ralli was the original owner of Maruti Car bearing No.DL4CB-6720 which stood registered in the name of his firm i.e M/s JP Enterprises. He deposed that on 23-7-97 he sold the said car to one Narender Sharma through M/s Amba Motors, Rani Bagh, Delhi.
PW10 was Narender Sharma himself. He deposed that after having purchased the said car from JP Ralli, he sold the same to accused Kiran on 13-7-98. However, except to this effect, he did not support the prosecution story on other matters viz as to that accused Surrender was ever introduced to 15 him by accused Kiran.
PW2 Jai Singh and PW6 Kanwar Singh were the two residents of village Dariapur where in a house Sanjeev Batra was allegedly kept confined by the accused persons after his abduction. Both of them however completely turned around and did not support the prosecution story on the material point as to the identity of accused Ramroop and of accused Narender being residents of their village or even as regards their father. Their testimony was thus found to be of no use to the prosecution in proving the said aspect.
PW4 Attar Singh was an official of CBSE, who produced the 12th class record of accused Ramroop wherein his address was stated to be that of village Dariapur, Delhi.
PW5 Parveen Gulati was a neighbourer of accused Kiran in Sainik Vihar, who deposed that accused Kiran being her neighbourer often used to borrow her car No.DL3CC-3810 and in which car she was finally found travelling at the time of her apprehension by Inspt. Hari Kishan Dahiya on 10-2-1998. He also stated that accused Kiran had borrowed her said car on 9-2- 16 1998 and on 10-2-1998. He however also did not choose to support the prosecution story on other material aspects viz as to accused Surrender having been introduced to him by accused Kiran as a tenant residing in her house or being posted as a DSP. His remaining part of testimony thus did not prove to be of any use to the prosecution.
PW7 HC Jai Parkash was the duty officer, PS Motel Town on 9-2-1998. He had recorded the FIR in the present matter and proved the copy of FIR as Ex.PW7/A. PW8 HC Kaptan Singh of Police Post Bawana, PS Narela had seized Maruti 1000 car bearing No.DL4CB-6720 from their area U/S 66 DP Act after it was found lying abandoned over there.
PW9 Inspt. Vipin Kumar was also inadvertently examined as PW17. He was the Additional SHO, PS Model Town, who had initially received the complaint of Sunil Malhotra, the accountant of Sanjeev Batra. He had thereafter prepared the rukka and got a case registered at PS Model Town. He had also later on visited the house of Sanjeev Batra and where he found 17 Uma Shanker and Ram Narayan present over there and had recorded their statements also. The subsequent investigation was however carried out by Inspt. SP Tyagi.
PW11 Sanjeev Batra was the victim himself. In his deposition, he reiterated the prosecution story while proving the various documents/memos prepared by the IO in his presence during the course of investigation pertaining to the recovery of a part of the robbed amount and other miscellaneous documents.
PW12 Uma Shanker and PW26 Ram Narayan were respectively the driver and gardener of Sanjeev Batra, who were accompanying him at the time of his abduction. They both also corroborated his testimony in material particulars while deposing almost on identical lines.
PW13 Ct. Veerpal, PW15 Ct. Swaraj Singh and PW16 HC Ramesh were however not examined as they were dropped by the prosecution.
PW14 Sh. Harish Dudani was the then learned Metropolitan Magistrate, who had carried out the TIP of 18 accused Anil, Surjit, Jitender and Surrender. He accordingly proved the proceedings so carried out by him.
PW18 HC Hukum Singh was the MHC(M), PS Model Town with whom the various case property articles were deposited with during the course of investigation by the IO.
PW19 Smt. Sangeeta Batra was the wife of Sanjeev Batra (PW11), who had received the initial call from the accused persons about abduction of her husband and demand of a ransom amount of rupees two crores. She accordingly conveyed the said information to Sunil Malhotra, who on her direction reported the matter to the police. She thus reiterated the prosecution story in her deposition in this regard.
PW20 RK Goel was the Branch Manager, Punjab National Bank, Barakhamba Road, New Delhi where the current account of M/s Kiran Overseas Limited was being maintained under the signatures of Sh.OP Batra, father of Sanjeev Batra. He deposed that on 6-2-1998 and on 7-2-1998 a sum of Rs.10 lakhs and Rs.6 lakhs respectively were withdrawn by Vinod and Sunil Malhotra on two bearer cheques issued by Sh. OP Batra. 19
PW22 Sunil Malhotra was the accountant of Sanjeev Batra and who had lodged the initial complaint with the police of PS Model Town, which put the police machinery into action in the present case. He also stated having put his signatures on the various wads of currency notes which were withdrawn from the bank account of the firm and some of which were later on being carried by Sanjeev Batra at the time of incident.
PW23 Inspt. Hari Darshan Dahiya was the then SHO, PS Ashok Vihar, who had arrested accused Kiran in the present case upon receipt of an information. He thus also reiterated the prosecution story in his deposition besides deposing about the seizure of currency notes and other documents from the possession of Kiran and also that of car bearing no.DL3CC-3810.
PW24 SI Balwan Singh was an official of PCR, who though entered the witness box to prove certain PCR entries but failed to identify them as being in his hand. The testimony of this witness was thus of no use.
PW25 ASI Jagdish was the MHC(M), PS Narela, with whom the impugned Maruti-1000 Car bearing No.DL4CB-6720 20 containing a bag having certain documents of Sanjeev Batra and Sangeeta Batra were deposited with. Subsequently, the said car was transferred to MHC(M),PS- Model Town. He accordingly proved the necessary record in this regard.
PW27 HC Ishwar Singh was the MHC(M), PS SP Badli with whom SI Satender Kumar had deposited a pullanda and two live cartridges as were recovered from the possession of accused Surjit after he arrested him on 19-3-1998.
PW28 HC Ramesh Chand was the MHC(M), PS Saraswati Vihar with whom SI Rajesh Rathi initially deposited pullanda along with eight live cartridges and other articles on different dates after they were recovered from accused Surrender. Later on the said articles were sent to FSL. Subsequently, a cheque was also deposited with him.
PW29 HC Vidyadhar was the MHC(M), PS Sadar Baazar with whom a pullanda and five live cartridges were deposited with by SI Ramesh Kumar of Crime Branch on 6-4- 1998 pursuant to the arrest of Jitender.21
PW30 Inspt. Rajender Singh had arrested accused Jitender on 5-4-98 on the basis of a secret information. After accused Jitender made a disclosure statement about his involvement in the present case then he was arrested in this case also by Inspt. SP Tyagi.
PW32 Smt. Kiran Batra was the owner of ISUZU car bearing No. TSI-7319 in which Sanjeev Batra was travelling at the time of incident.
PW33 Vinod Kumar was a driver working with Sh. OP Batra, the father of Sanjeev Batra, who had withdrawn a sum of Rs.10 lakhs from PNB on 6-2-1998 on a cheque issued by Sh. OP Batra.
