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Delhi District Court

Fir No. 1083/02; State vs . Hemant Etc. Page 1 Of 81 on 31 March, 2014

IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS 
                            JUDGE­03:NW:ROHINI:DELHI


SESSIONS CASE No. 65/11

                                           FIR No.    1083/02
                                           P.S.       Uttam Nagar
                                           U/S:       365/364­A/120B IPC 
                                                      & 25/27/54/59 Arms Act
  
STATE 
                                          Versus

(1) Hemant Kumar 
s/o Sh. Ram Gopal
r/o RZ­9/3,
Kailashpuri, Delhi

(2) Lalit Kumar
s/o Sh. Sumer Singh
r/o WZ­IV, Shad Nagar,
Palam Colony, Delhi

(3) Sarju Singh
s/o Sh. Sher Singh
r/o Vill. Mastapur, 
Hardoi, UP

(4) Kamal Gulia
s/o Sh. Randhir Singh,
r/o Vill. Jahidpur, 

FIR No. 1083/02; State Vs. Hemant etc.                                    Page 1 of 81
 Distt. Jhajjar (Haryana)

(5) Akhilesh Singh Tomar
s/o Sh. Sher Singh Tomar
r/o village Mastapur, PS Arwal,
Distt. Hardoi, UP

(6) Jaya Bharti @ Ritu
d/o Sh. Jai Hind Singh Yadav,
r/o 95 & 100, Gandhi Nagar, 
Firozabad, UP

Date of Institution:              05­04­2003
Date of arguments:                29­03­2014
Date of judgement:                31­03­2014

JUDGMENT

1. The case of the Prosecution, in brief, is that on 29­12­2002, at about 11 pm one Swaraj Singh came in PP Matiyala and gave in writing that at 12 pm his relative Sant Raj along with his two friends Ajay and Ashok had gone to meet a girl friend in his Santro car bearing no. HR26R­4156 at NSIT, Sector­3, near Dwarka. Sant Raj was receiving phone calls of that girl from some time and his both friends had alighted at some distance on the road and he went with the girl but he did not come back. Swaraj Singh was informed by those two boys that Sant Raj had gone with a girl in the FIR No. 1083/02; State Vs. Hemant etc. Page 2 of 81 car. On this information, wireless message was flashed and DD no. 4 was recorded on 30­12­2002. On 31­12­2002, complainant Karan Singh came to PP Matiyala, PS Uttam Nagar and gave his statement that he resides at Gurgaon and used to do farming work. He was having two sons namely Hans Raj and Sant Raj. Sant Raj, aged 22 years, was younger one and he was BA pass. Prior to disappearance of Sant Raj, one unknown girl was making phone calls at the mobile no. 9810281401 of Sant Raj for making friendship and meeting and used to say that she saw Sant Raj in the marriage of elder brother Hans Raj and she used to like him since then. Sant Raj used to do property business and he was having his own silver colour Santro car bearing no. HR­26R­4156. That unknown girl made call to Sant Raj for meeting alone outside NSIT, Dwarka, Sector­3, Delhi on road on 29­12­2002 at 12 pm. On 29­12­2002, Sant Raj along with his two friends Ajay and Ashok both residents of same village and after telling them all the facts reached Sector­3, Dwarka, near NSIT in Santro car no. HR­26R­4156. Sant Raj left his friends 100 meters away from NSIT and thereafter, reached near NSIT gate. That unknown girl came in rickshaw and stopped near Santro car of Sant Raj and after identifying the car no. and talking to Sant Raj sat in the Santro car and went with him. This incident was FIR No. 1083/02; State Vs. Hemant etc. Page 3 of 81 narrated to him by the friends of Sant Raj namely Ajay and Ashok. Complainant told that his son along with his Santro car were missing since then and he did not receive any phone call either. They tried to call on the mobile phone of Sant Raj but it was switched off. On 31­12­2002 at about 8:50 am, complainant tried to make calls at the mobile no. of his son Sant Raj from the mobile no. 9810316666 of his relative Ran Singh but mobile phone of Sant Raj was found switched off. The complainant was sure that somebody in collusion with that unknown girl had kidnapped his son Sant Raj.

2. On the basis of DD no. 4 and statement of complainant, FIR u/s 365 IPC was recorded in PP Uttam Nagar and investigation was handed over to SI Dinesh Kumar. IO sent wireless all over India wireless messages, Missing Persons Squad was informed and Hue and Cry notice were issued. Statements of witnesses were recorded. Call details of mobile no. 9810281401 of Sant Raj was obtained. On 31­12­2002, the complainant was asked to record if any ransom call was received. On 01­01­2003, section 364A IPC was added in the case as demand of Rs. One crore was made. Help of Special Cell was also taken from 01­01­2003 onwards. On 06­01­2003, the investigation was transferred to DCP, Special Cell where investigation was carried out by Inspector Brahmjeet Singh. FIR No. 1083/02; State Vs. Hemant etc. Page 4 of 81 On scrutiny of mobile no. 9810281401 of Sant Raj, it was revealed that its IMEI no. was 350779304832950 and on 02­01­2003 from this IMEI no. mobile no. 9811571367 and 9810720535 were also operational. Mobile no. 9811571367 was also operational on IMEI no. 350102606560480. The calls were made on the phone of victim Sant Raj from PCOs of Palam Colony Area. On scrutiny of mobile phone no. 9811571367, its Cell ID of 04­01­2003 was found of Etha (UP) from where conversation between victim and his parents took place. Scrutiny of mobile no. 9810720535 revealed that it was in touch with MTNL no. 25055904. Call details of mobile no. 9810316666 revealed that Ran Singh, relative of Sant Raj had talked on the phone of victim on 31­12­2002 and 01­01­2003. As the Cell ID revealed the area of Palam and Etha (UP), secret informer were deployed in these areas. Ran Singh, relative of victim Sant Raj informed Inspector Brahmjeet Singh that on 31­12­2002, 02­01­2003 and 03­01­2003, he contacted at the mobile no. 9810281401 of Sant Raj from his mobile no. 9810316666 and phone of Sant Raj was received by someone else and demand of Rs. one crore was made and it was directed to make further calls at mobile no. 9811571367. Ran Singh talked on mobile no. 9811571367 on 3/4/6/8­01­2003. The ransom calls were recorded in audio cassette which was taken FIR No. 1083/02; State Vs. Hemant etc. Page 5 of 81 into police possession.

3. On 11­01­2003, secret informer informed Inspector Brahmjeet Singh that kidnappers were seen at Ghatia Ghat, Distt. Farukhabad (UP) making calls from Pooja STD in Santro car of Sant Raj bearing no. HR26R­4156 and on 12­01­2003 they would come for making call. The information was shared with senior officers and a special team was constituted and Inspector Brahmjeet Singh along with special teal left for Farukhabad (UP) in a private hired vehicle. On 12­01­2003 at about 9:30/ 10, Inspector Brahmjeet Singh along with team reached Ghatia Ghat, Distt. Farukhabad (UP). At the same time one silver colour Santro car driven by one person and one person was sitting along with him came near Pooja STD booth and the car was bearing registration no. HR26R­4156. The person sitting on the driver seat was overpowered by Inspector Brahmjeet Singh and the person sitting along the driver was overpowered by SI Desh Raj along with accompanying staff. The name of the driver was revealed as Hemant Kumar Mudgil and name of other person was revealed as Lalit Yadav. They revealed that the car belonged to Sant Raj Yadav who was kidnapped along with their associates Akhilesh Tomar and Kamal Gulia from Dwarka Area, Delhi on 29­12­2002 at 12 pm noon. Victim Sant Raj was held captive at the FIR No. 1083/02; State Vs. Hemant etc. Page 6 of 81 house of Akhilesh Tomar at Mastapur. After taking local police from PS Arval, Inspector Brahmjeet Singh along with team reached village Mastapur, Distt. Hardoi (UP) at the house of Akhilesh Yadav where victim Sant Raj was found captive in a room and he was under the watch of Sarju Singh, brother of Akhilesh. Sant Raj was got freed and Sarju Singh was overpowered. On search of Sarju Singh, one country made pistol of .315 bore along with two live rounds were found in the right dub of his pants. The country made pistol and live rounds were taken into possession and sealed with the seal of BS. Form CFSL was filled. Inspector Brahmjeet Singh prepared recovery memos of victim Sant Raj, country made pistol, two rounds and Santro car.

4. Victim Sant Raj disclosed that on 29­12­2002, he along with Ritu went towards LIG flats where she got down on the pretext of meeting her friend. At the same time, four boys namely Hemant, Lalit, Kamal Gulia and Akhilesh came there and grabbed him and threatened him not to raise voice by showing country made pistol otherwise they would kill him. He got frighten and accused put bed sheet over him and made him sit backside below and they brought him there and made him captive. After 3/4 days at night time, accused Hemant, Lalit and Akhilesh took him at a far off place and FIR No. 1083/02; State Vs. Hemant etc. Page 7 of 81 he was allowed to talk to his parents and accused Lalit Yadav demanded Rs. one crore. In village Mastapur, Akhilesh and his brother Sarju Singh used to keep watch over him and used to threat him by showing country made pistol. Sant Raj also disclosed that at the time of kidnapping, he was having Rs. 5500/­ and golden chain which were taken by Akhilesh, his IDBI ATM card was taken by Lalit Yadav and Reebok shoes were taken by Kamal Gulia. Accused Hemant Kumar, Lalit Kumar and Sarju Singh were arrested. One mobile phone make Nokia bearing no. 9811180112 was recovered from accused Hemant Kumar which was kept open. The mobile instrument make Nokia 8250 of victim Sant Raj having IMEI no. 350779304332950 and card no. 9811571367 was also recovered. Disclosure statements of all three accused were recovered.

5. On 13­01­2003, Inspector Brahmjeet Singh along with team and accused Hemant Kumar, Lalit Yadav and Sarju Singh with case property came back to Delhi. At the instance of accused Hemant Kumar, accused Jaya Bharti @ Ritu was arrested from her house at Palam. Accused Jaya Bharti refused for TIP. On 13­01­2003 itself, on the basis of disclosure of Hemant, his mama Radhey Shyam who provided mobile no. 9811571367 and 9811180112 and money to accused, was arrested. On 16­01­2003, accused FIR No. 1083/02; State Vs. Hemant etc. Page 8 of 81 Kamal Gulia was arrested from 674, LIG Flats, Dwarka on the identification of accused Lalit Yadav and Reebok shoes of victim Sant Raj were recovered from him. Accused Kamal Gulia also refused to TIP. On 18­01­2003, supplementary disclosure statements of accused Hemant and Lalit were recorded and SIM card no. 9810281401 of victim Sant Raj was recovered from the house of Lalit Yadav. On 27­01­2003, victim Sant Raj correctly identified his Reebok shoes in TIP. On 30­01­2003, accused Akhilesh Tomar surrendered in the court and he was arrested. On 01­02­2003, at the instance of accused Akhilesh Tomar, the golden chain of victim Sant Raj was recovered from his in village Mastapur which was kept in a box. On 10­02­2003, victim Sant Raj correctly identified his golden chain in TIP. The exhibits were sent to CFSL, Lodhi colony. Call details of mobile phones were obtained. Statements of witnesses were recorded. Ballistic expert report was obtained. After completion of investigation, chargesheet u/s 365/364A/120B IPC was filed against accused Hemant Kumar, Lalit Yadav, Kamal Gulia, Akhilesh Singh Tomar, Radhey Shyam & Jaya Bharti and u/s 365/364A/120B IPC and 25/27/54/59 Arms Act against accused Sarju Singh against whom sanction u/s 39 Arms Act was also obtained.

