Delhi District Court
State vs Gaurav Chauhan(3-J) on 24 August, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28612/2016)
FIR No. 199/2009
Police Station Kashmere Gate
Charge-sheet filed under Sections 364A/506/34/120B IPC &
25 Arms Act.
Charges framed against accused 120B/364A/506 IPC & 27
namely Gaurav Chauhan @ Sachin. Arms Act.
Charges framed against accused 120B/364A/506 IPC.
persons namely Ankur Singh and
Sahi Ram @ Harish @ Lambu @
Moni.
State Versus 1. Gaurav Chauhan @ Sachin,
S/o Sh. Ghanshyam,
R/o H. No. RZ-8H/10, Gali No. 5,
Main Sagarpur, Delhi.
2. Ankur Singh,
S/o Sh. Lal Singh,
R/o A-33, Pandav Nagar, near
Karan Public School, Meerut,
Uttar Pradesh.
3. Sahi Ram @ Harish @ Lambu @
Moni,
S/o Sh. Krishan,
R/o A-8, Kiran Garden,
Uttam Nagar, Delhi.
...Accused Persons.
FIR No. 199/2009, PS: Kashmere Gate,
State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 1 of 91
Date of Institution of case 21.11.2009
Date of Arguments 13.08.2024
Judgment reserved on 13.08.2024
Judgment pronounced on 24.08.2024
Decision Convicted
JUDGMENT
1. Accused persons namely Gaurav Chauhan @ Sachin, Ankur Singh and Sahi Ram @ Harish @ Lambu @ Moni are facing trial for the offences punishable under Sec. 120B/364A/506 IPC. Additionally, accused Gaurav Chauhan @ Sachin is also facing trial for the offence punishable under Sec. 27 Arms Act. The story of the prosecution is that accused persons namely Gaurav Chauhan @ Sachin, Ankur Singh and Sahi Ram entered into a criminal conspiracy to kidnap/abduct Sh. Nikunj Mittal with a view to demand ransom in sum of Rs. 2 crores from his father Sh. Rajeev Mittal. Further in pursuance of aforesaid conspiracy, on 27.07.2009, between 07:30 pm to 09:30 pm, from the crossing of S. P. Marg/Luthian Road, all the three accused persons abducted Sh. Nikuj Mittal, S/o Sh. Rajiv Mittal with intention of causing him to be secretly and wrongfully confined in flat no. 1246, Pocket-A, DDA Flats, Lok Nayak Puram, Bakkarwala, Delhi giving reasonable apprehension to him that he would be put to death or hurt in order to compel his father Sh. Rajeev Mittal to pay a ransom in sum of Rs. 2 crores, which was eventually paid to them on 29.07.2009 at or near village Panchli, Meerut, UP. Further at the time of kidnapping/abducting Sh.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 2 of 91 Nikuj Mittal and during the period of wrongful confinement, all of accused persons threatened him as well as his father Sh. Rajeev Mittal to cause death of Sh. Nikunj Mittal, if the ransom amount was not paid. Further on 09.08.2009, accused Gaurav Chauhan @ Sachin was found in possession of Desi Katta with three live cartridges and Desi Pistol with two live cartridges which were used in commission of offence.
2. The brief facts which are borne out from the record of the case are that on the intervening night of 27-28.07.2009, complainant/PW-1 Sh. Rajeev Mittal gave a written complaint to SHO PS Kashmere Gate regarding kidnapping of his son/PW-2 Sh. Nikuj Mittal and demand of Rs. 2 crores as ransom by kidnapper from him for his safe release. On the basis of said complaint, the present FIR under Sec. 364A IPC was registered at PS Kashmere Gate and the investigation took place. During investigation, mobile phone of complainant was put on voice logger system at Operation Cell, North District and SI Mahavir Singh was deputed to monitor the said system at operation cell. IO also collected the CDR of mobile phones of complainant and his son Sh. Nikunj Mittal and on the basis of analysis of the same, he found that on 27 & 29.07.2009 ransom calls were received from mobile numbers 9873091642 and 9873085834. During investigation, IO made inquiry from Max Communication, Sagarpur, Delhi from where the abovesaid mobile numbers were recharged and interrogated the persons who got their mobile phones recharged from Max FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 3 of 91 Communication and in that process accused Gaurav Chauhan @ Sachin was also called by the IO. IO analyzed the call details of accused Gaurav Chauhan and on his thorough interrogation, he confessed his involvement in the present case. Thereafter, IO arrested accused Gaurav Chauhan @ Sachin, conducted his personal search and recorded his disclosure statement.
3. Thereafter, pursuant to disclosure statement of accused Gaurav Chauhan @ Sachin, IO arrested accused Sahi Ram @ Lambu @ Harish @ Moni from his house at A-8, Kiran Garden, Uttam Nagar and got recovered Rs. 90,000/- at his instance from his house. Thereafter, accused Gaurav Chauhan led the police team to his factory situated at 23/17, Matiala from where he got recovered one countrymade pistol, one countrymade katta alongwith five live cartridges from an iron Almirah. Thereafter in pursuance of disclosure statements of both accused persons, IO went to flat no. 1246, Pocket-A, Lok Nayak Puram, Bakkarwala where accused persons kept victim Sh. Nikunj where IO prepared the site plan of the flat and got inspected the said flat from Crime Team and seized burnt match, sticks, buds of cigarettes and hair strands. Thereafter in pursuance of disclosure statement of accused Gaurav Chauhan, IO recovered cash in sum of Rs. 1,37,50,000/- from his house situated at RZ-8/10, Gali No. 5, Sagarpur, Delhi, at his instance. During investigation, IO recorded supplementary statement of accused Gaurav Chauhan, seized the Santro Car of accused Gaurav Chauhan and also seized one cassette containing his voice sample. Thereafter FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 4 of 91 further investigation of this was entrusted to PW-44 Inspector Pradeep Paliwal.
4. During investigation, PW-44 IO/Inspector Pradeep Paliwal seized the saliva and hair sample of accused Gaurav Chauhan and his two mobile phones make Nokia. He also seized the saliva and hair sample of accused Sahi Ram. During investigation, IO also seized call recorded at the voice logging system and made transcript of the same with assistance of complainant and victim. IO also arrested accused Ankur in the present case and conducted his personal search. IO also filed an application for conducting TIP of accused Ankur but he refused to participate in it. IO also recorded disclosure statement of accused Ankur in which he disclosed that he had purchased a Maruti Esteem car in sum of Rs. 90,000/- out of the ransom money received in the present case. IO also seized the mobile phone of Ankur and got his voice sample recorded at FSL. During investigation, IO also seized the car which was purchased by accused Ankur out of the ransom amount. IO sent the exhibits to FSL, seized the mobile phone of victim Nikunj Mittal, seized one diary of Mohd. Abdulla, seized mobile phone of accused Sahi Ram, seized the sample slip of Vijaya Bank, seized the mobile phone of complainant and procured the details of intercepted calls. On completion of investigation, charge-sheet was filed by the IO before the Court through the SHO.
5. Vide order dated 0 5 . 11 . 2 0 0 9 , copy of the charge- sheet under Section 207 Cr.P.C was supplied to the accused FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 5 of 91 persons and vide order dated 19.11.2009 the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
6. Vide order dated 01.06.2010 the Ld. Predecessor was pleased to frame charges under Sec. 120B/364A/506 IPC against all the three accused persons. Additional charge under Sec. 27 Arms Act was framed against accused Gaurav Chauhan @ Sachin. Accused persons pleaded not guilty and claimed trial.
7. To prove its case, prosecution has examined 47 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
8. PW-1 Sh. Rajeev Mittal, is the complainant/father of victim in the present case. He deposed that he was running business of copper wires in the name and style as M/s Mittal Metal Industries from 1734/6, Ram Gali, Bhagirath Palace, Chandni Chowk, Delhi. He further deposed that on 27.07.2009 at about 07:30 pm, his son left to retrieve the car from parking. He further deposed that he walked and reached the road near Presentation Convent School and waited for his son about 20-25 minutes but he did not turn up. He further deposed that he called Nikunj on his mobile again but though the bell was ringing, but nobody picked up or responded. He further deposed that thereafter he reached home but found that his son had not reached home. He further deposed that he tried to contact Nikuj on his mobile but it was switched off thereafter he took the bicycle of his servant and paddled towards Chandani Chowk and FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 6 of 91 at about 10:30 pm, he found his Honda City silver colour car parked in front of main gate of GPO.
9. PW-1 Sh. Rajeev Mittal further deposed that at about 10:50 pm, he received a call from mobile of Nikunj on his mobile and he picked up the call and heard a female voice who after saying hello, asked him to talk to Nikunj and then he talked to Nikunj. He further deposed that he talked to Nikunj who simply told him 'Papa Mujhe Bacha Lo' and hardly after a minute or so, he received another call on his mobile from mobile of Nikunj and this time it was a male voice who told me to arrange for two Khokhas meaning thereby two crores for the release of Nikunj and he also told him that he would call him further next day i.e. on 28.07.2009 at about 07:00 pm and the phone was disconnected.
10. PW-1 Sh. Rajeev Mittal further deposed that hardly after a minute or so again a call was received from Nikunj's mobile and that man was talking again and called upon him not to report the matter to the Police or else his son would be in trouble. He further deposed that he went to the PS Kashmere Gate at about 12:25 am and gave a written complaint, Ex. PW-1/A to the police in this regard. He further deposed that on 28.07.2009, between 10:00-10:30 pm, he received a call from the same mobile and this time he was allowed to talk to his son. He also deposed that his son appeared to be quite terrified and he asked him as to when he would be released from their custody. He also deposed that he assured his son that money would be arranged soon and no harm FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 7 of 91 would come to him as he should believe and pray to God.
11. PW-1 Sh. Rajeev Mittal further deposed that on the phone call, he asked the caller as to how the money was to be paid. He further deposed that as per directions of caller, he proceeded towards Haridwar in i-10 car by keeping the ransom amount in two separate black colour polythenes. He further deposed that he was instructed by the caller that his men were following him and on him tail and he should not indulge in any kind of Hosiyari and shall keep on driving. He further deposed that he reached at the spot as instructed and he came out of the car and placed the two polythene bags containing the ransom amount on the road near the drum and the caller instructed him to drive back to the home and he was assured that his son would be released as promised. He further deposed that as he was just to start, he saw that accused Ankur came through the agricultural fields and picked up the polythene bags contaning the ransom amount and started walking towards the agricultural field. He further deposed that he reached back home at about 01:00 am and at about 02:00 am, he received call from mobile no. 9873085834 and the caller told him that his son Nikunj had been dropped in front of Taj Hotel, New Delhi thereafter he brought his son back to home.
12. PW-1 Sh. Rajeev Mittal further deposed about the proceedings conducted by the IO in his presence. He narrated about his joining the investigation with IO on various dates and search made at house and factory of accused Gaurav Chauhan, search of house of aunt of accused Gaurav Chauhan and recovery FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 8 of 91 of Rs. 35,000/- from her house, preparation of site plan by IO, handing over ownership proof of Honda City car and handing over of proof of arrangement of ransom amount of Rs. 2 crores. This witness correctly identified accused persons namely Gaurav Chauhan @ Sachin and Ankur Singh as well as case properties in the court. This witness was cross-examined at length. In his cross-examination, he deposed that he had not put any identification mark on the currency notes before making the delivery of the ransom amount. He also deposed that he knew accused Gaurav Chauhan as Sachin for about 2-3 years prior to this incident as he had been supplying them with consignment/material of copper wire. He denied the suggestion that he had not seen accused Ankur taking away the polythene bags of ransom amount from the spot or that Ankur had been named by him at the behest of the police. He denied the suggestion that he owed a considerable amount towards the supply of copper wires to accused Gaurav and he had not made the payment of the goods to the accused despite repeated demands by him. He also denied the suggestion that with the help and connivance of the police officials, he even lifted the account books and some bills from the house of accused Gaurav Chauhan after breaking open the locks of his house in order to destroy the evidene of any kind of business relations and amount outstanding to him.
13. PW-2 Sh. Nikunj Mittal, is the victim in the present case. He deposed that on 27.07.2009 at about 07:30 pm, on asking of FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 9 of 91 his father, he went to parking lot of Gandhi Maidan to bring their Honda City car bearing registration no. DL-4CAH-4922 near Lajpat Rai Market, near main road, MCD Parking. He further deposed that when he stopped his car near Presentation Convent School, two boys barged into the car from left front and rear sides and took out pistols and they asked him to drive the car. He further deposed that the person sitting on his left side front seat put his pistol against his belly and the other person sitting behind put his pistol at his neck. He further deposed that when he reached GPO, they asked him to stop the car and accused Sahi Ram who was sitting on the front left side, removed his shirt and muffled his face with the same. He further deposed that offenders drove the car for about 2 to 2½ hours and reached at some place and the car was stopped and one of them asked him to talk to his father on his mobile and asked his father to save him from them and he could barely say to his father 'Ki mujuhe kab bachaoge'.
14. PW-2 Sh. Nikunj Mittal further deposed that he was given some juice to drink and on his request, accused Sahi Ram removed the shirt off from his face and also instructed him that when the other boys comes, he should put on the shirt again to muffle his face and should not tell him that he had removed the same. He further deposed that he found that accused Sahi Ram was a smoker and he also asked him to give him few and he also smoked few cigarettes. He further deposed that same way when the night approached, the other boy came and this time both of them took him out of the room and he was taken downstairs and FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 10 of 91 in a Car. He further deposed that the car was driven for about an hour and they reached some place and his hands were untied and the mobile set was put in his upper pocket of the shirt but he was kept blindfolded. He further deposed that in the meantime his father reached there and brought him back to home. He also narrated about joining of investigation in the present case on various dates and proved seizure memo of his hair and saliva as Ex. PW-2/A, his signature on final transcript as Ex. PW-1/C, seizure memo of cassette of voice sample as Ex. PW-2/B and seizure memo of his mobile phone as Ex. PW-2/C. This witness correctly identified accused persons namely Gaurav Chauhan and Sahi Ram as well as case properties during his examination.
15. PW-2 Sh. Nikuj Mittal was cross-examined at length on behalf of accused persons. In his cross-examination, he admitted that accused Gaurav Chauhan was their supplier of copper material since 2006-2007. He denied the suggestion that they were indebeted towards accused Gaurav Chauhan with regard to the supply of copper good or that they had not made any advance payment against any consignment delivered to them by accused Gaurav Chauhan. He also deposed that he did not tell the police on 24.08.2009 that accused Gaurav Chauhan was known to him earlier being their supplier. He deposed that the spot from where he was kidnapped was a public place and also crowded one but he did not raise alarm due to fear of the pistols that were shown to him. He also deposed that there were four persons in the car including himself when he was dropped near Dhaula Kuan and it FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 11 of 91 was accused Sahi Ram who called the name of one of the abductors as Ankur. He also deposed that police did not make any request for his assistance to prepare sketches of the kidnappers or even the room where he was confined. He denied the suggestion that he along with his father manufactured a story in connivance with the police officials in order to falsely implicate accused Gaurav Chauhan due to strained business relations.
