Rajasthan High Court - Jaipur
Sanjeev Sharma vs State Of Rajasthan Through Pp on 1 August, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
1. D.B. Criminal Appeal No.932/2014
1. Rahul Tyagi S/o Shri Devendra Kumar Tyagi, aged 47 years,
by caste Brahmin, R/o 246, Civil Line, Muzaffar Nagar (U.P.) at
present H. No.4-G.A.D. Flats Patel Nagar, Ghaziabad (U.P.) and
H.No.E-214 I.D.P.L. Colony, Veerbhadra Rishikesh, District
Dehradun (Uttaranchal)
2. Jai Kumar @ Bittu S/o Shri Kuvarpal Singh, aged 34 years, by
caste Jat, R/o Khedali Lilon, P.S. Samali, District Muzaffar Nagar
(U.P.)
(At present confined in the Central Jail, Kota)
----Accused-Appellants
Versus
The State of Rajasthan through the Public Prosecutor
----Respondent Connected With
2. D.B. Criminal Appeal No.970/2014 Sanjeev Sharma S/o Shri Rajendra Prasad Sharma, aged 34 years, by caste Brahmin, R/o Samor, P.S. Diholi, District Dholpur, Rajasthan (presently confined in the Central Jail, Kota)
----Accused-Appellant Versus State of Rajasthan through the Public Prosecutor
----Respondent AND
3. D.B. Criminal Appeal No.971/2014 Smt. Amishee wife of Shri Paresh, by caste Vaishya, aged about 45 years, previously resident of 210, Samudra Mahal, Dr. A.B. Road, Worli, Mumbai, now resident of B-606, Amrapali Green, Indirapuram (U.P.) at present lodged in the Central Jail, Kota
---Accused-Appellant Versus State of Rajasthan through the Public Prosecutor
----Respondent (2 of 53) [CRLA-932/2014] For Appellant(s) : Mr. Dinesh Singh with Mr. Sunil Kumar Jain for accused-appellants Rahul Tyagi and Jai Kumar @ Bittu (Appeal No.932/2014) Mr. Raj Kamal Gaur for accused-
appellant Sanjeev Sharma (Appeal No.970/2014) Mr. Shirish Gupta, Senior Advocate, assisted by Mr. Suresh Sahni, Mr. N. Joshi and Mr. R.M. Sharma for accused-appellant Smt. Amishee (Appeal No.971/2014) For Respondent(s) : Mr. Anurag Sharma, Additional Advocate General with Mr. R.S. Raghav, Public Prosecutor and Mr. Aniroodh Mathur, Mr. Krishnaveer Singh for respondent State HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment //Reportable// 01/08/2018 Per Hon'ble Mr. Justice Mohammad Rafiq:
These three criminal appeals on behalf of accused- appellants, namely, Rahul Tyagi and Jai Kumar @ Bittu (appeal no.932/2014), Sanjeev Sharma (appeal no.970/2014) and Smt. Amishee (appeal no.971/2014), are directed against judgment and order dated 02.08.2014 passed by the Additional Sessions Judge No.5, Kota (Rajasthan) in Sessions Case No.32/2012, whereby they have been convicted and sentenced in the following manner:-
Accused-appellants Conviction under Section Sentence Amishee, Rahul Tyagi, Jai 120-B, IPC Each to undergo life Kumar @ Bittu and Sanjeev imprisonment with fine of Sharma Rs.10,000/- (Rupees ten thousand only) each. In default of payment of fine, (3 of 53) [CRLA-932/2014] each to further undergo three months' additional simple imprisonment Amishee, Rahul Tyagi, Jai 364-A read with Each to undergo life Kumar @ Bittu and Sanjeev 120-B, IPC imprisonment with fine of Sharma Rs.10,000/- (Rupees ten thousand only) each. In default of payment of fine, each to further undergo three months' additional simple imprisonment Rahul Tyagi, Jai Kumar @ 344, IPC Each to undergo two years' Bittu and Sanjeev Sharma simple imprisonment with fine of Rs.5000/- each. In default of payment of fine, each to further undergo one month's additional simple imprisonment Rahul Tyagi 328, IPC To undergo three years' simple imprisonment with fine of Rs.10,000/- (Rupees ten thousand only). In default of payment of fine, to further undergo one month's additional simple imprisonment.
All the sentences were ordered to run concurrently.
Facts giving rise to these appeals are that on 11.06.2005 at 12:05 AM one Prakash Chand Choudhary (PW-47) gave an information on telephone at Police Station, Dadabari, Kota, that one boy Vaibhav, aged 16 years, son of his acquaintance Ramdev Agarwal, R/o Samudra Mahal, Dr. A.B. Road, Mumbai, was residing in Kamal Anshukor Hostel. On 10.06.2005, at about 12:00-01:00 PM, after locking the room Vaibhav had gone with someone but he has not returned back as yet. Pursuant to the above report, the police conducted investigation. In this connection, Bhagwat Singh Hingad (PW-52), S.H.O., Police Station Dadabari, Kota, visited Delhi, wherefrom he sent a written report (Exhibit P-55) through fax to the In-charge, Police Station, Dadabari, stating that the person, who came to the hostel and took Vaibhav with him, had (4 of 53) [CRLA-932/2014] written his name as S.R. Srivastava in the register of the hostel. The persons, who saw that person taking Vaibhav with him, could identify that person. Vaibhav was searched in all other hostels, inns, inhabited houses and various other places in Kota city. Police parties were dispatched to various places in and outside Rajasthan. The police however got a secret information that Vaibhav has been detained by some notorious persons, who are now demanding ransom for his release. Bhagwat Singh Hingad (PW-52) further mentioned that he along-with some other police officials reached Delhi for investigation of the matter where he learnt from some secret sources that relatives of Vaibhav Agarwal, in which one Motilal Oswal was also included, have come from Mumbai to Delhi to give ransom money to kidnappers to get Vaibhav released. From the allegation in the report, the offence under Sections 364 and 364A IPC was made out. It was stated that though informant {Shri Bhagwat Singh Hingad (PW-52)} requested the relatives of the abducted boy to make a complaint to the police but they refused and did not want to give complaint to the police. The In-charge of the Police Station was required to register an F.I.R. On that basis, F.I.R. No.239/2005 (Exhibit P-56) was registered for offence under Sections 364 and 364A of the IPC.
During the course of investigation, the Crime Branch of Delhi put the telephone of Vaibhav's father on surveillance. On 26.06.2005, the kidnappers had settled ransom amount and place was also decided where ransom was to be given on 27.06.2005.
On 27.06.2005, accused Jai Kumar @ Bittu was arrested in Rozet Inn Hotel, Khatauli, District Muzaffar Nagar (U.P.) and ransom amount of rupees three crore was also recovered. The Maruti Car (5 of 53) [CRLA-932/2014] used by the accused was also seized. As per the information given by accused Jai Kumar, victim Vaibhag Agarwal was recovered from Flat No.4, G.D.A. Officers Colony Staff Quarters, Patel Nagar Police Station, Sinhni Gate, Ghaziabad (U.P.). Accused Rahul Tyagi was arrested on 01.07.2005 in village Fatehpur, District Sharanpur. Other accused Pankaj Kumar and Sanjeev Sharma were also arrested.
The police, after completion of the investigation, filed charge-sheet against accused Rahul Tyagi, Amishee, Sanjeev Sharma, Jai Kumar @ Bittu and Pankaj Kumar for offence under Sections 364A and 120B of the IPC in the court of the concerned Magistrate, who committed the same to the Court of Sessions. Trial of the case was ultimately made over to the court of Additional Sessions Judge No.5, Kota. The trial court framed charges against the accused-appellants for offence punishable under Sections 120B and 364A read with Section 120B of the IPC. The accused-appellants denied the charges and claimed to be tried. The prosecution examined as many as 58 witnesses and exhibited 223 documents. Accused-appellants were examined under Section 313 Cr.P.C., in which they alleged their false implication and denied the charges. Defence examined 3 witnesses and exhibited 19 documents. The trial court, after conclusion of the trial, convicted and sentenced the accused- appellants vide impugned judgment in the manner indicated above. Hence these three separate appeals on behalf of four accused-appellants.
Appeal No.932/2014 (Appellants Rahul Tyagi and Jai Kumar @ Bittu):
(6 of 53) [CRLA-932/2014] Mr. Dinesh Singh, learned counsel for accused-appellants, has argued that the judgment of conviction passed by the trial court is legally not sustainable being contrary to the provisions of the law. The judgment passed by the learned trial court is ex-facie illegal and as such deserves to be set aside. The trial court has failed to examine that there is no direct evidence against the appellants to connect them with the alleged offences and the case is based only on the circumstantial evidence, which is not reliable. There is no reliable evidence on record for reasonable apprehension that Vaibhav Agarwal (PW-19) might be put to death or hurt to compel the government or any foreign state or inter governmental or organization or any other person to do or abstain from doing any act or to pay a ransom. There is nothing on record to show that Vaibhav Agarwal (PW-19) was threatened to cause his death or hurt. Therefore no offence under Section 364A IPC is made out.
It is argued that the trial court failed to understand the important fact of the case that there is no medical and expert's evidence on record to prove that the appellants have administered or caused any poison or any stupefying, intoxication or unwholesome drug or other thing with intent to cause hurt to Vaibhav Agarwal (PW19). No investigation was conducted by the police on this point. Therefore, no offence under Section 328 IPC is made out. There is no cogent evidence against the appellants that Vaibhav Agarwal (PW-19) was confined for ten or more days by them. Therefore, no offence under Section 344 IPC is made out. It is also argued that the trial court failed to appreciate that there is no direct or even circumstantial evidence against the appellants that they agreed to do or caused to be done an illegal (7 of 53) [CRLA-932/2014] act by illegal means, such an agreement designated a criminal conspiracy in pursuance thereof. Therefore, the ingredients mentioned under Section 13 of the Indian Evidence Act 1872 are also not fulfilled.
Learned counsel submitted that the trial court failed to comprehend that the FIR (Ex.P-56) has no probative value as it is a cryptic and vague information/massage sent through the fax from Delhi by Bhagwat Singh Hingad (PW-52) and therefore cannot be termed as an FIR. The so called incident was shown to have taken place on 10.06.2005. The police was informed by Prakash Choudhary (PW-47) but the FIR (Ex.P-56) was lodged on 26.06.2005. Bhagwat Singh Hingad (PW-52) started investigation and the Hostel visitor's register Article 1 and 2 were seized through the seizure memo (Ex.P-33). Apparently, Bhagwat Singh Hingad, C.I., (PW-52) visited Delhi and started investigation much prior to the registration of the criminal case. The FIR does not comply the provisions of Section 154 of the Cr.P.C. The FIR (Ex.P-
56) was recorded after investigation and with inordinate delay. The FIR is a post investigation document which is fatal for prosecution. Therefore, such type of the delayed FIR could only be treated statement under Section 161 (3) Cr.P.C. and not as the FIR.
