Delhi District Court
State vs Dharmender @ Babu Ors on 31 August, 2024
(Judgment) SC 52200/2016
STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013
(North Rohini)
U/s.364A/120B/174A/34 IPC &
25/27 Arms Act
1
IN THE COURT OF BABRU BHAN
ADDITIONAL SESSIONS JUDGE - 03, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
In the matter of:
CNR NO. DLNW01-000890-2013
SC 52200/2016
STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013
(North Rohini)
STATE
Versus
1. Rajkumar @ Babu
S/o. Sh. Ranjit
R/o. Jhuggi in front of Durga Mandir,
near Panch Mandir, Shahbad Dairy, Delhi
2. Dharmender @ Babu
S/o. Sh. Lalji Shah
R/o. E-199, Shahbad Dairy,
Delhi
3. Chakit Ravi
S/o. Sh. Kishan Chand
R/o. 16/542, Bapa Nagar,
Karol Bagh,
New Delhi
4. Davinder @ Pintu
S/o. Inderjeet
R/o. 2635/27, Shadipur,
Karol Bagh, Delhi
Digitally
signed by
BABRU BABRU BHAN
Date:
BHAN 2024.08.31
17:08:14
+0530
(Judgment) SC 52200/2016
STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013
(North Rohini)
U/s.364A/120B/174A/34 IPC &
25/27 Arms Act
2
5. Hardeep @ Babu
S/o. Hardev
R/o. D-32, Prahalad Vihar,
near Sector-25, Rohini, Delhi .....Accused
Date of Institution : 02.12.2013
Date when judgment reserved : 22.05.2024
Date of Judgment : 31.08.2024
Final Order : All accused acquitted except
accused Rajkumar @ Babu,
who is convicted for offence
u/s.174A IPC.
JUDGMENT
1. The facts of the case projected by the prosecution are that on 25.08.2013, at about 9.00 p.m., SI Sonu Ram PW21, HC Narender PW14, Ct. Jai Singh PW15, Ct. Anil and Inspector Ram Chander SHO PS North Rohini, were on patrolling duty in government Gypsy. At that time, SHO received a wireless call that the brother of the caller had been kidnapped and kidnappers had demanded ransom of Rs.20 lakhs. The money was asked to be delivered near Rithala Metro Station. On receipt of information, SHO made a return call on the mobile number of the caller, whereupon, the caller told the SHO that now the kidnappers had changed the venue of delivery of money to BSA Hospital. Police party accordingly reached at Gate No.1 of BSA Hospital, where Pradeep @ Vicky PW2 met them. On enquiry, Pradeep @ Vicky explained the circumstances to them. SHO Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 3 asked 7-8 passerby to join the investigation, but they refused. In the meanwhile, ASI Nand Kishore and Ct. Pramod also reached there. At about 10.00 p.m., one person came and took the bag containing Rs.20 lakh from Pardeep. That person was immediately apprehended. His name was subsequently revealed as Dharmender @ Babu.
2. When the police was apprehending accused Dharmender @ Babu, SHO received another call regarding kidnapping of a boy at PS Shahbad Dairy. Upon interrogation, accused Dharmender @ Babu disclosed that he had come on motor bike, which was stationed near Gate No.1 of BSA Hospital. Police party reached the place disclosed by accused Dharmender @ Babu and thereafter, SI Sonu Ram, PW1 seized the motorcycle vide seizure memo Ex. PW14/A. The money, in currency notes of the denomination of Rs.1000/- and Rs.500/- was counted and was thereafter, sealed with the seal of SR and seized vide seizure memo Ex. PW1/J. After sealing, seal was handed over to Ct. Jai Singh. SI Sonu Ram PW21 recorded the statement Ex. PW1/A of complainant Ritesh Bansal.
3. In his statement Ex. PW1/A, PW1 Ritesh Bansal (complainant) told that he was raising construction of a house in Biden Pura.
One Hemant Picholia was demanding Rs.20 lakhs from the the complainant to permit the construction. Hemant Picholia had also BABRU BHAN Digitally signed by BABRU BHAN Date: 2024.08.31 17:08:31 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 4 lodged a complaint to the MCD against the complainant in this regard. Accused Chakit Ravi, who was friend of the complainant, was mediating in the dispute between complainant and Hemant Picholia.