16. PW-3 Sh. Neeraj Goel, deposed that on 09.08.2009, he along with IO, his friend Alok Sabita, accused Gaurav Chauhan and other police staff reached at the house of accused Sahi Ram at A-8, Kiran Garden, Uttam Nagar, Delhi where IO/SI Ramesh Dixit apprehended accused Sahi Ram and got recovered Rs. 90,000/- from an iron Almirah kept at ground floor, at his instance and seized the same vide seizure memo Ex. PW-3/A. He further deposed that thereafter accused Gaurav Chauhan led them to his house situated at RZ-8H/10, Gali No. 5, Main Sagarpur, Delhi and got recovered a sum of Rs. 1,37,50,000/-, which was seized by the IO vide seizure memo Ex. PW-3/B. In his cross- examination, he deposed that his friend Alok Sabita met him at ISBT and they reached at the office of Special Cell, Maurice Nagar at about 03:30 pm. He further deposed that police informed them that accused Gaurav Chauhan had been apprehended and the accused Gaurav Chauhan was in custody of the police and they were informed that another offender would be caught at his instance. He also deposed that police recorded his FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 12 of 91 statement 3-4 times in this case. He denied the suggestion that no recovery was effected from the house of accused Gaurav Chauhan and Sahi Ram or that he was not associated in the investigation of this case.
17. PW-4 Sh. Sudhir Sahi, deposed that he used to look after the parking situated near Hanuman Mandir. He further deposed that on 02.09.2009, some policemen came with an accused and asked him to accompany them to Rohini. He further deposed that voice sample of accused Gaurav Chauhan @ Sachin was recorded at a government building near Madhuban Chowk, Rohini and two cassettes were prepared by the expert in this regard, which were seized by the IO vide seizure memo Ex. PW- 4/A. He also deposed that voice samples of two more persons namely Nikunj Mittal and Rajiv Mittal were also taken in his presence and cassettes of their voice were also seized by the IO vide seizure memo Ex. PW-2/B & Ex. PW-1/D respectively. In his cross-examination, he deposed that he was illiterate and he could only sign in Hindi. He also deposed that he was read over the documents before signing the same by IO and the same were signed by him. He also deposed that he had not asked the IO as to why his signatures were being obtained by him. He denied the suggestion that he never visited FSL Rohini or that no documents were prepared in his presence by the IO and his signatures on the same were obtained later on.
18. PW-5 Sh. Alok Savita was working as a servant at Mittal Metal Industries. He deposed on the lines of PW-3 Sh. Neeraj FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 13 of 91 Goel and proved the seizure memos of recovered ransom amount at instance of accused Sahi Ram and Gaurav Chauhan. In his cross-examination, this witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-5/DA on various points. He denied the suggestion that he never remained associated with the investigation of this case or that he never visited the house of accused Sahiram or the house of accused Gaurav Chauhan or that nothing was recovered at the instance of both the accused persons.
19. PW-6 Sh. Devraj, was working as a Parking Attendant in the parking lot, Jamuna Bazar at Hanuman Mandir. As per the court observation, this witness was threatened by accused Gaurav Chauhan before recording of his statement in the court room. He deposed on the lines of PW-4 Sh. Sudhir Shahi. He proved the seizure memo of cassettes of voice sample of accused Gaurav Chauhan as Ex. PW-4/A, seizure memo of cassettes of voice sample of Nikunj Mittal as Ex. PW-2/B and seizure memo of cassettes of voice sample of Rajiv Mittal as Ex. PW-1/D. In his cross-examination, he deposed that he had not read over the documents that were signed by him at the FSL as he was told that the documents were in connection with the recordings. He denied the suggestion that he had signed the documents and pullanda in the PS upon the behest of the IO. He also denied the suggestion that since being vagabond, he was at the mercy of police officers so he had been planted as a witness in this case.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 14 of 91
20. PW-7 Sh. Avinash Gaur, was the brother of the owner of the flat where victim Nikunj Mittal was kept after abduction. He deposed that he came to know accused Sachin (Gaurav Chauhan) through one Khan Chand, who was running a furniture factory in the nearby premises. He further deposed that his sister was having a DDA flat bearing no. 1246, Pocket-A, Bakarwala, Delhi that was purchased by him for her. He further deposed that his friend Khan Chand came to him and suggested that one acquaintance of accused Sachin (Gaurav Chauhan) needed some accommodation for their living. He further deposed that the keys of flat were taken by Khan Chand for showing the flat to the desired parties telling them that proposed rent would be about Rs. 2,500/-. He further deposed that sometime in month July, 2009 he asked Khan Chand as to what happened to the letting out flat then he informed that the accommodation had been seen by accused Sachin but his acquaintance was yet to see the same. He further deposed that keys of the flat were not returned to him for quite long. He also deposed that later on he came to know that the flat was used by accused Sachin to hold a kidnapped person in captivity and thereafter, he confronted Khan Chand but he had no answer. In his cross-examination, he deposed that the key of DDA flat was with him since the day of its purchase. He also deposed that his sister was never called by the police in connection with this case. He denied the suggestion that he had been planted as a witness by the police for building up a case against accused persons.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 15 of 91
21. PW-8 Sh. Vasudev Tripathi, deposed the on 17.09.2009 he accompanied the police official to FSL Rohini where one official of FSL, recorded the voice sample of accused Ankur and provided cassettes of the same, which was seized by IO vide seizure memo Ex. PW-8/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
22. PW-9 Sh. Khan Chand, deposed that in the start of month of July, 2009, accused Gaurav Chauhan @ Sachin asked him that he was requiring one flat on rent as his friend had a love marriage and he wanted some accommodation to stay. He also deposed that he had knowledge that sister of his friend Sh. Avinash Gaur had been allotted a residential DDA flat in Bakkarwala therefore he went to Avinash Gaur and put the proposal before him who accepted and told him that keys were lying with one Satish, a property dealer and Avinash called him and instructed him to deliver the keys to him. He further deposed that he went there along with Sachin (Gaurav Chauhan) and the keys were taken from Satish and thereafter the accommodation was checked by Sachin and he stated that he would show the accommodation to his friend and Sachin @ Gaurav Chauhan retained the keys with him. He further deposed that thereafter he did not know what happened and he had no idea when the keys were returned. In his cross-examination, this witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-9/DA. He denied the suggestion that Sachin @ Gaurav Chauhan did not approach him for any accommodation for his friend. He further FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 16 of 91 deposed that no writing was executed at the time of handing over the keys to Sachin by the property dealer. He denied the suggestion that the keys of the said premises were not retained by Sachin.
23. PW-10 Sh. Mukesh Murlidhar, Sr. Manager, Vijaya Bank has proved letter dated 29.09.2009 written by Mr. T. Uma Nath Shetty, Assistant General Manager as Ex. PW-10/A. He also proved the note slips which were used bank for the purpose of binding of currency notes as Ex. PW-10/B and he also proved the signature of Mr. T. Uma Nath Shetty on seizure memo Ex. PW- 10/C. In his cross-examination, he denied the suggestion that he had wrongly identified the signatures of Mr. T. Uma Nath Shetty. He also admitted that no date was mentioned on the slips Ex. PX- 1 and Ex. PX-2 nor he could tell by whom the same were initiated. He also deposed that he cannot say on which, the note slips were prepared exactly.
24. PW-11 Sh. Ashwani Kumar Jha, was working as Manager at the parking lot of Gandhi Maidan Park, Chandni Chowk and the contract of that parking was with KTL, Infosys. He deposed that Honda City Car bearing registration no. DL-4C-AH-4922 was regularly parked in the parking lot and the vehicle belonged to Sh. Rajiv Mittal and his son Sh. Nikunj Mittal used to park his car in the parking lot and monthly subscription for parking was Rs. 400/- per month. He further deposed that on 27.07.2009 at about 12 night, police of PS Kashmere Gate came to him for enquiry and it was revealed that Nikunj Mittal had been FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 17 of 91 kidnapped after he had taken out his vehicle from the parking. He further deposed that he told the police that on that day Nikunj Mittal had parked his said vehicle in the morning and had left the parking lot in the evening at about 07:45 pm and he also handed over the copy of monthly subscription slip no. 4762 pertaining to abovesaid vehicle to the police. In his cross-examination, he deposed that he did not know the name of registered owner of the abovesaid Honda Car. He also deposed that he had not personally seen the above numbered car being driven away from the parking lot on the date of incident.
25. PW-12 Sh. Manoj Kumar deposed that on 17.09.2009, he alongwith one Vasudev Tripathi and police officials went to the office at Rohini where voice sample of one Ankur was recorded in his presence. He proved the seizure memo of CD containing voice sample of accused Ankur as Ex. PW-8/A. In his cross- examination he denied the suggeation that no recording of voice of Ankur was done in his presence.
26. PW-13 Ms. Anju, deposed that Maruti Car bearing registration no. DL-3CP-8116 was in her name and the same was purchased by her as second hand car from one Amit Kumar, resident of Meerut about 7-8 years back in sum of Rs. 1,80,000/-. She further deposed that she retained the said car for one or one and half years and thereafter she sold it to one Amit Kumar who started paying the intallments. She further deposed that after sometime, Amit Kumar sold the said car to one Anil Kumar, resident of Meerut living in her locality and thereafter FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 18 of 91 installments were being paid by Anil Kumar but the abovesaid car remained in her name and same was not transferred in the name of anybody else. She further deposed that since the seller Amit Kumar was her neighbour at her matrimonial home that is why the RC was not transferred in good faith. In her cross- examination, she denied the suggestion that she deposed falsely and no transaction had taken place as stated by her in her examination-in-chief.
27. PW-14 Sh. Anil Kumar, deposed that he had purchased the second hand Maruti Esteem car bearing registration no. DL- 3CP-8116 from his neighbour and friend Amit Kumar in sum of Rs. 1,20,000/-. He further deposed that the said car was purchased by Amit Kumar from one Smt. Anju and the car was in the name of Smt. Anju. He further deposed that the abovesaid car was sold by him in the year 2009 to one Ankit, brought by his client Rahul, in sum of Rs. 90,000/- and at that time also, the car was not transferred in anybody name and remained in the name of Smt. Anju. This witness was cross-examined by Ld. Addl. PP for the State in which he admitted that he had sold his abovesaid car through Rahul to one Ankur and not to Ankit. He admitted that the accused present in the court today (after pointing out towards accused Ankur) was the same person to whom he delivered the said Esteem car. In his cross-examination, he denied the suggestion that he had not sold the said Esteem car to Ankur or that only because of this reason, he was not having any documents in this regard. He also denied the suggestion that he FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 19 of 91 had been pressurized by the Investigating Officer to identify accused Ankur. He also denied the suggestion that he had never purchased the car or that the documents produced by him in the court had been fabricated after due deliberation and had ante- timed.
28. PW-15 Sh. Jitender Singh Rathi @ Jitu, deposed that in the month of July 2009 at about 04:00-05:00 pm, accused Gaurav met him near Ghaziabad on the Meerut Highway. He further deposed that he was in Santro car at that time and he came out of the car with one man in civil dress while other three other persons were sitting in the car. He further deposed that accused Gaurav requested him to lend a mobile phone since the persons accompanying him had to conduct a raid and he needed UP number as the raid was conducted in UP and his phone was not having roaming facility. He further deposed that he gave telephone instrument bearing no. 9557405210 to accused Gaurav Chauhan and he told him that he would return the intrument to him on the same day but the phone instrument was not returned to him on the same day. He further deposed that next day, he received telephone call from accused Gaurav who asked him to come to Muradnagar to collect the phone, thereafter he went to Muradnagar and collected his phone. This witness was cross- examined by Ld. Addl. PP for the State in which he stated that prior to present residence he was residing at Pandav Nagar, Meerut and accused Ankur also used to reside in Pandav Nagar, Meerut and he knew him since childhood. He also deposed that FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 20 of 91 he had purchased two SIM cards bearing no. 9557405210 and 955740211 in the month of July, 2009. He also deposed that he had not stated to the police that he was accompanied by accused Ankur at that time or SIM card no. 9557405211 was being used by accused Ankur while he was using the other number or that he had a conversation with accused Ankur on number 9557405211 on 29.07.2009. He also deposed that the bike was driven to Meerut by Monu and Ankur and prior to that Ankur had demanded his phone saying that he did not have balance in his mobile phone and his SIM card was also having some problems and as such he gave SIM card of phone number 9557405210 to him being his friend. This witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-15/A on various points. In his cross-examination, he deposed that he had given telephone intrument to Ankur for use for ten days in which SIM no. 9557405210 was used by him which was given to accused Gaurav. He also deposed that this instrument was taken back by him from Ankur around 3-4 days prior to 29.07.2009.
29. PW-16 Sh. Manoj Mishra, is parking attendent at Gandhi Maidan Parking where complainant and his son Nikuj Mittal used to park his Honda City car. He deposed that on 27.07.2009 at about 07:45 pm, Nikunj Mittal took back his Honda City car bearing registation no. DL-4CAH-4922 from the parking area. He also deposed that later on he came to know that Nikunj Mittal was abducted. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
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30. PW-17 Sh. Abdullah, was the owner of Max Communication, RZ-871, Gali No. 5, Main Sagarpur, Delhi. He deposed that police official had shown 2-3 phone numbers to him and he was asked whether the same had been reacharged from his shop. He further deposed that he was asked to produce the entire record regarding the recharging of the phone numbers for the last three days. He further deposed that he took the details of the same from the distributors of Vodafone and Airtel and provided the said details to the police. He also handed over one dairy maintained by him to the police, which was seized vide seizure memo, Ex. PW-17/A. This witness was cross-examined by Ld. Addl. PP for the State in which he admitted that he had stated to the police that accused Gaurav Chauhan @ Sachin was known to him and he was living in gali no. 5, Sagarpur with his mother Smt. Usha and he used to get his mobile phone recharged from his shop very often. He admitted that on 28.07.2009, the mobile phone no. 9873091642 was reacharged for Rs. 50/- from the mobile phone of his shop and on the same day, another mobile phone no. 9873085834 was also recharged for Rs. 30/- form the mobile phone of his shop. He also admitted that similarly on 29.07.2009, mobile phone no. 9873085834 was recharged for Rs. 100/- from the mobile phone of his shop. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
31. PW-18 Sh. Manoj Kumar, deposed that he knew accused Gaurav Chauhan @ Sachin as he was his tenant at premises no.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 22 of 91 Khasra No. 23/17, Matiala Gaon, Uttam Nagar, for five years and used to manufacture copper wire in that premises where he had installed his factory. He further deposed that in mid 2009, he was arrested by the police in some case and till then the factory was lying locked. He further deposed that he had not given any copy of rent agreement to the police as there was no such written agreement. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
32. PW-19 HC Ram Phool, is the Duty Officer who proved the copy of FIR No. 199/2009, Ex. PW-19/A and endorsement on rukka Ex. PW-19/B. In his cross-examination, he denied the suggestion that the FIR is ante-dated and ante-timed.