PW35 HC Veerpal was a member of the raiding party of Operation Cell-NW district on 28-3-98 which had arrested accused Surjit on the basis of secret information along with one other person Bijender. After accused Surjit allegedly made a disclosure statement admitting his guilt in the present case so, he was arrested in this case also by Inspt. SP Tyagi. 22
PW36 Ct. Gokaran was the Special Messenger, PS Model Town, who had delivered the copy of the FIR at the residence of Illaqa Magistrate and other senior officers of police.
PW37 Anu Anand was an officer of HUTCHISON ESSAR MOBILE SERVICES LIMITED, who proved the call records of mobile phone no.9811154001 w.e.f 16-1-98 till 15-2-98.
PW39 HC Rambir Singh had got transferred the Maruti 1000 car from MHC(M) PS Narela to MHC(M), PS-Model Town.
PW38 Inspt. SP Tyagi was the IO of the case. In his deposition he reiterated the investigation carried out by him besides proving the various documents/memos prepared by him during the course of investigation.
PW3 HC Satender Pal, PW21 L.Ct. Santosh Yadav, PW31 SI Rajesh Rathi and PW34 SI Satender Tyagi were the other police officials who had accompanied Inspt. SP Tyagi in the investigation of the present case at different stages. They all corroborated his testimony in material particulars while proving the proceedings carried out in their presence. 23
In their statements U/S 313 Cr.PC all the accused persons however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
I have heard the arguments as addressed by ld. APP as well as by ld. counsels Sh.RP Tyagi, Sh. RS Kundu and Sh. Mukesh Sharma for all the accused persons.
It has been submitted by ld. Counsel Sh. RP Tyagi for accused Surrender, Surjit and Jitender that the prosecution has miserably failed to prove their identity as being involved in the present incident beyond shadows of all reasonable doubts. It was also submitted that even the wads of currency notes which were allegedly recovered from the possession of accused persons does not co-relates with the identity as is sought to be proved on record by the prosecution. It was further submitted that the sticker of M/s Kiran Overseas which was allegedly found inside the wads of currency notes clearly appeared to be a planted one and despite availability of a number of public persons at elbows length no one was joined in the entire proceedings by the IO at all. It was further stated that PW21 24 L.Ct. Santosh Yadav claimed complete ignorance as to the recovery of any article at the instance of accused Kiran and thus her testimony did not render any corroboration to the prosecution story. A number of other contradictions were also pointed out in the testimony of the various prosecution witnesses, who allegedly had effected recovery from H.No.134, Sainik Vihar at the instance of accused Kiran and accused Surrender. It was also stated that even the ownership of Maruti 1000 car no.DL4CB-6720 in the name of accused Kiran has not been proved beyond shadows of reasonable doubts by the prosecution. It was also submitted that the prosecution has failed to prove that accused Surrender was residing in H.No.134, Sainik Vihar at any point of time. It was also submitted that the prosecution has failed to prove on record that Sanjeev Batra was abducted for ransom by the accused persons. The mobile phone record of Sanjeev Batra was also stated to have been not proved on record by the prosecution which could have provided any corroboration to the prosecution story about different phone calls received by him allegedly during the 25 course of incident. The contradictions between the testimony of Sunil Malhotra and Sanjeev Batra in this regard were also highlighted by learned defence counsel. It was also stated that Sh. OP Batra, who was in fact the authorised person to operate the bank account at Punjab National Bank and on whose cheques the impugned amount of Rs.16 lakhs were withdrawn was also not examined by the prosecution. The recovery of the bag at the instance of accused Surjit was also stated to be doubtful and highly unbelievable as to why a person will simply retain an empty bag lest it may connect him with the offence in question. It was further stated that the tape which was allegedly attached with the telephone at the residence of Sanjeev Batra by the police was also not produced during the course of trial. It was further stated that PW Sunil Malhotra nowhere stated that he identified his signatures at any point of time before the police.
Ld. Counsel for accused Kiran however stated that no charge for the offence U/S 120B read with Section 364A IPC was framed against her and thus she could not have been tried for 26 the same and thus her fate also cannot be decided qua the said offence. It was also submitted that except for her own alleged disclosure statement and that of her co-accused persons, there was nothing on record to show that she was party to any conspiracy. It was also submitted that prosecution has failed to prove that any demand of ransom from Sanjeev Batra was ever made in her presence which could have imputed any knowledge upon her either about the abduction of Sanjeev Batra or even that he has been abducted for demand of ransom. Reliance in this regard was placed upon the case SUMAN SOOD @ KAMALJIT KAUR VS. STATE OF RAJASTHAN III (2007) DLT (CRL) 36 (SC). It was further stated that even PW11 Sanjeev Batra failed to identify her and the alleged recovery made at her instance by the police has not been proved beyond shadows of all reasonable doubts as apparently there was no compliance of Section 100 Cr.PC. It was further stated that the mere words uttered allegedly by one co-accused that "Madam Kaam Ho Gaya" cannot connect 27 accused Kiran with the offence in question. She was thus prayed to be acquitted as prosecution has miserably failed in connecting her with the offence in question.
As regards accused Ramroop and Narender, it was submitted that qua accused Narender, there was not even a single piece of incriminating evidence worth the name which could connect him with the offence in question. As regards accused Ramroop, it was also submitted that there was no evidence on record to show that any demand of ransom was ever made in his presence or that he was aware of the fact that Sanjeev Batra has been kidnapped on account of demand of ransom. It was further submitted that prosecution has even failed to prove that accused Ramroop was the owner of the said house where Sanjeev Batra was allegedly kept confined. Both accused Ramroop and Narender were thus also prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsel stating that the prosecution has been completely successful in proving its case 28 against all the accused persons by cogent and convincing testimony of victim Sanjeev Batra himself besides that of his driver and gardener Uma Shanker and Ram Narayan and that of the police officials. It was further stated that it cannot be believed that such a huge amount of money was simply planted by the police upon the accused persons so as to falsely implicate them. It was further stated that usually in such type of cases where gangsters are involved, the public persons are also often found to be reluctant in joining the proceedings with the police. The prosecution was thus stated to have been successful in proving its case against all the accused persons beyond shadows of all reasonable doubts. They were thus prayed to be convicted.
I have carefully perused the record.
At the outset, I may state that in cases of criminal conspiracy, direct evidence is seldom available, for conspiracies are always hatched in secrecy. In these circumstances, the courts have to often look for circumstantial nature of evidence in cases of criminal conspiracy. 29
Thus before applicability of Section 120B IPC is seen and considered, it will be worthwhile to first look as to the meaning and applicability of the offence of criminal conspiracy as has been analysed by Hon'ble Apex Court in a number of cases.
The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with proviso to subsection (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by anyone of them would not be necessary. The provisions, in such a situation, do not require 30 that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in Section 120B of IPC. NAZIR KHAN & ORS. VS. STATE OF DELHI 2003 VII AD (SC) 217:S.C. BHARI VS. STATE OF BIHAR AIR 1994 SC 2420.
In the case AJAY AGGARWAL VS. U.O.I & ORS. [JT 1993 (3) SC (203)] a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an act by unlawful means. So long as such a design rests in intention only, it is not indictable but when the said persons agrees to carry it into effect the very plot is an offence itself'.
"the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So, it is also an ingredient of the offence that all 31 the parties should agree to do a single illegal act. It may comprise of the commission of a number of acts".