4. Complainant further stated that on 25.08.2013, in the evening, accused Chakit Ravi came to him and took him in his car. When they reached near Ramjas School, Dev Nagar, accused Chakit Ravi stopped his car on the pretext of answering the call of nature. After deboarding the car, accused Chakit Ravi made a gesture, upon which, 3 persons boarded the car. One was carrying a pistol while another one was armed with a knife. They all started beating to the complainant and started demanding Rs.20 lakhs. They made the complainant to make telephonic call to his friend Pradeep PW2 for arranging the amount of Rs.20 lakhs. Thereafter, they asked the complainant to instruct Pradeep PW2 to bring money at BSA Hospital. Pradeep PW2 informed the police and accused Dharmender @ Babu, who was assigned with the job of collecting money, was arrested by the police.
5. On the afore-noted statement, SI Sonu Ram PW21 prepared rukka Ex. PW21/A and sent Ct. Jai Singh for registration of FIR.
6. ASI Rajkumar PW4 was working as Duty Officer at PS North Rohini on 26.08.2013. On receipt of rukka sent by SI Sonu Ram Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 5 PW21, PW4 made a DD No.3A Ex. PW4/A and registered the present FIR Ex. PW4/C. After registration of FIR, ASI Rajkumar PW4 made an endorsement Ex. PW4/B on the rukka. He also issued certificate Ex. PW4/D in support of the FIR.
7. Further investigation of the case was handed over to Insp.
Mukesh PW20, who arrested accused Dharmender @ Babu vide arrest memo Ex. PW1/E and conducted his personal search vide memo Ex. PW1/F. Insp. Mukesh PW20 aksi received the case property seized by SI Sonu Ram PW21 and deposited the same in Malkhana. Thereafter, Insp. Mukesh PW20 alongwith Ct. Vikram, complainant Ritesh Bansal PW1 and Pradeep PW2 went to the house of accused Chakit Ravi, where a car bearing no. DL6C-4046 was found stationed. Insp. Mukesh PW20 seized the same vide seizure memo PW20/P2. Accused Chakit Ravi was brought to the PS and was arrested vide memo Ex. PW1/B. His personal search was conducted vide memo Ex. PW1/D. Thereafter, IO Insp. Mukesh recorded a disclosure statement Ex. PW20/A of accused Chakit Ravi.
8. On 04.09.2013, accused Hardeep and Davinder @ Pintu surrendered before the Court. IO interrogated them with permission of the Court and arrested them vide memos Exs. PW16/1 and PW16/2 respectively. Their personal search was conducted vide memo Exs. PW16/3 & PW16/4. IO also recorded Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 6 their disclosure statements vide Exs. PW16/5 & PW16/6.
9. Accused Hardeep and Davinder were taken on one day PC remand, during which, IO recorded supplementary disclosure statement Ex. PW16/10 of accused Hardeep. While they were in police custody, complainant identified accused Davinder and Hardeep. Both the abovesaid accused persons thereafter led the police party and pointed out the place, from where complainant had escaped from their custody. IO prepared pointing out memos Exs. PW16/7 and PW16/L in this regard. Thereafter, accused Hardeep got recovered a country made pistol from a vacant plot on the left side of the pole No.516-22/15. The country made pistol was found loaded with 9 live cartridges. IO prepared site plan Ex. PW20/B of the recovery of country made pistol. IO also prepared sketch Ex. PW1/G of the pistol. He kept the live cartridge in pulanda and sealed the same with seal of MR. IO thereafter seized the Desi Katta vide seizure memo Ex. PW1/H.
10. On 10.09.2013, accused Hardeep and Davinder pointed out the place, where they had boarded the car alongwith accused Rajkumar. IO prepared pointing out memo Ex. PW16/8 and Ex. PW16/9 in this regard.
11. During further course of investigation, IO collected the call details record and the FSL result from the Ballistics Division. On Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 7 completion of investigation, IO filed the charge-sheet, accusing the accused persons for offence u/s.364A/120B/34 IPC & u/s.25/27 Arms Act.
12. Initially accused Rajkumar could not be arrested and he was declared proclaimed offender. He was subsequently arrested on 15.03.2014. After his arrest, a supplementary charge-sheet u/s.364A/120B/174A/34 IPC was filed against him.
13. On 01.10.2014, formal charge for the offences u/s.364A/120B IPC was framed against all the accused persons. In addition, charge for offence u/s.174A IPC against accused Rajkumar @ Babu and for offence u/s.25/27 Arms Act was framed against accused Hardeep. All the accused persons pleaded not guilty and claimed trial.