33. PW-20 Sh. Ishrar Babu, Alternate Nodal Officer, Vodafone has proved CAF, CDR for the period of 01.07.2009 to 18.08.2009 and roaming CDR for period 01.12.2008 to 31.07.2009 of mobile phone no. 9873091642 issued in the name of Amit Kumar alongwith certificate under Sec. 65B of The Indian Evidence Act exhibit as Ex. PW-20/A to Ex. PW-20/D. He also proved CAF, CDR for the period of 01.07.2009 to 18.08.2009 and roaming CDR for period 01.12.2008 to 31.07.2009 of mobile phone no. 9873085834 issued in the name of Rahul alongwith certificate under Sec. 65B of The Indian Evidence Act exhibit as Ex. PW-20/E to Ex. PW-20/H. He also proved CAF and CDR for the period of 01.07.2009 to 07.08.2009 of mobile phone no. 9999697674 issued in the name of accused Gaurav Chauhan alongwith certificate under Sec. 65B of The FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 23 of 91 Indian Evidence Act exhibit as Ex. PW-20/J to Ex. PW-20/L. He also proved Cell ID Chart of Vodafone of Delhi and NCR as Ex. PW-20/M. In his cross-examination, he deposed that he had no personal knowledge about this case and he never met with the IO. He also deposed that neither original CAF of Gaurav Chauhan was never demanded by the police nor he gave the same to the police. He denied the suggestion that the print out of the call details is manipulated and fabricated.
34. PW-21 HC B. R. Kamble, deposed that on 10.09.2009 he joined the investigation of the present case with IO and went to Meerut where accused Ankur led them to his house A-33, Pandav Nagar, Meerut and got recovered one mobile phone make Noika 1110 by which he was in contact with accused Gaurav having number 9557405210, which was seized by IO vide seizure memo Ex. PW-21/A. He further deposed that accused Ankur also led the police party to H. No. S-56, Pallam Puram, Phase-II, Meerut, UP from where he had purchased a car bearing registration no. DL-3CP-8116 for a sum of Rs. 90,000/- out of the amount received in ransom. He also proved disclosure statement, Ex. PW-21/D of accused Ankur, seizure memo of mobile phone bearing SIM No. 9810009996 of victim Nikunj Mittal as Ex. PW-2/C and seizure memo of Esteem car bearing registration no. DL-3CP-8116 as Ex. PW-21/E. In his cross-examination, he denied the suggestion that no recovery of mobile phone was effected from that place or that he had not gone to Meerut. He further deposed that no public person were called at the time of FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 24 of 91 recording of disclosure statement of accused Ankur on 12.09.2009 or that accused did not give any disclosure statement in his presence.
35. PW-22 HC Rajesh Kumar, was the MHC(M), who proved the entries made by him in register no. 19 & 21 as Ex. PW-22/A to Ex. PW22/W regarding deposit of case properties in Malkhana and sending the exhibits to FSL. In his cross-examination, he deposed that he himself had not seen after opening the sealed parcels and he himself had not prepared any parcel. He denied the suggestion that exhibits were tempered with so long they remained in his custody.
36. PW-23 Sh. R. K. Singh, Nodal Officer, Bharti Airtel Ltd. has proved CAF alongwith residential proof of subscriber, CDR for the period of 01.07.2009 to 30.07.2009 and CDR of UP West Circle for period 27.07.2009 to 29.07.2009 of mobile phone no. 9873091642 issued in the name of Rajiv Mittal as Ex. PW-23/A, Ex. PW-23/B and Ex. PW-23/B1. He has also has proved CAF alongwith residential proof of subscriber and CDR for the period of 27.07.2009 to 30.07.2009 of mobile phone no. 9810009996 issued in the name of Nikunj Mittal as Ex. PW-23/C and Ex. PW- 23/D. He has also has proved CAF alongwith residential proof of subscriber, CDR of Delhi circle for the period of 27.07.2009 to 30.07.2009 and CDR of UP West Circle of mobile phone no. 9818994557 issued in the name of Raghubir Singh S/o Sh. Amar Singh as Ex. PW-23/E, Ex. PW-23/F and Ex. PW-23/G. He also has proved CAF alongwith residential proof of subscriber and FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 25 of 91 CDR for the period of 27.07.2009 to 30.07.2009 of mobile phone no. 9810394247 issued in the name of Krishan S/o Sh. Keshav Singh as Ex. PW-23/H and Ex. PW-23/J. He also has proved CAF alongwith residential proof of subscriber, CDR for the period of 01.07.2009 to 30.07.2009 of Delhi circle and CDR of UP West Circle of mobile phone no. 9557405210 issued in the name of Jitender S/o Satbir Singh as Ex. PW-23/K, Ex. PW-23/L and Ex. PW-23/M. He also proved certified copy of common Cell ID chart of Bharti Airtel Ltd. as Ex. PW-23/N. He has also proved original CAF of mobile number 9818147706 along with ID proof, issued in the name of Rakesh Kumar S/o Sh. Randhir Singh and original CAF of mobile number 9910673749 along with id proof issued in the name of Rajender S/o Sh. Jai Prakash. In his cross-examination, he admitted that the Cell ID chart of UP West circle was not asked by the IO. He also admitted that as per Ex. PW-23/B1, the location of Tower was different from Cell 1 to Cell 2 at point A and A1 and B to B1 meaning thereby the mobile was in movement.
37. PW-24 HC Rajpal, was the photographer of Mobile Crime Team. He proved sixteen photographs Ex. PW-24/A-1 to Ex. PW- 24/A-16 of of DDA Flat No. 1246, Lok Nayak Puram, Bakkarwala, Delhi where victim was kept after abduction. He also proved negatives of the photographs Ex. PW-24/B-1 to Ex. PW-24/B-16 of. This witness was not cross-examined on behalf of the accused persons despite opportunity given to them.
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38. PW-25 Dr. C. P. Singh, Assistant Director Physics Division, FSL Rohini, Delhi has analyzed the intercepted calls of mobile no. 981003955 and has proved his detailed report in this regard as Ex. PW-25/A. In his cross-examination, he deposed that he had examined and analyzed the exhibits from 18.03.2010 to 27.04.2010 and he had not mentioned these dates in his report. He denied the suggestion that he had not mentioned the date mentioned above in his report as he had not analyzed the exhibits at any point of time or that his report was not based on actual analysis. He also admitted that voice of Ankur did not match with any questioned voice.
39. PW-26 Sh. Murari Prasad Singh, Ld. Senior Civil Judge, has proved the TIP proceedings of accused Ankur exhibit as Ex. PW26/A and deposed that accused Ankur had refused to join the TIP proceedings. He also proved the TIP proceedings of accused Harish @ Sahi Ram exhibit as Ex. PW-26/D and deposed that accused Harish @ Sahi Ram refused to join the TIP proceedings. In his cross-examination, he deposed that word 'muffled face' had not mentioned in his proceedings Ex. PW-26/A.
40. PW-27 Ct. Chetan, had photographed the the process of handing over the recovered currency notes (i.e. Rs. 1,37,50,000/- & Rs. 90,000/- to supardar Sh. Rajeev Mittal from malkhana of PS Kashmere Gate. He proved the negatives as Ex. PW-27/A-1 to Ex. PW-27/A-26 and their corresponding photographs as Ex. PW-27/B- 1 to Ex. PW-27/B-26. In his cross-examination, he deposed that he had seen the bank slips on the wads of the currency notes. He FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 27 of 91 denied the suggestion that there were no slips on the two wads of currency notes i.e. Rs. 90,000/-.
41. PW-28 Sh. Anurag, is real brother of accused Ankur. He deposed that on 24.10.2009 on instruction of police officials of PS Kashmere Gate, he produced Maruti Esteem car bearing registration no. DL-3CP-8116, Ex. PW-28/P-1 which was seized by IO vide seizure memo Ex. PW-21/E. This witness was cross- examined by Ld. Addl. PP for the State in which he denied the suggestion that at the time of going to jail in August 2009, his brother accused Ankur had handed over him Maruti Esteem car, Ex. PW-28/P1 or that he had stated so to the IO in his statement recorded under Sec. 161 Cr.PC, Ex. PW-28/PA. In his cross- examination, he deposed that the car was never purchased by him and Ankur had nothing to do with the said car. He also deposed that Rahul did not bring the documents pertaining to the car, so the car could not be purchased. He also deposed that on 29.07.2009, they had a Ramayan Paath at their residence which continued from the afternoon of 29.07.2009 till late night of 30.07.2009 and accused Ankur was present at home during the entire period and had not gone out of the house. He also deposed that Jitender was friend of Ankur and he had given one phone Nokia 1110 to Ankur for use for few days and Ankur had returned the phone after using it for around ten days , 2-3 days prior to 29.07.2009, the day when they had Puja at home.
42. PW-29 Dr. Mohd. Ajazur Rehman deposed that on 20.08.2008 (seems to be clerical mistake with respect to the year) at FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 28 of 91 request of IO/Inspector Pradeep, he took hair sample and sample of saliva of accused Sahi Ram @ Harish @ Lambu @ Mani and handed over the same to the IO, which was seized by him vide seizure memo Ex. PW-29/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
43. PW-30 Dr. Ruby Kumari, deposed that on 20.08.2008 (seems to be clerical mistake with respect to the year) at request of IO/Inspector Pradeep she took fringed scalp hair sample and sample of saliva of accused Gaurav Chauhan and handed over the same to the IO, which was seized by him vide seizure memo Ex. PW-29/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
44. PW-31 Ct. Narender deposed that on 28.07.2009 he along with IO and complainant reached GPO where a Honda City car bearing registration no. DL-4CAH-4822 was found parked. He also proved seizure memo of mobile phone, Ex. PW-21/A recovered at instance of accused Ankur, pointing out memo Ex. PW-21/B of the house of Anil from whom accused Ankur had purchased Maruti Esteem car and pointing out memo Ex. PW-21/C from where accused Ankur lifted the ransom amount. In his cross-examination, he deposed that he did not sign the site plan which was prepared at GPO. He also deposed that no public person was called while recording supplementary statement of accused Gaurav Chauhan. He also deposed that no chance print was lifted from the mobile phone before making pullanda. He also deposed that IO had made inquiries from said Anil from whom accused had purchased the car FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 29 of 91 and no statement of Anil was recorded by the IO. He denied the suggestion that no proceedings were conducted in his presence.
45. PW-32 Ct. Ajay deposed that on 20.08.2009 on direction of IO, he got conducted the medical examination of accused Sahi Ram at AAA hospital and handed over two sealed parcels with the seal of hospital to the IO which was seized vide seizure memo, Ex. PW- 29/A. He also proved the arrest memo, personal search memo and disclosure statement of accused Ankur as Ex. PW-32/A, Ex. PW- 32/B and Ex. PW-32/C. In his cross-examination, he deposed that he did not know as to how accused was in muffled face when produced in the court. He denied the suggestion that he had not gone along with the investigating officer to Tis Hazari Court on 08.09.2009. He also denied the suggestion that all the proceedings mentioned by him were not conducted in his presence and he signed various memos subsequently at PS.
46. PW-33 HC Pushpender, deposed that on 28.07.2009, he along with IO went to the GPO where IO prepared site plan at instance of complainant and got inspected the Honda City car bearing registration no. DL-4CAH-4922 through Crime Team. He further deposed that no chance print was developed from the car. He proved the seizure memo of the car as Ex. PW-1/B. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
47. PW-34 Ct. Anil deposed that on 09.08.2009 he was working as Assistant of MHC(M) and on that day SI Ramesh Dixit FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 30 of 91 deposited two mobile phones recovered from personal search of accused Gaurav Chauhan. He further deposed that IO/Inspector Pradeep Kumar converted the mobile phones into sealed parcel and seized the same vide seizure memo Ex. PW-34/A. He further deposed that on 19.10.2009, Inspector Pradeep Kumar took one sealed mobile phone concerned with accused Sahi Ram and after checking the same two SIM cards were found in the mobile. He further deposed that IO converted the mobile phone and SIM cards into sealed parcel and seized the same vide seizure memo Ex. PW- 34/B. In his cross-examination, he deposed that he did not know whether MHC(M) had made entry in register no. 19 in respect of taking out of mobile phone. He denied the suggestion that documents Ex. PW-34/A and Ex. PW-34/B were prepared later on and he signed the same at the instance of investigating officer.
48. PW-35 Ct. Devender was the Duty Constable at Aruna Asaf Ali Hospital. He deposed that on 20.08.2009 accused Sahi Ram was brought by Ct. Ajay for getting the hair sample and saliva sample of accused. He further deposed that same was taken by the doctor and handed over to the IO which was seized through seizure memo. He further deposed that on 24.08.2009, victim Nikunj Mittal was also brought to the hospital by the IO and hair and saliva sample of Nikunj were taken and were seized by IO vide seizure memo Ex. PW-2/A. This witness was not cross-examined on behalf of the accused persons despite opportunity given to them.
49. PW-36 Ct. Gurpreet Chahal, deposed that on 23.09.2009, on direction of IO he had taken 18 sealed parcels along with FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 31 of 91 forwarding letter from MHC(M) and deposited the same at FSL Rohini and on return, he handed over the acknowledgment of FSL to MHC(M). In his cross-examination, he admitted that relevant entry in respect of above said parcels did not bear his signature regarding receiving of the exhibits from MHC(M).
50. PW-37 Inspector Sanjeev Solanki, was the In-Charge of Crime Team. He proved his detailed report Ex. PW-37/A regarding inspection of flat no. 1246, Block-A, Lok Nayak, Awasiya Parisar, Bakkarwala, Delhi where victim Nikunj Mittal was kept after abduction. In his cross-examination, he deposed that he was not aware whether IO had made any efforts to join any independent witness from neighbourhood. He also deposed that he did not mention the size of buds of cigarette in his report. He denied the suggestion that nothing was recovered from the spot or that the articles were later on planted.