Thus though the conspiracy can be undoubtedly proved by evidence direct or circumstantial but, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators, but the later does. It is however essential that the offence of conspiracy requires some kind of physical manifestation of agreement.
In the present case before I enter into a discussion of the prosecution evidence led so as to prove the guilt of the accused persons, it will be worthwhile to reiterate and recapitulate the incriminating evidence which has been brought on record by the prosecution against each of the accused persons.
As regards accused Surrender, the prosecution has alleged that he was residing in the house of accused Kiran at H.No.134, Sainik Vihar, Delhi and where finally a criminal 32 conspiracy was hatched between him and other accused persons, namely, Kiran, Anil, Surjit, Jitender, Ramroop and Narender. Furthermore, accused Surrender was identified by PW11 Sanjeev Batra to be the person, who was driving his ISUZU car after he was abducted by the accused persons. Further role has been assigned to accused Surrender Kumar when the witnesses stated that he distributed different amounts of money to the other co-accused persons soon after his abduction. He had also led the police party to village Dariapur from where PW11 Sanjeev Batra was recovered and co-accused Ramroop was arrested. Later on, after his arrest and recovery of PW11 Sanjeev Batra he also got recovered a part of stolen money from second floor of H.No.134, Sainik Vihar, Delhi. Furthermore, he was also duly identified by PW12 Uma Shanker and PW26 Ram Narayan in the judicial TIP.
As regards accused Kiran, it is the case of the prosecution that she was one of the master mind in the entire conspiracy and had given shelter to accused Surrender both before the abduction of PW11 Sanjeev Batra and even 33 thereafter. She had also provided logistics viz availability of car shelter etc. to the accused persons in facilitating the abduction of PW11 Sanjeev Batra. She was further found in possession of a part of the robbed money and also later on got recovered some additional stolen money and other documents from first floor of her house i.e H.No. 134, Sainik Vihar, Delhi.
As regards accused Jitender, it has been alleged that he was also one of the three persons, who had sat inside the car of PW11 Sanjeev Batra after he was abducted and had taken care of gardener Ram Narayan, who was sitting on the front left seat of the car. Furthermore, he was duly identified by PW12 Uma Shanker in judicial TIP. He was also given a sum of Rs.25,000/- by accused Surrender from out of the robbed money.
As regards accused Surjit, it is the case of the prosecution that he was the person, who was driving the Maruti 1000 car bearing no. DL4CB-6720 which was following the ISUZU car of PW11 Sanjeev Batra and in which car PW11 Sanjeev Batra was later on taken to village Dariapur. He was also 34 allegedly given a sum of Rs.25,000/- by accused Surrender @ Sonu. He also refused to participate in TIP.
As regards accused Ramroop, it is the case of the prosecution that in his house, PW11 Sanjeev Batra was kept confined by the accused persons and upon his apprehension he also got recovered Rs.20,000/-, a part of the robbed amount, the Rayban sunglasses of PW11 Sanjeev Batra and his dairy from a trunk in his house. He was also found present at the house where PW11 Sanjeev Batra was later on recovered by the police i.e at Village Dariapur.
As regards accused Narender, the prosecution has merely alleged that he too was one of the conspirators along with other co-accused persons and was given a sum of Rs.25,000/- by accused Surrender @ Sonu from out of the robbed money.
The case against accused Anil @ Bhakta, who allegedly was the third person, who had sat inside the car of PW11 Sanjeev Batra at the time of his abduction holding him at the point of a gun need not be discussed as he has already 35 expired.
It will be now worthwhile to first analyze the evidence led by the prosecution qua the ownership and possession of Maruti 1000 car bearing no. DL4CB-6720 which was allegedly used in the kidnapping of PW11 Sanjeev Batra. PW1 JP Ralli, who was the initial registered owner of the said car stated that he sold the same to one Narender Sharma on 23-5-97. Furthermore, PW10 Narender Sharma also reiterated this fact of his having purchased the said car from PW1 JP Ralli through Amba Motors. This part of his testimony was not at all controverted by the accused persons. He also stated that he had subsequently sold the said car to accused Kiran on 13-7- 1997. Again this part of his testimony was also not disputed by the accused persons and much less by accused Kiran. All such documents of sale and purchase were even subsequently recovered at the instance of accused Kiran from her house i.e at 134, Sainik Vihar, Delhi. Accused Kiran has however claimed that the said car was subsequently sold by her to one Sonu Upadhyay. However, I may state that this fact was never 36 proved by accused Kiran at any stge of the trial by leading any evidence in this regard much less by producing said Sonu Upadhyay. Furthermore, the blank form No.29 and 30 executed by PW1 JP Ralli from her house also goes to show that no such transaction of sale of car between her and Sonu Upadhyay ever took place.
Even PW5 Parveen Gulati stated in his deposition that accused Kiran was having one jeep, one Toyota car and one maruti car. He further stated that he however does not remember as to whether the number of maruti 1000 car was DL- 4C-B-6720 or not. However, these un-rebutted facts clearly establishes that accused Kiran was indeed having one maruti 1000 car. The testimony of PW10 Narender Sharma coupled with the documents recovered from the house of accused Kiran further establishes the number of the said maruti 1000 car to be DL4CB-6720.
Furthermore, PW11 Sanjeev Batra specifically stated in his deposition that the Maruti 1000 car which was used by the accused persons in the incident and in which he was 37 subsequently transferred from his ISUZU car and was taken to village Dariapur was bearing registration no.DL4CB-6720 (Maruti 1000).
In these circumstances, it thus clearly stands proved that car no.DL4CB-6720 (Maruti 1000) was indeed used in the abduction of PW11 Sanjeev Batra. Furthermore, the fact that the said car was found lying abandoned near village Dariapur by PW8 Kaptan Singh, who finally took it into possession U/S 66 DP Act supports the aforesaid conclusion. The fact that from inside the said car a bag containing some I-cards and other documents of PW11 Sanjeev Batra and his wife were also recovered further supports the conclusion that PW11 Sanjeev Batra was taken to village Dariapur, Delhi in the said car. All suggestions put to the contrary on behalf of accused Kiran to PW8 HC Kaptan Singh were vehemently denied by him to be false.
Thus, when the ownership and possession of the said Maruti 1000 car bearing no.DL4CB-6720 with Kiran has been conclusively proved on record by the prosecution so, it was for 38 accused Kiran to explain as to how and under what circumstances the said car was found lying abandoned near village Dariapur by the police soon after the commission of the present crime. These facts could have been to the exclusive knowledge of accused Kiran only and of no one else. U/S 106 Indian Evidence Act this burden was upon accused Kiran and was to be discharged by her only. Her failure to give any explanation in this regard is thus clearly fatal to her and constitute an important link in the circumstantial chain of prosecution evidence which goes to establish existence of a criminal conspiracy between accused Kiran and other persons involved in the crime.