14. To prove its case, prosecution has examined total 23 witnesses. Some of the witnesses had merely participated in formal process of investigation. Their brief roles have already been narrated in the forgoing part of this judgment. For sake of brevity, their testimonies shall not be repeated again. Ritesh Bansal, who is the main witness in this case has been examined as PW1. In his Court statement, he has deposed the same facts, which he had deposed in his initial statement Ex. PW1/A given to the police. Therefore, his Court statement made during examination-in-chief is also not BABRU BHAN Digitally signed by BABRU BHAN Date: 2024.08.31 17:08:57 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 8 required to be reproduced. As far as his cross-examination is concerned, same shall be discussed at appropriate stage. PW21 SI Sonu Ram and PW20 Insp. Mukesh are the Investigating Officers. Substantial part of their roles has also been discussed. PW14 ASI Narender, PW15 Ct. Jai Singh and PW16 HC Rajesh were the police officials, who had participated in the investigation with the Investigating Officers. Their respective roles have also been already discussed and therefore, are not being reproduced. The brief of the evidence given by remaining witnesses are as under :
15. PW2 Pradeep Kumar has deposed that he was running a Dhaba on the ground floor of his residence. He did not remember the exact date, but it was about 2 years back, in the month of August, one person who used to work at the shop of his friend Ritesh, had come to his house and informed that Ritesh had called him near PS Vijay Vihar. After that, he alongwith the said employee reached PS Vijay Vihar, where he came to know that some compromise was going on there regarding some property dispute with some Hemant Pichonia. On the asking of police officials, PW2 signed some blank papers. After about 15-20 minutes, he left the PS. He further deposed that in the PS, he met with Ritesh and some police personnel.
16. Rohit Rastogi PW3 has also not supported the case of prosecution in any manner and has deposed that he had no knowledge about Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 9 the case. He also denied having made any PCR call. He also stated that he did not know the name of Pradeep Kumar and was not called by the police for joining of investigation.
17. Chander Shekhar PW5 is the Nodal Officer from Bharti Airtel. He has produced CAF, copies of ID, CDR and supporting certificate u/s.65B of Indian Evidence Act in respect of mobile numbers 8130939809, 9818531990, 8800681279 and 9810871647. These documents are Exs. PW5/A to PW5/Q.
18. PW6 Sh. Sumedh Kumar Sethi, Ld. MM conducted the TIP proceedings of accused Davinder Singh and Hardeep Singh at Rohini Jail and proved the proceedings conducted by him vide Exs. PW6/A to PW6/I respectively.
19. PW7 Ct. Shakti Vesh was posted in PS North Rohini. On 25.10.2013, he obtained sealed pulandas from MHCM vide RC No.145/21 and deposited the same in FSL Rohini. After depositing the same, he handed over the receipt to MHCM.
20. PW8 Naresh has deposed that 5-6 years before his evidence, he had handed over a mobile sim bearing no.9818531990 to Lalji, who was working with him. Lalji and his sons namely Mithun and Dharmender @ Babu thereafter used that sim.
BABRU BHAN Digitally signed by BABRU BHAN Date: 2024.08.31 17:09:10 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 10
21. PW9 HC Rajeev MHCM has produced the record of the case property relating to this case deposited and taken out from Malkhana during his tenure. The documents produced by this witness are Exs. PW9/1 to PW9/5.
22. PW10 Harish Kumar Bharti, Vigilance Officer, MTS Telecom has produced the record of mobile number 9136510564 alongwith a certificate u/s.65B of Indian Evidence Act. The documents and records produced by this witness are Exs. PW10/1 to PW10/3.
23. PW11 Yogesh Tripathi Nodal officer, MTS Telecom has produced the CAF of mobile number 9136510564 vide Ex. PW11/1.
24. PW13 Israr Babu, is the Alternate Nodal Officer, Vodafone. He has produced CAF, CDR, Cell ID chart and supporting certificate u/s.65B of Indian Evidence Act in respect of mobile numbers 9582749331, 9811162870, 9811708281 and 9999998875. These documents are Exs. PW13/1 to PW13/13.
25. PW17 Dr. Meet Kumar has proved the MLC dated 26.08.2013 of Ritesh Bansal as Ex. PW17/1. He was the doctor, who had examined complainant Ritesh Bansal on 26.08.2013.
26. PW18 Dr. Deepika, ENT Specialist, BSA Hospital, has deposed that one patient namely Ritesh Bansal was referred to her on Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 11 26.08.2013, vide MLC No.9246. She has proved her endorsement as Exs. PW18/1 and PW18/2 on the MLC. She has also proved the handwriting of Dr. Vishwajeet on the aforesaid endorsements.
27. PW19 Harmeet Kaur has deposed that in the year 2012, she had provided a sim bearing no.8130939809 to accused Hardeep @ Babu, who was her neighbourer at that time. She has further stated that she used to talk to Hardeep on the said number from her mobile number 9871305853.