FIR No. 1083/02; State Vs. Hemant etc. Page 9 of 81

6. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Vide order on charge dated 09­09­2003, accused Radhey Shyam was discharged from this case. Charge under Section 120B/364A r/w/s 120B IPC was framed against all the accused persons namely Hemant Kumar, Lalit Kumar, Sarju Singh, Kamal Gulia, Akhilesh Singh and Ms. Jaya Bharti @ Ritu. The separate charges against the accused Lalit Kumar, Akhilesh Singh Tomar and Kamal Gulia were also framed u/s 392 IPC and charge u/s 25/27/54/59 Arms Act against accused Sarju Singh to which they pleaded not guilty and claimed trial. During the trial of the case, accused Sarju Singh was declared PO vide order dated 15­05­2006.

7. In order to prove its case, prosecution examined 34 witnesses i.e. PW1 to PW34. Statements of all the accused persons were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. The accused persons Hemant, Lalit, Jaya Bhati opted to lead defence evidence and examined 8 witnesses from DW1 to DW8.

8. I have heard Ld. counsel and Ld. Amicus Curiae for all the accused persons and the Ld. APP for State and have perused the entire records and written submissions/arguments filed on behalf FIR No. 1083/02; State Vs. Hemant etc. Page 10 of 81 of them.

9. The Ld. counsel and the Ld. Amicus Curiae for the accused persons argued that PW1 Sant Raj stated that there was a property dispute between the family of PW1 and accused Hemant. Main dispute is with regard to land sold by Hemant. PW15 Ran Singh was the partner with PW1 in property dealing business. PW Diwan Singh is an advocate and uncle (mama) of PW1. PW1 could not admit or deny if his cousin Ran Singh talked to him through the number 2575173 on his mobile number 9810281401 from 29.12.2003 to 31.12.2003. Whether it is possible that girl may go with unknown persons immediately in the vehicle? The girl used to call PW1 from phone No. 25030102 and phone calls were received from the girl on his mobile No. 9810281401. The details of phone no. 25030102 have not been obtained nor any witness was cited for this number. Accused Kamal and Akhilesh put Khes upon PW1 and car run for about 7/8 hours and took him to house of Akhilesh and Sarju. No petrol was purchased for those 7/8 hours journey and from where the khes came. It is not possible to lie down between the backseat and front front seat of Santro car for 7­8 hours from Dwarka to Mastapur. There is no recovery from the girl and no interrogation was done regarding her friend/ saheli. During cross­examination, PW1 stated FIR No. 1083/02; State Vs. Hemant etc. Page 11 of 81 that he was handed over to his parents after reaching in Delhi and no family member accompanied the police including Ran Singh to Mastapur on the day of his recovery. PW1 stated that from Mastapur, he was handed over to his family and he came to his house. Hemant never went to Mastapur. PW1 stated in chief that he was never called to identify any persons in TIP. Identification in the court is the weakest evidence. The cross­examination of PW1 is full of contradictions and there are additions and contradictions in time. If incident had taken place with PW1, then how could he forget about it and why there are contradictions in his statements. The location of mobile no. 9810281401 was of Sewak Park, Dwarka, therefore, the statement of PW1 that they went to Mastapur from Delhi is not true. If tower location is correct, then journey to Mastapur is wrong. Tower location is scientific evidence. Victim has not come with his true versions and hiding something. Before the incident in this case, land purchasing and sale deed was also admitted by the victim. If recovery is doubtful, then whole story of the prosecution collapses. During cross­examination, PW1 stated that he had talked to Vikas and he was dropped but there is no mention of Vikas. PW1 also stated that he knows Dwarka but on the other hand, he stated that he does not know anything about Delhi. What PW1 stated about the FIR No. 1083/02; State Vs. Hemant etc. Page 12 of 81 incident was only on papers and he was not knowing about the case, therefore, it was complete ignorance of the facts on the part of PW1. Even, PW1 did not remember as to what was in the vicinity. PW1 further did not remember what was the number of persons approximately. Police told the name of accused, therefore, PW1 identified the accused Jaya Bharti in the court. PW1 did not know about the description of his shoes.

10. The Ld. counsel and the Ld. Amicus Curiae for the th th accused persons argued that no report was lodged on 29 and 30 st and FIR was lodged on 31 . If witness says I do not know/ remember, it means he has given evasive reply. The case is to be decided on the basis of testimony of Sant Raj/ PW1, other witnesses and arrest, seizure and recoveries which is not as per procedure. During cross­examination, PW18 admitted that SI Desh Raj is relative of Sant Raj. PW18 further admitted that there was dispute about some land since the day it was purchased and whole village knew about it. PW21 is PCO witness who became hostile. PW25 did not identify accused Hemant. There are contradictions in the statements of Sant Raj and Desh Raj regarding recovery of car. All the writing work was done in the office cabin of Inspector Brahmjeet Singh. SI Balihar was not cited as witness. PW28 Inspector Desh FIR No. 1083/02; State Vs. Hemant etc. Page 13 of 81 Raj is not trustworthy. Why recovery memo was not prepared at Ghatiaghat in place of Mastapur. When vehicle was deposited on 12­01­2003 then how they reached on 13­01­2003. The IO did nothing in this case. All documents were prepared by Desh Raj who is relative of Sant Raj and the same has been admitted by Ajay. No single paper was prepared by Inspector Brahamjeet Singh. Inspector Desh Raj only signed the papers and not written the statements/ documents. Sh. Diwan Singh, his son and son­in­law fabricated the false story. PW3/DX1 was referred which shows that dispute started much prior to the incident since it was a land dispute. Whoever comes in the court must come with clean hands. Sant Raj stated that he was brought with the other accused, whereas Desh Raj stated that Sant Raj was brought with them in the Santro car. PW7 R. K. Singh/ Nodal Officer stated that phone of Sant Raj was working several days prior to 31­12­2002. Why he did not make call prior to 31­12­2002. Sant Raj was at Sewak Park and roaming about in Delhi on 31­12­2002. Mobile was with Sant Raj and he was roaming in Gaffar Market, Delhi. Sant Raj was only called and parties were in touch with each other. Nothing came in the supplementary statement that his phone was with other person. PW7 appeared after 8 years but the call details were not signed/ FIR No. 1083/02; State Vs. Hemant etc. Page 14 of 81 stamped by the company. There is no certificate u/s 65 of Evidence Act supporting the statement. Abhimanyu was not produced before the Court. Phone shown in the name of Abhimanyu has no relation with the present case. PW7 is not reliable witness. The location of Sewak Park belies the prosecution story. The Inspector who recorded the transcription was not made witness in this case. Even, SI Balihar who drove the car was not made a witness. SI Balihar is an important witness since no driver of the car made witness. It means, no car went to Mastapur. This is highly defective investigation. They were putting demand in the mouth of kidnappers. Conversation between someone else to Hemant has no concern with it. This transcription is waste piece of paper. It is not clear how many times the cassette was cut and how many times it was recorded. Evidence qua the cassette was tampered with. How cassette purity has to be ascertained that it was not tampered with.

11. The Ld. counsel and the Ld. Amicus Curiae for the accused persons argued that no reliance can be placed on PW28 Inspector Brahmjeet Singh who kept changing his version. If arrest memo was prepared by Narender and he was not cited as witness nor examined, then his arrest memo cannot be read in evidence. All the arrest memos were prepared and signed by Inspector Brahmjeet FIR No. 1083/02; State Vs. Hemant etc. Page 15 of 81 Singh/ IO and witness is Inspector Desh Raj and Narender is nowhere. PW28 Desh Raj could not tell from whom phone no. 9811180112 or 9811571367 were recovered. Phone no. 9811180112 was kept open and not sealed. PW16 and PW22 were declared hostile. PW16 did not identify the accused Hemant, Sant Raj and the IO as the same persons who were present there. PW25 stated about Tata Sumo type vehicle whereas version was coming on the other side about Tata Qualis. PW25 stated about Sant Raj as 30­35 years old whereas Sant Raj stated his age in his statement as 22 years. PW25 stated that no public persons collected when they reached at the house of accused Sarju Singh. Traveling in vehicles is also in dispute. Brahmjeet and ACP were in one vehicle as stated by PW30. The Santro car was also seized through seizure memo Ex. PW28/E. The writing work was done at Mastapur but it was done after reaching at Delhi. There is no handwriting of PW30 in any proceedings of this case. During cross­examination, PW30 admitted that on 02­01­2003, he came to know the number of kidnapper i.e. 9811571367 and he came to know the location of this number on 04­01­2003. Why they waited and why they did not go on 02­01­2003 when they came to know the factum of kidnapping. PW30 stated that they remained at Ghatia Ghat for 45 minutes but FIR No. 1083/02; State Vs. Hemant etc. Page 16 of 81 no writing was done at Ghatia Ghat during that period. The disclosure statement was recorded after the recovery. The visit is doubtful since no vehicle no. and bills shown/ proved. There is no DD entry of arrival and departure. There is no DD entry for 29­12­2002. PW30 did not mention make, model of the mobile phone. There was no complaint of ransom. The call started from 01­01­2003. Conversation was being made on Sant Raj phone on 31­12­2002 but where the conversation was made for ransom, it is missing. Nowhere, this fact was mentioned. Even, this fact was not mentioned on 08­01­2003 in case diary. It means, he was never abducted. Four days transcripts i.e. 2,4,6 & 8 were filed but there is no proof of transcripts of 4 & 8 and where is the recording of 3. No call records were reflecting from Sant Raj phone regarding Ran Singh calls. Double line is also shown in CDRs which reveal insertion of calls. Recording has been fabricated later on. Expert was not having any record. There is no record in phone no. 9811571367 of Lalit. Roaming call details should also be there but not produced and no reason given for non­production of roaming calls. On 13/14/15­01­2003, accused Hemant never went to Palam but CDR shows for Vivek Vihar, N. Delhi. In the inner case diary, no such details are there. The dates of 11­01­2003 and 13­01­2003 are FIR No. 1083/02; State Vs. Hemant etc. Page 17 of 81 missing. Phone numbers of 14­01­2003, 15­01­2003 and 18­01­2003 are missing. No certificate u/s 65 Evidence Act but only plain paper were filed for the CDRs. One SIM card as recovered from accused Lalit was stated to be related to Sant Raj but no record regarding Sim card was produced. Every recovery is broken. There is no description of chain and shoes. The vague answers were given by PW30 in his cross­examination. Three phones have been stated but owners of phones were different from the accused persons. The date of cassettes reaching the FSL and prosecution date are different. The SIM cards have not been proved.