It will be now worthwhile to analyze the prosecution case as to the identity of accused Surrender and Jitender, who allegedly had sat inside the car of PW11 Sanjeev Batra after he was abducted by them. PW11 Sanjeev Batra clearly stated that accused Surrender @ Sonu pushed his driver Uma Shanker towards the rear seat and he himself sat on the driver seat. He further stated that accused Jitender sat besides Ram Narayan, 39 his gardener on the left front seat by holding a pistol in his hand. This part of his deposition clearly proves beyond doubt that accused Surrender & Jitender along with the third accused Anil @ Bhakta (since deceased) played major role in the execution of abduction of PW11 Sanjeev Batra. Though, complainant PW11 Sanjeev Batra was extensively cross- examined on behalf of accused Surrender and Jitender but nothing material could come out from his lengthy arduous cross-examination which could either favour the accused persons or may lead me to disbelieve his testimony in this regard. In fact, in the entire cross-examination it was not even suggested to this witness that accused Surrender @ Sonu was not at all involved in the incident. Though, as regards accused Jitender, it was suggested that due to some earlier dispute he has been falsely implicated in this case.
In fact, it was not at all suggested to PW11 Sanjeev Batra that accused Surrender @ Sonu has been falsely or wrongly identified by him. No question or suggestion in this regard was at all put to him.
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At this stage, I may also state that the cross-
examination of the various prosecution witnesses has though ran into several pages and is thus arduously lengthy but, was really aimed at only troubling the witnesses rather than eliciting any crucial point. Minor discrepancies as pointed out by learned defence counsels are of no consequence.
In the cross examination of PW11 Sanjiv Batra as was carried out on behalf of accused Kiran, it was in fact suggested to him that accused Sonu @ Surrender was residing as a tenant on the first floor of the house. This fact thus clearly goes to establish that accused Surrender @ Sonu was indeed residing in H.No.134, Sainik Vihar, Delhi. At the same time the fact that accused Kiran was also residing in the said house has also not been disputed on record. It was put to PW11 Sanjeev Batra in his cross-examination that accused Kiran was residing on the ground floor of H.No.134, Sainik Vihar along with her mother-in- law. Thus, these facts further lends corroboration to the prosecution story that accused Surrender and accused Kiran were having close ties even prior to the actual incident having 41 taken place. The recovery of a mobile phone belonging to PW11 Sanjeev Batra besides Rs.1.5 lakhs from out of the robbed money along with a black leather bag which was also found to be containing SBI cheque in the name of Kiran Overseas besides other bank documents of the company at the instance of accused Surrender from the second floor of H.NO.134, Sainik Vihar, Delhi clearly forms an important link in the prosecution chain of evidence. This recovery also thus makes the said portion of the disclosure statement of accused Surrender @ Sonu to be admissible in evidence under Section 27 Indian Evidence Act. Furthermore, the fact that PW11 Sanjeev Batra was recovered at the instance of accused Surrender @ Sonu from village Dariapur also strongly points out towards the complicity of accused Surrender @ Sonu in the entire incident. Later on accused Surrender @ Sonu pointed out the place from where PW11 Sanjeev Batra was allegedly abducted to the police. This fact though may not be admissible in evidence being hit by Section 27 Indian Evidence Act but is however relevant U/S 8 Indian Evidence Act, 1872 being subsequent 42 conduct of the accused. In my aforesaid view, I find support from the case PARKASH CHAND VS. STATE AIR 1979 SC 400.
Again reverting back to the role of accused Kiran, it will be worthwhile to mention that when the police party raided H.No.134, Sainik Vihar, Delhi then they had come to know that accused Kiran has fled away in a M.car no. DL3CC-3810. Accordingly, a message was got flashed in the area and pursuant to which PW23 Inspt./SHO H.K. Dahiya, PS Ashok Vihar apprehended her in Ashok Vihar Industrial Area while she was travelling in the said maruti car. The said maruti car belonged to PW5 Parveen Gulati and who clearly stated that accused Kiran, who was a neighbourer of his house used to often borrow his car. He also stated that the said maruti car was borrowed by accused Kiran on 9-2-98 as well as on 10-2-98 and later on he came to know that the said car has been seized by the police. He also stated that he got the said car subsequently released on sapurdari. This part of his testimony that accused Kiran used to borrow his car and had in fact borrowed it on 9-2-98 as well as on 10-2-98 has not been controverted at all. No suggestion or 43 question in this regard was put to him in his cross examination. Thus, if his testimony is seen with the deposition of PW11 Sanjeev Batra, PW12 Uma Shanker and PW26 Ram Narayan that at the time of alleged incident of kidnapping the accused persons were using one maruti 1000 car as well as one maruti 800 car also then it cannot be ruled out that probably this maruti car was used by the accused persons at the time of kidnapping of PW11 Sanjeev Batra. Furthermore, the fact that accused Kiran was found in possession of Rs.1.60 lakhs from out of the robbed money and from amongst the said wads of notes one sticker of M/s Kiran Overseas was also recovered clearly goes to show that she was actively involved in the entire incident and her share of the booty was immediately delivered to her by accused Surrender @ Sonu after he left PW11 Sanjeev Batra in the company of his other co-accused persons at village Dariapur and had returned back to H.no.134, Sainik Vihar, Delhi . Later on accused Kiran also got recovered another sum of Rs.2,36,500/- viz the remaining part of the robbed amount from an almirah of her bedroom besides some documents belonging 44 to Sanjeev Batra and his company from a dustbin in her house. The fact that all these packets of currency notes besides the earlier recovered at the instance of accused Surrender @ Sonu were allegedly bearing the signatures of accountant-PW22- Sunil Malhotra clearly shows that they were part of the said Rs.8 lakhs which were being carried by PW11 Sanjeev Batra at the time of incident.
At this stage, it will be also worthwhile to mention that it was probably accused Kiran to whom accused Surrender @ Sonu responded soon after abducting Sanjeev Batra by stating on his mobile the words "Madam Kaam Ho Gaya".
At this stage, it will be worthwhile to mention that though ld. defence counsel has pointed out that some of the packets so recovered were not as per the description given by Sunil Malhotra but, it will be pertinent to state that Sunil Malhotra was in fact aware of only Rs.6 lakhs being carried by PW11 Sanjeev Batra at the time of incident being part of the said packets of currency notes on which he had put his initials after counting them. He came to know about another sum of 45 Rs.2 lakhs being carried by PW11 Sanjeev Batra only after the incident had taken place. It was thus very likely that the said amount of Rs.2 lakhs were not routed through Sunil Malhotra before they came in the possession of PW11 Sanjeev Batra. No question or suggestion was put to complainant PW11 Sanjeev Batra as to whether the said money of Rs.2 lakhs were also carrying initials of Sunil Malhotra or not. Moreover irrespective of the aforesaid facts, I may also state that it is highly difficult to presume that complainant PW11 Sanjeev Batra or for that matter the police officials would have chosen to plant Rs.8 lakhs upon the accused persons in order to falsely implicate them in this case. Mere suggestions having been put on behalf of the accused persons that no such recovery were made at their instance cannot have the effect of discrediting the testimony of the various prosecution witnesses. The suggestion on their own cannot take the place of evidence or of proof.
Besides the aforesaid facts which stands well proved on record the fact that accused Surrender was duly identified by PW12-Uma Shanker as well as PW26 Ram Narayan in judicial 46 TIP clearly clinches the issue in favour of the prosecution.