28. PW22 M.A. Rizwi, DCP has proved sanction u/s.39 Arms Act as Ex. PW22/A for prosecuting accused Hardeep @ Babu for offence u/s.25 of the Arms Act.
29. PW23 Puneet Puri, Asstt. Director (Ballistics Division) FSL Rohini, has proved his ballistic report as Ex. PW23/A, wherein he has opined that the country made pistol sent to him for examination successfully fired during the test fire and same was a firm arm.
30. The prosecution evidence was followed by the statements of accused persons u/s.313 Cr.P.C. During the statement, the incriminating circumstances and evidence brought against the accused persons by the prosecution was put to them. The accused persons, in response to the questions put to them, denied the case of prosecution, pleaded innocence and claimed false implication.
Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 12
31. Accused opted not to lead the defence evidence and accordingly, this Court closed the defence evidence.
32. This Court has heard the detailed final arguments from Ld. Addl.
PP for the State and Ld. Counsel appearing on behalf of the accused. Now, this Court proceeds to analyse the evidence for the purpose of final judgment.
33. The first argument made by Ld. Defence counsel is upon the veracity of the evidence given by PW1 Ritesh Bansal. Ld. Counsel has argued that in his examination-in-chief, recorded on 15.12.2014, this witness deposed that on 25.08.2013, accused Chakit Ravi called him telephonically and thereafter, picked him up in his WagonR car. Accused Chakit Ravi stopped the car near Ramjas School at Ramjas Road and thereafter remaining three accused persons armed with knife and pistol boarded the car, all of them gave beatings to him and complainant was made to call his friend Pradeep to arrange Rs.20 lakh. His (PW1) examination could not be completed on that day for want of case property and he was again called on 20.07.2017 i.e. after 3 years. That day, PW1 turned hostile and denied the allegations against the accused persons. He (PW1) went to narrate a different story that accused Chakit Ravi was his friend and he had agreed to mediate in a dispute which complainant had with Hemant. On 25.08.2013, when he (PW1) was going in the area of Vijay Vihar alongwith Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 13 accused Chakit Ravi to deliver some money, he (PW1) was stopped by police officials and accused Chakit Ravi had some altercation with the police officials. They were detained in the PS till next morning and thereafter, this case was framed against the accused Chakit Ravi. He also stated that neither he was kidnapped by the accused persons, nor given beatings by any of the accused. PW1 also went to explain that the statement given by him on 15.12.2014, was given at the instance of some police officials, who were present outside the Court on that day.
34. On basis of aforesaid two statements, Ld. Defence Counsels have argued that on 15.12.2014, PW1 Ritesh Bansal had made incriminatory statement against the accused persons at instance of police officials. However, on next date of hearing, when he was called for cross-examination, good sense prevailed and he corrected his error and explained that he was never kidnapped or beaten by the accused persons. The accused persons were falsely implicated because accused Chakit Ravi had some altercation with the police officials on 25.08.2013, when they were going to hand over money to Hemant Picholia, with whom PW1 Ritesh Bansal had some dispute. The contention further raised by Ld. Defence Counsels is that PW1, who is victim in this case, has given two statements. In first statement, he incriminated the accused persons, but subsequently, he retracted from his Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 14 statement and went to exonerate the accused persons. He also explained that the first statement was given at the instance of the police officials. He also explained the circumstances, under which accused Chakit Ravi and other accused persons were implicated. Ld. Defence counsels have argued that in the given circumstances, this Court cannot rely upon inculpatory part of the statement of PW1.