Learned counsel next argued that the trial court has failed to appreciate that the recovery of ransom amount of Rs.3 crore from the exclusive and conscious possession of the appellants at Rozet Inn Hotel, Khatauli, could not be proved through independent and reliable evidence. The local officers and the local records of the police related with the recovery of ransom amount were not produced before the trial court. Sunil Kumar (PW-7), witness of (8 of 53) [CRLA-932/2014] recovery of ransom amount, is police constable. Surendra Singh, S.I., another witness thereto, has not been produced during trial. Recovery memo (Exhibit P-27) is not attested by the familiar persons of Vaibhav Agarwal (PW-19), who were present at the time of recovery. The trial court failed to appreciate that the recovery of Vaibhav Agarwal (PW19) from the flat of GDA Officers Colony Staff Quarter, Paten Nagar Gaziyabad (U.P.) from the exclusive and conscious possession of the appellants could not be proved through independent, reliable and local evidence. The local officers and the local records of the police station related to recovery of kidnapped boy were not produced before the trial court. The witnesses, namely, constable Rajendra Singh and S.I. Surendra Singh related with the recovery memo of Vaibhav Agarwal, have not been produced before the trial court. Compliance of mandatory provisions of Sections 100 and 165 Cr.P.C. was not made; as such the recovery of kidnapped boy Vaibhav Agarwal from this flat could not be proved.
It is further argued that the trial court failed to consider that the evidence relating to undisputed handwriting of accused appellant no.1, collected during investigation, was neither taken after permission of the Magistrate in terms of Sections 4 and 5 of the Identification of Prisoners Act, 1920, nor in the presence of any independent witnesses. It is also submitted that the handwriting expert was not examined before the trial court as a witness to corroborate the FSL report (Ex.P-212). The opinion of the handwriting expert by its nature is very weak and infirm evidence and, therefore, cannot be used to convict the appellants. The trial court failed to consider the prosecution evidence, namely, (9 of 53) [CRLA-932/2014] the call details (Ex.P.172 to 182, Exhibits P-73, P-74, P-43, P-89 and P-207) produced in the evidence in accordance with law, which is not admissible in evidence as per Section 65B of the Indian Evidence Act, until and unless the certificate is produced from the person in-charge of the computer system. No person acquainted with the computer system was examined. The connectivity of appellants with the cell number is doubtful.
Learned counsel also argued that the trial court failed to lawfully consider that the identification parade was conducted with inordinate delay. The evidence of identifying witnesses, namely, Mahaveer Prasad (PW-20), Mahaveer Singh (PW-21), Jag Mohan Sharma, RJS (PW-34) and identification memos (Ex.P-62 and P-
63) show that the appellants had taken plea that they were shown to the witnesses and their photographs were also taken. The evidence of Mahaveer Prasad (PW-20) and Mahaveer Singh (PW-
21) proved the fact that the photographs of Rahul Tyagi were published in the news papers, while Jai Kumar was not identified by Mahaveer Prasad (PW-20). It is also mentioned that the prosecution could not establish that the appellants from the date of arrest and during investigation were kept muffled face. Therefore, the evidence of identification parade loses its legal value.
It is argued that the trial court failed to comprehend that Bhagwat Singh Hingad, SHO (PW-52) has lodged the criminal case as the complainant and he had himself started investigation relating to the recovery of ransom amount, recovery of Vaibhav Agarwal and identification of the accused. Investigation by the complainant being against the basis tenets of the criminal (10 of 53) [CRLA-932/2014] jurisprudence, is impermissible in law. It is settled principle of the criminal trial that when prosecution makes out two probable cases and from the evidence two views are possible, the view that goes in favour of the accused prevails. The trial court did not give any reasons in not relying the defense taken by the appellants. The accused appellants ought to be extended the benefit of such situation.
Learned counsel also argued that this is a case where there appears to have been a miscarriage of justice by the wrong application of the well settled principles of law. The prosecution case is very shaky and doubtful because of some inherent defects and improbabilities running through its entire story. There are several weakness in the testimony of the prosecution witness which have been over looked by the learned trial court. The circumstance of the case creates considerable doubt on veracity of the prosecution story. The evidence taken by the trial court is unsustainable in the eye of law. Therefore, conviction of the accused-appellant by the trial court is illegal and against law. Appeal No.970/2014 (Appellant Sanjeev Sharma):
Mr. Raj Kamal Gaur, learned counsel for accused-appellant Sanjeev Sharma, argued that the trial court absolutely engrossed itself in hyper technicalities, ignoring altogether accepted canons of criminal jurisprudence and the fact that there are gross contradictions in the statement of witness produced by the prosecution. As per the prosecution story, on 10.06.2005, there were two persons, namely, Rahul Tyagi and Jai Kumar @ Bittu in the Car. It is thus clear that the appellant was not involved in kidnapping. Even during journey from Kota to Gaziabad, there was (11 of 53) [CRLA-932/2014] no role of any third person, which means during that journey also appellant had no role to play. As per the prosecution story, victim Vaibhav was kept in Gaziabad from 11.06.2005 to 27.06.2005, but during this period also there were only two persons, one Srivastav, who kidnapped Vaibhav, used to come to meet Vaibhav and made calls to his father for ransom, and another, who was the driver of the car and became caretaker for Vaibhav while he was kept in the flat. Then, third person as per the statement of Vaibhav came in picture on 27.06.2005 at around 9-10 PM, who told Vaibhav that his father has cheated them by informing the police. Then he tied Vaibhav's hands and legs and also tied 'patti' (a piece of cloth) on his eyes and then after locking the room from outside he went away. This third person as per Vaibhav in his statement under Section 164 of the Cr.P.C. was named probably Sharma. But when his statement was recorded before the court, he stated that the third person was named as Gupta. Vaibhav further stated that he is not sure about the name of the third person. It is also admitted position of the prosecution witnesses that immediately after arrest of the accused persons, names of the accused persons were disclosed in the newspapers and even the photos of the accused persons were published therein. It has also come on record that immediately after arrest of the accused persons, their identity was not kept secret or they were not kept 'baparda' during the investigation.
It is argued that the appellant was arrested on 05.07.2005 but his identification parade was got conducted on 28.07.2005. Much prior to identification of the appellant, victim Vaibhav was made known that this particular person was Sanjeev Sharma and this was the third person. The identification itself became doubtful (12 of 53) [CRLA-932/2014] and victim Vaibhav was not sure about him. Even if role of the appellant is admitted as stated by the prosecution to be of the third person, then also the charge of Section 364-A read with 120- B is not proved against the appellant. The version of the prosecution story is that accused Pankaj is brother of Sanjeev Sharma and before kidnapping him, Rahul Tyagi, Jai Kumar @ Bittu and Sanjeev came to Kota and stayed at the room of the Pankaj. Further, it is alleged that Rahul Tyagi stayed in Bundi Hotel in the name of Anurag and three other persons Jai Kumar, Sanjeev and Pankaj also stayed with him. The court below has not found the charges proved against Pankaj about his involvement in the case and the story of the prosecution about accused persons staying at Pankaj's room and at Bundi Hotel has not been believed by the trial court and therefore, Pankaj has been acquitted. When the story is not proved in regard to one accused, then that part of story also cannot be relied upon in respect of other accused persons. The allegation against the appellant remains only in respect of the incident of 27.06.2005 and incident of 3-4 days back of 27.06.2005, for which appellant has been identified as the third person.
It is argued that appellant Sanjeev Sharma was neither room-mate of Rahul Tyagi nor he knew Vaibhav Agarwal or his family. Appellant belongs to Dholpur district and has no connection with the Vaibhav's family. In prosecution story, it is alleged that appellant was living with Rahul Tyagi, but admittedly police has not recovered any article relating to appellant Sanjeev from the flat, said to be of Rahul Tyagi. The prosecution has made an effort to establish that a third person who came to Vaibhav on
27.06.2005 and 3-4 days before, was Sanjeev Sharma, but it is (13 of 53) [CRLA-932/2014] pertinent to mention here that Vaibhav's statement were recorded under Section 161 Cr.P.C. immediately after his recovery and in that statement, nothing is said by him about the incident of 27.06.2005. Who was this third person could only be verified if the identification parade would have been conducted without any delay. After arrest of the appellant, he was not kept Baparda and was taken to the room of Pankaj on 11.07.2005 and thereafter, his identification parade was conducted on 28.07.2005. This way the identity of the appellant was disclosed. It is an admitted position that immediately after arrest of the accused persons, their photos with name were published in the newspapers. Therefore, the identification parade was illegally conducted. Conviction of the appellant merely on the basis of identification, which was not fullproof, is bad and illegal. It is submitted that Vaibhav is the only person who has stated about the third person to be Sharma/Gupta or later on identified as appellant. But in his statement, he admitted that he is not sure about the name of third person and he cannot explain why he has initially stated the name of third person to be Sharma and then Gupta in the subsequent statement. Therefore, the version of the Vaibhav crates doubt about the third person.
It is argued that as per prosecution story, a number plate has been recovered at the instance of the appellant. In this regard, it is submitted that this recovery memo is falsely prepared. The Investigation Officer has admitted that he does not know if the number plate recovered from the appellant was ever mounted on the car or if mounted then when was it removed. Even the room from where the plate has been recovered does not belong to the appellant. It is said that the room was in possession (14 of 53) [CRLA-932/2014] of Pankaj and one more student who used to live with Pankaj. When plate was recovered, at that time Pankaj was already in police custody, then how the room was opened or if the room was already open, has not been proved. Police Officer initially admitted that the room was not locked and if it is so, then the recovery of the plate becomes doubtful. Even if such recovery is made, then also recovery cannot be admitted as the place from where the recovery of the plate is made was not in power and possession of the appellant without any doubt of tampering. The recovery was thus from an open place. It is next argued that the prosecution has developed a story that the accused persons were in contact with each other through mobile and the accused-appellant Sanjeev was also in contact with them, but prosecution has not placed on record the call details relating to appellant and even the call details of other accused have not been proved by the competent authority as per law. The court below has also not considered this aspect of the prosecution story. Statement of Vaibhav Agarwal under Section 161 of the Cr.P.C. was recorded on the next day of the recovery and it was the first version about the incident. In this statement, role of the appellant is not disclosed. Thereafter, statement under Section 164 of the Cr.P.C. was recorded in which Vaibhav made improvement and then in court statement further improvements were made. Therefore, subsequent version of the story developed by Vaibhav cannot be held proved beyond reasonable doubt.