12. The Ld. counsel and the Ld. Amicus Curiae for the accused persons further argued that it was known on 31­12­2002 about the ransom call then why the FIR was not registered u/s 364A IPC. Ran Singh, Swaraj, Brahmjeet have given different statements qua investigation, recovery, and disclosure statements. There is clouds over the whole investigation. The whole case is surrounded by suspicion. PW4 stated that family members of accused Jaya Bharti were not named as witnesses to the warrant of accused Jaya Bharti. Most part of the testimony of PW6 was hearsay. No one was present at that time. He was ignorant as to who made the ransom call. PW6 does not say that any recording was done in his presence. FIR No. 1083/02; State Vs. Hemant etc. Page 18 of 81 PW8 Swaraj Singh is lawyer by profession. He was instrumental in searching PW1 in the area of Dwarka. Site plan was not prepared at the instance of Karan, Swaraj, Ajay, Ashok. Earlier, PW9 was using the number but later he was not using the number. PW9 did not remember and he was a tutored witness. Different persons gave different versions of different places. There is some manipulation in the prosecution story. PW13 did not prove the statement u/s 65 of Evidence Act. PW14 is the friend of Sant Raj and Ashok, Ajay. PW3 is contrary to PW14. PW14 did not know where he had gone. He stated that search was not conducted. PW15 is the only witness who stated that they installed the cassette recorded and recorded the conversation. Neither sample voices were taken nor asked that their voices were recorded. Every time, they tried to fill up the lacunae. There are questions on the recording of ransom call. PW15 was ignorant about the recording in the cassette recorder. There was no departure or arrival entry when the police officials reached the house of Sant Raj. The cassette was prepared when the accused were in police custody. There are chances of tampering when the cassette was kept for two days. There is no issuance letter regarding tape recorder from the Malkhana. There is no recovery of mobile from accused Kamal Gulia and his name was involved on the basis of FIR No. 1083/02; State Vs. Hemant etc. Page 19 of 81 disclosure statement. He was not arrested from the spot and he was arrested from his village in civil dress. Accused Kamal Gulia has no deep relation with other accused persons. There are 20 intervals in the cassette Ex. P4 and last conversation is dated 08­01­2003. PW15 Ran Singh stated that there was no facility of recording the conversation in his Nokia handset. The phone tapping device was given by police on 02­01­2003. Conversation was not recorded on speaker mode. There are number of discrepancies between transcript Ex. PW15/A and the conversation recorded in the audio cassette. PW1 had manufactured the new story of his back with the side of the door because he knew that no one can lie between the two seats. In support of their arguments, Ld. Counsel and Amicus Curiae for accused persons relied upon the judgements reported in the case of R. Venkatesan Vs. State 1980 Cri.L.J. 41; Rukhsar Vs. State of NCT of Delhi, Crl. A. No. 501/04 decided by Hon'ble High Court of Delhi on 09­04­2009 and Rafiq and Anr. Vs. State 149 (2008) DLT 306.

13. The Ld. Addl. PP for the State argued that accused persons in furtherance of their common intention kidnapped PW1 Sant Raj at gun point from Delhi along with his Santro car and took him to Mastapur, UP and held captive at the house of Akhilesh. The FIR No. 1083/02; State Vs. Hemant etc. Page 20 of 81 accused persons made demand of Rs. one crore as ransom from the family members of victim Sant Raj. Three accused persons were apprehended on the basis of secret information from UP and victim was got rescued from captivity. One country made pistol along with two live rounds were recovered from the possession of accused Sarju Singh. Mobile phones were recovered from accused. Three more accused persons were arrested in Delhi. The Reebok shoes of victim Sant Raj were recovered from accused Kamal Gulia and sim card of victim was recovered from the house of accused Lalit Yadav. The golden chain of victim Sant Raj was recovered from the house of accused Akhilesh Tomar at Mastapur which was correctly identified by victim in TIP. The witnesses have supported the case of prosecution. The prosecution has proved the CDRs of mobile numbers used at the time of kidnapping. The ransom calls made by the accused were recorded in audio cassettes and prosecution has proved the same and its transcripts in the court. There are minor contradictions in the testimonies of PWs which do not go to the root of the case. The accused persons cannot take benefit of defective investigation, if any. The independent public persons are generally reluctant to join investigation in criminal cases. The prosecution has proved the aforesaid recovered articles against the accused persons. FIR No. 1083/02; State Vs. Hemant etc. Page 21 of 81 Ld. APP for the State, in support of his arguments, relied upon the judgments reported in the cases of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200; State of UP Vs. Krishna Master & ors, 2010 CRI. L. J. 3889; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).

14. It is well settled and one of the cardinal principles in criminal jurisprudence that the accused is presumed to be innocent until proved guilty by the prosecution. Another golden thread which runs through the veins of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be accepted. The Apex Court in the case of Kali Ram Vs. State of Himachal Pradesh (1973) 2 SCC 808, very eloquently set forth the principles governing rules of criminal jurisprudence. It would be pertinent to reproduce the relevant paras from the said judgment here:­ "Observations in a recent decision of this Court, Shivaji Saliabrao Bobade and Anr. Vs. State of Maharashtra Cr. App. No. 26 of 1970, decided on August 27, 1973 to which reference has been made during arguments were not intended to make a departure from FIR No. 1083/02; State Vs. Hemant etc. Page 22 of 81 the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arises regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be presented before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.

Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is FIR No. 1083/02; State Vs. Hemant etc. Page 23 of 81 consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures and fanciful considerations.

It needs all the same to be re­emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to FIR No. 1083/02; State Vs. Hemant etc. Page 24 of 81 securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved the public interest and the interest of the accused alike require an acquittal.

It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expidation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not ruled out altogether. ...........

The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in case of FIR No. 1083/02; State Vs. Hemant etc. Page 25 of 81 Shivaji Sahabrao Bobade and Anr. (Supra) as is clear from the following observations:

Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."

15. Let us further examine the evidence led in this case as to whether the accused persons had committed the offence as charged or whether they have been falsely implicated in this case. PW1 Sant Raj stated in his examination in chief that accused Jaya Bharti @ Ritu used to make phone call from phone no. 25030102 and PW1 used to receive her phone calls on his mobile phone no. 9810281401.

During cross­examination by Ld. counsel for the accused, PW1 stated that he received many calls from the girl accused who usually talked about the friendship and, therefore, PW1 went to meet her but PW1 could not tell as to what other type of talks were chatting with him by that girl accused. PW1 stated in his cross­examination that he had correctly stated in his statement before the Court that "there I dropped my friend Vikas, I was told by the said girl that she want to meet me alone". PW1 admitted that he had stated so in his statement u/s 161 CrPC and when PW1 was confronted with FIR No. 1083/02; State Vs. Hemant etc. Page 26 of 81 statement Ex.PW1/A, it was not so recorded. PW1 further stated that he can only tell that it was in Sector­3 Dwarka where the girl had taken him. PW1 admitted that the aforesaid fact was told by him to the police but when PW1 was confronted with statement Ex.PW1/A, it was not so recorded. PW1 further stated that the said girl came at NSIT after about five minutes when he reached there on 29.12.2002 at about 11.45 noon. The said girl had gone in a flat of society in Sector­3, Dwarka. However, PW1 could not tell the name of the society or whether there was any mall, post office or bank adjoining or nearby the said society. PW1 even did not tell whether public persons were present at the spot where he was standing in his car and was waiting for the said girl. PW1 further did not tell what the four persons were wearing, who came after about 10 minutes at the place where he was standing in his car. PW1 did not recall the phone number from which the said girl had called him. PW1 could not tell whether the details of the telephone number from which the said girl made calls to him had appeared in the monthly bill of his mobile telephone of the said relevant period. PW1 did not receive the monthly bill of his mobile bill of December 2002 and January 2003. PW1 admitted that nothing was recovered from the said girl by the police during the investigation of this case. PW1 had told to the FIR No. 1083/02; State Vs. Hemant etc. Page 27 of 81 police that name of said girl as Jaya Bharti was told by accused Hemant in his statement recorded by the police u/s 161 CrPC. PW1 was confronted with statement Ex.PW1/DA where it was not so recorded.

16. PW9 Ashok Kumar admitted in his cross­examination that he had seen accused Jaya Bharti in the court for the first time. PW9 again said that he had seen accused Jaya Bharti on the day of incident. PW9 could not identify the cycle rickshaw puller. PW9 also did not tell the colour of the wearing clothes of accused Jaya Bharti which she was wearing at that time. PW9 did not tell whether he had signed the site plan Mark X. PW9 admitted that he had seen accused Jaya Bharti in the court for the first time. PW9 again said that he had seen accused Jaya Bharti on the day of incident. PW9 could not identify the cycle rickshaw puller. PW9 also did not tell the colour of the wearing clothes of accused Jaya Bharti which she was wearing at that time. 31.12.02. PW9 also did not tell whether he had seen the site plan after its preparation by the police. PW9 admitted that he was a good friend of Santraj. PW9 Ashok Kumar also stated in his cross­examination that Santraj was known to him since his childhood being his neighbour but he developed friendship with him two three years prior to the incident. PW6 Karan Singh in his FIR No. 1083/02; State Vs. Hemant etc. Page 28 of 81 examination in chief stated that on 29­12­2002, he along with Swaraj went to NSIT, Dwarka, Delhi in search of his son Sant Raj where they met Ashok and Ajay who told that one girl had come in a rickshaw and she sat in the car of Sant Raj and then they went away. After about 15­16 days, PW6 was informed by the police that his son Sant Raj was recovered. PW6 stated that his statement was recorded by the police on 31.12.2002. and his signature were obtained on some papers on 31.12.2002 at about 2.00 pm day but PW6 could not tell the contents of the documents which were signed by him as he stated that he was illiterate. PW6 again said that he signed his statement only and nothing else. PW6 stated that Ashok and Ajay had also gone with him to PS on 31.12.2002 but PW6 did not tell whether signatures of Ashok and Ajay were taken by the police on any paper. On 31­12­2002, again PW6 had gone to search his son along with Swaraj, Ran Singh, Ashok and Ajay. They searched for Santraj for 2/3 hours on foot. PW6 further stated that on the third day, they started at 7 or 8.00 am Swaraj, Ashok and Ajay were with him on that day. Again they searched for Santraj in the surrounding area of Subhash College for two/ three hours. They did not meet any person during the search. PW6 stated that he reported the matter to the police on 31­12­2002 at 02:00 pm. PW6 FIR No. 1083/02; State Vs. Hemant etc. Page 29 of 81 remained there for about two hours. Only statement of PW6 was recorded. PW6 further stated that in his presence, statement of no other witness was recorded by the police. His statement was recorded only once in the PS i.e. 31.12.2002.

17. During cross­examination on behalf of Ld. defence counsel, PW8 Swaraj Singh stated that Ajay and Ashok pointed out the place to the police at the time of preparation of the site plan by the police but he admitted that Ajay and Ashok did not sign the site plan nor by any other witness except the investigating officer. PW8 admitted that his statement was not recorded by the police except application Ex.PW8/A. PW8 further admitted that he did not join the investigation of this case with the police except on 31.12.2002. PW9 Sh. Ashok Kumar in his cross­examination stated that he had told to the police that he visited the spot three times i.e. on 29.12.02, 30.12.02 and 31.12.02. PW9 was confronted with Ex.PW9/DA where dates of 30.12.2002 and 31.12.2002 were not mentioned. PW9 also stated that they reached at NSIT Dwarka at about 10.45 am. They stayed there for 7­8 hours and waited for Sant Raj. They informed Swaraj at about 06.00 pm and family members of Sant Raj reached there at about 08.00 pm. They had searched Sant Raj in the area till 10.00 pm. They did not make any programme for the next day and FIR No. 1083/02; State Vs. Hemant etc. Page 30 of 81 he along with Ajay reached at NSIT on the next day at their own. They reached at NSIT at about 09.00 am and searched the Sant Raj till noon. During cross­examination by Ld. defence, PW9 stated that Santraj was his neighbour since his birth. They were also on visiting terms with Santraj. PW9 told the police that they had searched Santraj on 29.12.02 from 08.00 pm to 10.00 pm. PW9 was confronted with the statement recorded u/s 161 CrPC Ex.PW9/DA, where it was not so recorded. PW9 had told to the police in his statement that they had also gone on 30.12.02 to search Santraj in the area of NSIT. PW9 was confronted with the statement recorded u/s 161 CrPC Ex. PW9/DA, where it was not so recorded. PW9 had told to the police in his statement that they had also gone on 31.12.02 to search Santraj in the area of NSIT. PW9 was confronted with the statement recorded u/s 161 CrPC Ex.PW9/DA, where it was not so recorded. On 30.12.02, PW9 reached in the area of NSIT on his motorcycle with Ajay and had gone back on his motorcycle. PW9 did not tell with which police official they met on 30.12.02 in police post Matiala. PW9 also could not tell the description of the police official. Even, PW9 did not tell with which police official, they met on 31.12.02 in police post Matiala. PW9 also did not tell whether he had signed on any document on 29.12.02, 30.12.02 and 31.12.02. FIR No. 1083/02; State Vs. Hemant etc. Page 31 of 81

