Rajesh Dalal vs State (Govt. Of N.C.T. Of Delhi) ...
2007 Latest Caselaw 1916 Del

JUDGMENT

R.S. Sodhi, J.

Page 2807

1. Criminal Appeal Nos. 800 of 2003 and 129 of 2004 seek to challenge the judgment and order of Additional Sessions Judge, Delhi, in Sessions Case No. 23 of 2001, arising out of F.I.R. No. 1059 of 1999, Police Station Paschim Vihar, whereby learned judge vide his judgment dated 30.10.2003 has held the appellants, namely, Rajesh Dalal and Pankaj Gambhir, guilty for the offence punishable under Sections 120B I.P.C. and under Section 364A/120B I.P.C. Further vide his order dated 31.10.2003, has sentenced the appellants to imprisonment for life for offence punishable under Section 364A/120B I.P.C. together with fine of Rs. 500/- each and in default of payment of fine, Rigorous Imprisonment for one year each.

2. Brief facts of the case as have been noted by learned Additional Sessions Judge in his judgment under challenge are as follows:

...that on 23.12.99 at about 1.35 p.m., Mrs. Vijaya Awasthy was going to fetch her son Saurabh, who was a student in St. Saviour Public School, Balbir Singh Marg, A-2, Paschim Vihar and then she saw that while returning from school, her son Saurabh reached near corner of Adarsh Apartments, A-2 Block, Paschim Vihar, then a white coloured maruti van came from which her son-in-law, Rajesh Dalal and his friends Pankaj and others got down. They took away her son Saurabh despite his resistance.Mr. Vijay Kumar Awasthy at about 1.40 p.m. received a telephone call in his office at B-2/205, Competent Plaza, Paschim Vihar, from accused Rajesh Dalal that he had kidnapped his son Saurabh and he should hear his voice. Mr. Vijay Kumar Awasthy heard voice of his son Saurabh on telephone, who was saying 'PAPA MUJHE BACHA LO AUR RAJESH DALAL KI SAARI SHARTEN MAAN LO NAHI TO YEH MUJHE JAAN SE MAAR DENGE'. Then accused Rajesh Dalal disconnected the telephone. Mr. Vijay Kumar Awasthy rushed towards his house from his office. Near the school his wife Mrs. Vijaya Awasthy met him and at that time, she was very much perturbed and while weeping she told her husband that Rajesh Dalal with his companions had taken away Saurabh in a white maruti van.At Police Station, Paschim Vihar at about 2.20 p.m., information was received from P.C.R. that 2/3 Page 2808 boys who were in school uniform and were wearing green coloured coat, were kidnapped in a maruti vehicle from A-2 Block, Saviour School. The information was recorded at Srl. No. 11-A in D.D. Register and copy of the same was entrusted to SI Rajiv Godial (PW-17) for investigation. SI Rajiv Godial with Constable Joginder reached the place of occurrence where Mrs. and Mr. Vijay Awasthy met him. SI recorded statement of Mr. Vijay Awasthy who narrated the entire occurrence to SI and SI recorded his statement and got a case registered under Section 365 I.P.C.

During investigation, SI prepared site plan and recorded statements of the witnesses. Supplementary statement of Mr. Vijay Awasthy was also recorded and then Section 364A I.P.C. was added in the case. During further investigation, I.O. recorded statements of witnesses and seized a micro cassette containing voice of accused Rajesh Dalal.The kidnapped Saurabh Awasthy managed to escape from the clutches of accused persons while he was being taken to Panipat and he managed to reach his house. I.O. recorded statement of Saurabh Awasthy also and accused Rajesh Dalal, Pankaj Gambhir, Manoj and Rajesh Rana were arrested. All the four accused persons made disclosure statements separately admitting their guilt. During investigation, school bag of Saurabh, pen and maruti van which was used for kidnapping were recovered. The mobile phone which was used by accused Rajesh Dalal was also recovered. Accused Rajesh Rana and Manoj refused to participate in T.I.P.After transfer of SI Rajiv Godial, SI Puran Chand (PW-15) took over the investigation and he got recorded statement of kidnapped boy under Section 164 Cr.P.C. During further investigation by SI Rajbir Singh, the delivery letter of maruti van was seized and details of mobile phone were also collected. T.I.P. of the pen allegedly recovered from accused Rajesh Rana was also got conduced. After completion of investigation, challan was prepared and filed in the court of Metropolitan Magistrate, who after completing the formalities committed the same to the Court of Sessions for trial.