Even if for the sake of argument, the appellant is taken as the third person and it is found proved that the appellant is the person who met victim Vaibhav 3-4 days before 27.06.2005, in which no such talks were there which may culminate into criminal (15 of 53) [CRLA-932/2014] intent but as per Vaibhav himself it was a general talk. And even if the incident of 27.06.2005 is taken as it is, then also the wordings of the third person (appellant) uttered to victim may be looked into in which it is alleged that the third person came to Vaibhav in night and told him that his father has cheated them and informed police and therefore he would be killed, and thereafter, he tied his hands and legs and also tied 'patti' on his eyes and then locked the door from outside and thereafter, 1½ hours later, police came and opened the door. This story nowhere depicts that the so called third person has done any such act on account of which he may be punished for the offence under Section 364-A of the IPC. If the appellant as the third person would be having any such intention which is essential for Section 364-A of the IPC, then the appellant won't have gone simply knotting the hands and legs of victim and that too in a situation when as per the prosecution, the plan of the accused had already failed and accused Jai Kumar along with ransom was already arrested. As per the prosecution story itself, victim Vaibhav was not tortured and he was kept comfortably and even when the police arrested Jai Kumar with ransom, then also the third person instead of causing any hurt or causing any injury to cause death, simply tied the hands and legs and eyes and after locking the door he ran away. At that time, the third person was having every opportunity to commit some wrong with the victim, but he did nothing. This itself shows that the third person/accused persons were not having any intention to cause death or to cause any injury upon the victim, and no such gesture was shown, but on the other hand victim himself advised his father to pay the ransom, and he himself accompanied Srivastave from Kota to Gaziabad and during this long journey in a small car, he did not (16 of 53) [CRLA-932/2014] raise any alarm. Even he played chess with the accused and lived in the flat for 17 days comfortably. Therefore, no offence is proved under Section 364-A of the IPC. None of the alleged conduct of the accused persons, especially of the appellant, shows that victim was kidnapped to receive the ransom with the fear of death to victim, because victim never faced the fear of death. Even no knife or weapon was used or shown to victim. When he was kept comfortably as per the prosecution story, then just for the reason that police has developed an interesting story which is not proved as per the evidence available on record, no person can be held guilty for the offence under Sections 364-A & 120-B of the IPC.
As per the prosecution story, investigation team took help of various other Officers of different States police and technical expert and it is said that phone of Ramdev was put on surveillance through which Bhagwat Singh was getting every information of talks between accused and Ramdev. But no such person or Officers of other state police or expert has been examined in evidence to prove this fact. Nothing has been placed on record to prove that the phone of Ramdev was put on surveillance and in Delhi, Bhagwant Singh Hingad was equipped to listen the talk. On the other hand, Bhagwant Singh Hingad has admitted that he was in contact with Ramdev and Motilal. It means that the story of the prosecution about putting the phone on surveillance and secret investigation is false and prosecution in absence of any evidence has failed to prove this story. It is further argued that the FIR was lodged on 26.06.2005 whereas Vaibhav's father Ramdev received call in morning of 11.06.2005 itself about the kidnapping of Vaibhav, but then also the compliant was not lodged, despite the fact that Ramdev visited Kota on 13-14 of June 2005. It smacks (17 of 53) [CRLA-932/2014] otherwise about the prosecution story. There is no explanation of lodging of FIR with a delay of 16 days.
Appeal No.971/2014 (Appellant Amishee):
Mr. Shirish Gupta, learned Senior Counsel, for accused- appellant Amishee, argued that the accused-appellant is innocent and has committed no offence. The prosecution has utterly failed to establish the charges under Sections 120B and 364A read with 120B of the IPC against the accused-appellant beyond reasonable doubt. She has been wrongly held guilty. The impugned judgment is wholly illegal and erroneous as it suffers from basic infirmity, illegality and perversity. Reasonings given by the learned trial court are based on surmises and conjectures and as such the same are liable to be set aside. There is no direct evidence against the accused-appellant about the criminal conspiracy with the other accused-persons. Entire case against her rests on circumstantial evidence. The trial court should not be carried away by mere sentiments, conjectures or surmises. From the established facts, the inference of conspiracy could not be drawn. There must be cogent material to reasonably establish a connection between the accused-appellant and other accused-persons for the alleged conspiracy and the act done pursuant to that conspiracy. There are many unsatisfactory features in the present case which renders prosecution evidence against the appellant unreliable and in any case, inadequate to prove the guilt of the accused- appellant.
Learned Senior Counsel argued that the prosecution has led evidence that the accused-appellant and Ramdev Agarwal (PW-1), father of Vaibhav, were living in the same society, namely, Samudra Mahal in Bombay and the accused-appellant had access (18 of 53) [CRLA-932/2014] to the house of Ramdev Agarwal as she was a friend of Smt. Sunita Agarwal (PW-5). Ramdev Agarwal (PW-1) has stated that Samudra Mahal Apartment is one of the high class apartments in Mumbai and its one flat costs about Rs.4-5 crore. The accused- appellant herself was living in Samudra Mahal Apartments, as such, her financial condition was also sound. Many families living in the apartment had good friendship with Ramdev Agarwal and they had access to his house. Therefore, the circumstance that accused-appellant had personal knowledge about victim Vaibhav and financial, social and family status of Ramdev Agarwal cannot be used against the accused-appellant alone. It is argued that witness Vaibhav has attempted to improve upon his statements under Section 161 Cr.P.C. and Section 164 Cr.P.C. The trial court has considered the circumstance that Vaibhav was studying at Kota was within the knowledge of accused-appellant. In the cross- examination, Sunita Agarwal (PW-5) has admitted that she had, in her statement under Section 161, not mentioned that she had met accused-appellant Amishee after admitting Viabhav to Kota. Hence, the entire evidence about Amishee having any detailed information regarding Vaibhav appears to be an afterthought. The assertion of Sunita Agarwal (PW-5) that she met Amishee on 9 th June is a pure fabrication and improvement over her statement under Section 161 Cr.P.C. by the witness and cannot be believed as it has been so stated with the oblique and dishonest objective to make the prosecution case appear more plausible.
It is argued that from the evidence on record it is clear that the invitation for lunch was a casual invitation and it was not a formal invitation. There was no special occasion to arrange lunch. Sunita Agarwal (PW-5) has admitted that accused-appellant was ill (19 of 53) [CRLA-932/2014] and in these circumstances it cannot be said that she would like to have fast-food in the lunch and that too on a formal invitation. Further, never before 10th June, Sunita Agarwal (PW-5) invited accused-appellant on a lunch alone. The lunch programmes were never arranged at home. Thus, it is not believable that accused- appellant was invited for lunch on 10th June. Further, this witness has improved her version because firstly she stated that accused- appellant informed on phone about cancellation of programme and then she further improved her version and stated that she made phone to the accused-appellant and then the accused-appellant told about cancellation of programme. Her statement is also not reliable because in her police statement (Exhibit D-5) she has stated that after 5th June, Amishee did not meet her. In her police statement she stated nothing about arranging the lunch on 10 th June. Thus, Sunita Agarwal (PW-5) has materially deviated from her earlier version.
Learned Senior Counsel argued that the trial court has committed serious illegality in drawing inference of conspiracy on the ground that accused-appellant did not meet Sunita Agarwal after 10th June, 2005 and she did not enquire from her about well being of Vaibhav after his release. From the statement of this witness it is clear that the fact of kidnapping was not known to any inhabitant of the Samudra Mahal Apartmnet and this incident was kept secret. Thus, no question arose that accused-appellant had knowledge about this incident. As regards the circumstances that accused-appellant did not meet Sunita Agarwal (PW-5), mother of Vaibhav, after release of Vaibhav, the trial court has failed to consider that the accused-appellant had no opportunity to meet with her. The accused-appellant was arrested on 04.07.2005 (20 of 53) [CRLA-932/2014] and on that date Sunita Agarwal (PW-5) was not available in Mumbai. Therefore, question of accused-appellant meeting Sunita Agarwal (PW-5) after the release of Vaibhav did not arise and these circumstances also do not go against the accused-appellant.
Learned Senior Counsel further argued that the prosecution has sought to lead evidence in this case that accused Rahul Tyagi and Amishee were old friends and knew each other since college days. For that purpose, the prosecution is relying upon a handwritten endorsement of an individual claiming to be the acting Principal of DAV College at Muzaffar Nagar, U.P. The name of the acting Principal is allegedly one Mahendrapal Singh. This endorsement was allegedly given by the said acting Principal on the letter issued by the Investigating Officer. The letter along-with the endorsement is Exhibit P-59. It is stated that Mahendrapal Singh's statement was recorded by the police under Section 161 Cr.P.C. but he was not examined on oath. There is no evidence on record to establish that the endorsement made on the letter in Exhibit P-59 actually belongs to Mahendrapal Singh or not. The handwriting along-with the signature of the alleged Mahendrapal Singh has not been proved. Similarly, the contents of the endorsement allegedly written in the handwriting were also not proved. Further, the record of the college on the basis of which the information recorded in the endorsement was obtained has also not been produced before this Court. It is submitted that under the Indian Evidence Act for proof of documents, the author of the document as well as the contents of the document have to be proved by positive evidence and it is only then the document can be marked and read in evidence. It is submitted that the contention of the prosecution that Rahul Tyagi was an old friend of (21 of 53) [CRLA-932/2014] Amishee is not proved at all. The fact as to whether Amishee and Rahul Tyagi were in fact studying in DAV College, has not been proved.
Learned Senior Counsel also argued that the allegation of the prosecution that Amishee had travelled from Mumbai to Delhi on 27.06.2005 and from Delhi to Mumbai on 30.06.2005. In order to support this contention, the prosecution has examined one Mohammed Taufeeq (PW-29), who claimed to be a security-in-
charge working with Air Deccan, Delhi Airpot. This witness has produced a document claiming to be duplicate copy of the flight reservation details for the alleged flight which is alleged to have been booked by Amishee. This document has been marked as Exhibit P-57. Page 1 of the document bears the signature of Mohammed Taufeeq. Second page appeared to have been stapled to this exhibit which has no signatures of anyone at all. It is submitted that this entire document is inadmissible in evidence. It is also argued that the prosecution in order to establish their case that Amishee had spoken to Rahul Tyagi during the relevant period of time on phone have placed reliance on certain phone records of telephone companies and have also examined one witness to that effect. And the trial court has held that the telephone records in this case are not admissible as evidence.