35. On the other hand, Ld. Addl. PP for State has submitted that evidence of a witness who is treated as hostile, cannot be completely brushed aside but it has to be considered with due care and caution. The part of statement which is trust-worthy has to be considered and relied upon. In simple words, the fact that the witness has turned hostile, does not result in automatic rejection of his evidence. The evidence of even a hostile witness, if corroborated by the other circumstances, may be taken into account while holding the accused guilty. Ld. Addl. PP for the State has relied upon the observations made by Hon'ble Apex Court of India in case titled as Neeraj Dutta Vs. State, 2022, Live Law (SC) 1029, wherein Hon'ble Apex Court has made following relevant observations on the subject of appreciation of the evidence of a hostile witness :
"Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-
Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 15 examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
36. In the given facts and circumstances of this case, Ld. Addl. PP has also deemed it important to refer to the observations made by Honb'le Apex Court in Rajesh Yadav Vs. State of U.P. (2022), 12 SSC 200, in which the law on hostile witness and appreciation of evidence in case of witness turning hostile during the cross- examination was discussed in detail as under :
"21.The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 16 examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
37. In the light of the aboe judicial pronouncement, Ld. Addl. PP for State has further argued that the examination-in-chief of PW1 Ritesh Bansal was partially recorded on 15.12.2014. It was deferred for want of case property. Further examination of this witness resumed on 20.07.2017 i.e. after lapse of almost three years. During this period, the accused persons might had compromised the witness and, therefore, he turned back from his earlier statement. Ld. Addl. PP has further submitted that PW1 has sought to explain that when he first appeared on 15.12.2014, he was asked by some police officials present outside the Court to make an inculpatory statement against the accused persons. Now, Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 17 in case, any such influence was exercised by some police officials outside the Court, the witness could have and should have intimated the presiding officer about the aforesaid influence exercised by the said police officials present outside the Court but no such complaint was made by him. Ld. Addl. PP for the State has submitted that the subsequent statement made by PW1, wherein he exonerated the accused persons has no basis and, therefore, the Court should rely upon the first statement made by him and reject the subsequent statement.
38. This Court agrees with the arguments made by Ld. Addl. PP for the State that testimony of a hostile witness can also be relied upon by the prosecution as well as the defence. When a witness has given two contradictory statements during examination-in- chief and cross-examination, the version of the witness which appears to be more reliable and corroborated by the other circumstances can be validly considered and taken into judicial account. However, the approach has to be cautious and careful, while appreciating evidence of such witness.
39. Here in this case, in his initial statement, PW1 has deposed that he was abducted by the accused persons on 25.08.2013. However, he managed to escape when the accused persons stopped the car for answering the call of nature. Relevant it would be to note that allegedly, PW1 was abducted by four accused persons. Some of Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 18 them were armed with knives and a pistol. Considering the number of the accused persons and the deadly weapons they were carrying, it sounds highly unbelievable that PW1 Ritesh Bansal would have mustered the courage and could have escaped from their custody. Since the accused persons were carrying deadly weapons, they could have easily apprehended and harmed the complainant, when he tried to escape. Thus, his story on this aspect appears to be prima-facie unreliable.
40. Secondly, in his initial statement, PW1 Ritesh Bansal has stated that he was abducted by the accused persons in a WagonR car, but when the car was produced in the Court, PW1 refused to identify the same and went to state that the car used in his abduction was a Santro car and not the WagonR car, which was produced by accused Chakit Ravi. The non-identification of car by PW1 would further bring his evidence under the shadow of doubts.
41. Initial story of PW1 is further demolished by PW2 Pradeep Kumar, who has stated that one employee of PW1 Ritesh Bansal informed him that Ritesh Bansal had called him (PW2) near PS Vijay Vihar. When he went to PS Vijay Vihar, he saw that some compromise was going on at PS Vijay Vihar regarding some dispute with Hemant Picholia. There, he was made to sign some documents by the police officials. PW2 was cross-examined in BABRU BHAN Digitally signed by BABRU BHAN Date: 2024.08.31 17:10:10 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 19 detail by Ld. Addl. PP for State, but this witness remained firm and consistent and denied all the suggestions put to him. So, the deposition of PW2 has demolished the case of the prosecution that accused persons had forced PW1 to call his friend Pradeep and to bring Rs.20 lakhs. PW2 has in fact corroborated the story of the defence that PW1 Ritesh Bansal had some property dispute with Hemant Picholia and accused Chakit Ravi was mediating in the same.
42. The third witness namely Rohit Rastogi PW3 has also not supported the case of prosecution. The prosecution had sought to prove through this witness that after PW1 Ritesh Bansal called Pradeep PW2 for arranging Rs.20 lakhs and Pradeep PW2 had further made a call to Rohit Rastogi PW3 for arranging the amount. However, PW3 also turned hostile and refused to support the case of prosecution. He was subjected to detailed cross- examination by Ld. Addl. PP for the State, wherein contents of all the previous statements were confronted to him, but he denied the same in entirety.
43. No doubt, it is correct that evidence of a hostile witness should not be totally rejected, if spoken in favour of prosecution or the accused, but it can be subjected to close scrutiny and that portion of evidence, which is consistent with the case of prosecution or defence can be accepted. In other words, instead of rejecting the Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 20 entire testimony, Court can accept that part which is reliable and corroborated by other evidence. Here in this case, PW1 had first stated that he was abducted by the accused persons, but he subsequently denied the same. Even if, his subsequent denial is rejected, his initial inculpatory statement does not inspire confidence on some material aspects. It is highly improbable that PW1 Ritesh Bansal managed to escape almost unhurt from the custody of four accused persons, who were armed with deadly weapons. Secondly, the other witness i.e. PW2 Pradeep has corroborated the story claimed by the defence that PW1 Ritesh Bansal had some dispute with Hemant Picholia. PW1 has not supported the case of the prosecution that he had gone to BSA Hospital to handover Rs.20 lakhs to the kidnappers. The third witness PW3 Rahul Rastogi has also not supported the case of prosecution that he was asked by Pradeep PW2 to arrange an amount of Rs.20 lakhs. So, not only the statement of PW1 in itself is unreliable, but same has not been supported by the other witnesses also.