Similarly, the recovery of the said stolen money besides other documents belonging to Sunil Malhotra at the instance of accused Kiran from her house along with the fact that the two cars used by the accused persons in the commission of the impugned incident were provided by accused Kiran clearly proves her complicity in the matter beyond shadows of all reasonable doubts. Furthermore, as accused Surrender @ Sonu was found very much present in the house of accused Kiran along with accused Surrender @ Sonu soon after the incident so, the involvement of accused Kiran in the entire episode stands further fortified.
As regards the contention of ld. defence counsel that no public independent witness was joined in the investigation, I may state that usually in such type of incidences involving dreaded gangsters, the public persons are usually reluctant to join the proceedings with the police. Thus, not much can be read into the matter against the case of the prosecution or in favour of the accused persons on account of non-joining of 47 public independent witnesses in their proceedings by the police.
As regards accused Jitender, I have already discussed herein above that complainant PW11 Sanjeev Batra clearly identified him to be the person who sat along with the gardener Ram Narayan in his car with a pistol in his hand. Moreover, the plea of defence put up by accused Jitender that he has been falsely implicated due to some earlier land dispute etc. does not require any detailed discussion to be brushed aside. In fact, nothing further was shown on behalf of accused Jitender as to what was the nature of said land dispute or what happened during the course of the same which could have prompted PW11 Sanjeev Batra to falsely implicate accused Jitender in the present case. Moreover, if PW11 Sanjeev Batra was having any intention to falsely implicate accused Jitender then there was no need for him to plan such a big story and if the police officials were already in connivance with him then he could have very much implicated accused Jitender in one or the other cases without directly involving himself. In fact, from 48 the fact that accused Jitender was a resident of village Rasoi itself where PW11 Sanjeev Batra was having his factory, it rather appears that this fact and probably the earlier transaction which the family of Jitender had with PW11 Sanjeev Batra provided the present accused persons information/knowledge through accused Jitender that PW11 Sanjeev Batra could be an easy target to extort money from. Furthermore, identification of accused Jitender in TIP by PW12 Uma Shanker further clinches the matter in favour of the prosecution. As regards non- recovery of any further incriminating article from at the instance of accused Jitender, it will be worthwhile to mention that he was apprehended on 6-4-98 by the Crime Branch officials i.e after about two months of the incident. Thus, it was highly unlikely that any part of the stolen money would have been still found on the person of Jitender by that time. Thus, not much can be read in this regard in the prosecution case. This fact rather goes to show that the prosecution did not try to plant anything upon them.
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As regards accused Surjit, he was duly identified by PW12 Uma Shanker and PW26 Ram Narayan as being the person, who was driving the maruti-1000 car which was following the ISUZU car of complainant. Furthermore, the fact that accused Surrender @ Sonu called upon accused Bittoo @ Surjit Singh to meet them at the place where they had got treatment earlier also goes to show that he was very much involved in the present incident. Later on both PW12 Uma Shanker and PW26 Ram Narayan stated that after PW11 Sanjeev Batra was transferred in Maruti-1000 car then accused Surjit @ Bittoo along with accused Anil @ Bhakta remained with them in their ISUZU car and they gave them Rs.500/- each and asked them to go back. Thus while PW11 Sanjeev Batra could not have much occasion to see accused Surjit @ Bittoo at the time of incident but PW12 Uma Shanker and PW26 Ram Narayan both clearly saw accused Surjit @ Bittoo over there and duly identified them. Later on PW11 Sanjeev Batra also stated that after reaching village Dariapur accused Surrender @ Sonu gave Rs.25,000/- to Surjit also. Once again as accused 50 Surjit was also apprehended on 19-3-95 i.e after a gap of about 40 days of the incident so, not much can be read into the fact that the stolen money could not be recovered from accused Surjit @ Bittoo. Furthermore, his refusal to participate in TIP is an additional incriminating circumstance against him. Furthermore, the recovery of a black colour leather bag bearing the emblem of M/s Kiran Overseas at the instance of accused Surjit from the house of one Anita at village Nangal finally clinches the issue in favour of the prosecution. No-doubt, the raiding party ought to have joined public independent witnesses in their proceedings at the time of effecting recovery of the said bag as contended by ld. defence counsel but as is often seen that in such type of matters public persons are usually found reluctant to join the proceedings with the police. Moreover, Anita was the sister of accused Surjit and it was highly unlikely that any one from the village would have chosen to join the proceedings with the police in the village itself. This requirement of joining of public independent witnesses though should be normally adhered to but, has to be viewed in its overall practical application. 51 Moreover, the presence of the said bag in the house of Anita could not have been to the knowledge of any police official unless until accused Surjit led them to over there. Moreover, accused Surjit also later on pointed out the place from where PW11 Sanjeev Batra was allegedly kidnapped and this fact also is admissible being reluctant U/S 8 of the Indian Evidence Act against him.
As regards accused Ramroop, he was clearly found present at village Dariapur in the house where PW11 Sanjeev Batra was kept confined. No-doubt, the two villagers, who were residents of village Dariapur, namely, PW2 Jai Singh and PW6 Kanwar Singh did not care to support the prosecution case to the effect that Ramroop was a resident of their village. However, from the testimony of PW4 Attar Singh, CBSE official, who produced the record of Ramroop from the CBSE Office as being a resident of village Dariapur, it stands clearly proved on record that accused Ramroop was a resident of village Dariapur. In fact, no question or suggestion was put to this witness disputing the veracity or authenticity of the said record. 52 Moreover, if accused Ramroop was not a resident of village Dariapur then at least he ought to have led some evidence as to which other place he belongs to or he resides. A failure to negate this contention of the prosecution even by preponderance of probabilities also goes to establish beyond doubt that accused Ramroop was indeed a resident of village Dariapur and was rightly identified by complainant PW11 Sanjeev Batra when he stated that he was left with him by the other accused persons at village Dariapur. Furthermore, the recovery of Rs.20,000/-, a pair of sunglasses and a dairy belonging to PW11 Sanjeev Batra from a trunk in the house of accused Ramroop and that too at his instance further goes to establish his complicity in the matter beyond shadows of all reasonable doubts. In fact, even in his statement U/S 313 Cr.PC accused Ramroop in reply to question no.53 as regards the record of CBSE Ex.PW38/I qua his residential address as that of Village Daryapur did not state the same to be false or incorrect and merely claimed ignorance in this regard. He even did not assert at any point of time that the said CBSE record does not 53 pertains to him.
As regards the case of accused Narender, I may however state that though there is a whisper in the deposition of PW11 Sanjeev Batra that a sum of Rs.25,000/- was paid to him by accused Surrender @ Sonu but, for reasons best known to the prosecution this accused was not got identified from this witness even during the course of trial. No-doubt when PW11 Sanjeev Batra was being initially examined then accused Narender was a proclaimed offender but still before the conclusion of his deposition accused Narender was apprehended and a charge against him was framed in the matter on 19-9-01. PW11 Sanjeev Batra was duly cross examined by learned defence counsel on behalf of accused Narender also. Thus, at least at that stage accused Narender could have been got identified from the witness by the prosecution. A failure in this regard is clearly fatal to the prosecution case against accused Narender. No-doubt accused Narender was apprehended after a great period of delay but the factum of his absconding away from his house as contended by ld. A.P.P 54 however cannot be on the face of it be presumed to be a conclusive piece of circumstantial evidence which could prove the involvement of accused Narender in the present case. No other prosecution witness has deposed about any role played by accused Narender in the entire incident.