It is next argued that the trial court failed to appreciate that where a case rests squarely on circumstantial evidence, the circumstances from which an inference as to the guilt of the accused-appellant is drawn have to be proved beyond reasonable doubt and should be shown to be closely connected with the principal fact sought to be inferred from those circumstances. The prosecution has failed to prove that the fact of financial status of (22 of 53) [CRLA-932/2014] Ramdev Agarwal and his relationship etc. were in exclusive knowledge of accused-appellant. The fact that Vaibhav was studying at Kota was known to many persons and the fact that Dr. Darun Agarwal is doctor in Pondicherry was also known to many person. Saurabh S/o Dr. Karun Agarwal was also studying in coaching classes and was living in the same hostel in which Vaibhav was living. There is no cogent proof that the appellant met Dr. Karun Agarwal. There is also no evidence that the appellant and Rahul Tyagi studied together in the year 1987. There is also no satisfactory evidence that accused Rahul Tyagi stayed in Kohinoor Hotel at Mumbai and appellant met him. From the date of kidnapping of Vaibhav till his release, the fact of kidnapping was kept secret and was not made known to inhabitants of Samudra Mahal Society. There is no evidence that Sunita Agarwal (PW-5) had disclosed the fact of kidnapping her son to appellant, and that after release of Vaibhav and the arrest of the appellant, Sunita returned to Bombay. The appellant did not stay with Rahul Tyagi at Daruhera. The time, date and place of giving ransom was settled after booking of tickets by the appellant. The appellant did not undertake journey through air flight from Mumbai to Delhi on 27.06.2005. The appellant was not having mobile number 9820044912, it was not recovered from her possession. Neelima Garg, who produced that mobile, has not been examined to explain as to how she came in possession of that phone etc. All these circumstances, which have not been proved by the prosecution, indicate towards innocence of the appellant.
It is further submitted that the trial court has failed to consider that in a case of circumstantial evidence, all the (23 of 53) [CRLA-932/2014] circumstances must be fully established and all that facts so established must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature and prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence and the circumstances so proved must form a complete chain of events, on the basis of which no conclusion other than the one of guilt of the accused can be reached and it should not leave any substantial doubt in the mind. The chain of circumstances is not unerringly pointing towards the guilt of the accused-appellant.
Learned Senior Counsel next submitted that the trial court did not consider that the prosecution has utterly failed to prove the fact of meeting of mind of the accused-appellant with the other accused-persons for committing any offence, muchless offence of kidnapping. The prosecution has failed to prove that what interest the appellant was having in getting the victim kidnapped. The prosecution has also failed to prove that the agreement between the appellant with accused Rahul Tyagi to commit an offence. Mere association of the accused-appellant with accused Rahul Tyagi, as alleged by the prosecution, is no proof of any agreement between them to commit criminal offence or holding the appellant as a member of conspiracy. Mere suspicion of motive is not sufficient to hold accused guilty for the offence of conspiracy.
Learned Senior Counsel also submitted that the trial court has failed to consider that Vaibhav (PW-19) has stated nothing about the accused-appellant. This witness has not stated that (24 of 53) [CRLA-932/2014] other accused, namely, Rahul Tyagi, Jai Kumar or Sanjeev Sharma had uttered name of accused-appellant Amishee before him or they talked with the accused-appellant in his presence. Even if statement of Sunita Agarwal (PW-5) is accepted, then also no case is made out against accused-appellant Amishee in regards to providing information to Rahul Tyagi. However, the evidence of Sunita Agarwal (PW-5) is full of contradictions and the same has been given only with a view of involving Amishee in the present case.
It is next submitted that Ramdev Agarwal (PW-1), Motilal (PW-2), who was business partner of Ramdev Agarwal, and Anil Jain (PW-3), who is friend of Ramdev Agarwal, have stated nothing against accused-appellant Amishee. They have not stated that they got any scent that accused-appellant is involved in kidnapping Vaibhav. The evidence of Ashok Talvi (PW-4) is of no credence because his statement is based on hearsay evidence. Only after arrest of the accused-appellant, this witness came to know about the accused-appellant. Bhagwat Singh Hingad (PW-
52) has also not specifically stated about involvement of accused- appellant in the conspiracy. The accused-appellant was brought from Mumbai to Kota and at Kota she was arrested on 04.07.2005. She remained in police custody up to 15.07.2005 and during this period she did not give any information under Section 27 of the Evidence Act.
It is further argued that it has come on record that accused- appellant is a lady of high status. Her father retired from high rank post from U.P. Electricity Board. Her husband has an M.B.A. degree from Harvard University and is a partner in the Boston Consulting Group, one of the three leading consulting companies (25 of 53) [CRLA-932/2014] in the world. She has got two sons. Many times she had visited foreign countries. Her financial condition is very sound and there were no compelling circumstances to indulge in such like activity of kidnapping. There could be no intention of accused-appellant to make a plan of kidnapping of the son of a known person and to get ransom money.
Learned Senior Counsel argued that in order to complete the chain of circumstances, the prosecution was required to produce all material witnesses. In the instant case, the prosecution has not examained Dr. Karun Agarwal, elder brother of Ramdev Agarwal (PW-1), with whom it is alleged that the accused-appellant had talked. Paresh Wadia, Manager of Hotel Kohinoor, Mumbai, has not been examined. Smt. Neelima Garg, who produced the mobile phone, has not been examined. Saurabh, who was studying in the same coaching institute and was residing in the same hostel and is real cousin of victim Vaibhav and is an important witness, has not been examined by the prosecution. The Superintendent of Police, Kota City, Kota, who was monitoring the investigation and under whose instruction Shantanu Kumar (PW-39) went to Bombay and brought the accused-appellant from Bombay to Kota for interrogation, has not been examined by the police. Mahendra Pal, the Principal of DAV College, Muzaffar Nagar (UP) has not been examined by the prosecution.
There is no evidence on record to suggest that accused- appellant Amishee ever attempted to extort a ransom from anyone and hence, Section 364A of the IPC does not apply in this matter. If it is applied in cases like this, the law would become ultra vires the Constitution of India. It is submitted that the intention of legislature while introducing Section 364A was to (26 of 53) [CRLA-932/2014] punish criminals who held the State to ransom and not individuals. In cases where ransom has been demanded from individuals as alleged in the present case, then only Section 363 or at the maximum Section 364 of the IPC can be applicable and nothing else. Reliance in support of this argument is placed on the judgment of the Supreme Court in Suman Sood @ Kamal Jeet Kaur Vs. State of Rajasthan - (2007) 5 SCC 634.
Learned Senior Counsel further argued that it is pertinent to note that Pankaj, who was residing in Kota, brother of accused Sanjeev Sharma, under whose information the number plate of the car was recovered and in his rented accommodation the alleged kidnapping was planned, has been acquitted of the charges. The trial court in respect to Pankaj has opined that as no direct evidence linking him with the offence is found, it is just and legal to acquit him but in the case of accused-appellant Amishee, an entirely different view has been adopted without any basis of law or evidence. Learned Senior Counsel also relied on the judgment of the Supreme Court in Harpal Singh alias Chhota Vs. State of Punjab - (2017) 1 SCC 734.
Per contra, Mr. Anurag Sharma, learned Additional Advocate General appearing for the State, has argued that the prosecution has proved the charges against all the accused-appellants beyond reasonable doubt. The accused-appellants hatched up a conspiracy to kidnap Vaibhav Agarwal (PW-19) for ransom. From the testimony of Sunita Agarwal (PW-5), mother of the victim, accused-appellant Amishee had all the knowledge about Vaibhav going to Kota for his IIT preparation studies. She also knew about Dr. Karun Agarwal (Vaibhav's uncle), who was settled in Pondicherry. Accused Amishee was classmate of accused Rahul (27 of 53) [CRLA-932/2014] Tyagi in DAV College at Muzaffar Nagar, U.P. They were in constant touch with each other and used to talk on phone prior to and subsequent to kidnapping of Viabhav and even during the period Vaibhav was in confinement of Rahul Tyagi, as is evident from the CDR (Exhibit P-42). Calls were made from cell phone of Amishee having number 9829044912, which was in the name of Paresh Vaishya, husband of Amishee, to cell phone number 9891037797 and 9899583106, which both belonged to Rahul Tyagi. Seizure Memo of CDR of Amishee's phone is Exhibit P-42. Rahul Tyagi kidnapped Viabhav impersonating himself as one Srivastava, a friend of Dr. Karun Agarwal, from his hostel at Kota. Vaibhav was administered drug and brought in a car of Rahul Tyagi, registered in the name of his father, and detained in his rented house at Ghaziabad for a period of 17 days. The parents of Vaibhav were threatened by the accused of dire consequences if the amount was not paid. Initially the demand of Rs.10 crore was made with a warning not to approach the police, which is evident from the statement of Ramdev Agarwal (PW-1) and Motilal Oswal (PW-2), who negotiated with Rahul Tyagi and got the amount of ransom reduced to Rs.3 crore. Motilal Oswal (PW-2) and Anil Jain (PW-3) took the ransom money by flight to Delhi and then to Dehradun and Khatauli, where accused Jai Kumar was in the same Maruti car, wherein Vaibhav was abducted and thereafter, Vaibhav was recovered from a flat, which was in possession of Rahul Tyagi where Vaibhav was kept under surveillance by accused Rahul Tyagi, Jai Kumar and Sanjeev.