18. PW14 Inspector Dinesh Chander during cross­ examination by Ld. Defence counsel stated that DD Ex.PW5/A was not recorded in his presence, hence, he could not tell who was accompanying Swaraj at that time. PW14 did not tell at what time they had left the PP. PW14 did not tell the time when they reached at NSIT. PW14 also did not tell at what time he had sent the ruqqa. PW14 could not tell the exact time which he took to inspect the spot. PW14 admitted that he had prepared the site plan on the pointing out of Karan Singh but he did not obtain signature of any witness on the site plan i.e. Karan Singh, Ashok and Ajay. PW14 also did not call any public witness to join the proceedings, which were conducted by him at the spot. PW14 stated in his cross­examination that before starting of the Court working at 10 am, he had seen the file to refresh his memory. PW14 stated that he had gone to search Santraj in the area of PS Uttam Nagar and also in the West District but PW14 could not tell the exact area where he had gone to search Santraj. PW14 stated that he had gone in the day time, but he could not tell whether it was morning or evening. During cross­examination by Ld. defence counsel, PW15 Ran Singh Yadav stated that he was working with Sant Raj for the last about 10 years. PW15 further stated that firstly, he met with the police in this case on 01.01.03 and FIR No. 1083/02; State Vs. Hemant etc. Page 32 of 81 thereafter, police officials visited house of Santraj many times and talked with him but he went to the police on 10.01.03. PW15 admitted that his statement was not recorded by the police in between 02.01.03 to 09.01.03. PW15 further admitted that during these visits, police had made inquiries from him as to whether any conversation was recorded or not but no writing work was done. PW18 Ajay during cross­examination by Ld. counsel for the accused stated that he was working with Santraj in property dealing at his office in the name of Sheetal Properties and there was a landline phone No. 2575173 in the office of Sheetal Properties. PW18 worked with Santraj in property dealing for 1½ years prior to the incident. Thereafter, Ran Singh, brother in law of Santraj started working as property dealer with him. PW18 further stated that SI Desh Raj was relative of Santraj. Ran Singh was brother in law (Jija) of Swaraj and Swaraj was maternal uncle of Santraj. Ran Singh accompanied them all the three days to PP and also on the day when the report was lodged by Santraj's father Karan Singh.

19. PW1 stated in his examination in chief that accused Lalit Kumar started driving Santro car of PW1; accused Hemant sat by the side of accused Lalit; accused Kamal Gulia sat on the rear seat and accused Kamal Gulia and Akhilesh Singh Tomar put their feet/ FIR No. 1083/02; State Vs. Hemant etc. Page 33 of 81 legs on the back of body of PW1 since he was on the floor of the car and they put a cloth (Khes) on PW1. PW1 had told to the police that accused Akhilesh and Kamal Gulia put their feet/ legs on his back since he was on the floor of the car (foot rest) and the accused Kamal and Akilesh put a cloth "Khes on his person". PW1 was again confronted with the statement Ex. PW1/A where it was not so recorded. PW1 also stated that he was picked up between 12 noon­02:00 pm and reached in the night hours and accused Lalit was driving the vehicle from Dwarka to Mastapur. PW1 could not tell exactly who used to keep Katta on his temple because they used to keep changing. The Katta was first kept by Akhilesh second kept by Kamal Gulia and Lalit. PW1 volunteered that accused used same Katta by rotation. It is strange that accused Lalit was driving Santro car continuously from Dwarka to Mastapur and at the same time he also kept the katta by rotation on the temple of PW1 Sant Raj who was lying behind his seat while driving the Santro car. PW1 also stated that he had correctly deposed before the Court that Akhilesh forced him to lie on the rear seat and between the back of the front seat on the foot rest. PW1 admitted that the aforesaid fact was told by him to the police. PW1 Sant Raj was again confronted with statement Ex. PW1/A, where it was not so recorded. PW1 further FIR No. 1083/02; State Vs. Hemant etc. Page 34 of 81 stated in his cross­examination that he was taken by the accused persons from Dwarka at about 1 pm and reached the place in night hours but PW1 could not tell the time as to when they reached at night. PW1 admitted that he had stated to the police that the car continued to run for about 7­8 hours and they reached at an unknown place and all the four accused persons took him out of the car and took him to the house of Akhilesh and Sarju but when PW1 was confronted with statement Ex.PW1/A, it was not so recorded. The accused Akhilesh Singh Tomar put the katta on his head while accused Lalit was driving the car which was driven for about 7/8 hours and they reached unknown place. PW1 also stated that he filled up the tank to the full of its capacity in the Santro car from the Delhi border when he entered in Delhi on the day of the incident but PW1 could not tell as to how much liters he had purchased and the amount thereof. PW1 admitted that no petrol was purchased during the period when the vehicle run for 7­8 hours. PW1 also admitted in his cross­examination that vehicle continued plying for 7­8 hours and the same had not stopped anywhere to ease and they had also not stopped even for eating something. PW1 further stated in his cross­ examination that the distance between Delhi and Mastapur is 300 to 500 KM. PW1 knew the village Mastapur. PW1 could not admit or FIR No. 1083/02; State Vs. Hemant etc. Page 35 of 81 deny if there are two routes from Delhi to Mastapur, one via Moradabad and the other via Agra. PW1 could not admit or deny if there was a police post at Ghaziabad Border, Sahibabad. Same was his reply to all the routes going from Delhi to Mastapur and back from Mastapur to Delhi. PW1 also stated that the Khes was on him during the period, he laid down in the car. However, PW1 volunteered that the Khes was removed after two hours but he continued lying during the period. However, PW1 again volunteered that he got up in between this period. He remained sitting on the floor between the two seats of the car so he had not seen any Naka, chowki, Police Post, any barrier, any chungi. PW1 could not tell if the length of the santro car was 46'' from one door to another door and the width between the front and rear seat about 10''. PW1 further volunteered that his legs were spread and his back was to the side of the door.

20. PW1 stated in his cross examination that he had told to the police that on 04.01.2003, the accused persons shifted him from that room to a place which was about two hours run from the house of Akhlesh in the same Santro car. At that time, accused Hemant was driving the said car. Accused Sarju was sitting by the side of Hemant in the front seat and the other three accused Lalit, Akhlesh FIR No. 1083/02; State Vs. Hemant etc. Page 36 of 81 and Kamal sat on the backseat of the car by keeping their legs on PW1 and PW1 was made to lie on the floor of the car behind the front seat and in front of the backseat. PW1 was confronted with statement Ex.PW1/A where it was not so recorded. PW1 further stated that he had told to the police that Lalit dialled the phone at his house to Ran Singh who was his Jija and demanded Rs. one crore as ransom and from his father. PW1 was beaten by all and he was directed to speak in weeping voice and asked his family members to pay Rs. one crore and further to say not to be clever, otherwise, he would be killed. PW1 was confronted with statement Ex.PW1/A where it was not so recorded. PW1 also stated that demand of ransom was made to his family after about six days after his kidnapping. PW1 further stated in his cross­examination that he had stated to the police that Lalit dialled the telephone at the house of Ran Singh who was his Jija. PW1 was confronted with the statement Ex.PW1/A where it was not so recorded. PW1 also stated that he had stated to the police that if the ransom amount was not paid, he would be killed. PW1 was confronted with statement Ex.PW1/A where it was not so recorded. PW1 further stated in his cross­ examination that he had stated in his statement to the police that then he was brought to Basta Pur, Hardoi (UP) in the same car to the FIR No. 1083/02; State Vs. Hemant etc. Page 37 of 81 house of Akhilesh and was locked in a room of said house. PW1 was confronted with statement Ex.PW1/A where it was not so recorded. PW1 & PW28 gave different versions about the aforesaid house.

21. The house of Mastapur, where PW1 was locked up was having only one floor. PW1 admitted that there were some other houses also nearby and adjoining to the said house. PW1 was alone in the room in which he was locked up. PW1 again said that accused Kamal Gulia remained with him in the room for three days. PW28 Inspector Desh Raj in his examination­in­chief stated that Victim Sant Raj, who was lying on a cot, was rescued from a kachha room.

22. PW1 admitted in his cross­examination that he had stated to the police in his statement that he was got released on 12­01­2013 from the house of Akhilesh at Mastapur where he was confined and from Mastapur, he was handed over to his family and he came to his house. Whereas, PW1 admitted in his cross­ examination that he was handed over to his parents after reaching in Delhi and was not handed over to his family there at Mastapur. PW1 further admitted in his cross­examination that no family member accompanied the police including Ran Singh to Mastapur on the day of his recovery. PW1 further stated in his cross­examination that he FIR No. 1083/02; State Vs. Hemant etc. Page 38 of 81 was handed over to his family members i.e. his father Karan Singh and his brother Swaraj Singh by the police in the PS but he did not tell the time and name of the PS.

23. PW1 admitted in his cross examination that in his statement Ex. PW1/A the fact that the accused persons gave him beating was not mentioned. PW1 further stated in his cross­ examination that while he was beaten, he sustained injuries but those injuries were not visible. PW1 was got medically examined by the police at Delhi after his recovery from Mastapur on the same day. It is strange that the injuries which he received were automatically healed within the period of 14­15 days of his recovery and there were no visible or invisible injuries on his body on the day of his medical examination. Even, PW1 could not tell in his cross­examination if the police got him medically examined in DDU Hospital or examined in any other hospital. PW28 admitted in his cross­examination that Santraj was not having any injuries on his person.

24. PW1 in his cross­examination admitted that his statement was recorded by the police in village Mastapur but in his presence, nobody else statement was recorded. PW1 voluntarily stated that some verification was conducted from two UP police persons and two villagers though, he did not recall their names. PW1 also could FIR No. 1083/02; State Vs. Hemant etc. Page 39 of 81 not give the description of the villager as well as the police official of UP Police. PW1 could not tell how much time the police took in recording his statement and how much time the police took in verification by two villager and two policemen. However, PW1 further stated in his cross­examination that many people were gathered in the village at the time of recording his statement as well as conducting the verification of the villager. PW1 did not tell whether any cots or furniture were used to sit to conduct the proceedings on th 12 January 2003. PW1 also stated that he had stated to the police that at the time of his recovery on 12.01.2003 two villagers, two police officials of UP police and two officials of Delhi Police were also present and they signed the recovery memos. PW1 was confronted with the statement Ex.PW1/A where it was not so recorded. PW1 further stated that his two statements were recorded u/s 161 CrPC on dated 12.01.2003 and 27.01.2003. PW1 also stated that first statement was recorded at Mastapur and the second statement was recorded in Court premises at Delhi. However, PW1 further stated that his statement was recorded by the Delhi Police in the same house where he was confined. PW1 did not recall how many persons collected at the spot, when his statement was recorded. Even PW1 could not tell by approximation as to whether 25, 50 or FIR No. 1083/02; State Vs. Hemant etc. Page 40 of 81 100 persons collected there. Even, PW1 could not tell whether the proceedings were continued for one hour, two hour or for whole of the day. PW1 was not sure where his statement was recorded, how many persons were present and for what time the proceedings of the recording statement continued.

25. During cross­examination on behalf of accused Hemant, PW1 stated that he had been turning his face and body up and down during the transit and the glasses of his car were transparent. However, PW1 did not know from which route they brought him to Delhi. PW1 did not know whether police people took halt from Mastapur to Delhi. PW1 also did not tell at what time they started from Mastapur or at what time they reached at Delhi. PW1 also did not tell in which PS of Delhi, he was brought. PW1 also did not tell at what time, he left Mastapur with the police on 12.01.2003.