Thus, in view of my aforesaid discussion, the prosecution has miserably failed to prove on record the involvement of accused Narender in the present matter beyond shadows of all reasonable doubts. I may again reiterate that the mere fact that accused Narender was a brother of accused Ramroop or that after the incident he was found to be absconding away cannot in itself be held to be sufficient to connect him with the offence in question.
I accordingly hereby acquit accused Narender of the offence U/S 368 IPC, r/W Section 364 IPC, r/W Section 120B IPC. Though, from my aforesaid discussion, it is clear that the prosecution case substantially stands proved against all the other accused persons beyond shadows of all reasonable doubts but before finally concluding the issue, I would also like 55 to deal with certain other contentions of learned defence counsel which are not only minor in nature but also does not affect the merits of the case.
The non-examination of Sh. OP Batra is completely of no consequence at all. It was not at all suggested to PW20 Sh. RK Goel that no such account in the name of Sh. OP Batra exists in his bank. Moreover, the testimony of PW33 Vinod who withdrew Rs.10 lakhs from the said account on a bearer cheque issued by Sh. OP Batra was not at all controverted at the altar of cross-examination.
Moreover, the mobile phone record Ex.PW22/B (1 to
2) goes to establish that a number of calls were indeed made to certain specific numbers on 9-2-98. PW19 Sangeeta Batra stated in her cross-examination that two calls were received by her at 6/6.15am on 9-2-98. She further stated the telephone number installed at her residence to be 721152. On the other hand PW22 Sunil Malhotra stated his mobile phone number to be 9811154123. The call details does show that successive calls were made to certain specific numbers on 9-2-98. No-doubt, as 56 regards the mobile phone details of Sanjeev Batra or that of the other accused persons and the land-line phones as installed at the house of accused Kiran, some more investigation ought to have been made but the lack of the same does not discredits the prosecution story in any manner. Moreover, the plea of defence taken by accused Surrender @ Sonu that the entire case was framed up by Sanjeev Batra in order to obtain insurance claim is per se false, for otherwise the recovery of so much of amount would not have been shown at the instance of accused persons. Admittedly, a good amount from out of the stolen amount of Rs.8 lakhs was recovered at the instance of accused persons. Thus, this plea of defence taken by accused Surrender does not need any further discussion to be brushed aside as even otherwise there was no necessity for Sanjeev Batra to cook up a such big story and thereby falsely implicating certain dreaded gangsters in the incident.
Lastly, I now come to the main crux of the matter as to for which of the offences the charges have been proved by the prosecution against the various accused persons. 57
As regards accused Narender, I may again state that the prosecution has miserably failed in proving its case against him beyond shadows of all reasonable doubts. The fact that criminal conspiracies are usually proved by circumstantial evidence does not mean that mere allegation of being a party to the conspiracy is sufficient to draw a conclusion against any given accused. This allegation is to be substantiated with some other corroborative piece of evidence. However, in the presence case, there is nothing on record to lend any corroboration to this allegation against accused Narender.
I accordingly hereby acquit accused Narender of the offence U/S 368/364/120B IPC.
As regards accused Surrender @ Sonu, I may state that the charge for the offence U/S 412 IPC does not stand proved against him as he was neither receiver of any such property which was stolen in the commission of dacoity or retainer of the same after having received it from any dacoit or gang of dacoit. In fact, he was the person, who himself was directly involved in the incident of committing robbery upon Sanjeev 58 Batra. Thus, since, he has been separately charged for the commission of robbery so, he cannot be held liable for the offence of having received or retained the money obtained by dacoity or even of robbery.
I accordingly hereby acquit him for the offence U/S 412 IPC.
However, as regards the charge for the offence U/S 120B IPC, the same stands proved against accused Surrender @ Sonu, Surjit @ Bittoo, Jitender, Kiran and Ramroop for having hatched a criminal conspiracy to abduct complainant Sanjeev Batra for ransom and to thereby confine him at Village Dariyapur, Delhi after putting him in reasonable apprehension of death and while committing robbery on his person by using deadly weapons, the prosecution has clearly been successful in proving this circumstantial chain of evidence against all the five accused persons in this regard. The said chain of circumstances does not lead to any other hypothesis consistent with the innocence of the accused persons.
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The prosecution in my considered opinion has also been successful in proving its case against accused Surrender @ Sonu, Surjit @ Bittoo and Jitender for the offence U/S 364A/365/120B IPC and for the offence U/S 392/397/120B IPC as they all in furtherance of the common object of their aforesaid criminal conspiracy abducted Sanjeev Batra and robbed him of Rs.8 lakhs and other documents while armed with deadly weapons viz pistols and later on confined him at the house of accused Ramroop at Village Dariapur, Delhi while putting him in reasonable apprehension of his death.
However, as regards accused Kiran, I may state that no charge for the offence U/S 364A IPC/365/392/397 read with Section 120B IPC was framed against her by the then ld. Predecessor of this court. Ld defence counsel for accused Kiran also argued that in the absence of there being no specific charge for the aforesaid offences, accused Kiran cannot be held liable for the same. At this stage, I may state that I am in complete agreement with the contention of learned defence counsel. There is also no requirement for even entering into a 60 discussion as to whether even in the absence of specific charge for the said offences, the case of the prosecution as against accused Kiran needs to be analysed as to whether any prejudice has been caused to her on account of non-framing of charge or not.
It will be worthwhile to mention that except for accused Narender, charge against all the accused persons were framed by the then ld. Predecessor of this court on 31-10-
98. The learned Judge, who framed the charge at that time chose to specifically charge accused Surrender @ Sonu, Surjit @ Bittoo, Anil @ Bhakta and Jitender separately for the offence U/S 364A/365/392/397/120B IPC but, at the same time he preferred to frame a separate charge for the offence U/S 120B IPC and for the offence U/S 212/412 IPC against accused Kiran. Thus, this decision of separately charging the accused was a conscious decision on the part of learned Judge and it cannot be stated that the non-framing of the said charge for the offence U/S 364A/365/392/397/120B IPC was an inadvertent error. In these circumstances, I am of the considered opinion 61 that when the Judge, who initiated the trial of the matter with the framing of the charge and thereafter with the recording of prosecution evidence chose to not to charge a given accused for any particular offences then to circumvent this aspect of the matter now by resorting to any legal fiction stating that no prejudice will be caused to accused Kiran if she is held guilty for the said offences U/S 364A /365/392/397/120B IPC is not permissible under the law. In these circumstances, the case law relied upon by learned defence counsel viz SUMAN SOOD (SUPRA) also need not be referred to any further.