It is argued that Harsh Mishra (PW-9), the Hostel Manager of Anshukit Hostel, identified Rahul Tyagi, who posed himself as S.R. Srivastava and who took Vaibhav with him. His signature in the (28 of 53) [CRLA-932/2014] hostel register has been proved by this witness. He is also the witness of seizure memo of Hostel Visitor Register (Exhibit P-35). The F.S.L. Report (Exhibit P-212) proves that the handwriting in the said register was that of accused Rahul Tyagi. Leena Singhal (PW-33) was the owner of Flat No.4, GDA Flats, Ghaziabad, from where Vaibhav was recovered. This witness has proved that this flat was let out by her to Rahul Tyagi. Rajeev Bijlani (PW-51), the Magistrate, has proved the Test Identification Parade, in which Vaibhav Agarwal identified accused Rahul Tyagi, Jai Kumar and Sanjeev Sharma. They were also identified by Mahaveer Prasad (PW-20) and his driver Mahaveer Singh (PW-21). Mohammad Taufeeq (PW-29) was posted as a Security Officer with Air Deccan at Palam Airport, New Delhi. He proves the fact that accused Amishee travelled from Air Deccan flight from Mumbai to Delhi on 27.06.2005 and Delhi to Mumbai on 30.06.2005, which directly coincides with the date on which ransom money was supposed to be given to the accused by Ramdev Agarwal and Motilal Oswal. Amit Kapoor (PW-48), who was posted as Station Manager, Jet Airways, Palam Airport, New Delhi, has proved that Rahul Tyagi visited Mumbai on 10.05.2005 i.e. prior to the incident, which establishes that he had come to Mumbai and stayed at Hotel Kohinoor posing himself as Anurag Gupta. A huge sum of Rs.3 crore was seized vide memo Exhibit P-27 from Maruti car in possession of accused Jai Kumar in front of Rozet Inn Hotel, Khatauli, District Muzaffar Nagar (U.P.). Accused Rahul Tyagi sent an envelope to Ramdev Agarwal by Pafex Courier, which contained cassettes of the voice of Vaibhav. The F.S.L. Report (Exhibit P-212) proves the handwriting of Rahul Tyagi on the envelope containing cassettes. The F.S.L. Report (Exhibit P-213) as regards the voice (29 of 53) [CRLA-932/2014] sample of Motilal, Vaibhav and Rahul Tyagi, proves that their voices matched with those contained in the cassettes. Learned Additional Advocate General, in support of the argument, has relied on the judgment of the Supreme Court in Firozuddin Basheeruddin and Others Vs. State of Kerala - (2001) 7 SCC 596 and Mir Nagvi Askari Vs. C.B.I. - (2009) 15 SCC
643. It is argued that the things done and said by the accused prior to and after the kidnapping of Viabhav prove that they all were privy to the crime as conspirators as per Section 10 of the Indian Evidence Act. All these incriminating circumstances are well established and they form a chain against the accused-persons so as to exclude any hypothesis of innocence of any of them. Considering the magnitude of the crime, situation prevailing at the relevant time and all facts and circumstances of the case, the minor omissions or discrepancies in the prosecution case or lapses in investigation ought to be ignored. The trial court was perfectly justified in recording the conviction of the accused-appellant. Learned Additional Advocate General, in support of the argument, has relied on the judgments of the Supreme Court in Gajoo Vs. State of Uttarakhand - (2012) 9 SCC 532 and C. Muniappan and Others Vs. State of Tamil Nadu - (2010) 9 SCC 567.
As regards non-furnishing of certificate under Section 65B of the Indian Evidence Act, learned Additional Advocate General argued that in view of the recent judgment of the Supreme Court in Shafhi Mohammad Vs. The State of Himachal Pradesh - (2018) 2 SCC 801, it was not required for proving CDR. Learned Additional Advocate General, in support of the arguments with regard to circumstantial evidence, has relied on the judgments of (30 of 53) [CRLA-932/2014] the Supreme Court in Laxman Naik Vs. State of Orissa - (1994) 3 SCC 381, Rajendra Prahladrao Wasnik Vs. State of Maharashtra - (2012) 4 SCC 37.
We have given our anxious consideration to the rival submissions and minutely scanned the material on record.
Most crucial testimony in the present case is that of Vaibhav Agarwal (PW-19), the abducted boy himself. He has stated that Rahul Tyagi, posing himself as S.R. Srivastava, a doctor and friend of Vaibhav's uncle Dr. Karun Agarwal, visited in his hostel on 10.06.2005. He asked this witness to accompany him so that he may get his son Rohan admitted in Bansal classes at Kota. To arouse his confidence in Vaibhav, he even solved a problem of physics subject. He took Vaibhav in his Maruti-800 car on the pretext of the admission of his son, which was being driven by accused Jai Kumar. It was too hot that time and Rahul Tyagi (S.R. Srivastava) offered him slice juice. After consuming said juice, Vaibhav dozed off to sleep. When he woke up, he found the car running on a highway. The accused warned him of dire consequences if he raised his voice. He was then taken to a flat in Ghaziabad where he was locked up in a room for a period of 17 days where accused Jai Kumar was his caretaker. Accused Sanjeev also used to visit there. While at flat, Rahul Tyagi made him to speak to his father Ramdev Agarwal and also recorded his voice in a cassette and sent the same to his father. From the statement of this witness, it is also evident that accused Sanjeev Sharma initially posed himself to be one Gupta stating that he himself had been abducted by the accused for ransom. Sanjeev Sharma tried to convince Vaibhav that Rahul Tyagi and Jai Kumar were dreaded criminals and if his father did not pay the ransom money, they (31 of 53) [CRLA-932/2014] would kill him. All this he did much before the incident of 27.06.2005, when Sanjeev Sharma came to know about arrest of Jai Kumar. Thereupon, he told Vaibhav that that his father had ditched them and that as a result they were going to kill him. Vaibhav identified all the three accused, namely, Rahul Tyagi as S.R. Srivastava, Jai Kumar as caretaker/driver and Sanjeev Sharma as Gupta in the Test Identification Parade (Exhibit P-61), which has also been proved by the Judicial Magistrate Mr. Rajeev Bijlani (PW-51).
Ramdev Agarwal (PW-1), father of abducted boy Vaibhav, has also proved various circumstances against the accused. He happens to be a partner in the renowned Motilal Oswal Securities. He received the ransom calls on his landline number and his cellphone number. Accused Rahul Tyagi had initially demanded a ransom of Rs.10 crore from him in lieu of releasing his son Vaibhav and also advised him not to approach the police for help, or else his son would be done to death. This witness then installed a caller ID at his home and also started recording all the calls with the use of a voice recorder. Later, the same were handed over to the police. This witness visited Kota on 14.06.2005 along-with Anil Jain and went to the hostel. This witness and Motilal Oswal negotiated with accused Rahul Tyagi. Accused Rahul Tyagi on their persuasion, brought down the ransom amount to Rs.3 crore. This witness has stated that after his arrival at Kota on 14.06.2005, he learnt that a telephonic call was received at his residence in the night intervening 13th and 14th June, 2005 at 01:30 AM from someone, which was attended by Motilal Oswal, in which the unknown person demanded ransom of Rs.10 crore. This witness stated that he also received a telephonic call on his cellphone (32 of 53) [CRLA-932/2014] around 01:00-01:30 in the afternoon of 14 th June, 2005 from such unknown person, who referred his conversation in the midst night with Motilal Oswal. Ramdev Agarwal told him that the amount that he was demanding was too high. Whereupon this man threatened him of dire consequences. On 15.06.2005 Ramdev Agarwal again went to Mumbai. The said unknown person telephoned him on landline on 16.06.2005, which was attended by Motilal Oswal. Again he was told that demanded amount was too high. Thereafter, a phone call was received again on 20.06.2005 on which date Motilal Oswal told him that they could manage maximum Rs.30-40 lakh only and asked him to reduce the amount of ransom. Upon this, the said person even threatened to kidnap Prateek Oswal S/o Motilal Oswal. On 21.06.2005 Ramdev Agarwal received an envelope containing certain cassettes through Pafex Courier. The cassettes contained voice of Vaibhav and massage of that unknown person threatening to kill Vaibhav if their demand was not met. They then received another phone call on 22nd on which Motilal again expressed inability to arrange such a big amount. On 24th again a phone call was received from that person at around 04:00 PM, when he finally agreed to accept a sum of Rs.3 crore as ransom.
Ramdev Agarwal (PW-1) further stated that Motilal Oswal and Anil Jain went to Delhi on 25 th with a sum of Rs.3 crore as the amount so demanded in Delhi, but they did not receive any call from kidnapper on 26th. The kidnapper had asked Motilal to carry cellphone of Ramdev Agarwal in Delhi as he would be calling on that number. The kidnappers then called on that number on 27 th and asked Motilal to go to Dehradun. Anil Jain and Motilal went to Dehradun by taxi with the money. When they were on the way to (33 of 53) [CRLA-932/2014] Dehradun, the kidnapper again called Motilal on the cellphone of this witness. The said person made Vaibhav talk to Motilal on the cellphone of this witness and then made Vaibhav talk to this witness on the landline phone at his residence. Ramdev Agarwal further stated that he was in continuous touch with Motilal, who told him that he has received instruction from kidnapper at 09:15 AM on 27th asking him to come with money to a hotel. Then this witness received a call at 10:00-10:15 PM in the night of 27 th that the money has been handed over as instructed and they are expecting to get custody of Vaibhav soon. This witness further stated that in the night between 11:00 and 1:00 a telephonic message was received from Motilal that Vaibhav has been recovered with the help of the police. Ramdev then stated that he went with his wife Sunita and reached Delhi in the morning at 06:00-07:00 and stayed at Ghaziabad, where they met Vaibhav, who was in police custody. Vaibhav narrated the entire story to him as to in what manner Rahul Tyagi impersonated himself as S.R. Srivastava and took him out of hostel on the pretext of getting his son admitted in Bansal classes at Kota. Then the accused (Rahul Tyagi) gave him some intoxicated juice, as a result of which he fell asleep and then brought him to Flat No.4, G.D.A. Officers Colony Staff Quarters, Patel Nagar Police Station, Sinhni Gate, Ghaziabad (U.P.), where he was detained for 17 days. He stated that there was one more person who was caretaker, who used to give him food. Vaibhav has stated that three persons used to come to that room. The person who brought him from the hostel was Rahul Tyagi. Ramdev Agarwal further stated that he fixed caller ID for recording his voice on landline. All the conversations were recorded. He stated that they have been (34 of 53) [CRLA-932/2014] staying in Samudra Mahal apartment, Dr. A.B. Road, Worli, Mumbai, for last five years. They were having good relationship with 4-5 families in that apartment and those 4-5 families were familiar to the members and relatives of the family. The said 4-5 families included the families of Rajiv Sethi, Paresh Vaishya, Paras Choudhary, Arun Rungta and P.K. Arya.