3. The Prosecution in order to establish its case examined as many as 19 witnesses. Of these, PW-1, Constable Mukesh Kumar, is a witness to the arrest of appellant Rajesh Rana from Village Qutab Garh. PW-2, Constable Joginder Singh, is a formal witness. PW-3, A.S.I. Radha Rani, recorded formal F.I.R., Exhibit PW 3/A. PW-4 is Mrs. Vijaya Awasthy and PW-5 is Mr. Vijay Kumar Awasthy, are the star witnesses. PW-6, Saurabh Awasthy, is the victim. PW-7 is Sushil Verma, who had sold the alleged maruti Omni van to the appellant, Rajesh Dalal vide receipt Exhibit PW 7/B. PW-8 is Saravjeet Singh Gill, who had sold the maruti Omni van to Sushil Verma (PW-7) vide delivery receipt Exhibit PW 7/A and handed over the same to the police, seized vide memo Exhibit PW 8/A. PW-9 is Mahinder Singh, owner of a house in Nilothi Extension, which house was taken on rent by appellants, Rajesh Dalal and Pankaj Gambhir by one Mr. A.S. Roy. PW- 10, A.S. Roy, let out the house of Mahinder Singh (PW-9) for Rs. 800/- per month to the appellant Rajesh Dalal and one other boy. PW-11, S.I. Surender Kumar Gulia, conduced the T.I.P. proceedings. PW-12, Head Constable Raj Kumar, is a witness to the arrest of Rajesh Rana from Village Qutab Garh vide Page 2809 arrest memo Exhibit PW 12/A and recovery of one pen, seized vide memo Exhibit PW 12/B. PW- 13, Constable Vijay Bahadur, proved disclosure statements of accused Exhibit PW 13/A and PW 13/B. He is a witness to the arrest of appellant Rajesh Dalal and Pankaj Gambhir vide arrest memos Exhibit PW 13/C and PW 13/D respectively. PW- 14, Constable Mamraj Dhaka, collected the details of mobile phone numbers 9811027223 and 9811056457, Exhibit PW 14/A. PW-15 is S.I. Puran Chand. PW-16, Major A.R. Satish (Retired), Executive Administrator, S.R. Hutchison Telecommunication, brought the record of mobile numbers 9811027223 and 9811064457, Exhibit PW 16/A and PW 16/B. PW-17 is S.I. Rajiv Godial, the Investigating Officer. PW-18 is S.I. Rajbir Singh and PW-19 is Head Constable Malkiat Singh, who was working as M.H.C. (M) and proved entries in register No. 19.

4. It is argued on behalf of appellant, Rajesh Dalal, in Criminal Appeal No. 800 of 2003, that the entire case is stage-managed and false. It is an outcome of a marital discord between the appellant, Rajesh Dalal and Dolly, which has resulted in multifarious litigations including the present one. He submits that the alleged kidnapping which is sought to be proved with the aid of PW-4, Smt. Vijaya Awasthy, as also PW-6, Saurabh Awasthy, is nothing but repetition of pre-arranged dialog in a stage-managed drama. He contends PW-4 and PW-6 are absolutely untrustworthy witnesses and their statements inspire no confidence. There is no evidence on record to show that a ransom demand was made or communicated nor is there any material on record to show that the mobile phones allegedly used in making the ransom call belong to the appellant. Learned Counsel contends that the Prosecution has fabricated evidence as has been held by the trial court by introducing a rent receipt Exhibit PW 9/A to show the location where PW-6 was detained. He also contends that since the trial court has acquitted Rajesh Rana and Manoj of the charges framed on the same evidence, the conviction of the appellant, Rajesh Dalal, was wholly unjustified.

5. Learned Counsel for appellant, Pankaj Gambhir, in Criminal Appeal No. 129 of 2004, states that he has been implicated only because he is a friend of Rajesh Dalal and instrumental in getting the marriage performed between Rajesh Dalal and Dolly, which has festered into multifarious litigation.

He contends that PW-4 and PW-6 have narrated a highly improbable story which is not supported by any corroborative evidence. He further contends that the trial court, having noticed a clear violation of Section 157 of Code of Criminal Procedure, has failed to appreciate that the F.I.R. is a result of deliberations and not a factual account. He contends that from the material on record, the conviction of the appellant cannot be sustained.

6. Learned Counsel for the State, on the other hand, has contended that the trial court has meticulously gone through the evidence to arrive at its conclusion which cannot be faulted with. The role of the appellants is well- defined and their participation in the kidnapping of PW-6, Saurabh Awasthy, for ransom has been proved beyond shadow of doubt.