51. PW-38 Inspector I. K. Jha, deposed that on 31.07.2009 on information from SI Ramesh Dixit, he collected CAF alongwith ID proof of mobile phone numbers 9873085834 & 9873091642 from Nodal Officer, Vodafone at Okhla and seized the same vide seizure memo, Ex. PW-38/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
52. PW-39 Sh. Sunil Kumar Garg, Lab Assistant, deposed that on 02.09.2009 at request of IO of this case, he recorded voice sample of accused Gaurav Chauhan, Rajeev Mittal and Nikunj Mittal at FSL Rohini in separate three audio cassettes and handed FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 32 of 91 over the same to IO. He further deposed that on 17.09.2009, he also recorded voice sample of accused Ankur in the abovesaid manner in one cassette. He further deposed that on 02.02.2010, on request of IO, he also recorded voice sample of Devender, Usha and Anita In separate three cassettes and handed over the same to IO. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
53. PW-40 HC Praveen Kumar, deposed that on 16.08.2009 he along with IO and Ct. Sachin took accused Gaurav Chauhan in muffled face for his medical examination at Aruna Asaf Ali Hospital. He further deposed that during medical examination, doctor took the sample of saliva and heir of accused Gaurav Chauhan in two different sealed parcels and handed over the same to IO which was seized by IO vide seizure memo Ex. PW-30/A. In his cross-examination, he denied the suggestion that they had not taken the accused Gaurav Chauhan to the hospital or that to falsely implicate accused Gaurav Chauhan they manipulated document, Ex. PW-30/A in the Police Station.
54. PW-41 Ct. Sachin, deposed that on 09.08.2009, he joined the investigation of the present case along with IO. He proved the arrest memo, personal search memo and disclosure statement of accused Gaurav Chauhan as Ex. PW-41/A, Ex. PW-41/B & Ex. PW-41/C. He further deposed that pursuant to disclosure statement of Gaurav Chauhan, IO arrested accused Sahi Ram from his house and got recovered a sum of Rs. 90,000/- at his instance. He further deposed that accused Gaurav Chauhan also got recovered one country made FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 33 of 91 katta with three live cartridges and one country made pistol along with two live cartridges from his factory at Matiala. He proved the sketch of pistols and cartridges and its seizure memo as Ex. PW- 41/D, Ex. PW-41/E and Ex. PW-41/F. He also proved the seizure memo of Rs. 1,37,50,000/- recovered at instance of accused Gaurav Chauhan from his house as Ex. PW-3/B. He also proved pointing out memo of flat at Bakkarwal by accused Gaurav Chauhan where victim was kept after abduction as, Ex. PW-41/G. He further deposed that IO got inspected the said flat through Crime Team and seized buds of cigarette and heirs and seized the same vide seizure memo Ex. PW-41/H. He also proved disclosure statement, Ex. PW- 41/I of accused Gaurav Chauhan, seizure memo, Ex. PW-30/A of saliva and hair sample of accused Gaurav Chauhan, supplementary disclosure statement, Ex. PW-41/J of accused Gaurav Chauhan. He also narrated about the recording of voice sample of accused Gaurav Chauhan, Rajiv Mittal and Nikunj Mittal at FSL Rohini, seizure of mobile phone at instance of accused Ankur, pointing out memo of place where he purchased Maruti Esteem car out of ransom amount by accused Ankur and pointing out memo of place where ransom amount was kept by the complainant. He also proved the seizure memo of Santro Car bearing registration no. DL 4CND 0477 as Ex. PW-41/K. This witness was cross-examined at length on behalf of accused persons. In his cross-examination he admitted that at the time of recovery no public witness was joined in the investigation. He further deposed that he did not remember whether the bundles of notes of Rs. 90,000/- were having any seal of any bank. He denied the suggestion that no recovery of any amount was FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 34 of 91 effected from the accused Sahi Ram. He deposed that he cannot tell from which place kattas were recovered. He also deposed that IO had not called any fingerprint expert to lift the chance print on the kattas. He also deposed that IO tried to join the public person and one public person namely Neeraj voluntarily came to join the investigation. He also deposed that he was not aware that Neeraj was the servant of complainant Sh. Rajiv Mittal. He denied the suggestion that he was not aware about the contents of voice sample as he never went to FSL and no voice sample of accused Gaurav Chauhan was taken in his presence. He also denied the suggestion that he never joined the investigation or he was deposing falsely at instance of IO.
55. PW-42 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. has proved CDR for the period of 27.07.2009 to 30.07.2009, covering letter, Cell ID Chart and CAF of mobile phone no. 9990269094 issued in the name of one Sahi Ram S/o Sh. Krishan alongwith certificate under Sec. 65B of The Indian Evidence Act exhibit as Ex. PW-42/A to Ex. PW-42/E. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
56. PW-43 Dr. Rabindra Kumar, has collected the hair and saliva sample of victim Nikunj Mittal at Aruna Asaf Ali Hospital vide CR No. 21907 dated 24.08.2009, Ex. PW-43/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
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57. PW-44 Inspector Pradeep Paliwal, was the second IO of present case. He narrated about the proceedings conducted by him during the investigation. He deposed about seizure of saliva and hair sample of accused Gaurav Chauhan and his two mobile phones make Nokia. He also deposed that he seized the saliva and hair sample of accused Shai Ram. He further deposed that he also seized call recorded at the voice logging system and made transcript of the same with assistance of complainant and victim. He further deposed that he also got conducted the comparison of voice sample of accused Gaurav Chauhan with call recorded at the voice logging system at FSL Rohini. He further deposed that during investigation, he came to know about the involvement of one Ankur who was in judicial custody in some other case at Meerut Jail. He also deposed that he arrested accused Ankur in the present case and proved his arrest memo, personal search memo and his disclosure statement. He further deposed that he also seized the mobile phone of Ankur and got his voice sample in the FSL. He also deposed that during investigation, he searched the house and factory of accused Gaurav Chauhan and also searched house of maternal aunt of accused Gaurav Chauhan and got recovered a sum of Rs. 35,000/-. He further deposed that he also seized the car which was purchased by accused Ankur out of the ransom amount. He further deposed that during investigation, he sent the exhibits to FSL, seized the mobile phone of victim Nikunj Mittal, seized one diary of Mohd. Abdulla, seized mobile phone of accused Sahi Ram, seized the sample slip of Vijaya Bank, seized the mobile phone of complainant and procured the details of intercepted calls. This witness was cross-examined at FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 36 of 91 length on behalf of accused persons. In his cross-examination, he deposed that he along with complainant had searched the factory as well as house of accused Gaurav Chauhan and had seized some documents. He further deposed that he did not remember whether there was any such documents in those documents which were signed by the complainant wherein he owed his liability of paying Rs. 70 to 80 lakhs to the accused. He admitted that in the earlier site plan the position of car was not mentioned. He denied the suggestion that money was never dropped at the place alleged and for this very reason, the related position of vehicle and person who picked up the money was not shown by him during investigation by way of site plan. He also denied the suggestion that he got accused Ankur identified by Anil in the court under duress after showing him outside the court. He also denied the suggestion that phone had been planted upon accused Ankur after it was procured from PW Jitender. He also denied the suggestion that neither he had gone to the place of occurrence nor he had investigated the case properly or that under undue influence of the complainant, he had prepared false and cooked up story in order to implicate the accused persons.
58. PW-45 Retd. SI Ramesh Dixit was the first IO of this case. He deposed about the proceedings conducted by him in capacity of IO. He deposed that on 28.07.2009, the investigation of the present case was handed over to him after the registration of FIR. He deposed about seizure of Honda City car bearing registration no. DL-4CAH-4922 of complainant vide seizure memo Ex. PW-1/B from outside GPO, preparation of site plan, Ex. PW-45/A of the FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 37 of 91 place where aforesaid car was found, analysis of CDR of mobiles phone of complainant and accused Gaurav Chauhan and arrest of accused Gaurav Chauhan and proved arrest memo, personal search memo and disclosure statement of accused Gaurav Chauhan as Ex. PW-41/A to PW-41/C. He also deposed about the arrest of accused Sahi Ram @ Lamboo pursuant to disclosure statement of Gaurav Chauhan and proved his arrest memo, personal search memo and disclosure statement as Ex. PW-45/B to Ex. PW-45/D. He also deposed about the recovery of a sum of Rs. 90,000/- at instance of accused Sahi Ram and proved its seizure memo Ex. PW-3/A. He also deposed about recovery of one country-made pistol, one country-made katta along with five live cartridges at instance of accused Gaurav Chauhan from his factory at Matiala and proved their seizure memos Ex. PW-41/D & Ex. PW-41/E. He also deposed about inspection of flat no. 1246, Pocket-A, Lok Nayak Puram, Bakkarwala through Crime Team where accused persons had kept the victim Nikunj Mittal and proved its site plan as Ex. PW-45/E. He also deposed about seizure of hair stand, burnt match stick and cigarette buds from the said flat and proved its seizure memo Ex. PW-41/H. He also deposed about recovery of Rs. 1,37,50,000/- at instance of accused Gaurav Chauhan from his house situated at Sagarpur, Delhi and proved its seizure memo Ex. PW-3/B. He also proved the site plan of factory of accused Gaurav Chauhan from where countrymade pistols and live cartridges were recovered, site plan of house of accused Gaurav Chauhan from where ransom amount was recovered and site plan of place of kidnapping as Ex. PW-45/F, Ex. PW-45/G & Ex. PW-45/H. He also FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 38 of 91 proved the supplementary statement of accused Gaurav Chauhan, seizure memo of Santro car of accused Gaurav Chauhan and seizure memo of cassette containing voice sample of accused Gaurav Chauhan as Ex. PW-31/A, PW-41/K & PW-8/A. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he deposed that no chance print was lifted even from inside of the car because front gate of the car of the driver side was opened as the water had also come at the driving seat. He admitted that mobile phone put on surveillance at the 24 hours monitoring and he had been immediately apprised by the monitoring persons about the call received on 29.07.2009 from mobile no. 9873091642 and 9873085834. He further deposed that he had not placed on record the location chart of mobile phone of Nikunj. He also deposed that the location of the phone of Nikunj was sometime of UP or sometime in Delhi. He also deposed that he had verified the mobile number 9873091642 and 9873085834 but the same were of fake address. He also deposed that he cannot say whether service provider used to keep the detail of the customer to which the SIM of the mobile phone number allotted. He also deposed that accused Gaurav Chauhan did not tell him that he had to take Rs. 70-80 lakhs from the complainant. He also deposed that no official from operation cell or any public person was cited as PW at the time of arrest of Gaurav Chauhan and recording of his disclosure statement. He also deposed that two persons had agreed to join the investigation at the time of arrest of accused Sahi Ram however they did not sign the arrest memo of accused Sahi Ram. He also deposed that the disclosure statements of accused persons FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 39 of 91 were recorded as per investigation need. He also deposed that no public person was joined in the investigation as none was agreed. He also deposed that the location of the victim was found at Meerut, Ghaziabad and West Delhi and Teams were sent to the victim's location. He denied the suggestion that a false case is made against accused persons at the instance of complainant.
59. PW-46 HC Ashok Kumar, deposed that on 09.08.2009 he joined the investigation of present case alongwith Ct. Sachin and IO. He proved the arrest memo, personal search memo and disclosure statement of accused Sahi Ram as Ex. PW-45/B to Ex. PW-45/D. He also deposed about recovery of Rs. 90,000/- at instance of accused Sahi Ram. In his cross-examination, he denied the suggestion that nothing was recovered in his presence or that no recovery/seizure memo was prepared in his presence.
60. PW-47 Inspector Mahavir Singh, deposed that on direction of senior officers, mobile nos. 9818039355 and 9810009996 were kept on interception by diverting the calls to landline nos. 65360852 & 65360853 and he used to hear diverted calls after recording. He further deposed that he found that some ransom calls were made by using mobile no. 9810009996 and same were received on mobile no. 9818039355. He also deposed that he found some negotiations calls were made in between the aforesaid numbers and around 22 ransom calls were recorded in voice logger system. He further deposed that he provided the recorded voice calls to the IO who had made the transcript of the same by hearing the voice calls. He further deposed that on 02.09.2009, Sh. C. P. FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 40 of 91 Singh, Assistant Director, FSL had copied the voice recording data to the pen-drive in his presence. He also deposed that no tempering with data of voice logger system done by the Sh. C. P. Singh or by the IO in his presence. In his cross-examination, he admitted that he did not issue any certificate under Sec. 65B of Indian Evidence Act on any date or on 02.09.2009 in respect to copying of the data from the logger in any media. He denied the suggestion that no mobile phone was on interception or on call diversion. He also denied the suggestion that he did not hear any conversation and for this reason, the details of the conversation was not given by him to IO or for this reason he did not prepared any transcript.
61. After closing of Prosecution Evidence, separate statements of all the three accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused Gaurav Chauhan claimed that the evidence was falsely created. He further claimed that some business transactions had been given the shape of the offence and he was not concerned with anything which shows the criminality on his part. He further claimed that the complainant out of some business dispute has falsely implicated him in this case. Accused Sahi Ram claimed that he was innocent and poor person and IO had created a false evidence against him. He further claimed that no recovery of any amount had been effected from him and this was a false case. Accused Ankur claimed that he was innocent and had been falsely implicated in this case, in fact the allegations dated 29.07.2009 against him were false for the reason that he was at FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 41 of 91 home on the said date as he had 'Ramayan Path' at his residence which started in the afternoon of 29.07.2009 and continued till late night of 30.07.2009. He further claimed that the alleged recovery of phone at his instance was false and the phone had been planted upon him and he had taken the phone instrument of make Nokia 1110 from PW-15 Jitender Singh Rathi @ Jitu for use for a few days and he had returned it back to him 2-3 prior to 29.07.2009. He further claimed that all the allegations against him were false and fabricated and his signatures were taken under duress on many papers and he did not give any disclosure statement nor did he point out or get any recovery effected. He also claimed that he was not at all involved in the alleged incident and had been falsely implicated.
62. Accused Ankur has examined one witness in his defence. The nature and testimony of the sole defence witness has been briefly discussed as under:-
63. DW-1 Sh. Rajiv Vashisth, Nodal Officer, Bharti Airtel Ltd. deposed that he was summoned to produce CDR of mobile no. 9810355664 for date 29.07.2009 but the CDR of aforesaid mobile number for aforesaid date was not available and he proved letter, Ex. DW-1/A in this regard. This witness was not cross-examined on behalf of State despite opportunity given to Ld. Addl. PP for the State.
64. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. Praveen Dabas, Ld. FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 42 of 91 Counsel for accused Gaurav Chauhan @ Sachin and Ankur Singh and Sh. Lokesh Chandra, Ld. Counsel for accused Sahi Ram @ Lamboo @ Harish.
65. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that complainant PW-1 Sh. Rajeev Mittal as well as PW-2/victim Sh. Nikunj Mittal have supported the prosecution story and there is complete consistency in their versions. He further argued that PW-1/complainant Sh. Rajeev Mittal has identified accused Ankur Singh as the person who collected the ransom amount. He further argued that PW-2/victim Sh. Nikunj Mittal has identified accused Sahi Ram as the person who kidnapped/abducted him in Santro car and kept him in captivity in a room. He further argued that total 22 ransoms calls were made and the voice of accused Gaurav Chauhan @ Sachin has matched with the voice of the caller who demanded ransom of Rs. 2 crore, recorded by the Investigating Agency. He further argued that motive for kidnapping/abduction has been duly proved by the prosecution. He also argued that the ransom amount has been recovered from possession of accused Gaurav Chauhan @ Sachin and Sahi Ram. He further argued that hairs of PW-2/victim Sh. Nikunj Mittal were found from the room where he was secretly confined in captivity. He also argued that the accused persons used SIM card in fake names in the handset of FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 43 of 91 PW-2/victim Sh. Nikunj Mittal. He also argued that the all the proceedings have been duly proved by the police witnesses and all the prosecution witnesses are of the sterling quality and hence all the accused persons should be convicted under all the Sections of law under which charges have been framed against them.
66. Per contra Ld. Defence Counsels for accused persons argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate their point, they argued that the investigation in the present case has been conducted in an arbitrary manner. They further argued that the SIM cards used in making ransom calls have not been recovered and these are not connected to the accused persons in any manner. They further argued that accused persons have been falsely implicated in the present case by the complainant due to some business transactions dispute. They further argued that the ransom amount has been planted upon the accused persons by the IO in connivance with the complainant. They also argued that the victim PW-2 Sh. Nikunj Mittal was never put under fear or death or injury and no hurt was ever caused to him. They further argued that accused Gaurav Chauhan was forced to make the said ransom calls after his arrest so that same can be used as an evidence against him. They further argued that the PW-2/victim Sh. Nikunj Mittal was never kept in detention by the accused persons and the victim never tried to escape. They also argued that no independent eyewitness of the alleged incident has been FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 44 of 91 examined by the prosecution. They further argued that PW-3 Sh. Neeraj Goel and PW-5 Sh. Alok Sabita were the servants of the complainant/PW-1 Sh. Rajeev Mittal and there are interested witnesses. They further argued that nothing has been brought on record to prove that accused Ankur Singh purchased the Esteem Car through ransom amount. They further argued that possession of weapon by accused Gaurav Chauhan @ Sachin has not been duly proved by the prosecution as same were not sent to FSL nor any sanction under Sec. 39 Arms Act was taken. They further argued that since the prosecution has failed to prove its case against accused persons beyond reasonable doubts, all the accused persons should be acquitted under all sections of law under which charges has been framed against them.
67. In the present case, charges under Sec. 120B/364A/506 IPC & 27 Arms Act have been framed against the accused persons. These Sections have been elaborated as under:-
Sec. 120-B IPC provides punishment for criminal conspiracy which has been defined U/s 120 A IPC which reads as under:-
120 A Criminal Conspiracy:-
When two or more persons agree to do, or cause to be done-
(i) an illegal act, or (ii) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 45 of 91 agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is te ultimate object of such agreement, or is merely incidental to that object.
364 A Kidnapping for ransom etc:-
Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such persom may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter- governmental organisation or any other person] to do so or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
Sec. 506. Punishment for criminal intimidation:-
Whoever commits, the offence of criminal intimidation shall be punished with imprison-ment of either description for a term which may extend to two years, or with fine, or with both;If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
27 Arms Act: Punishment for using arms, etc. (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 46 of 91 term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, 2[shall be punishable with imprisonment for life, or death and shall also be liable to fine.]
68. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons.
69. The present case is based on occular evidence, scientific evidence as well as circumstantial evidence. The occular evidence is to be proved by the eyewitnesses of the alleged incident and the scientific evidence is to be proved by the FSL experts and by the Nodal Officers of service providers of Cellular Phone companies. The circumstantial evidence is to be inferred by this court on the basis of evidence adduced by the prosecution. The circumstantial evidence has to be appreciated as per the established principles of law laid down by the Hon'ble FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 47 of 91 High Court of Delhi and Hon'ble Supreme Court of India. The standard of proof required for conviction in case of circumstantial evidence is that the circumstances relied upon in support of conviction must be fully established and the chain of evidence proved by the prosecution must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
70. Hon'ble Supreme Court of India in Judgment titled as 'Sharad Bridhichand Sarda Vs. State of Maharashtra cited as (1984) 4 SCC 116' has laid down the five golden priciples for appreciation of circumstantial evidence and has termed the same as Panchsheel of the Proof of Case based on circumstantial evidence. The said five golden principles are as follows:-
(i) The circumstances from which the conclusion of the guilt is to be drawn should be and not merely 'may be' fully established.
(ii) The facts so established should be consistent only with the hypotheses of the guilt of accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty.
(iii) The circumstances should be of conclusive nature and tendency.
(iv). They should exclude every possible hypotheses except the one to be proved.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 48 of 91
(v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all probability the act must have been done by the accused.
71. Thus, before recording the conviction of any accused the abovesaid five condition must be satisfied. The prosecution has to establish its case on the basis of abovesaid five golden principles and to secure conviction of any accused, the prosecution must fulfill the following requirements:-
(i). The circumstances from which the inference of the guilt of the accused is to be drawn must be firmly established.
(ii) The established circumstances must be of such definite tendency that points out towards the guilt of accused.
(iii) The chain of the circumstances must be so complete and there should not be any snap in the chain of circumstances.
(iv) The chain of circumstances must be so complete and incapable of any other hypotheses then that the guilt of the accused and same should also be inconsistent with the innocence of the accused and must exclude every other possible hypotheses FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 49 of 91 except with the hypotheses pointing out towards the guilt of the accused.
72. PW-1/Complainant Sh. Rajeev Mittal deposed that he was running business of copper wires at Bhagirath Palace, Chandni Chowk and on 27.07.2009 at about 07:30 pm his son i.e. PW-2/victim Sh. Nikunj Mittal left the shop for taking vehicle from the parking lot at Gandhi Maidan. PW-2/victim Sh. Nikunj Mittal also deposed that on 27.07.2009 at about 07:30 pm, he left his shop at instance of his father i.e. PW-1/Complainant Sh. Rajeev Mittal for taking his Honda City car bearing registration no. DL 4CAH 4922 from parking lot of Gandhi Maidan. Thus, there is complete consistency between the version of PW-1/Complainant Sh. Rajeev Mittal and PW-2/victim Sh. Nikunj Mittal with respect to the same set of facts.
73. PW-1/Complainant Sh. Rajeev Mittal deposed that he walked and reached at the road near Presentation Convent School and waited for his son i.e. PW-2/victim Sh. Nikunj Mittal for 20- 25 mintues but his son did not turn up. Similarly PW-2/victim Sh. Nikunj Mittal also deposed that he stopped his car near Presentation Convent School and two boys barged into his car and both of them took bandook/pistol and they asked him to drive the car. Thus, as per the version of PW-1/Complainant Sh. Rajeev Mittal and PW-2/victim Sh. Nikunj Mittal, they had to meet at designated place i.e. near Presentation Convent School but before reaching of PW-1/Complainant Sh. Rajeev Mittal at FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 50 of 91 the said spot, PW-2/victim Sh. Nikunj Mittal had already been abducted by two persons. Thus, PW-1/complainant Sh. Rajeev Mittal and PW-2/victim Sh. Nikunj Mittal have corroborated each other's versions with respect to same set of facts.
74. PW-1/Complainant Sh. Rajeev Mittal deposed that when he reached home, he found that his son i.e. PW-2/victim Sh. Nikunj Mittal had not reached home and he dialed the mobile number of PW-2/victim Sh. Nikunj Mittal but same was found to be switched off. PW-2/victim Sh. Nikunj Mittal deposed that one of the accused went out to his car and brought his mobile phone from the car and thereafter it was switched off. Thus, PW-1/complainant Sh. Rajeev Mittal and PW-2/victim Sh. Nikunj Mittal have corroborated each other's versions with respect to same set of facts.
75. PW-1/complainant Sh. Rajeev Mittal deposed that at about 10:30 pm, when he was looking for his son, he found his Honda City car bearing registation no. DL 4CAH 4922 parked in front of main gate of GPO. PW-2/victim Sh. Nikunj Mittal also deposed that one of the accused put pistol on his belly and other accused pointed pistol on his neck and they told him to drive the car towards GPO and when they reached GPO, they told him to take the car right in the service lane of GPO i.e. a gali and there he was asked to stop the car and thereafter he was forced out of the car and he was taken in another car. PW-45/first IO Retd. SI Ramesh Dixit also deposed that on 28.07.2009 he along with Ct. Narender, Ct. Pushpender and complainant went outside GPO FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 51 of 91 and found that Honda City car bearing registration no. DL 4CAH 4922 was found parked outside the GPO. Thus, as per the version of PW-1/complainant Sh. Rajeev Mittal, PW-2/victim Sh. Nikunj Mittal and PW-45/IO Retd. SI Ramesh Dixit the car was left in front of GPO after kidnapping/abduction of PW-2 Sh. Nikunj Mittal and there is complete consistency in the version of all the three witnesses.
76. PW-1/complainant Sh. Rajeev Mittal deposed that on 27.07.2009 at about 10:50 pm, he received call from mobile phone of PW-2/victim Sh. Nikunj Mittal having no. 9810009996 and he heard a female voice and thereafter talked to PW-2/victim Nikunj who simply said 'Papa mujhe bacha lo'. He further deposed that hardly after a minute or so he received another call on his mobile phone from the mobile phone of Nikunj and this time it was a male voice who called upon him to arrange two khokhas meaning thereby 2 crores for the release of Nikunj. PW- 2/victim Sh. Nikunj Mittal also deposed that the offenders drove the car for about two to two and half hours and reached some place and the car was stopped and one of them asked him to talk to his father and he could barely talked to his father 'ki mujhe kab bachaoge' and thereafter mobile was snatched from him. The said phone calls have been reflected in the CDR record of mobile phone no. 9810009996, Ex. PW-23/D. Thus, PW-1/complainant Sh. Rajeev Mittal and PW-2/Sh. Nikunj Mittal have corroborated each other's version and same has further been corroborated by the scientific evidence in form of CDR, Ex. PW-23/D. FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 52 of 91
77. PW-2/victim Sh. Nikunj Mittal deposed that the accused who was sitting on the front left side seat of the car removed his shirt and muffled his face with the same and the said accused was Sahi Ram. He further deposed that he was taken to a room where he was allowed to remove his shirt from his face and accused Sahi Ram removed the shirt from his face. He further deposed that accused Sahi Ram remained with him in the room throughout the day and he kept on talking with him. He also deposed that accused Sahi Ram was smoker and he also asked him to give him few cigarettes and he also smoked few cigarettes. PW-2/victim Sh. Nikunj Mittal has correctly identified accused Sahi Ram in the court. PW-2/victim Sh. Nikunj Mittal also identified accused Gaurav Chauhan in the court by stating that accused Gaurav Chauhan ressembles the physique of the second boy who was involved in the kidnapping. Accused Sahi Ram and Gaurav Chauhan in the cross-examination of PW-2 Sh. Nikunj Mittal have failed to put any dent on his version.
78. PW-2/victim Sh. Nikunj Mittal deposed that he was taken downstairs and in a car and the car was driven for about an hour or so and thereafter they reached at some place where his hands were untied and his mobile phone set was put in his upper pocket but he was kept blindfolded and he was asked to walk on uneven stone way for about 25-30 paces and they told him that he should not look back or else he will be shoot dead. He further deposed that after 15 mintues he removed his blindfold and saw a green jungle and on his back he saw hotal Taj, Dhaula Kuan, New FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 53 of 91 Delhi. He further deposed that in the meantime, he saw the car of his father and he along with his father returned home. PW-1/complainant Sh. Rajeev Mittal deposed that at about 02:00 am in the night, he received call from mobile phone no. 9873085834 and the caller told him that his son Nikunj had been dropped in front of Taj Hotel, New Delhi and thereafter he reached there and saw that his son Nikunj walking slowly on the pavement and he brought him back home. Thus, as per the version of PW-1/complainant Sh. Rajeev Mittal and PW-2 Sh. Nikunj Mittal, the victim i.e. Nikunj Mittal was dropped near Taj Hotel, Dhaula Kuan, New Delhi by the abductors. Thus, PW-1/complainant Sh. Rajeev Mittal and PW-2 Sh. Nikunj Mittal have corroborated each other's version and there is complete consistency in the version of both the witnesses.
79. PW-2/victim Sh. Nikunj Mittal deposed that there were four person including himself in the car when he was dropped by the kidnappers at forest area near Dhaula Kuan, he heard one of the accused being named as Ankur and on that the boy who was addressed as Ankur retorted 'saale marwayega'. He also deposed that it was accused Sahi Ram who called the name of one of the abductors as Ankur. Thus, out of the three persons who dropped PW-2/victim Sh. Nikunj Mittal, one was accused Sahi Ram and one was accused Ankur.
80. PW-1/complainant Sh. Rajeev Mittal deposed that he took the ransom amount in sum of Rs. 2 crores in two polythene bags as per instructions received from the kidnappers. He further FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 54 of 91 deposed that after reaching the spot near Vidya Knowledge Park, he came out of car and as instructed, he placed two polythene bags containing the ransom amount on the road near the drum and thereafter the caller who was in regular touch with him instructed him to drive back home and when he started his car by putting headlights of the car on, he saw the a boy came through the agricultural field and picked up the polythene bags containing the ransom amount and started walking back towards the agricultural field and since the headlights were on, he was able to have a look on the said boy and the said boy was accused Ankur. PW-1/complainant Sh. Rajeev Mittal has correctly identified accused Ankur as the boy who had picked up the polythene bags containing the ransom amount in the court. Accused Ankur in cross-examination of PW-1/complainant Sh. Rajeev Mittal has failed to put any dent on the testimony of PW-1/complainant Sh. Rajeev Mittal.
81. PW-26 Sh. Murari Prasad Singh, Ld. Senior Civil Judge has proved the TIP proceedings of accused Ankur and Harish @ Sahi Ram exhibited as Ex. PW-26/A to Ex. PW-26/E and deposed that accused persons refused to participate in TIP proceedings. Since PW-1/complainant Sh. Rajeev Mittal deposed that he had seen accused Ankur while picking up the polythene containing ransom amount and PW-2 Sh. Nikunj Mittal has deposed that he had seen the accused Sahi Ram in the car as well as in the room where he was kept in captivity and they could identify the said accused persons in TIP proceedings, FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 55 of 91 refusal on the part of accused Ankur Singh and Sahi Ram to participate in the TIP proceedings is an additional incriminating circumstances against them as per the mandate of Sec. 114 of The Indian Evidence Act, 1872.