Motilal Oswal (PW-2) has fully corroborated with what has been stated by Ramdev Agarwal. He stated that he has been business partner of Ramdev Agarwal since 1987. Vaibhav at the relevant time was attending coaching classes at Kota and staying in a hostel. He received a phone call from Ramdev Agarwal at about 08:00-09:00 PM on 10.06.2005 that Vaibhav was missing from the hostel. He immediately went to the house of Ramdev Agarwal. They tried to contact the hostel administration and also Prabhat Gupta, local acquaintance of Ramdev Agarwal, and asked him to inform the police. He stayed in the house of Ramdev Agarwal on that night. Motilal Oswal also stated that he stayed in the house of Ramdev Agarwal, who went to Kota. They remained in contact with each other on cellphone. A phone call was received by them at around 01:30 AM in the intervening night of 13 th and 14th, enquiring about Ramdev Agarwal. Motilal told him that Ramdev Agarwal has gone to Kota. That person again reiterated the demand of ransom for releasing Vaibhav and then disconnected the phone. On the following morning i.e. 14 th, Ramdev Agarwal (PW-1) told that he has also received similar phone call. Thereafter, such calls were received on the landline of Ramdev Agarwal on 16th, 18th, 20th, 22nd and 24th. Each time this witness asked that person that the amount demanded is too high and that they could arrange at the maximum about 20, 25, 40 to (35 of 53) [CRLA-932/2014] 50 lakh. The kidnapper even threatened to kill Prateek Oswal, son of this witness, who was studying in Bangalore. He received a parcel on 21st containing cassettes of the voice of Vaibhav and that unknown person demanding ransom. On 22 nd they received a phone call of the kidnapper, who wanted to confirm about the receipt of cassette. On that date, he reduced the demand of ransom to Rs.5 crore. It was further negotiated and finally he agreed for a sum of Rs.3 crore. On 24 th again a phone call was received from the said unknown person to enquire whether the demanded sum has been arranged. When he (Motilal) confirmed in the positive, the kidnapper again called on 25 th and asked that money should be given in Delhi. Motilal on 26 th went with Anil Jain by flight from Mumbai to Delhi and stayed in a hotel. The kidnappers asked Motilal to carry cellphone of Ramdev Agarwal and he called him on that cellphone in the noon of 27 th and asked him to come to Dehradun for the delivery of the ransom. Thereafter, he and Anil Jain started for Dehradun at about 02:00 PM but on the way they received the call from that unknown person, who made him talk to Vaibhav and enquired about Ramdev Agarwal. Motilal told that Ramdev Agarwal was in Mumbai, but when he reached Roorkee then the unknown person asked them to return back to Delhi and finally told that they should come to Rozet Inn Hotel at Khatauli where they would find a Maruti-800 car parked outside and asked them to keep the bag containing the money therein and thereafter enter the hotel to consume cold drink etc. Accordingly, they put the bag carrying the money was kept in the Maruti car and thereafter entered the hotel and waited for 2-3 hours in the hope that the kidnappers would handover Vaibhav to them. Thereafter, Ramdev Agarwal called him (36 of 53) [CRLA-932/2014] on cellphone informing that he has received an information from the police, who informed him that Vaibhav has been recovered and the money of ransom has also been recovered by the police.
Motilal Oswal (PW-2) is the attesting witness to the seizure memos, namely, seizure memo of one envelope (Exhibit P-3), seizure memo of three audio cassette (Exhibit P-4), photocopy of an envelope (Exhibit P-5A), memo of voice transcribed as per recorded in a cassette (Exhibit P-6), seizure memo of a telephone instrument of Beetel company (Exhibit P-7), seizure memo of one digital recorder, connector and USB cord (Exhibit P-8), memo of voice transcriber as per recorded in a cassette (Exhibit P-9), memo of control voice sample of Motilal (Exhibit P-10) and memo of sealing of digital recorder (Exhibit P-11). Anil Jain (PW-3) was the common friend of Ramdev Agarwal and Motilal Oswal. He has also corroborated the statements of both of them and has narrated similar story and that he accompanied Motilal Oswal. They proceeded from Mumbai and reached Delhi on 26.06.2005 with the money of Rs.3 crore. He was present with Motilal Oswal when the money was kept in the Maruti car on 27.06.2005 at Hotel Rozet Inn in Khatauli.
Sunita Agarwal (PW-5) is the mother of the abducted boy Vaibhav. She has stated that she has been staying in Samudra Mahal apartments for last six years. She has only one son Vaibhav. He was taking coaching classes in Bansal classes at Kota and staying in room no.205 of Anshukit hostel. They had appointed one Prabhat Gupta as a local guardian. She was trying to call Vaibhav on 10.06.2005 at around 12:00 in the noon but he did not pick up the phone. In the evening also at around 07:00 PM she tried to call him 4-5 times but could not succeed. When her (37 of 53) [CRLA-932/2014] husband came in the evening, they enquired from the hostel management and then they came to learn that his room was locked. Her husband then telephoned Prabhat Gupta to go to the hostel and enquire about Vaibhav. On enquiry from his friends/inmates of hostel, it transpired that Vaibhav had accompanied an unknown person about 12:00 in the noon and since then has not returned back to the hostel. Ramdev Agarwal, the husband of this witness, asked Prabhat Gupta to lodge a report with the police. Then Sunita Agarwal narrated the same story, which has been disclosed by Ramdev Agarwal and Motilal Oswal and also what was told to them by Vaibhav on his release from the custody of the kidnappers. She stated that Dr. Karun Agarwal is the real elder brother of her husband Ramdev Agarwal, who was residing in Pondicherry and practicing as Plastic Surgeon. He used to visit their Mumbai's house regularly. Few days before the incident i.e. 21st and 22nd of March, Dr. Karun Agarwal was with them in Mumbai on the 'Holi' festival. There was a get- together on the occasion of 'Holi' and on that occasion Amishee was also present there. Amishee was residing in Flat No.210 of the building. When Dr. Karun Agarwal came there, this witness introduced him to Amishee. Amishee in a lighter vain asked Dr. Karun Agarwal to subject her also to plastic surgery to turn her into a heroin. Dr. Karun Agarwal and Amishee talked to each other for about five minutes and then Amishee went back home. Amishee was quite familiar with this witness. They used to visit the houses of other flat holders. When she sent Vaibhav to Kota for coaching she told that fact to Amishee.
Sunita Agarwal (PW-5) further stated that Amishee knew every thing about Viabhav. Even after admission of Vaibhav at (38 of 53) [CRLA-932/2014] Kota, this witness used to talk to Amishee. One day before the incident i.e. 9th, Amishee met this witness in the evening. Amishee told this witness about her recent visit to Delhi 2-4 days ago. This witness then stated that ever since Vaibhav was kidnapped, Amishee had not contacted her and that even after kidnapping of Vaibhav, she did not come to her house to enquire about her well being. Amishee though mentioned to her about her lady friends but did not tell about her male friends. In cross-examination, this witness stated that Amishee did her M.Sc. From Muzaffar Nagar. She was second wife of Paresh Vaishya. She was not happy with her matrimonial relations. Amishee has a son and a daughter out of that wedlock. Amishee was supposed to come to her for lunch on 10th as this witness invited Amishee on lunch because Amishee was feeling somewhat sick and wanted to have a food of different kind. Amishee however in the morning of 10 th itself, on telephone, informed her about cancellation of the programme. In fact, on that day, she enquired from Amishee around 10:00-11:00 AM whether she (Amishee) was coming for lunch, Amishee told that there was a function in the school of her child therefore she could not come. In cross-examination, this witness also stated that they kept the fact of kidnapping of their son secret from the residents of the building. When confronted with her police statement (Exhibit D-5), Sunita Agarwal (PW-5) stated that she told the police about her meeting with Amishee on 9th and 10th, invitation for lunch and also about telephonic conversation with her but could not explain why it was not mentioned therein. She stated that it was wrong to suggest that she did not meet Amishee after 5th June.
Sunil Kumar (PW-7), Constable, was a member of the police team visiting Delhi. He has stated that Jai Kumar was arrested (39 of 53) [CRLA-932/2014] from Khatauli with the car outside the hotel and ransom amount. This witness was waiting outside the hotel when Jai Kumar drove the white Maruti car from the parking area with the ransom money. When the car came out of the parking area, the police team immediately stopped the car and nabbed Jai Kumar. The bag lying in the car was containing the ransom money. A driving license was also recovered. Exhibit P-27 is the recovery memo of Rs.3 crore and Maruti 800 car, Exhibit P-28 is the site plan of the place of recovery of the ransom money, purse, mobile and Maruti car, Exhibit Pp29 is the recovery memo of kidnapped boy Vaibhav Agarwal and Exhibit P-30 is the memo of site plan of the place of recovery of kidnapped boy Vaibhav Agarwal and his delivery.
Vinod Singh (PW-8) was the employee at Hotel Chandra, Bundi, at the relevant time. He stated that Rahul Tyagi along-with two persons visited Hotel Chandra, Bundi, on 09.06.2005. He further stated that Rahul Tyagi was the person who signed the hotel register in the name of Anurag Sharma on 09.06.2005. He stated that Exhibit P-33 are the pages of the register of the hotel. On 09.06.2005 at around 11:00 AM, one Anurag Sharma took two rooms of the hotel by making entry in his own handwriting at serial no.748 of the register. He was given rooms no.107 and 108 of the hotel. This witness identified Rahul Tyagi as a person signing the register of the hotel on 09.06.2005. F.S.L. Report (Exhibit P-212) has proved the handwriting in the register of the hotel as that of Rahul Tyagi. Harsh Mishra (PW-9) was the Manager of Anshukit Hostel where Vaibhav was residing. This witness stated that someone posing himself as S.R. Srivastava (Rahul Tyagi) came to see Vaibhav. He further stated that Vaibhav was lastly seen leaving the hostel with him. He is also the (40 of 53) [CRLA-932/2014] attesting witness to seizure-memo of hotel register (Exhibit P-35). The SFSL Report (Exhibit P-212) also proved that the handwriting in the register was that of Rahul Tyagi.