44. Ld. Addl. PP for State has argued that the investigating agency had collected the call details record and these call details record can connect the accused persons with the offence in question. Call detail records are the vital piece of evidence and can be used to ascertain the role of the accused persons in a particular offence.
Digitally
signed by
BABRU BABRU BHAN
Date:
BHAN 2024.08.31
17:10:22
+0530
(Judgment) SC 52200/2016
STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013
(North Rohini)
U/s.364A/120B/174A/34 IPC &
25/27 Arms Act
21
CDRs can include details such as names and numbers of the people, who made an received the calls, the date and time of the call and durations of calls. No doubt, these informations can be used as evidence to determine the location of the accused and his connection with the accomplices. However, in this case, where all the witnesses have refused to support the case of the prosecution, the call detail records, even if accepted, shall not be sufficient to prove the allegations against the accused persons. Thus, no detailed discussion is required on the aspect of call detail records.
45. In view of the above discussion, it can be held without any hesitation that the allegations of criminal conspiracy to abduct Ritesh Bansal PW1 and abduction of Ritesh Bansal in pursuant to the said conspiracy are highly doubtful. All the accused persons are accordingly acquitted for the charges of offence u/s.120B IPC and u/s.364A r/w. Section 120B IPC.
46. An additional and independent charge for offence u/s.25/27 Arms Act has also been framed against accused Hardeep @ Babu on the allegations that the country made pistol, which was allegedly used in commission of crime in question, was subsequently recovered at his instance vide seizure memo Ex. PW1/H.
47. The requirements of law, which are needed be complied with before accepting the evidence of recovery, have been elaborated Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.08.31 17:10:29 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.FIR No.345/2013
(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 22 by the Hon'ble Apex Court of India in case titled as Ramanand @ Nand Lal Bharti Vs. State of Uttar Pradesh, 2022 SC . The relevant observations are as under :
"53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Digitally signed by BABRU BABRU BHAN Date:
BHAN 2024.08.31
17:10:35
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STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013
(North Rohini)
U/s.364A/120B/174A/34 IPC &
25/27 Arms Act
23
Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter. ...
55. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence".
48. Now, in light of the ideal procedure of recovery elaborated by Hon'ble Apex Court of India in the aforesaid judgment, this Court can analyse the veracity of the recovery of weapon effected from accused Hardeep @ Babu vide seizure memo Ex. PW1/H. To prove the alleged recovery, prosecution has produced two police witnesses namely Insp. Mukesh Rana PW20 and HC Rajesh PW16. Both of these witnesses have stated that on 04.09.2013, accused Hardeep and Devender @ Pintu surrendered before the Rohini Courts. After obtaining the permission from the Court, they were arrested and their disclosure statements Exs. PW16/5 & PW16/6 were recorded. While recording the disclosure statement Ex. PW16/6 of accused Hardeep Singh @ Babu, the Investigating Officer was supposed to keep two things in mind. Firstly, that the disclosure statement was to be recorded in presence of two independent witnesses and secondly, the exact words uttered by the accused were to be incorporated in the disclosure statement. Non-compliance of the first condition can be explained by the prosecution by saying that since the accused persons had Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.08.31 17:10:42 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.FIR No.345/2013
(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 24 surrendered in the Court and the disclosure statement was recorded in the Court itself, therefore, the IO could not arrange the two independent witnesses. While visiting the Court, IO must be aware that he was going to interrogate and arrest the accused in the case and therefore, presence of two independent witnesses might be required to witness the disclosure statement. So, as a matter of diligence, IO should have taken two independent witnesses to the Court to witness the disclosure statement of the accused Hardeep. However, no such steps to arrange independent witnesses were taken by the IO. So, the first condition has not been complied with.