82. To secure the conviction of the accused persons under Sec. 364A IPC, the prosecution has to prove the following ingredients:-
(i) The accused must have kidnapped, abducted or detained any person;
(ii) The accused must have kept such person under custody for detention; and
(iii) There must be threat to cause death or hurt or the conduct of accused must give rise to resonable apprehension that such kidnapped/abducted person may be put to death or hurt or death or hurt is actually caused to such person;
(iv) The kidnapping, abduction or detention of such person must have been for ransom and the demand for ransom must have been communicated to the person from whom the ransom is being demanded.
83. PW-2/victim Sh. Nikunj Mittal has specifically deposed that he was blindfolded by two persons including accused Sahi Ram and both the persons who barged into his car put Bandook/pistol on his belly and on his neck and he was forced out of his car and thereafter he was taken to a place where he was FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 56 of 91 kept detained in a room. Thus, the first two ingredients have duly proved by the prosecution through the testimony of PW-2/victim Sh. Nikunj Mittal. PW-1/complainant Sh. Rajeev Mittal has specifically deposed that the kidnapper/caller demanded Rs. 2 Crore from him as ransom for release of his son PW-2 Sh. Nikunj Mittal and he delivered the same. Thus, the fourth ingredient mentioned above has also been duly proved by the prosecution.
84. Ld. Counsels for accused persons have argued that the third ingredient must necessarily be proved by the prosecution and same has not been proved in the present case. They argued that accused persons never threatened the victim to cause his death or hurt to him nor the conduct of accused persons had given rise to resonable apprehension that victim could have been put to death or hurt. They have relied the judgment of Hon'ble Supreme Court of India in judgment titled as 'Shaik Ahmad Vs. State of Telengana, cited as AIR 2021 SC 3062' wherein the Hon'ble Supreme Court of India observed as under:-
"12. We may now look into section 364A to find out as to what ingredients the Section itself contemplate for the offence. When we paraphrase Section 364A following is deciphered:-
(i) "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction"
(ii) "and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 57 of 91
(iii) or causes hurt or death to such person in order to compel the Government or any foreign State or international inter- governmental organization or any other person to do or abstain from doing any act or to pay a ransom"
(iv) "shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
13. The first essential condition as incorporated in Section 364A is "whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction". The second condition begins with conjunction "and". The second condition has also two parts, i.e., (a) threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt. Either part of above condition, if fulfilled, shall fulfill the second condition for offence. The third condition begins with the word "or", i.e., or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organization or any other person to do or abstain from doing any act or to pay a ransom. Third condition begins with the word "or causes hurt or death to such person in order to compel the Government or any foreign state to do or abstain from doing any act or to pay a ransom". Section 364A contains a heading "kidnapping for ransom, etc." The kidnapping by a person to demand ransom is fully covered by Section 364A.
14. We have noticed that after the first condition the second condition is joined by conjunction "and", thus, whoever kidnaps or abducts any person or keeps a person FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 58 of 91 in detention after such kidnapping or abduction and threatens to cause death or hurt to such person.
15. The use of conjunction "and" has its purpose and object. Section 364A uses the word "or" nine times and the whole section contains only one conjunction "and", which joins the first and second condition. Thus, for covering an offence under Section 364A, apart from fulfillment of first condition, the second condition, i.e., "and threatens to cause death or hurt to such person"
also needs to be proved in case the case is not covered by subsequent clauses joined by "or".
16. The word "and" is used as conjunction. The use of word "or" is clearly distinctive. Both the words have been used for different purpose and object. Crawford on Interpretation of Law while dealing with the subject "disjunctive" and "conjunctive" words with regard to criminal statute made following statement:-
"..........................The Court should be extremely reluctant in a criminal statute to substitute disjunctive words for cojunctive words, and vice versa, if such action adversely affects the accused."
85. Thus, in view of the law laid down by the Hon'ble Supreme Court of India in 'Shaik Ahmed (Supra)' this court has to see whether the accused persons threatened victim Sh. Nikunj Mittal to cause death or hurt or their conduct gave rise to a reasonable apprehension to PW-2/victim Sh. Nikunj Mittal that he may be put to death or hurt.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 59 of 91
86. PW-2/victim Sh. Nikunj Mittal has specifically deposed that the two persons who barged into his car took out bandooks/pistols and the accused who was sitting on his left front side seat put his pistol against his belly and the other accused from behind had pointed his pistol at his neck and he was terrified and he started driving the car as the said two accused persons told him to drive towards GPO. The act of both the accused persons by putting pistol to the belly and neck of PW-2/victim Sh. Nikunj Mittal is a direct act of threat to cause death or hurt unless PW-2/victim Nikunj Mittal drove the vehicle. Secondly, PW-2/victim Sh. Nikunj Mittal in his cross- examination deposed that he did not raise any alarm at the time of his kidnapping/abduction due to the fear of pistols shown to him. Thus, PW-2/victim Sh. Nikunj Mittal has reasonable apprehension that the abductors could cause hurt to him or they could also cause his death. Thirdly, PW-2/victim Sh. Nikunj Mittal has specifically deposed that when he was dropped near Taj Hotel, Dhaula Kuan, he was kept blindfolded and the accused persons told him that they were behind him and he should not look back or else he shall be shot dead. This act on the part of accused persons is also an act of threat to cause death or hurt. Fourthly, in the cross-examination of PW-2/victim Sh. Nikunj Mittal, the court put a question to him that why he did not ever try to escape and PW-2/victim Sh. Nikunj Mittal replied that 'for the fear of pistols in hands of kidnappers'. This answer of PW- 2/victim Sh. Nikunj Mittal clearly established that he had FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 60 of 91 apprehension that his death could have been caused by the kidnappers or hurt could have been caused to him by them. Fifthly, PW-1/complainant Sh. Rajeev Mittal deposed that on 28.07.2009 between 10:00 to 10:30 pm, he received phone call from kidnappers and he was allowed to talk to his son and at that time his son i.e. PW-2/victim Sh. Nikunj Mittal appeared to be quite terrified and he asked him as to when he will be released from their custody. Sixthly, PW-1/complainant Sh. Rajeev Mittal further deposed that the kidnapper/caller told him 'koi hoshiyari na baratna warna tere bete ko takleef ho jayegi, police ko inform mat karna' which a clear threat of causing death or hurt to PW- 2/victim Sh. Nikunj Mittal by the accused persons. Seventhly, PW-1/complainant Sh. Rajeev Mittal deposed that on phone his son Nikunj Mittal said to him 'Papa mujhe bacha lo'. This fact has also been corroborated by PW-2/victim Sh. Nikunj Mittal which shows that PW-2/victim Sh. Nikunj Mittal was under fear of death or hurt. Thus, the prosecution has proved several instances through the testimony of PW-1/complainant Sh. Rajeev Mittal and PW-2/victim Sh. Nikunj Mittal that PW-2/victim Sh. Nikunj Mittal was put under the fear of death or hurt and he had reasonable apprehension that accused persons may cause his death or may cause hurt to him. Applying the law laid down by the Hon'ble Supreme Court of India in judgment titled as 'Shaik Ahmad Vs. State of Telengana, cited as AIR 2021 SC 3062', this court is of considered opinion that the third ingredient discussed above has also been duly proved by the prosecution.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 61 of 91
87. The case of the prosecution is that accused persons namely Gaurav Chauhan @ Sachin, Ankur Singh and Sahi Ram @ Harish @ Lamboo entered into a criminal conspiracy kidnapped/abduct PW-2 Sh. Nikunj Mittal and demand a ransom of Rs. 2 Crores from his father i.e. PW-1/complainant Sh. Rajeev Mittal. The prosecution has led the evidence in form of occular evidence, circumstantial evidence and scientific evidence to prove the criminal conspiracy entered by all the three accused persons.
88. Section 120B provides punishment for the commission of offence of criminal conspiracy. The offence of criminal conspiracy is a substantive offence. When two or more person agree or cause to be done an illegal act or an act which is not illegal by illegal means, the agreement entered by such persons will constitute the offence of criminal conspiracy. The most important ingredient of offence of criminal conspiracy is the agreement between two or more person to do an illegal act. It is intention to commit crime and joining hands with persons having the same intents. The offence of criminal conspiracy is a separate and distinct offence. Generally the conspiracy is hatched up in utmost secrecy and in these circumstances it becomes very difficult to prove the same by direct evidence. The conspiracy in such cases is to be incurred on the facts and circumstances of the case. The circumstances of a particular case before, during and after the commission of offence have to be taken into consideration to infer the criminal conspiracy. Inferences from FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 62 of 91 such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explaination.
89. The term "Criminal Conspiracy" has been explained by the Hon'ble Apex Court in Judgment titled as Major E.G. Barsey Vs. State of Bombay (1962) 2 SCR195 wherein Hon'ble Apex Court observed as under:-
"31.... The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of number of acts".
90. Similarly, Hon'ble Supreme Court of India in judgment titled as K.R. Purushothaman Vs. State cited as AIR 2006 SC 35 has held that:-
"to constitute a conspiracy, meeting of minds of two or more person for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of conspiracy. Neither it is necessary that everyone of the conspirator take active part in FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 63 of 91 the commission of each and every conspiratorial acts".
91. Thus, the criminal conspiracy in the present case is to be inferred from the facts and circumstances of the present case. It has been established by the prosecution that accused Sahi Ram was involved in the kidnapping/abduction of PW-2/victim Sh. Nikunj Mittal and he also remained present with victim Nikunj Mittal at the room where he was kept in captivity. It has also been established by the prosecution that accused Ankur Singh collected the ransom amount and he has been correctly identified by the PW-1/complainant Sh. Rajeev Mittal. The prosecution has led the evidence through the following circumstances from which the criminal conspiracy between the accused persons as well as commission of offence by all of them can be inferred:-
(i) Use of mobile phones by accused persons and the CDR of said mobile phones and matching of voice sample of accused Gaurav Chauhan @ Sachin with the voice sample of the caller/kidnapper/abductor.
(ii) Recovery of case property i.e. ransom amount from possession of accused Gaurav Chauhan @ Sachin and Sahi Ram.
(iii) Possession of the flat with accused Gaurav Chauhan @ Sachin where the victim was kept.
(iv) Matching of the hair of victim Sh. Nikunj Mittal recovered from the flat where he kept in captivity.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 64 of 91 The above-said circumstances and the evidence led by the prosecution in this regard is being discussed as follows:-
(i) Use of mobile phones by accused persons and the CDR of said mobile phones and matching of voice sample of accused Gaurav Chauhan @ Sachin with the voice sample of the caller/kidnapper/abductor.
(i)(a). This Court is aware that the CDR alone cannot be basis of conviction. However, the CDR is a scientific evidence which can be used as a corroborative evidence in case of circumstantial evidence. It is pertinent to mention here that the ownership of the mobile phone handsets and the SIM cards is not material for the purpose of appreciating the evidence. The material thing that is to be established is that as to who was using a particular handset and a particular SIM card during a particular period.
(i)(b). In the present case, the first ransom call was made by the kidnapper/abductor to PW-1 Complainant Sh. Rajeev Mittal on his mobile phone 981003955 from the mobile phone of PW-2 victim Sh Nikunj Mittal 9810009996. The CAF and the CDR record of above-said mobile phone numbers showing that these are in name of PW- 1 Sh. Rajeev Mittal and PW-2 Sh. Nikunj Mittal has been proved by PW-23 Sh. R. K. Singh, Nodal Officer, Bharti Airtel Ltd. Ex. PW23/A to Ex. PW23/D. However, later on, ransom calls were made by the caller by using mobile phone numbers 9873091642 and 9873085834.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 65 of 91
(i)(c). The CDR and CAF of mobile numbers 9873091642 and 9873085834 Ex. Pw20/A to Ex. PW20/H have been proved by PW-20 Sh. Israr Babu, Nodal Officer, Vodafone Mobile Phone Services Ltd. As per the CAF of moble phone number 9873091642 was issued in the name of one Amit Kumar while mobile number 9873085834 was issued in the name of one Rahul. PW-45 IO SI Ramesh Dixit deposed that during investigation he found that both the above said mobile phone numbers were issued on the basis of fake IDs and the said mobile phone number were recharged from Max communication, Sagar Pur. PW-17 Abdullah, owner of Max Communication has admitted that the above-said mobile phone numbers were recharged from his shop. PW-45 IO SI Ramesh Dixit deposed that he interrogated the person who got their mobile phone recharged from Max Communication and in this process, accused Gaurav Chauhan was also called by him and on the basis of analysis of CDR and contradiction in version of accused Gaurav Chauhan @ Sachin, accused Gaurav @ Sachin was thoroughly interrogated and he confessed his guilt. Thus, the investigating agency found its first clue regarding the involvement of accused Gaurav Chauhan through the above-said mobile phone numbers.
(i)(d). PW-1 Sh. Rajiv Mittal deposed that firstly he received ransom call from the mobile phone of Nikunj Mittal and later on he received ransom calls from mobile phone numbers 9873091642 and 9873085834. IO has seized the mobile phone of PW-2 victim Sh. Nikunj Mittal Ex. P-10 vide seizure memo Ex.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 66 of 91 PW2/C. As per the prosecution story, the mobile hand set Ex. P- 10 of PW-2 victim Sh. Nikunj Mittal having IMEI number 353660012278812 was used in making phone calls through mobile phone numbers 9873091642 and 9873085834. As per the CDR record of mobile phone no. 9873085834, Ex. PW-20/G & CDR record of mobile phone no. 9873091642, Ex. PW-20/C calls were made by the kidnapper/adbuctor to PW-1/complainant Sh. Rajeev Mittal on his mobile phone no. 9810039355 by using mobile handset of PW-2/victim Sh. Nikunj Mittal having IMEI 353660012278810. PW-2/victim Sh. Nikunj Mittal has specifically deposed that his mobile handset was taken by the accused persons and same was returned to him without SIM card when he was released by them in front of Taj Hotel, Dhaula Kuan, Delhi.