26. PW1 during cross­examination by Ld. counsel for the accused stated that he was working as a property dealer under the name of Sheetal Property situated at plot no. 188, Sec­56, Gurgaon. However, PW1 again said that he was not working as a property dealer. PW1 further stated in his cross­examination that the accused persons had been giving him threats while he was in partnership with his Jija Ran Singh who is witness in this case but PW1 could FIR No. 1083/02; State Vs. Hemant etc. Page 41 of 81 not tell the date, month and year of the threats and the partnership between him and Ran Singh was dissolved. PW1 Sant Raj could not tell the landline number of his Sheetal Property at Sector­56, Gurgaon which they used for their business. He even could not admit or deny if the said number was 2575173 which was existing in the said office as their landline number. PW1 further could not admit or deny if his cousin Ran Singh talked to him through this number 2575173 on his mobile number on 29.12.2003 and 31.12.03. His mobile number on those days was 9810281401. During cross­ examination by Ld. Amicus Curiae for the accused, PW1 stated that he was working as property dealer at the time of incident but PW1 did not give any document to the police to show that he was working as property dealer at that time. PW8 admitted that Santraj and Ran Singh were doing the business of property dealer in the name of Sheetla Estate and they were doing the same at the time of incident. PW8 also stated that he had been visiting Sheetla Estate but PW8 could not tell whether telephone had been installed at Sheetla Estate. PW8 even did not know whether there was any landline telephone installed at Sheetla Estate. PW8 could not admit or deny whether the landline telephone number of Sheetla Estate was 2575173.

FIR No. 1083/02; State Vs. Hemant etc. Page 42 of 81

27. PW1 also stated in his cross­examination that Ran Singh witness was the son in law of his advocate Sh. Dewan Singh who is her maternal uncle. Swaraj Singh is his first cousin and is a son of Sh. Dewan Singh, advocate who was present in the Court. Sh. Dewan Singh is in his relation so he is assisting him as his counsel in this case. PW1 further stated in his cross­examination that, "today I have come to the court with my Mamaji Sh. D.S. Yadav, who is my Advocate also and with my father". PW8 Swaraj Singh in his cross­ examination further stated that Ran Singh was his real brother in law (Jija). PW15/Ran Singh Yadav admitted in his cross­examination that counsel Sh. Diwan Singh, who was appearing on behalf of complainant, was his father in law. Meaning thereby, witness Sant Raj/PW1, witness Ran Singh, witness Swaraj Singh and Sh. Dewan Singh, advocate, maternal uncle of PW1 are in relation with each other. PW6 admitted that Ran Singh, Swaraj and Diwan Singh helped him in this case. PW28 stated in his examination in chief that he along with SI Narender Singh, SI Vijay Gulia, SI Balihar Singh, SI Ram Kumar Maan, ASI Hare Ram, HC Vinay Tyagi, HC Bhaleshwar, Ct. Ashok Kumar, Inspector Brahmjeet Singh under the supervision of ACP L. N. Rao left Delhi for Farukhabad at about 9 pm. PW30 in his cross­examination admitted that he was helping SI Dinesh Kumar FIR No. 1083/02; State Vs. Hemant etc. Page 43 of 81 on the oral directions of senior police officials i.e. ACP Sh. L.N. Rao on 02.01.03. PW28 stated in his cross­examination that SI Balihar Singh was not cited as a witness but he was the member of the raiding team. PW28 did not recall by whom the other two vehicles were being driven and he had not seen them. PW28 also did not know who sat in those two other vehicles. ACP L.N. Rao was sitting with other members of raiding party. PW28 did not recall the vehicle numbers in which ACP L.N. Rao was sitting. PW28 joined the investigation on 01.02.03 and went to Mastapur along with Inspector Brahamjeet and the accused Akhilesh Yadav. They went in a private Qualis which was being driven by a private driver, but he did not tell the name of that driver and the number of the vehicle. PW28 also did not tell the colour of the vehicle and stated that his statement was recorded in Mastapur. No arrival/departure entry was made at PS Arwal of area Mastapur. PW28 also stated that local police of Farukkabad was not contacted initially. No written work was done at Farukkabad. They had reached Mastapur at about 12.00 noon. PW28 admitted that the whole case diary and investigation, writing work had been carried out by him and SI Narender Singh and no writing work was carried out by Inspector Brahmjit Singh in his own hand and he only signed as IO. PW30 in his cross­examination FIR No. 1083/02; State Vs. Hemant etc. Page 44 of 81 stated that bills of the payment of hiring vehicles have not been filed on the judicial file as the same have been submitted by him in his department to claim the expenses. PW30 even did not remember the name and exact address of that travel agency from which the vehicles were hired. PW30 did not mention this fact in his case diary. PW30 also did not remember the exact amount of the bills claimed by him. During cross­examination by Ld. counsel for the accused, PW34 retired SI Abad Ali stated that on that day Delhi police was having only one vehicle. PW34 admitted that Delhi Police officials came only in one vehicle. The said vehicle was big Tata Sumo type and there were total 5­6 people in the said vehicle including the public person. PW34 also stated that no police official was present in the court (today) who went in the said vehicle on that day. PW34 stated that he did not know the person namely Brahmjit Singh who was showing him his file in the Ahlmad room before deposing by him in the court. PW34 admitted that Brahmhjit Singh was not present in the said team on 12.01.03. PW34 did not know where the Delhi police officials went after completion of writing work at the spot. PW34 further stated that after completion of the writing work he along with SI Mujahid Ali went to the PS Arval. Delhi police officials did not accompany to them to the PS Arval on that day. FIR No. 1083/02; State Vs. Hemant etc. Page 45 of 81 During cross­examination, PW34 stated that his statement U/s 161 Cr.PC was recorded by SI Desh Raj but was not read over to him.

28. PW21 Mukesh Kumar, in his cross­examination by Ld. APP for State, could not tell whether any Santro car no. HR­26R­4156 was seized by the police which was standing outside the PCO booth. PW21 further could not tell whether two persons came in the Santro car and made quarrel from the PCO booth. PW21 stated that he did not see two persons sitting in the Santro car. PW21 denied that accused Hemant and Lalit were seen by him in the Santro car while they were sitting in the Santro Car. PW21 also stated that none made any call in his presence from PCO Booth on that day and even no one was arrested in his presence nor any car was seized. PW28 did not do any writing work at Pooja PCO in the morning time. PW28 admitted that no other police official also did any work at that time and no local police official was called before reaching Pooja PCO and after coming back again at Pooja PCO. PW30 did not tell in his cross­examination that if there were toll barriers and police check posts on the way from Delhi to Mastapur, or at main Choraha Farukabad which falls prior to Pooja Studio and at Pulia over Ram Ganga River which falls ahead of Pooja Studio, in the year 2003 or not.

FIR No. 1083/02; State Vs. Hemant etc. Page 46 of 81

29. PW1 stated in his cross­examination that he did not know if his Mama (maternal uncle) Deewan Singh, advocate had lodged FIR no. 685 dated 30.09.2007 u/s 506 IPC against Hemant and his father etc. in city PS Gurgaon on the allegation that he was sitting in a court on Sunday where he was threatened in the present case while his Munshi was made as a witness. PW1 further stated that he also did not know if the said case was found to be false and a final report was filed for cancellation of the said false case. During cross­examination, PW15 stated that litigation was pending between accused Hemant and Santraj's father regarding land. PW15 admitted that he was partner of Santraj at the time of registry of this land. PW18 stated in his cross­examination that there was dispute about the land since the day it was purchased and whole of village knew about it. PW18 also admitted that Santraj/PW1 used to drink and roam with girls. PW28 also stated that he knew that there was a civil litigation pending between the victim and Hemant's family.

30. PW6 Karan Singh in his cross­examination by Ld. Defence counsel stated that Swaraj Singh did not tell him as to from which phone number, he received ransom calls. PW6 also stated that he had talked with his son Santraj on 04.01.2003, but he could not tell from which phone number he was speaking with him. PW6 FIR No. 1083/02; State Vs. Hemant etc. Page 47 of 81 also did not tell any telephone number to the police from which ransom calls were received. PW6 further did not tell whether Ran Singh or Swaraj told any such telephone number to the police. PW6 admitted that police did not make any inquiry in his presence about the phone number from which the ransom calls were received. PW6 further stated that he did not attend any call from any person regarding ransom except from his son which was received on 04.01.2003.

31. PW7 Sh. R. K. Singh, Nodal Officer during cross­ examination stated that no certificate has been given on call details Ex. PW7/A to Ex. PW7/C regarding their authenticity. PW7 admitted that these call details did not bear any stamp and signatures of any officer. PW7 further stated that after going through the record, he could tell whether the above three phone numbers were prepaid or postpaid. PW7 admitted that he did not issue certificate Ex.PW7/D as required by police. PW7 further stated in his cross­examination that location of landline number cannot be ascertained. PW7 also stated that the code No. 777 was showing the tower location of Sewak Park, New Delhi. According to the location, the mobile phone number 9810281401 must have been used by the holder in Delhi in the area of mobile cover of Sewak Park. Duration of this call was FIR No. 1083/02; State Vs. Hemant etc. Page 48 of 81 338 second. According to Ex.PW7/A, from 29.12.2002 from 11.18 am to 01.11.03 from 14.34 pm, location of mobile phone No. 9810281401 was of Sewak Park, New Delhi, having code No. 7772 and total nine incoming calls were received on this mobile phone at different times as shown in Ex.PW7/A. The tower location of mobile phone No. 9810281401 was changed on 02.01.03 at about 12.57 to 12.58 pm. to code No. 301 i.e. Najafgarh. PW7 admitted that it was an outgoing call made to mobile phone No. 9810281401. PW7 further stated that if the mobile phone of a person is showing sometimes location of one tower and sometime location of other tower and both the areas are adjoining, then the person may be in the centre of both the towers. PW26 Sh. Deepak Gupta, DGM, Legal & Regulatory, Vodafone Essar stated in his examination in chief that as per call details record for the period from 01­01­2003 to 20­01­2003, the mobile no. 9811180112 stands in the name of Abhimanyu, resident of B­29, Tikri Extension, Khanpur, N. Delhi­62. As per call details record for the period from 01­01­2003 to 15­01­2003, the mobile no. 9811571367 stands in the name of Kuldeep Kumar Narang r/o E­286/4, Thir Vihar, New Delhi.

32. PW30 in his cross­examination further stated that he did not get verified regarding the owners of the phone numbers which FIR No. 1083/02; State Vs. Hemant etc. Page 49 of 81 were being reflected in the CDR of phone of Hemant. PW30 in his cross­examination stated that the make and number of the mobile phone which Santraj was carrying was not mentioned in Ex.PW8/A. PW30 admitted that even in DD no. 4 Ex.PW5/A dt. 30.12.2002 of PP Matiala the make and the number of mobile phone was not mentioned. PW30 in his cross­examination that he had verified the fact who had talked with Sant Raj from phone number 1242375436 on 29.12.2003 and 31.12.2002 and it was found that no talks could take place during the said two calls. PW30 admitted that the cell location of the number of 9810281401 on 29.12.2002 from 11:18 hours till 01.01.2003 upto 14:34 hours was 777 i.e. of Sewak Park, New Delhi. PW30 also admitted that there are three incoming calls on 06.01.2003 from number 1242375436 on the number of Sant Raj and this number belonged to some relative of Sant Raj from whom he did not make any inquiry. PW30 in his cross­examination admitted that the CDR of 9811571367 Ex.PW26/B does not find mention of the two calls dt. 04.01.03 from the number of Ran Singh. PW30 also stated that the roaming call record of 9811571367 was not there. PW30 did not recall about the location of Cell Phone No. 9811571367 and it was informed to him by the said Nodal Officer that on that day the location of the said cell phone was of Etah (UP). FIR No. 1083/02; State Vs. Hemant etc. Page 50 of 81 The said query and the reply was on telephonic conversation and no record was there. PW30 did not record the statement of the said official of the service provider to this effect but the said fact was recorded by him in the case diary. After referring the record, PW30 submitted that as no call record of the roaming of said phone was available, as such, he was unable to tell on which dates the said cell phone was on roaming. PW30 admitted that on 08.01.03 there was a call from the phone of Ran Singh on the mobile number 9811571367 and the same was reflected in the CDR of Ran Singh and the same was not reflected in the CDR of cell phone number 9811571367. PW30 in his cross­examination stated that Nokia model no. 8250 was recovered and on checking the same IMEI No. 35077930433295/5 model no. 8250 was found written. PW30 did not collect the proof of ownership of said mobile instrument. PW30 did not verify the IMEI no. of said phone instrument from its manufacturer. As per Ex.PW7/D and Ex.PW26/C one Abhimanu r/o B­29, PGRI extn. Khanpur New Delhi, was the owner of mobile no. 9810720535 and 9811180112 while one Kuldeep Kumar Narang was the owner of the mobile No. 9811571367. The said persons have not been made witness in the present case. PW30 in his cross­ examination stated that he did not send the mobile phones to the FIR No. 1083/02; State Vs. Hemant etc. Page 51 of 81 FSL for verification of their IMEI number.