Bhagwat Singh Hingad (PW-52) was the police officer who initially investigated the missing person report, which was lodged by Prakash Chand on 10.06.2005 and later got the regular FIR registered. This witness arrested Jai Kumar along-with the ransom money at Khatauli. He has narrated the entire sequence of events lading to recovery of the ransom money and also Vaibhav and proved various stages of the investigation. Ramkishan (PW-18), at the relevant time, was posted as Sub Inspector and was the Duty Officer at Police Station Dadabari, Kota when Bhagwat Singh Hingad sent the report by FAX (Exhibit P-55), which was then registered by him. He stated that during the course of investigation, he was sent to record statement of the Principal of DAV College, Muzaffar Nagar. The acting Principal of the DAV College after perusing the relevant record, made an endorsement on Exhibit P-59 (application submitted to the Principal, DAV College) providing details of accused Amishee and Rahul Tyagi. Endorsement was made to the effect that Roll No.B660089 and Enrollment No.8505236 were that of Rahul Tyagi S/o Shri D.K. Tyagi and he passed B.Sc. Final (Maths) in 1987 and passed B.Sc. First Year from S.D. College with Roll No.B682091. Amishee Bansal D/o Shri R.K. Bansal passed B.Sc. (Maths) (First and Second Year) in 1985-87. Her Roll No.B66202006 was of B.Sc. First Year and Roll No.66200406 (not clear as the paper is in torned condition) was of B.Sc. Second Year. Leena Singhal (PW-
33) was the owner of Flat No.4, GDA Flats, Ghaziabad, which was rented out to accused Rahul Tyagi and where from Vaibhav was (41 of 53) [CRLA-932/2014] recovered by the police. She stated she let out that flat to Rahul Tyagi in September, 2004 through the wife of her relative Mr. V.K. Tyagi at the monthly rent of Rs.4000/-. The flat was in the possession of Rahul Tyagi in the months of April, May and June, 2005.
Smt. Saroj Valmiki (PW-43) was maid in the house of Rahul Tyagi in GDA Flat No.4, Ghaziabad. Anant Kumar (PW-56) was the Investigating Officer of the case. He has proved various stages of the investigation and the recoveries made subsequent to the registration of the FIR. Mahaveer Prasad (PW-20) was the landlord of the house of Pankaj, the younger brother of Sanjeev Sharma, who was staying at Kota for coaching. He has identified Rahul Tyagi and Sanjeev Sharma as having visited his house prior to the incident of kidnapping. He has stated that Rahul Tyagi and Sanjeev Sharma came to meet Pankaj Sharma. Mahaveer Singh (PW-21) was the driver engaged by Mahaveer Prasad on his car. He took the accused to a car garage where they got air conditioning system of the Maruti-800 car repaired. He later identified Rahul Tyagi, Sanjeev Sharma and Jai Kumar. Thereafter, these persons again came to Pankaj, 20 days thereafter, to meet him in the same car. This witness has stated that he along-with driver Mahaveer Singh went to the jail for identification and correctly identified Rahul Tyagi and Sanjeev Sharma but could not identify the third person. Mahaveer Singh (PW-21) has also narrated the same story but he identified all three, namely, Rahul Tyagi, Sanjeev Sharma and Jai Kumar correctly in the test identification parade vide Exhibit P-62, Exhibit P-63 and Exhibit P-
64.
(42 of 53) [CRLA-932/2014] Pawan Vijayvargiya (PW-12) was the Proprietor of Reliance Web World Shop. He issued the Reliance phone to Rahul Tyagi from which ransom calls were made by Rahul Tyagi to Ramdev Agarwal. He correctly identified accused Rahul Tyagi in the court as the person who purchased the phone from his shop. Mohammad Taufeeq (PW-29) was the Security Officer with Air Deccan at Palam Airport, New Delhi. He stated that Amishee travelled by Air Deccan flight from Mumbai to Delhi on 27.06.2005 and from Delhi to Mumbai on 30.06.2005. Amit Kapoor (PW-48) was posted as Station Manager of Jet Airways at Palam Airport, New Delhi. He stated that Rahul Tyagi undertook journey on 10.06.2005 from Delhi to Mumbai by Flight 9W-306. The details of the travel were provided by him vide Exhibit P-150. Vinod Kumar (PW-58) was the Police Official posted at Police Station Fatehpur, Saharanpur, who arrested accused Rahul Tyagi, who himself disclosed his identity as such. Phool Singh (PW-44) was the employee at Hotel Jungel Bubbler, Dharuhera. He has stated that Rahul Tyagi stayed at his hotel on 01.06.2005. He also stated that a lady accompanied by another person claiming to be husband and wife visited the hotel for a few hours.
Exhibit P-2 is the seizure memo of one cassette containing voice sample of abductee Vaibhav Agarwal, which, as per the FSL report (Exhibit P-213), matched with his voice in the original cassette received by Motilal Oswal. Exhibit P-3 is the seizure memo of one envelope at the instance of Motilal Oswal; Exhibit P- 4 is the seizure memo of three audio cassette at the instance of Motilal Oswal; Exhibit P-5A is the photo copy of the envelope addressed to Ramdev Agarwal; Exhibit P-6 is the memo of voice transcribed as per recording in a cassette; Exhibit P-7 is the (43 of 53) [CRLA-932/2014] seizure memo of a telephone instrument of Beetel company; Exhibit P-8 is the seizure memo of one digital recorder, connector and USB cord at the instance of Motilal Oswal; Exhibit P-9 is the memo of voice transcribed as per recording in the cassette; Exhibit P-10 is the memo of control voice sample of Motilal Oswal; Exhibit P-11 is the memo of sealing of a digital recorder; Exhibit P-12 is the seizure memo of Nokia mobile phone; Exhibit P-13 is the recovery and seizure memo of a black coloured bag at the instance of accused Rahul Tyagi; Exhibit P-14 is the seizure memo of undisputed hand writing of accused Rahul Tyagi, which, as per the FSL Report (Exhibit P-212), was found to have matched with his handwriting on the envelope in which cassettes were sent; Exhibit P-27 is the recovery memo of ransom money and the Maruti-800 car of accused Rahul Tyagi; Exhibit P-29 is the recovery memo of kidnapped boy Vaibhav Agarwal; Exhibit P-33 is the entry register of hotel Chandra Residency; Exhibit P-34 is the cash memo of hotel Chandra Residency where accused Rahul Tyagi stayed in the fake name of Anurag Sharma. Rahul Tyagi was identified by Mahaveer Singh (PW-21) in test identification parade (Exhibit P-63) and again in the court.
The evidence aforesaid has clearly indicates that accused Rahul Tyagi was knowing about the financial status of Ramdev Agarwal and the fact that his son had been studying at Kota. He also knew that Prateek Oswal S/o Motilal Oswal (PW-2) was studying in Bangalore. He hatched a conspiracy with the help of accused Jai Kumar and Sanjeev Sharma to kidnap Vaibhav. He initially visited Kota with accused Jai Kumar and Sanjeev Sharma for reiki. He purchased a mobile phone 9314172693 on 09.06.2005, which he used for making ransom calls. He again (44 of 53) [CRLA-932/2014] came to Kota on 10.06.2005 and visited the hostel of Vaibhav by disclosing his identity as Dr. S.R. Srivastava, a Cardiologist, and a friend of Dr. Karun Agarwal (uncle of Vaibhav). He, on the pretext of getting his son Rohan admitted in Bansal classes, took Vaibhav with him in the Maruti-800 car and gave some intoxicated juice to him to drink, whereupon Vaibhav fell asleep. He then took Vaibhav to Ghaziabad in the said car bearing registration number RJ-20- 1C-9273 belonging to his father. He sent audio cassettes to Ramdev Agarwal in an envelope. The cassette was received by Ramdev Agarwal, which contained the voice of Vaibhav and that of Rahul Tyagi, which matched with their admitted voice. The handwriting on the envelope also matched with the handwriting of Rahul Tyagi. The entry made in the visitors' register of the hotel also matched with the admitted handwriting of Rahul Tyagi. The flat at Ghaziabad where Vaibhav was detained for 17 days and where from finally he was recovered was taken by Rahul Tyagi on rent. Accused Rahul Tyagi as well as accused Jai Kumar and accused Sanjeev Sharma were all identified by Vaibhav (PW-19). Mahaveer Prasad (PW-20) identified Rahul Tyagi and Sanjeev Sharma, whereas Mahaveer Singh (PW-21) identified Rahul Tyagi, Sanjeev Sharma and Jai Kumar. Accused Jai Kumar, who drove the Maruti-800 car from Kota to Ghaziabad and was arrested with ransom money in that very car, was also the caretaker of the flat in which Vaibhav was detained for 17 days. Accused Sanjeev Sharma not only accompanied Rahul Tyagi to Kota but also several times visited the flat where Vaibhav was confined for 17 days. He initially disclosed his identity as Gupta and pretended before Vaibhav that he too has been kidnapped but later tried to terrorize him by saying that Rahul Tyagi and Jai Kumar were deadly (45 of 53) [CRLA-932/2014] criminals and that if ransom was not given to them, they would kill him. When finally he learnt that accused Jai Kumar has been arrested on 27.06.2005, accused Sanjeev Sharma told Vaibhav that he (Vaibhav) would be now truly killed as his (Vaibhav's) father ditched them.
However, the case of accused Amishee, in our considered view, stands on differnet footings than that of accused Rahul Tyagi, Jai Kumar and Sanjeev Sharma. The prosecution has relied against her on circumstance that she was the classmate of accused Rahul Tyagi and in this connection produced endorsement (Exhibit P-59) of the acting Principal of DAV College but neither the acting Principal nor any representative of the said college has been produced to prove this endorsement, inasmuch as the endorsement by itself, in absence of any other material, cannot be taken as satisfactory proof of this fact. As regards the case of the prosecution that accused Amishee was in touch with accused Rahul Tyagi before and around the time of incident, as per the call details (Exhibit P-42 and Exhibit P-43), admittedly the certificate requisite under Section 65B(4) of the Indian Evidence Act has not been produced. While on one hand, Sunita Agarwal (PW-5) has stated that accused Amishee did not come to console her after Vaibhav was kidnapped, on the other, she has stated that they did not disclose to anybody in the building about the kidnapping of their son Vaibhav. Sunita Agarwal (PW-5) when confronted with her police statement (Exhibit D-5) wherein she stated that neither Amishee met her after 5th nor she contacted her after kidnapping of Vaibhav, stated that she did not give any such statement to the police and sought to justify her version made in the court that she told the police about meeting Amishee on 9 th and her telephone (46 of 53) [CRLA-932/2014] conversation with her on 10th June. Sunita Agarwal (PW-5) in the court statement has also stated that she introduced Amishee to Dr. Karun Agarwal in the get-together organized on the 'Holi' festival and when she introduced Dr. Karun Agarwal to Amishee, Amishee in a lighter vain asked him (Dr. Karun Agarwal) that he should turn her into a heroin by applying plastic surgery but could not explain why all this was not mentioned in her police statement. Moreover, the prosecution has failed to examine Dr. Karun Agarwal and also failed to prove the cellphone Amishee was using. The prosecution has failed to prove credit card, which was allegedly used by Amishee for taking journey from Bombay to Delhi. Even Neelima Garg has not been produced to prove their relations. The prosecution did not produce Ram Kishore Bansal, father of accused Amishee to prove her relationship with accused Rahul Tyagi. The prosecution therefore cannot claim affirmatively that accused Rahul Tyagi could learn about the fact that Vaibhav was studying in Bansal classes at Kota only through Amishee, because the evidence has also surfaced on record that accused Rahul Tyagi was even aware of the fact that Prateek Oswal S/o Motilal Oswal was also studying at Bangalore. Besides, Sunita Agarwal (PW-5) has admitted that her driver knew about Vaibhav that he was taking coaching classes at Kota and that her servants and other workers were also aware of this fact. She stated that her driver used to sit in the basement with the drivers of other flat owners and the watchmen. She further stated that this fact was also known to Motilal, Anil Jain and Varsha Sethi. It cannot therefore be said that Amishee was the only one aware of this fact. Besides this, it is also a matter of fact that Saurabh S/o Dr. Karun Agarwal was also studying in coaching classes and was (47 of 53) [CRLA-932/2014] living in the same hostel in which Vaibhav was living. Dr. Karun Agarwal also visited Kota for the admission of his son. The prosecution has failed to produce Saurabh Agarwal. The elder brother of her husband, who was staying in the building of Anil Jain, was also aware of the fact that Vaibhav had gone to Kota. In answer to a pointed querry, she admitted that she could not say whether Vaibhav's friends were also aware about this. The Investigating Officer admits that he did not see the original or copy of the record of the DAV College to substantiate that Amishee and Rahul Tyagi were classmates. Non-examination of the important witnesses would give rise to adverse inference against the prosecution that had they been produced, none of them would have deposed against Amishee.