(i)(e). Thus to analyse the CDR of mobile SIM cards in the handset of PW-2/victim Sh. Nikunj Mittal used by accused persons, the IMEI number of the handset used by them is of vital importance. It is pertinent to mention that the last digit of IMEI number is irrelevant and this aspect has been discussed by the Hon'ble High Court of Delhi in Judgment titled as Suraj Vs. State cited as 2022 SCC online DEL 4572 wherein the Hon'ble High Court of Delhi observed as under:-
"27 The deceased's Nokia mobile phone was seized vide seizure memo Ex. PW 28/H from appellant Sonu Dahiya with the IMEI number 358290034757208 which matches with the IMEI FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 67 of 91 number in the CDR of deeased i.e. 358290034757200 (last digit as per the settled law as decided in Gajraj Vs. Sate Supra being irrelevant"
Similarly Hon'ble Supreme Court of India in judgment titled as State (NCT) of Delhi Vs. Navjot Sandhu @ Afsan Guru cited as (2005) 11 SCC 600 observed as under:-
" 195. One more point has to be clarified. In the seizure memo Ex. 61/4, the IMEI number of Nokia phone found in the truck was noted as 350102209452432. That means the last digit varies from the call records wherein it was noted as 350102209452430. Thus there is a seeming descrepancy as far as the last digit is concerned. This descrepancy stands explained by the evidence of PW-78, a computer Engineer workin as Manager Seimens. He is stated, while giving various details of the 15 digits that the last one digit is a spare digit and the last digit, according to GSM specification should be transmitted by the mobile phone as 0."
(i)(f). Thus as per the law laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India, the last digit of IMEI number mentioned in the mobile handset and the IMEI number mentioned in the CDR will be different and the last digit of IMEI number will be replaced by 0.
(i)(g). Thus from the CDR, CAF, location ID chart coupled with certificate issued under 65-B Evidence Act, it has been FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 68 of 91 established that the SIM cards having no. 9873091642 and 9873085834 were being used by the caller/kidnapper/abductor in the mobile handset, Ex. P-10 of PW-2/victim Sh. Nikunj Mittal having IMEI number 353660012278812(0) which was seized by the IO vide seizure memo Ex. PW-2/C.
(i)(h). Since the SIM cards of mobile phone bearing nos. 9873091642 and 9873085834 have not been recovered by the Police, the prosecution has to connect the use of said mobile phone numbers to accused persons. After the registration of FIR, all the ransom calls which were made to PW-1/complainant Sh. Rajeev Mittal on his mobile phone no. 9810039355 were recorded by the Investigating Agency. PW-47 Retd. Inspector Mahavir Singh deposed that on 28.07.2009 at request of IO, he intercepted the phone calls on mobile phone numbers 9810039355 and 9810009996. He deposed that around 22 ransom calls were recorded by him in the Voice Logger system and same was handed over by him to Sh. C. P. Singh, Assistant Director, FSL. The details of intercepted calls along with complete record, Ex. PW-44/B depicting the channel number, phone number and time has been duly proved by PW-44 IO/Inspector Pradeep Paliwal. The transcript of the conversation, Ex. PW-1/C recorded by the Investigating Agency has also been duly proved the prosecution.
(i)(i). The voice samples of accused persons namely Gaurav Chauhan @ Sachin, Sahi Ram and Ankur Singh as well as FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 69 of 91 complainant Sh. Rajeev Mittal and victim Sh. Nikunj Mittal were taken at FSL, Rohini and this fact has duly proved by the prosecution through the testimony of PW-4 Sh. Sudhir Sahi, PW- 6 Sh. Dev Raj, PW-8 Sh. Vasudev Tripathi, PW-12 Sh. Manoj Kumar and PW-39 Sh. Sunil Kumar Garg. PW-25 Sh. C. P. Singh, Assistant Director (Physics) examined the abovesaid voice samples and proved his report, Ex. PW-25/A. PW-25 Sh. C. P. Singh deposed that there was no indication of any alteration in the audio recordings of the CD in parcel no. 1 and on comparison of voice samples, the relevant speakers, it was found that voice exhibits of speakers Mark-Q1 and S1 were the voice of same person i.e. Gaurav Chauhan. He also deposed that the voice exhibits speakers Mark-Q2 & S2 were of the same person i.e. Nikunj Mittal. He also deposed that the voice exhibits of speakers Mark-Q3 & S3 were the voice of same person i.e. Rajeev Mittal. Thus, as per the FSL report, Ex. PW-25/A the ransom calls were made by accused Gaurav Chauhan @ Sachin to PW-1/complainant Sh. Rajeev Mittal. It is pertinent to mention that these calls were made by accused Gaurav Chauhan by using the mobile handset, Ex. P-10 of PW-2/victim Sh. Nikunj Mittal by inserting SIM cards having no. 9873091642 and 9873085834 which were obtained on fake ids. Thus, despite the fact that the SIM cards of mobile phone nos. 9873091642 and 9873085834 could not be recovered by the Police, the prosecution through the IMEI numbers of mobile handset of PW- 2/victim Sh. Nikunj Mittal and matching of voice of accused Gaurav Chauhan through FSL Report, Ex. PW-25/A has FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 70 of 91 successfully proved that the abovesaid two SIM cards were being used by accused Gaurav Chauhan for making ransom calls to PW-1/complainant Sh. Rajeev Mittal.
(i)(j). SIM card along with mobile handset having mobile no. 9810394247 was recovered from accused Sahi Ram which seized by the IO vide seizure memo Ex. PW-34/B. SIM card along with mobile handset having no. 9818994557 was recovered from accused Gaurav Chauhan which was seized by IO vide personal search memo Ex. PW-41/B. PW-23 Sh. R. K. Singh, Nodal Officer has proved the CAF and CDR of mobile phone number 9810394247, Ex. PW-23/H & Ex. PW-23/J. He also proved the CAF and CDR of mobile phone number 9818994557, Ex. PW- 23/E & Ex. PW-23/G. As per the CAF of mobile phone number no. 9810394247, the said mobile phone number was issued in the name Krishan and as per the CAF of mobile phone no. 9818994557 was issued in name of one Sh. Raghubir Singh. The prosecution has not examined Sh. Krishan and Sh. Raghubir Singh. However, since the abovesaid phone handsets with abovesaid SIM cards were recovered from possession of accused Sahi Ram and Gaurav Chauhan, burden lies upon them under Sec. 106 of The Indian Evidence Act, 1872 as to how they were in possession of said mobile numbers. Since both the accused persons in possession of abovesaid mobile phone numbers and they have failed to discharge burden under Sec. 106 of The Indian Evidence Act, 1872, the possession and use of abovesaid mobile phone numbers by the accused persons namely Sahi Ram FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 71 of 91 and Gaurav Chauhan @ Sachin during the commission of offence has been duly proved by the prosecution. As per the CDRs on record, accused Sahi Ram was in regular touch with accused Gaurav Chauhan on his mobile phone no. 9818994557.
(i)(k). On the basis of disclosure statement of accused Ankur Singh mobile handset having IMEI No. 353937101163470610 was recovered at his instance from his house which was seized by the IO vide seizure memo Ex. PW-21/A. As per the CDR record Ex. PW-23/K to Ex. PW-23/L, the mobile phone having SIM no. 9557405210 which was issued in name of PW-15 Sh. Jitender Singh Rathi @ Jitu was being used by accused Ankur Singh in abovesaid recovered handset. PW-15 Sh. Jitender Singh Rathi @ Jitu deposed that he had given the abovesaid mobile phone along with instrument to accused Gaurav. In his cross- examination, he deposed that he had given the telephone instrument to accused Ankur for his use for ten days in which SIM No. 9557405210 was used by him which was given to accused Gaurav. He also deposed that he knew accused Ankit (Ankur) and he was cousin of accused Gaurav. Accused Ankur Singh has taken the defence that the said mobile handset having aforesaid number was returned to PW-15 Sh. Jitender Singh Rathi @ Jitu before the date of incident. However, as per the CDR Ex. PW-23/K to Ex. PW-23/L the abovesaid SIM card was being used in the handset recovered at instance of accused Ankur Singh during the period of captivity of PW-2/victim Sh. Nikunj Mittal. Moreover, PW-15 Sh. Jitender Singh Rathi @ Jitu could FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 72 of 91 not explain as to how the said mobile instrument/handset which was given by him to accused Ankur Singh and was returned to him by accused Ankur as per his version was found in possession after arrest of accused Ankur.
(i)(l). The Investigating Agency has collected the location chart of the mobile phone no. 9810039355 of PW-1/complainant Sh. Rajeev Mittal, mobile number 9810009996 of PW-2/victim Sh. Nikunj Mittal, mobile phone no. 9810394247 used by accused Sahi Ram, mobile phone no. 9557405210 used by accused Ankur Singh and mobile phone nos. 9873091642 & 9873085834 used by accused Gaurav Chauhan @ Sachin. The use of abovesaid mobile phone numbers by the abovesaid persons has been duly proved by the prosecution and the same has discussed by this court in the preceeding paragraphs.
(i)(m). As per the CDR record, location of mobile phone no. 9810009996 of PW-2/victim Sh. Nikunj Mittal on 27.07.2009 at 18:57:45 was at Bhagirath Palace i.e. at the place of his business and on the same day at about 19:35:05, the location of mobile phone no. 9818994557 which was being used by accused Gaurav Chauhan was also at Bhagirath Palace. On the same day at about 16:17:10, the location of mobile phone no. 9810394247 which was being used by accused Sahi Ram was also at Kucha Nalwa, Chandni Chowk i.e. near the shop of PW-2/victim Sh. Nikunj Mittal. On the same day, at about 22:32:11, the location of mobile phone of PW-2/victim Sh. Nikunj Mittal was at Basai FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 73 of 91 Dharapur and on the same day at 22:29:12, the location of mobile phone no. 9818994557 being used by accused Gaurav Chauhan was also at Basai Dharapur. Thus, the location of PW-2/victim Sh. Nikunj Mittal and accused Gaurav Chauhan was at Bhagirath Palace just before the kidnapping of PW-2/victim Nikunj Mittal and after the kidnapping the location of victim Nikunj Mittal and accused Gaurav Chauhan was at Basai Dharapur. From the abovesaid facts, it is clear that accused Gaurav Chauhan was the other person who along with accused Sahi Ram abducted PW-2/victim Sh. Nikunj Mittal from front of Presentation Convent School and accused Sahi Ram was also present in that area at that time. Moreover, PW-2/victim Sh. Nikunj Mittal has identified accused Sahi Ram and accused Gaurav Chauhan as the kidnappers/abductors. Thus, all the three accused persons were involved in the kidnapping/abduction of PW-2/victim Sh. Nikunj Mittal.
(i)(n). As per the case of prosecution, PW-2/victim Sh. Nikunj Mittal was detained at a flat no. 1246, Pocket-A, DDA Flats, Lok Nayak Puram, Bakkarwala, Delhi. As per the CDR record, Ex. PW-23/A to Ex. PW-23/G, location of mobile phone no. 9818994557 which was being used by accused Gaurav Chauhan was also at Bakkarwala on 28.07.2009 at 14:28:50. As per the CDR record the location of abovesaid mobile on 29.07.2009 at 22:42:00 i.e. at the time of receiving of ransom amount was at Village Panchli Khurd. The location of mobile phone no. 9557405210, which was being used by accused Ankur Singh was FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 74 of 91 also at village Panchli Khurd at 23:01:07. Similarly, the location of mobile phone of PW-1/complainant Sh. Rajeev Mittal, who went to the deliver the ransom amount, on 29.07.2009 at 22:32:15 as well as at 23:01:20 was also at Panchli Khurd. PW- 1/complainant Sh. Rajeev Mittal has specifically deposed that he had delivered the ransom amount in sum of Rs. 2 Crore at village Panchli Khurd. Similarly, the location of mobile phone no. 9873085834 which was being used by accused Gaurav Chauhan was at village Panchli Khurd on 29.07.2009 at 22:35:47 as well as 23:00:29. Accused persons were in contact with each other through the abovesaid mobile numbers and accused Gaurav Chauhan @ Sachin was also in contact with PW-1/complainant Sh. Rajeev Mittal with mobile number obtained on fake id. Accused persons have not given any explanation with respect to the said telephonic conversations between them or with respect to the location of mobile phones used by them either in the cross examination of prosecution witnesses or in their statement under Sec. 313 Cr.PC and they have failed to discharge burden placed upon them under Sec. 106 of Indian Evidence Act, 1872. Thus, the prosecution has successfully proved that the accused persons were using the abovesaid mobile phones and they had kidnapped/abducted PW-2/victim Sh. Nikunj Mittal after entering into a criminal conspiracy.
(ii) Recovery of case property i.e. ransom amount from possession of accused Gaurav Chauhan @ Sachin and Sahi Ram.
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 75 of 91
(ii)(a). Recovery of ransom amount i.e. cash and other incriminating material at instance of accused persons on the basis of disclosure statements made by accused persons is an important circumstantial evidence. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle under Sec. 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non-inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
(ii)(b). Hon'ble Supreme Court of India in Judgment titled as 'Pawan Kumar @Monu Mittal Vs. State of U.P & Anr. cited as (2015) 7 SCC 148' has held that:-
"the facts discovered u/s 27 of Indian Evidence Act embraces the place from which object was produced and knowledge of the accused as to it and if the accused are denying their role without proper explanation as to the knowledge FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 76 of 91 about the incriminating material recovered on the basis of their statements in police custody, would justify the presumption drawn by the Courts below as to the involvement of the accused in the Crime".
(ii)(c) In the present case, disclosure of statements of accused Gaurav Chauhan @ Sachin Ex. PW-31/A, Ex. PW-41/C, Ex. PW- 41/I and Ex. PW-41/J were recorded by the IO. IO also recorded the disclosure statement of accused Sahi Ram, Ex. PW-45/D. On the basis of disclosure statement of accused Gaurav Chauhan @ Sachin, cash amount in sum of Rs. 1,37,50,000/- was recovered from his possession along with two black colour polythene kpet in black colour cloth bag, which were seized by the IO vide seizure memo Ex. PW-3/B. Similarly, on the basis of disclosure statement of accused Sahi Ram, cash amount in sum of Rs. 90,000/- having the slips of Vijya Bank were recovered which was seized by the IO vide seizure memo Ex. PW-1/F.
(ii)(d). The cash amount in sum of Rs. 1,37,50,000/- along with two black polythenes in which the ransom amount was delivered by PW-1/complainant Sh. Rajeev Mittal have been recovered in presence of two independent witnesses i.e. PW-3 Sh. Neeraj Goel and PW-5 Sh. Alok Sabita. Though, PW-3 Sh. Neeraj Goel and PW-5 Sh. Alok Sabita were the employee of complainant Sh. Rajeev Mittal, but it does not affect the case of prosecution as the testimonies of both the witnesses are quite FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 77 of 91 natural. The place of recovery of currency notes was not a public place but these were the houses of the accused persons. PW-3 Sh. Neeraj Goel and PW-5 Sh. Alok Sabita were the independent public witnesses and t h e y h a v e withstood the test of cross- examination regarding the recovery of said currency notes as well as other articles and the accused persons have failed to put any dent on their veracity. Moreover, this court does not find any reason to disbelieve the testimony of PW-3 Sh. Neeraj Goel and PW-5 Sh. Alok Sabita and their testimonies have been corroborated by other prosecution witnesses including the IO.