However, as regards the offence U/S 212 IPC, I may state that it has un-disputedly proved on record by the prosecution that accused Surrender @ Sonu was residing in the house of accused Kiran not only from prior to the abduction of Sanjeev Batra but even thereafter and rather soon after the commission of the crime. The fact that accused Kiran was also found in possession of robbed money soon after the commission of the crime further shows that she had every reason to believe 62 that accused Surrender @ Sonu was involved in the abduction of Sanjeev Batra. Thus, accused Kiran concealed accused Surrender @ Sonu at her residence i.e H.No.134, Sainik Vihar, Delhi with an intention to screen him from legal punishment knowing or having reason to believe him to be an offender. The charge for the offence U/S 212 IPC thus clearly stands proved against her.
Furthermore, though the prosecution has clearly proved that accused Kiran was found in possession of a part of the robbed money besides some other documents/papers belonging to Sanjeev Batra and that too soon after the commission of the crime so it stands clearly proved that she received and retained the said stolen money knowing and having reasonable to believe the same to be a part of the robbed amount. However, it will be pertinent to mention that in the present case no charge of dacoity has been framed against any of the accused persons. As already discussed herein above, accused Surrender @ Sonu, Surjit @ Bittoo, Jitender were charged by the then ld. Predecessor of this court 63 only for the offence U/S 392/397 IPC. Thus, if the accused persons were charged for having committing robbery upon the person of Sanjeev Batra and not for having committed a dacoity so, no person can be held guilty of the offence of having received or retained stolen money knowing or having reason to believe that the same has been obtained in the commission of dacoity. I also do not intend to go into any analysis of the matter as to why no charge for the offence of commission of dacoity was not framed against the accused persons Even otherwise dacoity being not a minor offence to the offence of robbery and thus the present matter cannot lead to a conviction of the accused persons for the offence of having committed dacoity.
In view of my aforesaid discussion, it thus clearly stands proved that as the main accused persons, namely, Surrender @ Sonu, Surjit @ Bittoo and Jitender were charged and have been held guilty of the offence U/S 392/397 IPC so, accused Kiran, who has been charged in the offence U/S 412 IPC cannot be held guilty of the same. However, since she was found in 64 possession of stolen money knowing that the same has been obtained by way of a robbery so, she clearly stands guilty of the offence U/S 411 IPC. Though, once again no separate charge for the offence U/S 411 IPC was framed against accused Kiran but it being a minor offence to Section 412 IPC so, U/S 222 Cr.PC she can be held guilty of having committed the said offence. In my aforesaid view, I also find ample support from the case DALBIR SINGH VS. STATE OF UP AIR 2004 SC 1990 & the case GBP PATTANAIK VS. PUBLIC PROSECUTOR, HIGH COURT OF A.P, AIR 1999 SC 775.
As regards accused Ramroop, I have already discussed that he was an active participant in the entire incident. As earlier also stated that in a criminal conspiracy it is not required that every person should actively participate in every aspect of the criminal conspiracy. Thus what is important is the manifestation of a common agreement and the fact that Sanjeev Batra was immediately taken after his abduction to village Dariyapur by the accused persons to the house of 65 accused Ramroop, clearly goes to show that all this was a part of pre-thought out plan. In the execution of the said criminal conspiracy as the ransom money of Rs.2 crores was yet to be received by the accused persons so the job assigned to accused Ramroop was to keep Sanjeev Batra in confinement secretly till the time the ransom money was received. Thus, the knowledge of the fact that Sanjeev Batra has been kidnapped for demand of ransom cannot be refuted by accused Ramroop. The recovery of Rs.20,000/- from out of the robbed money along with a dairy and sunglasses of Sanjeev Batra from his possession further shows his complicity in the matter.
Thus, in view of my aforesaid discussion, the prosecution has not only been successful in proving its case against accused Ramroop for the offence U/S 120B IPC as already discussed herein above but also for the offence U/S 364A/365/120B IPC beyond shadows of all reasonable doubts.
However, as regards the charge for the offence U/S 412 IPC, I may again state that in view of the discussion had by me herein above qua the case of accused Kiran for the 66 offence U/S 412 IPC, accused Ramroop also cannot be held guilty of the offence U/S 412 IPC and is accordingly held guilty of the offence U/S 411 IPC, for it stands un-disputedly proved on record that he did receive Rs.20,000/-, a pair of sunglasses and a dairy belonging to Sanjeev Batra knowing or having reason to belive that the same was a stolen property having been obtained from Sanjeev Batra by his other co-accused persons while committing robbery upon him.
In view of my aforesaid discussion, I while acquitting accused Narender in the present case hold all the other accused persons guilty for the various offences as has been discussed by me herein above which stands proved against them and convict them thereunder.
For the purposes of convenience, the various offences for which accused Surrender @ Sonu, Surjit @ Bittoo, Jitender, Kiran and Ramroop have been convicted are hereby mentioned in a tabulated form.
67.................................................................................................................................
NAME OF ACCUSED OFFENCE FOR WHICH CONVICTED .................................................................................................................................
SURRENDER @ SONU 120B IPC
364A/365/120B IPC
392/397/120B IPC
.................................................................................................................................
SURJEET @ BITTOO 120B IPC
364A/365/120B IPC
392/397/120B IPC
.................................................................................................................................
JITENDER 120B IPC
364A/365/120B IPC
392/397/120B IPC
.................................................................................................................................
KIRAN 120B IPC
212 IPC
411 IPC
.................................................................................................................................
RAMROOP 120B IPC
364A/365/120BIPC
411 IPC
.................................................................................................................................
ANNOUNCED IN THE OPEN COURT ON 24-10-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK COURT:ROHINI COURTS D E L H I. 68 IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI S.C.NO.31/06 STATE VERSUS:- SURRENDER @ SONU ETC.
FIR NO.52/98PS MODEL TOWN.
ORDER ON SENTENCE Vide my separate detailed judgment dated 24-10-07 all accused persons, namely, Surrender @ Sonu, Surjit @ Bittoo, Jitender, Ramroop and Kiran all have been convicted for various offences as follows:
.................................................................................................................................
NAME OF ACCUSED OFFENCE FOR WHICH CONVICTED .................................................................................................................................
SURRENDER @ SONU 120B IPC
364A/365/120B IPC
392/397/120B IPC
.................................................................................................................................
SURJEET @ BITTOO 120B IPC
364A/365/120B IPC
392/397/120B IPC
.................................................................................................................................
JITENDER 120B IPC
364A/365/120B IPC
392/397/120B IPC
.................................................................................................................................
KIRAN 120B IPC
212 IPC
411 IPC
................................................................................................................................. 69
RAMROOP 120B IPC
364A/365/120BIPC
411 IPC
.................................................................................................................................
I have heard all the five convict persons and their learned counsels as well as ld. APP for the State on the Point of Sentence.
It has been submitted by learned defence counsel on behalf of convict Surrender @ Sonu that he is aged about 38 years and has already remained in jail for the past about nine years and eight months during the course of trial.
As regards convict Jitender, it was stated that he is aged about 30 years and has no previous criminal record. It was also submitted that he is the sole bread earner of his old aged mother and has already remained in jail for a period of about nine years and six months during the course of trial.