33. PW33 Sunil stated in his examination in chief that in the year 2002, he was working on a shop of mobile phones known as Neelkanth Communications situated at 1655/C, Najafgarh, Delhi. PW33 further stated that none of the accused persons were the persons to whom SIM card was sold. PW33 also stated that after 1­ 1½ months, police officials of PS Uttam Nagar visited the shop and they were making inquiry regarding the SIM card sold from their shop. All the persons employed at the shop were inquired by the police in this connection. PW33 stated that he did not make any statement to the police. PW33, in his cross­examination by the Ld. APP for the State, denied that he had made statement to the police u/s 161 Cr.P.C. on 20­01­2003. Statement Mark PW33/A was read over and explained to the witness who denied having made such statement to the police. PW33 denied that he had told to the police that Radhey Shyam told him that he will use one SIM card and another SIM card will be used by his nephew Hemant.

34. PW15 admitted in his cross­examination that he handed over the cassette to police on 10.01.2003 at about 11.00 am at Lodhi Colony and thereafter, he never contacted the police. PW15 further stated that the transcription which has been placed on record, was FIR No. 1083/02; State Vs. Hemant etc. Page 52 of 81 cassette prepared by police on 10.01.2003 itself and was shown to him on the same day. The transcription Ex. PW15/A (running into 9 pages) was prepared by police in his presence, after playing a cassette in a room and thereafter his signatures were obtained on the same. PW15 stated that only one cassette was recorded in this case. PW15 admitted that he did not put any identification on the cassette before handing over the same to police, but it was of T­ series. PW15 further admitted that all the conversation in the audio cassette Ex.P4 was transcribed by the police and SI Desh Raj, Inspector Brahmjeet Singh and other 2­3 police officials were present at that time. PW15 stated that when the cassette was played simultaneously SI Desh Raj reduced into writing the conversation. However, PW15 again said that he did not recall whether it was reduced into writing by SI Desh Raj. PW15 admitted that the wordings "Hamse bees lakh ho sakega and acha to bees lakh hi de do" were not in the conversation as recorded in Ex.P4. PW15 further admitted that the words "kitna ho sakega, one rupee, do rupee, dus rupee, 15 rupee" are not appearing in the conversation as recorded in Ex.P4. PW15 also stated that at the time of starting of recording of audio cassette, some portion was forwarded from beginning and it was left blank. Thereafter, recording was started. PW15 admitted FIR No. 1083/02; State Vs. Hemant etc. Page 53 of 81 that the opening sentence in the cassette supplied to the accused containing the words "hello­hello Lalit Kumar main inspector Deshraj Yadav bol rahan hun, ab tumhari specimen voice record ki jayegi". The cassette Ex.P4 was taken out and played and it was revealed that same also contains specimen voice of accused Lalit and conversation recorded by witness Ran Singh. PW15 further stated in his cross­examination that Inspector Brahmjeet Singh and SI Deshraj had conducted investigation in this case. PW15 admitted that no public person was present at the time of sealing of the cassette. Cassette was sealed by SI Deshraj.

35. PW15 further stated in his cross­examination that there was no facility of recording the conversation in his Nokia handset. PW15 admitted that no memo was prepared, when blank cassette was handed over for recording and no particular marking was done on the blank audio cassette. PW15 also admitted that such blank audio cassette are easily available in the market. PW15 admitted that his separate statement was not recorded in respect of sealing of the audio cassette. PW15 further stated that the arrangements of recording were made by the police and he was briefed as to how the recording was to be done but he could not tell the names of the police officials, who had made arrangements of the recording. PW15 FIR No. 1083/02; State Vs. Hemant etc. Page 54 of 81 admitted that the specimen voice of accused Lalit was not taken in his presence. PW15 in his cross­examination further stated that his mobile number was 9810316666 and he did not remember whether he had a talk with Santraj on this mobile phone number on 29.12.02. PW15 did not tell whether he had a talk with Sant Raj from the office phone No. 124­2575173 of Sheetla Property. PW15 stated that the police had provided taping device on 02.01.03 and it was removed on 09.01.03 but Police had not heard the recorded conversation during the period 02.01.03 to 09.01.03. PW15 also admitted that he had not told to the police about the conversation took place in between 02.01.03 to 09.01.03 on daily basis to the police. PW15 did not know the names of the police officials, who had visited their house in between 02.01.03 to 09.01.03. PW15 did not visit the PP or PS in between 02.01.03 to 09.01.03. PW28 Inspector Desh Raj admitted in his cross­examination by the Ld. defence counsel that the duplicate copy of the cassette was not prepared in his presence. PW28 stated in his cross­examination that IO Inspector Brahamjeet had arranged the equipment for recording the voice sample. He brought the said equipments from the malkhana of Special Cell. All the equipments were deposited on the same day except audio cassette. PW28 also stated that all the recording work was carried FIR No. 1083/02; State Vs. Hemant etc. Page 55 of 81 out in the office. His statement was recorded on 19.01.03 but he did not know in whose hand writing it was recorded.

36. PW28 stated in his cross­examination that at the time of recording of specimen voice, no expert was called. PW28 further stated that Ran Singh was not called and even no independent witness was joined at that time. PW30 in his cross­examination stated that no team of CFSL was called at the time of taking of voice sample of accused Lalit. The cassette in which the voice sample of accused Lalit was taken by PW30 either from the store of their office or from the market but PW30 did not remember exactly. No independent witness was joined at the time of taking of voice sample of accused Lalit and the time duration of the above said voice sample, PW30 did not recall. During cross­examination by Ld. counsel for the accused PW31 Sh. Deepak Kr. Tanwar, Sr. Scientific Officer Gr­I (Phy.) CFSL, CBI, New Delhi stated that he was not told specifically which voice amongst the many voices recorded in the tape he had to identify. Nobody pointed out to him in the questioned tape as to which voice he had to analyze. PW31 stated that he was not provided the copy of transcript of the voice recording of this case. PW31 could not tell about the transcript shown to him from the court file which was Ex.PW15/A whether it FIR No. 1083/02; State Vs. Hemant etc. Page 56 of 81 contained first sentence starting with "haan bolo jee" since PW31 was given only the audio cassette. PW31 could not tell about the transcript Ex. PW15/A since it was not given to him. PW31 admitted that the questioned recording was not done in his presence. PW31 also stated that since the forwarding authority did not make any request to verify the genuineness of the tapes and as such, no such examination was conducted by him in this respect. PW31 could not tell what was the original frequency of the voices and how much was it reduced after the process of telephone instrument, tape recording and microphone used. PW31 had not mentioned regarding the frequency of the voice which were checked by him. PW31 stated that he had noted the frequency response of the signal during the auditory examination on the instrument namely voice spectrograph and same was noted in. PW31 admitted that auditory worksheet had not been filed by him nor the spectrograph. PW31 was questioned as to where had he mentioned in his preliminary examination that there were no channel distortions to which he answered that no such report was prepared for preliminary examination. PW31 further stated that it is advisable that the sample tape are prepared in the presence of a voice expert or a person trained in voice recording. PW31 did not ask the investigating agency from where they had got FIR No. 1083/02; State Vs. Hemant etc. Page 57 of 81 the tape prepared and the manner in which they have prepared. Since the samples were not prepared in his presence, so he could not tell whether the voice samples were of Lalit Kumar or someone else. PW31 could not comment whether the evidence tapes/questioned tapes were genuine or were fabricated by the investigating agency.

37. PW28 admitted in his cross­examination that no request letter was given to the MHC(M) in his presence or to anyone to get the tape recorder from the malkhana. PW28 did not recall the said tape cassette was the case property of which case and he did not see any slip pasted on the said tape recorder. PW30 stated in his cross­examination that he was unaware about the make of that tape recorder as well as who had provided the said tape recorder to Ran Singh.

38. PW16 Biren stated in his examination in chief that he does not know anything about this case. PW16 stated that he had gone to purchase milk for making tea from his house in the house of one Sarju. He also stated that some persons were sitting at the door of house of Sarju and his signatures were obtained on blank papers forcibly. PW16 further stated that he cannot identify the persons who obtained his signatures on blank papers forcibly as they were not FIR No. 1083/02; State Vs. Hemant etc. Page 58 of 81 known to him. During cross­examination by the Ld. APP for State, PW16 stated that he cannot identify Hemant and Lalit whether they were present in the house of Sher Singh Tomar father of Sarju at that time and even he cannot identify Sant Raj. Even, PW16 did not identify IO Inspector Brahmjeet Singh as the same person who was present there. PW16 also did not identify katta and live cartridge which were recovered from accused Sarju (PO). PW16 further did not identify Sant Raj as the same person who allegedly was recovered from the house of Sarju. PW16 denied that he had told to the police that on 12­01­2013, the police officials along with Hemant and Lalit visited village Mastapur and house of Sher Singh Tomar was searched. During cross­examination by Ld. Amicus Curiae for the accused, PW17 Sudhir Gulia stated that he did not recall at what time, he received the sealed pullandas from the MHC(M).

39. PW19 Umesh Singh stated in his cross­examination that he was working as property dealer for the last about 10 years. PW19 further stated that someone on the day of recording his evidence i.e. on 06.08.2010 outside the court had shown him his statement and he read over the same. IO Inspector Brahmjeet Singh of the case was called inside the court who had been identified as the same person by the witness, who had read over the statement of FIR No. 1083/02; State Vs. Hemant etc. Page 59 of 81 witness to him. PW19 admitted that no document was executed and the rent was settled verbally on trust. PW19 admitted that whatever he had stated in the court, was told to police by him. PW19 had told to the police in his statement that he had shown flat No. 674, pocket­1, Sector­14, LIG Flat to the said Raj Kumar and another boy. PW19 was confronted with Ex.PW19/DA, where it was not so recorded. PW19 had told to the police in his statement that he had shown flat No. 674, pocket­1, Sector­14, LIG Flat to the said Rajkumar and another boy. PW19 was confronted with Ex.PW19/DA, where it was not so recorded. PW19 admitted that he remembered the facts on that day because these had been told to him by the police on that day. PW19 also admitted that he had stated to the police in his statement that the said Rajkumar and another boy requested him to place one table and chair in the said flat and further requested that he will come after one week and will occupy the flat as he belonged to Rajasthan. PW19 was confronted with Ex.PW19/DA, where it was not so recorded. PW19 also stated that he had told to the police in his statement that the mobile number which was given to him could not be contacted. Every time it was found switched off. PW19 was confronted with Ex. PW19/DA, where it was not so recorded. PW19 further stated that he told to the FIR No. 1083/02; State Vs. Hemant etc. Page 60 of 81 police in his statement that on 17.01.2003, he received a call on his mobile phone. PW19 complained to the caller that neither rent was paid nor anyone came to him to execute the rent agreement. PW19 was confronted with Ex.PW19/DA, where it was not so recorded. PW19 also stated that he did not receive any summon for the day when this testimony was recorded in the court but he had been called on telephone by IO Inspector Brahm Jeet Singh. He made a call on his mobile. PW19 did not lodge any report with the police regarding visit of accused Hemant at his office, one month prior to that day. PW19 admitted that accused Hemant had not threatened him.