49. Still, since, the disclosure statement was recorded in the Court, lets give exemption from the first condition to the IO for a moment. Now, IO was required to fulfill the second condition i.e. to record the exact statement and the words uttered by accused Hardeep @ Babu. However, perusal of statement Ex. PW15/6 would reveal that it records that accused Hardeep @ Babu had stated that he would point out the place from where they had picked-up and dropped the complainant. It further mentions that accused Hardeep had stated that he could tell the place, where he had concealed the pistol. Since the accused Hardeep had allegedly told that he could point out some relevant places, where some parts of offence were committed and the properties were disposed BABRU BHAN Digitally signed by BABRU BHAN Date: 2024.08.31 17:10:48 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 25 of, it was duty of the IO to enquire from the accused regarding the details of those places and to incorporate the same in the disclosure statement Ex. PW16/6. However, the said statement Ex. PW16/6 does not contain any such detail. It appears that the statement is written in the words of the IO and not accused Hardeep. So, the second condition that a statement should contain the exact words uttered by the accused, has also not been fulfilled.
50. Further, the first disclosure statement of the accused Hardeep @ Babu was recorded on 04.09.2013 wherein he had allegedly told the police that he could get recovered the place of disposal of the weapon. However, the recovery was effected on 09.09.2013. It may be explained by the prosecution that after the arrest, since the TIP of the accused persons was to be conducted, therefore, police custody remand was not obtained and the aforesaid delay occurred in the recovery. Unfortunately this explanation shall not serve the purpose of the prosecution because as per record, the accused persons had refused to undergo TIP on 06.09.2013. After refusal, the IO was supposed to take the police custody remand of the accused persons on the same day, but it appears that no such prompt action was taken by the IO. Thus, since the recovery was effected after 5 days of the initial disclosure statement, the possibilities of concoctation of facts and plantation of the weapon cannot be ruled out.
Digitally
signed by
BABRU
BABRU BHAN
BHAN Date:
2024.08.31
17:10:54
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(Judgment) SC 52200/2016
STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013
(North Rohini)
U/s.364A/120B/174A/34 IPC &
25/27 Arms Act
26
51. Furthermore, the IO/Insp. Mukesh PW20 and HC Rajesh PW16 have stated that an additional disclosure statement Ex. PW16/10 of the accused Hardeep was recorded on 09.09.2013, when he was in police custody. In that statement, he allegedly disclosed the exact place regarding the disposal of weapon of offence. In case, two independent witnesses as per judgment titled as Ramanand @ Nand Lal Bharti Vs. State of Uttar Pradesh, were not available when the initial disclosure statement Ex. PW16/6 of accused Hardeep was recorded in the Court, nothing had prevented the IO to record the subsequent additional statement Ex. PW16/10 in presence of two independent witnesses, but same was also not done. The additional statement Ex. PW16/10 would reveal that it was recorded in presence of HC Rajesh PW16 only. So, the procedure laid down by Hon'ble Apex Court was not followed at any stage of recovery of the weapon.
52. Although, the seizure memo of the weapon, which is Ex. PW1/H bears the signatures of Ritesh Bansal, but the circumstances under which he joined the said recovery are too coincidental to be believed. Insp. Mukesh PW20 has stated that after recording the additional statement Ex. PW16/10, when they proceeded to the place of recovery, Ritesh Bansal PW1 surprisingly met them at the gate of the PS and he was accordingly joined in the recovery. It is relevant to note here that it is not the case of the prosecution Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.08.31 17:11:01 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.FIR No.345/2013
(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 27 that IO had informed Ritesh Bansal PW1 and called him to join the investigation. No such statement has been made by the IO. When Ritesh Bansal PW1 was not informed by the IO, how on earth he happened to come to the PS that very moment, when police party was about the leave for the recovery. These facts are not believable.
53. Further, although, the recovery memo Ex. PW1/H bears the signatures of Ritesh Bansal PW1, but it doesn't appear from the statement made by HC Rajesh PW16 in his cross-examination. Although, PW16 has stated that Ritesh Bansal had met them at the gate of the PS, but he stated that thereafter, SI Mukesh Rana, Ct. Deepak, myself (HC Rajesh PW16) and two accused left the PS (probably for the recovery). Relevant it would be to note that PW16 did not mention that Ritesh Bansal PW1 had also accompanied the police party, from where the recovery of the weapon was effected. So, the police witnesses and PW1, who is a public witness, are apparently not in agreement on joining of recovery of weapon by Ritesh Bansal PW1. These contradictions would also make the recovery more doubtful.