Argument that finger prints of the accused could not have been obtained without prior permission of Judicial Magistrate in terms of Sections 4 and 5 of the Identification of Prisoners Act, 1920 is liable to be rejected in the light of view taken by this Court in Mahaveer Prasad Vs. The State of Rajasthan through P.P., 2018 (1) WLC (Raj.) 528. It was held in that case that finger prints of the accused can be obtained by the police even without permission from the Judicial Magistrate in terms of Sections 4 and 5 of the Identification of Prisoners Act, 1920. In taking that view, this Court relied upon judgments of the Supreme Court in Mohammad Aman & Another Vs. State of Rajasthan, (1997) 10 SCC 44; Shankaria Vs. State of Rajasthan, (1978) 3 SCC 435 and State of Madhya Pradesh Vs. Devendra, (2009) 14 SCC 80; State of Bombay Vs. Kathi Kalu Oghad, AIR 1961 SC 1808. Recently, the Supreme Court in Sonvir @ Somvir Vs. The State of Delhi (Criminal Appeal (48 of 53) [CRLA-932/2014] No. 958 of 2017 decided on 02.07.2018) has reiterated the same view.
Reliance has been placed by learned Additional Advocate General on the judgment of the Supreme Court in Shafhi Mohammad Vs. State of Himachal Pradesh - (2018) 2 SCC 801, to argue that there is no requirement of producing certificate under Section 65B(4) for reading the call details of the cellphone in evidence. But that judgment rendered by two-Judge-bench, in our view, does not dilute the law laid down by the three-Judge- bench of the Supreme Court in Anwar P.V. Vs. P.K. Basheer - (2014) 10 SCC 473. Besides, the Supreme Court in Shafhi Mohammad, supra, was considering a question whether videography will help the investigation by use of 'body-worn cameras'. When certain reservations were expressed before the Supreme Court about securing the data by this method and storage of the same and it was canvassed that production and admissibility of the evidence are also issues which need to be addressed, their Lordships observed that Section 65A and Section 65B cannot be held to be a complete Code on the subject. It was observed that what was clarified by the Supreme Court in Anwar P.V., supra, was that primary evidence of electronic record was not covered under those provisions. It was in this context that the Supreme Court observed that in a case of electronic evidence produced by a party, who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. But the three-Judge-bench of the Supreme Court in Anwar P.V. Vs. P.K. Basheer - (2014) 10 SCC 473, still holds the field. Therein, overruling the previous two-Judge- bench judgment in State (NCT of Delhi) Vs. Navjot Sandhu (49 of 53) [CRLA-932/2014] supra, it was held that "The evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Section 59 and 65A dealing with the admissibility of electronic record. Section 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Section 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court in State (NCT of Delhi) Vs. Navjot Sandhu (AIR 2005 SC 3820), does not lay down the correct legal position. It requires to be overruled and we do so." This view was reiterated by the Supreme Court in Harpal Singh alias Chhota Vs. State of Punjab - (2017) 1 SCC 734. In fact, Sanjay Sharma (PW-
36), in his statement, admitted that he did not obtain any certificate under Section 65-B of the Indian Evidence Act in support of the CDRs (Exhibit P-172, Exhibit P-173 and Exhibit P-
174) obtained by him. This witness in the cross-examination has admitted that he did not obtain the extract of the call details from printout CDR (Exhibit P-173) in respect of the cellphone no.9899583106 of accused Rahul Tyagi of the Idea Cellular Company, but in cross-examination he admitted that this does not contain signature of any of the witness. Therefore, the call details of the so-called conversation between Amishee and Rahul Tyagi, in view of the law laid down by the Supreme Court in Anwar P.V., supra, can not be relied by the prosecution for want of certificate requisite under Section 65B(4) of the Evidence Act.
(50 of 53) [CRLA-932/2014] The cited judgment of the Supreme Court in Suman Sood @ Kamal Jeet Kaur Vs. State of Rajasthan - (2007) 5 SCC 634, was a case where the Supreme Court found that there was no evidence to connect the accused with kidnapping of abducted person for ransom. The Supreme Court found that she was staying in the house where abducted person was detained, the courts below rightly held her guilty for the offences punishable under Sections 365/120B, 343/120B and 346/120B IPC and to that extent the Supreme Court sustained her conviction because she was all throughout present in the said house and was very well aware that the victim had been kidnapped and was kept at a secret place. However, that does not mean that accused Suman Sood was part of the kidnapping for ransom. No evidence directly or indirectly was adduced about demand of ransom by Suman Sood. Such are not the facts of the present case. Similarly, in the present case there is no direct evidence to connect accused Amishee with kidnapping of Vaibhav Agarwal. She was not accompanying other three accused in Maruti-800 car in which Vaibhav was kidnapped. It is not even the case of the prosecution that accused Amishee at any point of time demanded ransom from parents of Vaibhav or anyone else for release of Vaibhav. Accused Amishee was not shown either present or ever visited the flat where Vaibhav was detained at Ghaziabad. The prosecution has failed to make out a case for not extending her benefit of doubt inasmuch as the prosecution has failed to prove her guilt by requisite standard of proof beyond reasonable doubt.
The cited judgment of the Supreme Court in Keshav Dutt Vs. State of Haryana - 2010 Cr.L.R. (SC) 921) does not in any manner help the appellants because in that case non-
(51 of 53) [CRLA-932/2014] examination of handwriting expert was held to be fatal to prosecution case as it was not established whether his offence would fall within the purview of Section 293 of the Cr.P.C. However, in the present case handwriting expert report dated 26.09.2005 was obtained from the Deputy Director, State F.S.L. Rajasthan, Jaipur, which very well falls within the purview of Section 293 of the Cr.P.C. In Md. Faizan Ahmad alias Kallu Vs. The State of Bihar - 2013 Cri.L.J. 1631, the judgment turned out on its own facts where it was held that suspicion howsoever great cannot take place of proof but in the present case, except for accused-appellant Amishee, it cannot be said that the other accused-appellants have been convicted merely on the basis of suspicion. In Ganesh Gogoi Vs. State of Assam - 2009 Cr.L.R. (SC) 771, the Supreme Court held that the F.I.R. lodged after commencement of the investigation is hit by Section 162 of the Cr.P.C., but this cannot be said of the present case where Bhagwat Singh Hingad (PW-52) initially acted on the basis of missing person report lodged by Prabhat Gupta and acting on that missing person report, he visited Delhi and when there he gathered information from secret sources that the family of abducted boy has agreed to pay ransom of Rs.3 crore to the kidnappers, he immediately sent a written report by fax to the S.H.O. concerned, which eventually was registered F.I.R. No.239/2005 (Exhibit P-56) for the offence under Sections 364 and 364A of the IPC. The cited judgment in Ganesh Gogoi, supra, therefore does not apply to the present case. In K. Sadanand @ Naidu Vs. Public Prosecutor, A.P. - 2003 (1) WLC (SC) Criminal 170, the accused was extended benefit of doubt because there was no other evidence except the report of handwriting expert but such are not the facts (52 of 53) [CRLA-932/2014] in the present case where barring accused-appellant Amishee, there is overwhelming evidence as to the involvement of other accused-appellants.
Detailed analysis of the evidence makes it clear that various incriminating circumstances against accused-appellants Rahul Tyagi, Jai Kumar and Sanjeev Sharma afford basis for drawing inference of their guilt, in that all such circumstances form a complete chain so as not to leave any missing link which can be explained away by any hypothesis that may be compatible with innocence of anyone of them. This however is not true for accused-appellant Amishee. It is trite that "Rule of Criminal Justice" is that "Fouler the Crime Higher the Proof" and the suspicious, howsoever great it may be, cannot take place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction and supported in law. In our considered view, the prosecution has failed to prove individual incriminating circumstance against accused-appellant Amishee inasmuch as those circumsances if joined together do not constitute unbroken chain of circumstances without there being any missing links. In other words, the chain of circumstances against accused Amishee has several missing links entitling her to benefit of doubt.
The net result of aforesaid discussion is as follows:-
(1) D.B. Criminal Appeal No.932/2014 (Rahul Tyagi and Jai Kumar @ Bittu Vs. The State of Rajasthan) and D.B. Criminal Appeal No.970/2014 (Sanjeev Sharma Vs. State of Rajasthan) are dismissed. The impugned judgment and order dated 02.08.2014 qua them is (53 of 53) [CRLA-932/2014] upheld. All the three accused-appellants, namely, Rahul Tyagi, Jai Kumar @ Bittu and Sanjeev Sharma are in jail and have to serve out the remaining sentence. (2) D.B. Criminal Appeal No.971/2014 filed by accused-
appellant Smt. Amishee is allowed. She is acquitted of the charges levelled against her. The impugned judgment and order dated 02.08.2014 qua accused- appellant Smt. Amishee is set aside. She is in jail and be set at liberty forthwith.
(3) The impugned judgment and order dated 02.08.2014 is accordingly modified.
(4) Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Amishee in Criminal Appeal No.971/2014 is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court. (5) All the three appeals accordingly stands disposed of.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
//Jaiman//
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