40. PW22 Gopal Pratap Singh stated in his examination in chief that he does not know anything about this case and his statement was not recorded by the police on 12­01­2003. During cross­examination by the Ld. APP for State, statement of PW22 recorded u/s 161 Cr.P.C. was read over to him but he denied the same having made to the police. PW22 also denied that he had stated to the police that on 01­02­2003, police along with accused Hemant and Lalit came to their village and conducted a raid at the house of Sarju Singh Tomar. PW22 further denied that he had told to the police in his statement that door of the inner room was closed FIR No. 1083/02; State Vs. Hemant etc. Page 61 of 81 and Sarju Singh was sitting outside the door. PW22 also denied that he had told to the police in his statement that from the search of Sarju Singh, one country made loaded katta of .315 bore was recovered from his right side dub and one live cartridge was recovered from his pant. PW22 further denied that he had told to the police in his statement that desi katta was unloaded and sketch of the same was prepared. PW22 denied that he had told to the police in his statement that recovery memo of Sant Raj was also prepared and he signed the seizure memo of katta and cartridge, recovery memo of Sant Raj, sketch of katta and cartridge as a witness. PW22 did not identify accused Lalit and Hemant and he stated that he had not seen both the accused persons in the village at any time. PW22 denied that on 12­01­2003, he was present in the village and accompanied the police with accused Hemant and Lalit to the house of Sarju Singh. PW22 also denied that Sant Raj was recovered from a room in the house of accused Sarju Singh or that one live cartridge and one loaded katta was recovered from accused Sarju Singh. PW22 further denied that recovery memo of Sant Raj was also prepared or that sketch, seizure memo and recovery memo are bearing his signatures.

41. PW25 Retd. SI Mujahid Ali in his examination in chief FIR No. 1083/02; State Vs. Hemant etc. Page 62 of 81 identified accused Akhilesh as accused Hemant. During cross­ examination by the Ld. Addl. PP for the State, PW25 was pointed out towards the accused Hemant and after seeing accused Hemant, PW25 stated that he was not accused Hemant. During cross­ examination by Ld. counsel for the accused, PW25 stated that he had not seen Santraj on that day nor he could identify him. Arrival entry of accused persons were not made in PS Arwal nor their departure entry were made. No public person collected at the house of accused Sarju Singh, when they reached there.

42. Let us further discuss whether the arrest, disclosure statements, recoveries and seizure memo made as per procedure. During cross­examination by Ld. counsel for the accused, PW4 ASI Devender Kaur stated that the family members of the accused Jaya Bharti were not made witnesses of arrest. PW28 in his cross­ examination stated that he signed as a witness on the seizure memo which he prepared and got the signature of Inspector Brahamjeet Singh as a recorder of the statement. PW28 admitted that all this writing work was carried out in the office cabin of Inspector Brahamjeet Singh. Inspector Brahamjeet Singh took Ran Singh and the cassette at the office of ACP after completion of the writing work in his cabin. PW28 did not know whether Brahamjeet made the FIR No. 1083/02; State Vs. Hemant etc. Page 63 of 81 entry qua this fact in the case diary. PW28 also stated that he had seen the case diary and even this fact was not mentioned in the same. PW28 admitted in his cross­examination that no police personnel of Haryana police was joined the raiding team nor they were made witness to any of the recovery prepared by them there. Nothing was recovered from village Nanukhor. Same was his answer regarding the place Haryana. PW28 stated in his cross­ examination that no memo was prepared regarding handing over and taking over of the seal. PW28 could not tell as to from whom phone no. 9811180112 or 9811571367 was recovered. Phone No. 9811180112 was kept open and was not sealed. PW1 was not sure about the size no. of his shoes which was recovered by the police.PW1 did not tell whether the shoes which were identified by him as of his own were of 9 or 10 number or from where he had purchased those shoes. PW1 also could not produce any purchase receipt of the same. PW1 admitted that the shoe which were identified by him were available in the market. PW28 in his cross­ examination stated that no public person was asked to join by the IO in his presence at the time of seizure of shoes of victim from accused. There was no specific mark of identification on the shoes of victim at the time of recovery. PW28 in his cross­examination FIR No. 1083/02; State Vs. Hemant etc. Page 64 of 81 further stated that no identification mark was put by the IO on the golden chain at the time of its seizure.

43. PW30 admitted in his cross­examination that he did not give any identification marks to the recovered shoes and gold chain. PW30 also did not collect any documentary proof regarding ownership of said gold chain from Sant Raj. PW30 had deposited the case property in the present case in the malkhana and he did not sign register No. 19. PW30 in his cross­examination stated that no independent witness had joined at the time of seizure of questioned cassette. PW30 further stated that no independent witness was joined at the time of arrest of Kamal Gulia. No independent witness joined despite efforts made by PW30 on 18.1.2003 from near the house of accused Lalit prior to the recovery of SIM Card. No notice was given to the persons who refused to join the investigation. They refused to give their names and addresses. PW30 did not ask the neighbours of the house of the Lalit to join the investigation. PW30 during cross­examination by Ld. Defence counsel stated that accused Jaya Bharti was arrested by him from her residence i.e. RZ­ A7, Palam Colony on the disclosure statement of accused Hemant and at the residence of accused Jaya Bharti, her parents also met him. She was arrested from the main lobby of the ground floor of the FIR No. 1083/02; State Vs. Hemant etc. Page 65 of 81 said house. PW30 did not record the statements of parents of accused Jaya Bharti at the time of her arrest. PW30 in his cross­ examination admitted that the disclosure statements of accused persons including Hemant and Lalit were recorded after the recovery of victim at the place from where the victim was rescued. There are no public witnesses to the memos i.e. arrest memos of accused Jaya Bharti, Akhilesh Singh, Kamal Gulia; personal search memos of accused Hemant, Sarju Singh, Lalit, Jaya Bharti, Kamal Gulia; seizure memos of cassettes, mobile phones, Reebok shoes and golden chain; disclosure statements of all accused persons. On seizure memo of mobile sim card no. 9810281401 Ex. PW28/3, PW Sumer Singh refused to sign.

44. In the present case, there is no public or independent witness to the recovery of the above discussed seizure, arrest and recoveries. The police officials are only interested in the success of their story and therefore the testimonies of police officials cannot be believed without corroboration. In my considered opinion, statutory desirability in the matter of arrest, recoveries and seizure is that there should be support from unbiased and neutral corner. The arrest, search, recoveries and seizure before an independent witness imparts much more authenticity and credit worthiness to FIR No. 1083/02; State Vs. Hemant etc. Page 66 of 81 these proceedings. Such safeguard is intended to avoid criticism of arbitrary and high­handed action against police officers. This is to lend credibility to the procedure relating to arrest, search, recoveries and seizure. In Staila Sayyed Vs. State 2008 (4) JCC 2840, it was held that there was non­joining of public witness at the time of arrest of accused and recoveries. All the witnesses to the recoveries were police officials. Such recoveries do not inspire confidence. It seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt for the prosecution case. In Nanak Chand Vs. State, 1991 Rajdhani Law Reporter 62, it was held by Hon'ble High Court that if recovery is in the absence of witnesses, who could be available then it casts doubt on prosecution. In Dinesh Kumar Vs. State, 1998 [1] JCC [Delhi] 173, it was held by Hon'ble High Court that disclosure statement and recovery of knife not made in presence of independent witnesses. Only police constables are the witnesses. No explanation coming forth for not joining independent witnesses.

45. PW14, in his cross­examination by the Ld. defence counsel, could not tell whether he had made any DD entry when he left to search Santraj. Even, PW14 did not tell whether he made any DD entry regarding his arrival after the search. PW28 admitted in his FIR No. 1083/02; State Vs. Hemant etc. Page 67 of 81 cross­examination that in his presence, no entry regarding the arrival and departure of witness Ran Singh was made in the record of police station. PW28 further stated in his cross­examination that on 18.01.03. they went to village Nanukhor near Pataudi, Gurgaon, but they did not go to police station of the said area nor they recorded arrival entry in this regard. PW28 also stated in his cross­ examination that no arrival/ departure entry was made at PS Arwal of area Mastapur. PW28 admitted that he did not make entry at local police of Mastapur. PW28 also stated in his cross­examination that in the entire writing work done by them, they had not mentioned any particulars of the DD entry recorded at PS Arwal. PW30 did not record the departure entry when raiding party left the office of Special Cell on 11.01.03 as well as the arrival entry when raiding party came back at the office of Special Cell after the raid on 13.01.03. PW30 during his cross­examination after going through the record stated that there was no document of any DD entry qua Mastapur.PW30 further stated that the case diary used in this case was not paginated and numbered one. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 that "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to FIR No. 1083/02; State Vs. Hemant etc. Page 68 of 81 approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."

46. In the present case, PW28 admitted in his cross­ examination that he did not verify who was owner of Pooja PCO. Public persons were also present at Pooja PCO. Other shops were also there adjacent to Pooja PCO and people were going and coming on those shops. Inspector Brahamjeet Singh had asked 4­5 of those public persons, but none agreed to join the proceedings. No notice was given to any of those persons who refused to join. PW28 could not give the description of those persons who were asked to join the proceedings. PW28 also admitted in his cross­examination that public persons were present on their return to Pooja PCO and nobody from the public was joined in the investigation or in recording the statement at that time. PW28 admitted in his cross­examination that after 12.01.03, they did not try to join any of the public witness i.e. on 13.01.03, 16.01.03, 18.01.03, 19.01.03, 30.01.09, 01.02.03 & 24.03.03. PW28 admitted in his cross­examination that after FIR No. 1083/02; State Vs. Hemant etc. Page 69 of 81 apprehension of accused Lalit and Hemant, no public person were called at the time of interrogation. At the time of recording disclosure statement the public persons were not joined. PW28 during his cross­examination stated that no attempt was made from neighbouring shopkeepers to STD Booth to join the investigation prior to the arrest of the accused at the time they were waiting for the Santro Car. PW28 also stated in his cross­examination that no public person was present when the disclosure statement of accused persons namely Hemant and Lalit were recorded. PW28 also stated in his cross­examination that when they reached at the house of accused Akhilesh on 01.02.03, public persons of the locality were called to join the investigation, however, they did not sign the documents and statements prepared at that time by the IO. IO had not given any notice to those persons in his presence regarding refusal in joining the investigation. PW30 in his cross­examination stated that no independent public witness was joined at the time of recording of disclosure statements of Hemant and Lalit which was recorded at the house of accused Akhilesh situated at village Mastapur. In this context, I would place a reliance upon the judgment reported in the case of State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held that the FIR No. 1083/02; State Vs. Hemant etc. Page 70 of 81 failure of the prosecution to examine independent witnesses though available is fatal for their case. In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful.