As regards convict Surjit @ Bittoo, it was submitted that he is aged about 28 years and is the sole bread earner of his old aged parents. It was also submitted that he too has already remained in jail for a period of about nine years and six months during the course of trial.
As regards convict Ramroop, it was submitted that he is aged about 29 years and has an old aged mother to look-after. It was also submitted that he has no previous criminal record and has already 70 remained in jail for a period of about nine years and eight months during the course of trial.
Lastly, as regards convict Kiran, it was submitted that she is aged about 38 years and has an old aged mother and three minor children to look-after and her husband has already died. It was also submitted that she too has already remained in jail for a period of more than eight years during the course of trial and that her conduct during the course of trial has completely remained above board.
A lenient view was thus prayed for on behalf of all the convict persons.
On the other hand, ld. APP strongly prayed for imposition of a severe sentence of imprisonment stating that the act of the convict persons was very serious in nature. A severe sentence was thus prayed to be imposed upon all the convict persons. He even prayed for imposition of death penalty upon the convict persons for the offence U/S 364A IPC.
I have carefully perused the record.
Undoubtedly, the incidences of kidnapping/abduction for ransom is on an increase and such cases needs to be dealt with a hard hand. However, keeping in view the aggravating circumstances viz-a-viz the mitigating circumstances. The present case, in my considered opinion does not fall in the category of rarest of rare cases which could call for 71 imposition of death penalty upon the convict persons.
I thus, keeping in view the overall facts & circumstances of the case, coupled with the submissions made by all the convict persons and their already long period of detention in jail during the course of trial hereby sentence all the five convict persons as follows:
SENTENCE OF CONVICT SURRENDER @ SONU Convict Surrender @ Sonu is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/- for the offence U/S 120B IPC. In default of payment of fine, convict shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 364A/120B IPC, convict Surrender @ Sonu is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/-. In default of payment of fine, convict Surrender @ Sonu shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 365/120B IPC, convict Surrender @ Sonu is sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict Surrender @ Sonu shall further undergo simple imprisonment for a period of one month.
As regards the offence U/S 392/397/120B IPC, convict Surrender @ Sonu is sentenced to rigorous imprisonment for seven years and to 72 pay a fine of Rs.2,000/-. In default of payment of fine, convict Surrender @ Sonu shall further undergo simple imprisonment for a period of one month.
SENTENCE OF CONVICT SURJIT @ BITTOO Convict Surjit @ Bittoo is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/- for the offence U/S 120B IPC. In default of payment of fine, convict Surjit @ Bittoo shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 364A/120B IPC, convict Surjit @ Bittoo is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/-. In default of payment of fine, convict Surjit @ Bittoo shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 365/120B IPC, convict Surjit @ Bittoo is sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict Surjit @ Bittoo shall further undergo simple imprisonment for a period of one month.
As regards the offence U/S 392/397/120B IPC, convict Surjit @ Bittoo is sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict Surjit @ Bittoo shall further undergo simple imprisonment for a period of one month. 73 SENTENCE OF CONVICT JITENDER Convict Jitender is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/- for the offence U/S 120B IPC. In default of payment of fine, convict shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 364A/120B IPC, convict Jitender is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/-. In default of payment of fine, convict Jitender shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 365/120B IPC, convict Jitender is sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict Jitender shall further undergo simple imprisonment for a period of one month.
As regards the offence U/S 392/397/120B IPC, convict Jitender is sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict Jitender shall further undergo simple imprisonment for a period of one month. 74 SENTENCE OF CONVICT RAMROOP Convict Ramroop is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/- for the offence U/S 120B IPC. In default of payment of fine, convict shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 364A/120B IPC, convict Ramroop is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/-. In default of payment of fine, convict Ramroop shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 365/120B IPC, convict Ramroop is sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict Ramroop shall further undergo simple imprisonment for a period of one month.
As regards the offence U/S 411 IPC, convict Ramroop is sentenced to rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict Ramroop shall further undergo simple imprisonment for a period of one month. 75 SENTENCE OF CONVICT KIRAN Convict Kiran is sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/- for the offence U/S 120B IPC. In default of payment of fine, convict shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 212 IPC, convict Kiran is sentenced to rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/-. In default of payment of fine, convict Kiran shall further undergo simple imprisonment for a period of two months.
As regards the offence U/S 411 IPC, convict Kiran is sentenced to rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/-. In default of payment of fine, convict Kiran shall further undergo simple imprisonment for a period of one month.
Benefit of Section 428 Cr.PC shall be given to all the convict persons.
It is further directed that all the substantiative period of sentences of imprisonment shall run concurrently.
Before parting away with this order, I may also state that IO/Inspt. SP Tyagi has played a laudable role in making a breakthrough in 76 the investigation of the matter.
A copy of the Judgment as well as that of Order on Sentence be given free of costs to all the convict persons and another copy be attached with their jail warrants.
File be consigned to Record.
Announced in the open court on 27-10-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK COURT:ROHINI:DELHI 77 FIR NO.52/98 PS MODEL TOWN.
24-10-07 Pr. Addl. PP for the State.
Accused Narender is present on bail.
Accused Kiran is present on bail.
Other accused are present in JC.
IO/Inspt. SP Tyagi is present.
Vide my separate detailed judgment dated 24-10-07 accused Narender has been acquitted of the offence U/S 368/364/120B IPC while other accused persons have been convicted for the various offences as mentioned in the judgment.
Accused Kiran be taken in custody.
Bail bond of accused Narender stands cancelled and his surety is discharged. Documents of his surety, if any be returned forthwith.
At this stage, an application for release of currency notes forming part of case property in the present case has also been moved on behalf of Sanjeev Batra.
Case is now adjourned for consideration/orders on the said application as well as arguments on sentence to 27-10-07.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI 78 FIR NO.52/98 PS MODEL TOWN.
27-10-07 Pr. Addl. PP for the State.
All convict persons are present in JC along with counsels. IO/Inspt. SP Tyagi is present.
Arguments on Sentence heard.
Vide my separate detailed Order dated 27-10-07, Order on Sentence has been announced.
As regards an application, which was moved by complainant Sanjeev Batra for release of the cash amount which was robbed from him by the convict persons and was subsequently recovered by the police during the course of investigation, I may state that the said amount has not been claimed for by the convict persons during the course of trial. Even in their statements U/S 313 Cr.PC, they specifically stated that they do not claim the case property. Accordingly, I hereby direct that the said amount totaling to Rs.5,66,500/- be released to Complainant Sanjeev Batra subject to the following 79 conditions:-
Prior to the release of the said cash amount, photographs of the same will be taken and in which the various packets of currency notes should be clearly visible.
Secondly, an inventory of the cash amount detailing the details of the currency notes packet should be mentioned. The total number and denomination of the loose notes should be also separately mentioned.
The bank slip, if existing on any of the packet shall be separately retained and will not be released to applicant/complainant-Sanjeev Batra.
The case property shall not be released to complainant Sanjeev Batra before the expiry of one month period from today.
File be consigned to record room.
Announced in the open court on 27-10-07.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI 80