(ii)(e). The IO had recovered 96 packets/wads of currency notes from possession of accused Gaurav Chauhan @ Sachin were having the slip of Vijya Bank, Chandni Chowk and the two packets/wads of currency notes recovered from possession of accused Sahi Ram bearing the slips of Vijya Bank, Chandni Chowk. The IO also recovered 6 packets/wads of currency notes bearing the slip of Bank of Rajasthan, Civil Lines, 32 packets/wads without any label and 7 packets/weds without any label. PW-1/complainant Sh. Rajeev Mittal has specifically deposed that on 29.07.2009, he went to Vijya Bank, Chandni Chowk and withdrew an amount of Rs. 1.25 crores from the account of his wife. He has also specifically deposed that he collected the remaining amount from his relatives and from sale of inventory at his shop. The bank record has been duly proved by PW-10 Sh. Mukesh Murlidhar in this regard. The accused persons have failed to explain as to whether they were having FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 78 of 91 any bank account at Vijay Bank, Chandni Chowk or from what source they obtained the said packets/wads of currency notes bearing the slips of Vijay Bank, Chandni Chowk and other currency notes. PW-10 Sh. Mukesh Murlidhar, Senior Manager, Vijay Bank has correctly identified the slips of Vijay Bank on judicial record, Ex. PW-10/C. PW-1/complainant Sh. Rajeev Mittal has correctly identified the currency notes delivered by him as ransom amount along with black colour polythenes exhibited as Ex. PX-2, Ex. PX-3 and Ex. PX-4. Moreover, the recovered currency notes from possession of accused Gaurav Chauhan and Sahi Ram were released to the rightful owner i.e. PW-1/complainant Sh. Rajeev Mittal and accused persons had not claimed at that time that the said currency notes belongs to them.
(ii)(f) The IO has also recovered one desi katta, one desi pistol and five cartridges at instance of accused Gaurav Chauhan @ Sachin which was seized by him vide seizure memo Ex. PW-41/F. Charges under Sec. 27 of Arms Act have been framed against the accused Gaurav Chauhan. As per prosecution story, accused Gaurav Chauhan was found in possession of abovesaid weapons but the said weapons were never fired and hence the charge under Sec. 27 Arms Act is not made out against the accused Gaurav Chauhan. So far as, the charges under Sec. 25 Arms Act is concerned, the said charge had not been framed against accused Gaurav Chauhan. For proving the charge under Sec. 25 Arms Act, the prosecution had to prove that the recovered FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 79 of 91 weapons falls within the definition of arms through the FSL report. The weapons were not sent to FSL for examination nor any sanction under Sec. 39 Arms Act was ever obtained from the DCP concerned. Therefore, the prosecution has failed to prove its case against accused Gaurav Chauhan under Sec. 27 Arms Act.
(iii) Possession of the flat with accused Gaurav Chauhan @ Sachin where the victim was kept.
As per prosecution story, PW-2/victim Sh. Nikunj Mittal was kept at flat no. 1246, Pocket-A, DDA Flats, Lok Nayak Puram, Bakkarwala, Delhi. PW-7 Sh. Avinash Gaur deposed that flat no. 1246, Pocket-A, DDA Flats, Lok Nayak Puram, Bakkarwals, Delhi was purchased by her sister and one Khan Chand approached him and told him that one of the acquaintance of accused Sachin (Gaurav Chauhan) was looking for some accommodation for living and he has handed over the keys of said flat through Sh. Khan Chand in the month of July, 2009 and the keys of the said flat was not returned by Khan Chand to him and later on he came to know that the said flat was used by accused Sachin @ Gaurav Chauhan to hold a kidnapped person in captivity. He also deposed that the flat was not in habitable condition due to lack of amenities i.e. water and electricity. PW- 2/Victim Sh. Nikunj Mittal also deposed that the room where he was kept in captivity was an empty room having size of about 10 x 10. Thus, PW-2/victim Sh. Nikunj Mittal has corroborated the version of PW-7 Sh. Avinash Gaur that the flat was vacant and it was not in habital condition. PW-9 Sh. Khan Chand has also FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 80 of 91 deposed on the lines of PW-7 Sh. Avinash Gaur. He deposed that in the month of July, 2009 at instance of accused Sachin, he went to Sh. Avinash Gaur and thereafter he along-with accused Sachin (Gaurav Chauhan) went to see the said flat and he handed over the keys to accused Sachin @ Gaurav Chauhan and the keys were retained by accused Sachin @ Gaurav Chauhan. Accused Gaurav Chauhan @ Sachin has failed to put any dent on the testimony of PW-7 Sh. Avinash Gaur and PW-9 Sh. Khan Chand with respect to the possession of said flat by him in the month of July 2009 i.e. at the relevant time when PW-2 Sh. Nikunj Mittal was in capativity of accused persons. Accused Gaurav Chauhan @ Sachin has not led any evidence that he had not used the said flat to keep victim PW-2 Sh. Nikunj Mittal in his captivity.
(iv) Matching of the hair of victim Sh. Nikunj Mittal recovered from the flat where he kept in captivity.
On the basis of disclosure statement of accused Gaurav Chauhan @ Sachin and accused Sahi Ram, PW-45 IO/Retd. Inspector Ramesh Dixit went to flat no. 1246, Pocket-A, DDA Flats, Lok Nayak Puram, Bakkarwals, Delhi alongwith crime team from where the crime team inspected the said flat and IO seized the burnt cigarette pieces and the hairs from the said flat vide seizure memo Ex. PW-41/H. PW-24 HC Rajpal who was member of crime team has also deposed on lines of PW-45 IO/SI Ramesh Dixit. He proved the 16 photographs, Ex. PW-24/A-1 to Ex. PW-24/A-16 alongwith their negatives Ex. PW-24/B-1 to Ex. PW-24/B-16. PW-37 Inspector Sanjeev Solanki who was In-
FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 81 of 91 charge of Crime Team has also corroborated the versions of PW- 45/SI Ramesh Dixit and PW-24 HC Rajpal. He has also proved his report Ex. PW-37/A. The recovered cigarette buds/burnt pieces and hairs were sent to the FSL for examination. As per the FSL report bearing no. 2009/B-3879 Bio. No. 1013/09 dated 25.02.2010, which is per-se admissible under Sec. 293 of The Code of Criminal Procedure, 1973, the hair in Ex. 7 i.e. the hairs collected from flat no. 1246, Pocket-A, DDA Flats, Lok Nayak Puram, Bakkarwala, Delhi were found to be similar with Ex. 13 i.e. the hair sample of victim PW-2 Sh. Nikunj Mittal was collected by PW-43 Dr. Rabinder Kumar. It is pertinent to mention that Dr. Rabinder Kumar was not cross-examined on behalf of accused persons despite opportunity given to them. It is also pertinent to mention that the prosecution has duly proved the seizures and safe custody of case properties including the seizure of sliva, hairs and audio recording of voice samples etc. from the point of seizure till the said samples/exhibits were opened at FSL. The accused persons have failed to put any dent on the recovery, seizure and safe custody of said exhibits.
92. The basic purpose of recording of statement of accused under Sec. 313 Cr.P.C is to put in the incriminating evidence brought on record against him by the prosecution and to accord him an opportunity to explain the circumstances appearing against him.
93. Hon'ble Supreme Court of India in Judgment titled as Neel Kumar Vs. State of Haryana cited as (2012) 5 SCC 766 has held FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 82 of 91 that:-
"it was the duty of the accused to explain incriminating circumstances proved against him while making statement u/s 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance was an additional link in chain of circumstances to sustain charges against you.
94. Similary Hon'ble Supreme Court of India in Judgment titled as Phula Singh Vs. State of Himachal Pradesh AIR 2014 SC 1256 has held that:-
if the accused remains silent or in complete denial, the Court can take adverse intense against you.
95. Hon'ble Supreme Court of India in judgment titled as Sidhartha Vashisht Vs. State (NCT of Delhi) cited as (2010) 6 SCC 1 while convicting the accused and taking adverse inference against him with respect to the false answers given by him u/s 313 Cr.P.C observed as under:-
"130. This Court has time and again held that where an accused furnishes false answers as regards proved facts, the Court ought to draw an adverse inference qua him and such an inference shall become an additional circumstance to prove the guilt of the accused in the present case, the FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 83 of 91 appellant Manu Sharma has inter alia has taken false pleas in reply to question no. 50, 54, 55, 56,57,64, 65,67,72,75 and 201 put to him under Section 313 of the Code."
96. Accused Gaurav Chauhan @ Sachin has taken the defence that the complainant was indebted towards him with repsect to supply of copper goods. He also took the defence that some business transactions were given the shape of offence. During the trial, PW-1/complainant Sh. Rajeev Mittal and PW-2/victim Sh. Nikunj Mittal were duly cross-examined on behalf of accused Gaurav Chauhan and the complainant also produced his record but accused Gaurav Chauhan failed to produce any document showing that the complainant was indebted to him. He could not produce any evidence that the complainant owed money. He could also not explain as to how much amount was due towards PW-1/complainant Sh. Rajeev Mittal. Thus, the defence taken by accused Gaurav Chauhan is vague in nature and hence it cannot be relied upon. Accused Sahi Ram has not taken specific defence. Accused Ankur Singh has taken the defence that on 29.07.2009, Ramayan Paath was organized at his residence which continued till late night of 30.07.2009 and he was not involved in the incident. Accused Ankur Singh has not explained as to on what occassion the said Ramayan Paath was organized at his house. He has also not produced the Pandits who recited hymens at the said Ramayan Paath. He has also not produced any independent witness i.e. neighbour, friends or relative who might have FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 84 of 91 attended the said Ramayan Paath. He has also not produced any photographs or video clips showing that any such Ramayan Paath was organized at his house and he remained present there from 29.07.2009 to 30.07.2009. Thus, the defence taken by the accused Ankur Singh is also vague in nature. The accused persons have failed to put any dent on the prosecution story through the defences taken by them.
97. In the present case, separate statements of accused persons under Sec. 313 Cr.PC were recorded and in reply to the most of the questions put to them they have stated either 'I do not know' or 'it is incorrect'. In answers, they have also stated that the prosecution witnesses were false and planted witnesses and they are innocent and have been falsely implicated in the present case. The answers given by the accused persons are evasive in nature and accused persons have not explained as to why, they have been falsely implicated in the present case or as to why the prosecution witnesses have deposed against them or as to how they were in possession of particular phone numbers and mobile handset. They have also failed to explain the possession of recovered currency notes. Accused Gaurav Chauhan has also failed to explain how the voice of the caller/kidnapper/abductor matched with his voice. In these circumstances, applying the law laid down by Hon'ble Supreme Court of India in 'Neel Kumar (supra), Phula Singh (Supra and Sidharth Vashisth (supra)'. This court is of considred opinion that accused persons have not furnished any explanation for these circumstance hence these FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 85 of 91 circumstances are additional link in the chain of circumstances evidence against them.
98. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witnesses must be of sterling quality.
99. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi) cited as (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 86 of 91 prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 87 of 91 guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
100. In case of Ramdas Vs. State of Maharashtra cited as (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
101. Thus, from the above said judgments, it is clear that the version of the witnesses should be natural one and it must FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 88 of 91 corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
102. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that PW-1/complainant Sh. Rajeev Mittal and PW-2/victim Sh. Nikunj Mittal are the witnesses of sterling quality as their versions are natural and they have withstood the test of cross examination. This court is of the considered opinion that the testimonies of PW-1/complainant Sh. Rajeev Mittal and PW-2/victim Sh. Nikunj Mittal are clear, cogent, credible, trustworthy and consistent and have been corroborated by the testimony of other prosecution witnesses as well as the medical, scientific and circumstantial evidence on record.
103. The prosecution in addition to occular and scientific evidence has also proved its case through the circumstantial evidence also as per the guidelines laid down by Hon'ble Supreme Court of India in 'Sharad Birdichand Sharda (Supra)'. From the facts and circumstances of the case, the prosecution has proved beyond reasonable doubt that PW-2 Sh. Nikunj Mittal was abducted by all the three accused persons for demand of ransom amount which was duly delivered to them and the facts established by the prosecution indicating towards the guilt of accused persons is consistent. The circumstances proved by the prosecution are conclusive in nature and tendency. The facts established by the prosecution have excluded every possible FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 89 of 91 hypotheses except the one which has been proved by the prosecution. The chain of evidence led by the prosecution is so complete that it does not leave any ground for conclusion consistent with the innocence of accused persons and it has been proved by the prosecution that in all probability, all the three accused persons had entered into criminal conspiracy to kidnap/abduct PW-2 Sh. Nikunj Mittal and in pursuance of said conspiracy PW-2 Sh. Nikunj Mittal was kidnapped/abducted by them and PW-1/complainant Sh. Rajeev Mittal had delivered the ransom amount in sum of Rs. 2 crores to the accused persons.
104. In the light of aforesaid discussion, this court is of the considered opinion that prosecution has proved its case beyond reasonable doubt against accused persons namely Gaurav Chauhan @ Sachin, Sahi Ram @ Harish @ Lambu @ Moni and Ankur Singh for the offence of criminal conspiracy to kidnap/abduct PW-2 Sh. Nikunj Mittal and demand a ransom amount of Rs. 2 Crores from PW-1 Sh. Rajeev Mittal, kidnapping/abduction of PW-2 Sh. Nikunj Mittal for the purpose of ransom and criminal intimidation and the ingredients of offences punishable under Sec. 120B/364A/506 IPC have been duly proved by the prosecution. However, the prosecution has failed to prove its case beyond reasonable doubt against accused Gaurav Chauhan @ Sachin under Sec. 27 Arms Act.
105. Accordingly, accused persons namely Gaurav Chauhan @ Sachin, Sahi Ram @ Harish @ Lambu @ Moni and Ankur Singh are hereby convicted for offences punishable under Section FIR No. 199/2009, PS: Kashmere Gate, State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 90 of 91 120B/364A/506 IPC. Accused Gaurav Chauhan @ Sachin is hereby acquitted under Sec. 27 Arms Act.
Digitally signed
VIRENDER by VIRENDER
Announced in the open court KUMAR KUMAR KHARTA
Date: 2024.08.24
KHARTA
on 24th day of August, 2024 14:54:58 +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI:24.08.2024
FIR No. 199/2009, PS: Kashmere Gate,
State Vs. Gaurav Chauhan @ Sachin & Ors. Page No. 91 of 91