47. The accused persons have examined eight witnesses in their defence evidence. DW1 Sh. Paramvir Singh, ASI, brought the summoned record in respect of FIR No. 685/2007 dated 30.09.2007 u/s 506 IPC, PS: City Gurgaon, Haryana. The case was filed as untraced and the order of court of Judicial Magistrate, Gurgaon on dated 07.04.2008. This case was registered on the complaint of Sh. D. S. Yadav, advocate. DW2 HC Sri Chand also brought the summoned record i.e. FIR no. 685 dated 30­09­2007 lodged in the PS, Gurgaon City and the original FIR registered containing the aforesaid FIR. DW­3 Sh. Amit stated that he knows Lalit (present in nd the court) as he is his neighbour as he is his friend. It was 2 Saturday of January 2003 and on Saturdays he goes to Shani FIR No. 1083/02; State Vs. Hemant etc. Page 71 of 81 Mandir in the morning to offer prayers and oil to Shani Maharaj. DW3 further stated that at around 10.00/10.30 am on the said day, he was purchasing oil from Bunty General Store when he heard some noise from behind him. He turned to his back side and saw few people putting accused Lalit in a Maruti Zen car. The crowd had collected and one of the persons from crowd questioned as to why they were forcibly taking away Lalit on which one of the person who was putting the accused Lalit in the car said that they were from Special Cell, Lodhi Colony and took away Lalit. He, thereafter, went to the house of accused Lalit and informed his mother. During cross­examination, DW3 denied that no such incident had taken place in his presence or that accused Lalit was not forcibly abducted or taken by the police of Special Cell.

48. DW­4 Sh. Sumer Singh Yadav stated that accused Lalit is his son. One HC Om Prakash Yadav r/o RZ­10B, Gali no. 6, Baba Chatri Marg, Raj Nagar, Part­I, Palam Colony, Delhi was posted in Special Cell, Lodhi Road in the year 2002­2003 and he knew HC Om Prakash who was also running committees of which he was a member. There was a dispute regarding committee between DW4 and HC Om Prakash. On 09­01­2003, DW4 had gone to his native village Karira, Distt. Mahendergarh, Haryana. On 11­01­2003, he FIR No. 1083/02; State Vs. Hemant etc. Page 72 of 81 had gone for some work in nearby village and on his return in the evening, he received a phone call from his wife who informed him that his son Lalit had been lifted by Special Cell persons. He immediately returned back and thereafter went to Special Cell office where he was not allowed to enter inside and was made to talk to ACP Sh. L. N. Rao. Sh. L. N. Rao asked him to come on 13­01­2003 as he was not in town. He stated that there was nothing to worry about and that somebody had named his son and his son was with him and are making inquiries. On 13­01­2003, DW4 met Sh. L. N. Rao who again repeated the aforesaid facts and stated that he is personally inquiring into the matter and after making some inquiries, he would release his son. DW4 kept on visiting the office again and again and he was given the same assurances. DW4 believed the assurance of Sh. L. N. Rao and also did not want to annoy him at such critical juncture. The police never visited their house along with accused Lalit. On 18­01­2003, DW4 received a phone call from Lodhi Road office and told that his son would be produced in court on 19­01­2003. He went to the court from where his son was sent to J/C and he was shocked. He went back to Sh. L. N. Rao and met him at his office and he assured that there is nothing against his son and he would be released from the court. The moment DW4 got out FIR No. 1083/02; State Vs. Hemant etc. Page 73 of 81 from the office of Sh. L. N. Rao, he saw HC Om Prakash who had been promoted. Om Prakash told him that now he knew who was a cheater. At that time, DW4 became sure that HC and now ASI Om Prakash was involved in false implication of his son. During cross­ examination, DW4 denied that his son was never forcibly lifted by the officials of Special Cell as deposed by him.

49. DW5 SI Inderjeet Singh brought the summoned record i.e. in respect of posting of police officials at Special Cell, Delhi. As per the records ASI Om Prakash having belt no. 1631/D and PIS No. 28760016 was posted in the special cell on 24.02.2001 to 03.02.2005. DW6 Sh. Amrinder Singh, Deputy Record Keeper, Sessions Court, Gurgaon, Haryana, brought the summoned record pertaining to cases decided by the court at Gurgaon. DW6 admitted that statement of Karan Singh was recorded. Karan Singh was one of the DW3 in civil suit no. 288/10. During cross examination by the Ld. Adddl. PP, DW6 stated that as per the record/judgement DW6/A suit of the plaintiff was dismissed. The suit between the parties as per Ex. DW6/A4 was instituted on 11.01.2004. DW6 admitted that as per the record, the civil suit no. 288/10 which was dismissed on 30.08.2011. DW6 also stated in his cross­examination that as per documents Ex.DW6/A, its appeal was also dismissed on 20.09.2012 FIR No. 1083/02; State Vs. Hemant etc. Page 74 of 81 by Sh. Vijay Singh, Ld. Addl. District Judge, Gurgaon vide civil appeal no. 11. DW7 SI Sukhbir Singh, stated that Diwan Singh Yadav (present in the Court) gave a complaint at PS Badshahpur, Gurgaon and alleged that he was threatened by some persons but after inquiry, the said complaint was found to be false, the photocopy of the same was Mark DW7/A having a stamp of PS Badshahpur. DW8 Sh. Awadh Bihari, Jr. Assistant, in Hon'ble High Court of Punjab and Haryana, Chandigarh, (Punjab) brought the summoned record i.e. RSA regular second appeal No. 1193/2013 titled as Yogesh Mudgil Vs. Karan Singh and others arising out of the order passed by Sh. S.K. Khanduja,Ld. Addl. Distt. Judge, Gurgaon dt. 18.12.2012. DW8 further stated that the appeal was pending against the said order and as per record, the next date of appeal was 20.05.2014.

50. It has emerged from the above discussed testimonies of PWs that there are major contradictions in the statement of PW1 Sant Raj. No call details of the phone of accused Jaya Bharti have not been proved on record. PW1 could not tell the name of the society, adjoining area and if any person present there. Nothing was recovered from accused Jaya Bharti. PW1 could not tell who exactly used katta on his temple. If accused Lalit was continuously driving FIR No. 1083/02; State Vs. Hemant etc. Page 75 of 81 the car from Delhi to Mastapur without any break then how he could use katta by rotation on PW1 who was lying behind his seat on the footrest. PW1 did not prove any receipt for taking petrol for Santro Car before the incident. PW1 also could not tell about anything regarding the way from Delhi to Mastapur while the windows of the vehicle were transparent. There was no mark of injury found on the person of PW1 regarding his beatings by the accused. PW1 was also not sure about the place where he was confined. On the one hand PW1 stated that he was handed over to his family at Mastapur and then he came to his house. On the other hand, PW1 admitted that he was handed over to his parents after reaching in Delhi. Even if, PW1 was handed over at Police Station in Delhi, he could not tell in which Police Station he was handed over to his parents. PW1 also did not tell in which hospital he was got examined by the police in Delhi. PW1 also did not give description of any villager or police official of UP Police. PW1 further did not tell as to what time the police took for verification and recording of his statement. Even PW1 was not aware what items i.e. cots or furnitures were used to sit for conducting proceedings at the place where he was confined. Further, PW1 could not tell how many people collected there and even he was not sure as to how many times his statement was recorded. FIR No. 1083/02; State Vs. Hemant etc. Page 76 of 81 PW1 also did not tell if the police took halt from Mastapur to Delhi and at what time they started from Mastapur. If PW1 was working as a property dealer in Sheetal Property, why he was not aware about the landline number of that Sheetal Property. Further, PW1 could not give any document that he was working as property dealer at that time. Whereas, PW8 has stated the name as Sheetla Estate. There was a civil litigation between PW1 and accused Hemant. PW9 also did not tell the colour of wearing clothes by accused Jaya Bharti at the time of incident. PW1 and PW9 were well known to each other being good friends. PW6 admitted that his statement was recorded by the police and signatures were obtained on some papers, the contents of which he was not aware. Even PW6 was not aware whether signatures of PWs Ashok and Ajay were taken by the police on papers. PW8 also admitted that his statement was not recorded by the police. PW14 also stated that he did not obtain signature of any witness on the site plan i.e. Karan Singh, Ashok and Ajay. PW15 was also knowing PW1 for the last about 10 years since he was working with him. PW15 himself admitted that police had made inquiries from him whether any conversation was recorded or not but no writing work was done by the police. PW18 was also working with PW1 in property dealing in his office. PW1, Ran Singh, Swaraj Singh FIR No. 1083/02; State Vs. Hemant etc. Page 77 of 81 and Sh. Diwan Singh, Advocate are in relation with each other. The investigation was also conducted on the oral directions of ACP L.N. Rao who is also relative to them. SI Balhar Singh was not cited as a witness, however, he was a member of the raiding team.

51. PW28 could not tell the colour of the vehicle and the local police of Farukabad was not contacted and no written work was done at Farukabad. The whole case diary, investigation and writing work was carried out by PW28 and IO only signed. Bills of hiring vehicle have not been filed on judicial file. PW34 admitted that he did not know Brahmjeet Singh. PW34 further admitted his statement u/s 161 CrPC was recorded by SI Desh Raj but it was not read over to him. PW21 did not support the case of the prosecution. Call details have not been proved as per procedure. The mobile number 9811180112 stood in the name of Abhimanyu and mobile number 9811571367 was in the name of Kuldeep Kumar Narang but they were neither examined nor made witnesses. PW33 also did not support the case of the prosecution and stated that he could not give any statement to the police. PW15 admitted that no public person was present at the time of sealing of the cassette. No particular marking was done on the blank audio cassette. Police had not heard nd th the recording conversation from 2 January to 9 January. All the FIR No. 1083/02; State Vs. Hemant etc. Page 78 of 81 recordings were carried out in the office but no expert was called there. Even no independent witness was joined at that time. PW31 also admitted that the questioned recording was not done in his presence. PW31 further admitted that it is advisable that the sample tape are prepared in the presence of the voice expert or a person trained in voice recording. Therefore, PW31 also admitted that since the samples were not prepared in his presence, so he could not tell whether the voice samples were of Lalit Kumar or someone else. PW28 did not see any slip pasted on the tape recorder which was brought from the Malkhana.

52. PW16 stated that he did not know anything about this case and not supported the case of the prosecution. PW19 stated that Inspector Brahmjeet Singh had shown him his statement and read over the same outside the Court when his statement was recorded in the Court. PW19 also stated that he did not receive any summons but he was called by IO Inspector Brahmjeet Singh on his mobile. Further, PW22 also stated that he did not know anything about this case and his statement was not recorded by the police. PW25 identified accused Akhilesh as accused Hemant. Even, PW25 did not see PW1 at the house of Sarju Singh. PW15 admitted that no memo was prepared when blank cassette was handed over FIR No. 1083/02; State Vs. Hemant etc. Page 79 of 81 for recording and no particular marking was done on the said blank cassette. There was no independent witness to the seizure of the questioned cassette. There were no identification marks to the recovered shoes and gold chain. The arrest, disclosure statements, recoveries and seizure memos were neither recorded nor made as per procedure. Even DD entries were also not made for arrival or departure.

53. In Vikramjit Singh @ Vicky Vs. State of Punjab, 2007 (1) CC Cases (SC) 35, it was held by the Hon'ble Supreme Court that where two views of a story appeared to be probable, the one that was contended by the accused should be accepted. In Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court held that in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to go to accused.

54. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has failed to prove its case against accused persons beyond reasonable doubt, the benefit of which goes to them. Accordingly, all accused persons namely FIR No. 1083/02; State Vs. Hemant etc. Page 80 of 81 Hemant Kumar, Lalit Kumar, Kamla Gulia, Akhilesh Singh Tomar and Jaya Bharti @ Ritu are acquitted. Accused Kamal Gulia and Akhilesh Singh Tomar be released forthwith if not wanted in any other criminal case. The bail bonds of accused Hemant Lumar, Lalit Kumar and Jaya Bharti are cancelled and their sureties are discharged. The documents of sureties, if any, be released against proper acknowledgment. File be consigned to Record Room with liberty to prosecution to revive the case file as and when accused Sarju Singh who is PO is arrested and produced before the Court.

(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW­03:ROHINI:DELHI.

ANNOUNCED IN THE OPEN COURT on 31­03­2014 FIR No. 1083/02; State Vs. Hemant etc. Page 81 of 81