54. Further, as per the prosecution story, the country made pistol was recovered at the instance of accused Hardeep from an open place in DDA Park. It is not the case of the prosecution that this place was not accessible to general public. Dealing with evidentiary BABRU BHAN Digitally signed by BABRU BHAN Date: 2024.08.31 17:11:07 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 28 value of a recovery effected from an open public place accessible to all, Hon'ble Apex Court of India has made some relevant observations in case titled as Nikhil Chandra Mondal Vs. State of West Bengal, SC 2023. The observations are :
"18. The trial court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible to one and all. We find that the approach adopted by the trial court was in accordance with law. However, this circumstance which, in our view, could not have been used, has been employed by the High Court to seek corroboration to the extra-judicial confession".
55. In light of the above observations, since the recovery was effected from an open place, it cannot be given much evidentiary value. Reason being, for admissibility u/s.27 of the Indian Evidence Act, the fact discovered must be direct consequences of the information received from the person in custody.
56. The discussion relating to recovery can be summed up in the words that initial disclosure statement of accused Hardeep which is Ex. PW16/6 was recorded by the IO on 04.04.2013. Neither this statement was recorded in presence of two independent witnesses, nor it contained the exact words uttered by the accused. The TIP of accused Hardeep was concluded on 06.04.2013, but his additional statement Ex. PW16/10 was recorded on 09.04.2013. Again, neither delay has been explained, Digitally signed by BABRU BABRU BHAN BHAN Date:
2024.08.31 17:11:12 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.FIR No.345/2013
(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 29 nor the procedure laid down by Hon'ble Apex Court of India in case titled as Ramanand @ Nand Lal Bharti Vs. State of Uttar Pradesh, was followed. Ritesh Bansal PW1 had allegedly joined the recovery proceedings of the weapon but the circumstances under which he joined the recovery are clearly doubtful. Moreover, HC Rajesh PW16 does not appear to be in agreement with the fact that Ritesh Bansal PW1 had joined the weapon recovery proceedings. Weapon was recovered from a public park, which was accessible to all. Under the circumstances, the recovery of weapon would definitely come under the shadow of reasonable doubts. So, for offence u/s.25/27 Arms Act against accused Hardeep @ Babu, prosecution has failed to prove anything. He is accordingly acquitted from these charges.
57. One more additional charge framed against accused Rajkumar @ Babu is that he did not join the investigation and, therefore, IO obtained NBWs against him. However, same could not be executed as accused Rajkumar @ Babu was deliberately concealing himself. Therefore, Court issued process u/s.82 Cr.P.C. against him. Despite execution of the said process, accused failed to put his appearance before the Court within the statutory period. Accordingly, he was declared proclaimed offender vide order dated 04.01.2014.
Digitally signed by BABRU BABRU BHAN BHAN Date:
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(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 30
58. Although, no witness has been examined to prove the said order, but the original order forms the part of judicial record. Section 80 of Indian Evidence Act incorporates a presumption that any evidence or statement signed by any Judge or Magistrate shall be presumed to be genuine. Here in this case, the judicial order, whereby accused Rajkumar @ Babu was declared proclaimed offender (PO) carries the same presumption. Moreover, the said judicial order was put to the accused in terms of section 313 Cr.P.C., wherein accused neither disputed its genuineness nor claimed that the satisfaction recorded in the said order dated 04.01.2014, was not based upon correct facts. In fact he went to admit that he was declared PO because he failed to appear despite execution of proceedings u/s.82 Cr.P.C. Furthermore, Section 82(3) Cr.P.C. also provides that a statement in writing by the Court issuing proclamation to the effect that proclamation was duly published on a specified day shall be conclusive evidence that the requirement of this section has been complied and the proclamation was published on the said day. In light of the above evidence, this Court is of the opinion that the undisputed order dated 04.01.2014 is sufficient to prove that accused Rajkumar @ Babu had failed to appear before the Court despite due execution of process u/s.82 Cr.P.C. Accused Rajkumar @ Babu is accordingly convicted for the offence u/s.174A IPC.
BABRU BHAN Digitally signed by BABRU BHAN Date: 2024.08.31 17:11:25 +0530 (Judgment) SC 52200/2016 STATE Vs. Dharmender @ Babu ORS.
FIR No.345/2013(North Rohini) U/s.364A/120B/174A/34 IPC & 25/27 Arms Act 31
59. Accused Rajkumar @ Babu sentenced for offence u/s.174A IPC vide a separate order passed today.
60. All the accused are directed to furnish bail bonds in compliance Digitally signed by of Section 437A Cr.P.C. BABRU BABRU BHAN Date:
BHAN 2024.08.31 17:11:32 +0530 Announced in open (BABRU BHAN) Court on 31.08.2024 ADDL.SESSIONS JUDGE - 03 NORTH-WEST, ROHINI COURTS, DELHI/31.08.2024