Page 2810

7. We have heard learned Counsel for the parties and with their assistance have been taken through the material on record. It appears to us that the substratum of the Prosecution's case is built around the deposition of PW-5, Vijay Awasthy, father of the victim. He deposed that marriage of his daughter, Dolly, took place with the appellant, Rajesh Dalal, on 30.9.1998. No child was born of the wedlock. Dispute arose between them resulting in his daughter coming back to her parental house on 26.6.1999. On 1.9.1999 at around 9 a.m., Chowkidar informed him that his wife was weeping; that people have gathered around Ashoka Apartments between Mandir and their house. The Chowkidar also told him that Rajesh Dalal Along with some other boys had attempted to kidnap Dolly. On hearing this, he rushed to the spot and came to know that Rajesh Dalal Along with Ashok and Pankaj Gambhir wanted to kidnap Dolly. The F.I.R. of that incident has been recorded but witness did not know who got the same recorded. The witness goes on to depose that on 23.12.1999, when he was present in his office at Paschim Vihar, around 1:40 p.m., he received a telephone call from Rajesh Dalal that he had kidnapped his son, Saurabh Awasthy.

He also heard the voice of his son Saurabh, who was weeping and saying that the witness should accept all conditions laid down by Rajesh Dalal otherwise he could be killed. After attending the phone call, the witness rushed towards his house. On the way, he saw his wife in a perplexed condition. She was weeping. His wife informed him that their son was kidnapped by Rajesh Dalal Along with other associates. They suspected that Rajesh Dalal had kidnapped Saurabh out of vengeance due to quarrel between him and Dolly. At the time of kidnapping, Saurabh was in his school uniform. During this conversation, the police arrived and the Investigating Officer recorded his statement Exhibit PW 5/A. On 23.12.1999, he received threats from Rajesh Dalal that he should withdraw all cases pending against him and also pay him a sum of Rs. 25 lacs as a condition for release of Saurabh. On 24.12.1999, he handed over a cassette containing telephonic conversation between him and Rajesh Dalal to the police which was seized vide memo Exhibit PW 5/B. On a court question, the witness states that the cassette contains a telephonic conversation and messages received at his house on phone Nos. 5571630 and 5675299. In cross-examination, the witness admits that he did not mention the demand of Rs. 25 lacs in his statement Exhibit PW 5/A. He admits that he had made the aforesaid statement after receiving a telephone call from Rajesh Dalal. The witness was confronted with Exhibit PW 5/A, where the demand of Rs. 25 lacs was not mentioned. He admits that he did not go to the principal of the school although his wife was standing in front of the school and a crowd of 20-25 persons had gathered. He admitted that he did not tell the police about any boys having told him that his son had been kidnapped. He cannot identify any particular boy who told him that his son had been kidnapped. The witness also states that when he reached the spot, persons living in that apartment were already present on the spot. No one from the crowd knew the van number. He admitted Dolly and Rajesh Dalal married as a result of a love affair and that their family had Page 2811 reservation about the same as Rajesh Dalal was unemployed and was not fully educated. He admits that on 5.3.1999, Rajesh Dalal gave a cheque of Rs. 1,50,000/- in connection with business as contribution from his side but deny that he gave another sum of Rs. 2,10,000/- towards the same business. He admitted that a panchayat was held to solve the matrimonial dispute and decision was taken regarding taking divorce by mutual consent and return of share of Rajesh Dalal in business. He denied that the voice of Rajesh Dalal was not recorded in the cassette. He admitted that there was no verification of the contents of the tape-recording by any competent authority. The witness, in further cross-examination, deposed that his wife had told him the names of Rajesh Dalal and Pankaj Gambhir, whom she knew and did not name any other person since she did not know the name of two other persons. He did not recollect whether he himself had named Rajesh Dalal and Pankaj Gambhir in his statement made to the police at that time. He had not made any call to the police but came to know that Mr. Azad had informed the police.

8. From the testimony of this witness, it is evident that he saw nothing but only heard from others what they told him. His narration of occurrence is 'here say'. It is also worth taking into consideration that on 23.12.1999, when he is alleged to have received the telephone call from his son- in-law, Rajesh Dalal, regarding the kidnapping of Saurabh and heard the voice of Saurabh, this witness did not pass on this information to the police, in the first instance. On the contrary, he runs home. This witness did not tell his wife that he received a telephone call from Rajesh Dalal or that he had spoken to Saurabh or of any threat made out to him conveyed through Saurabh to accept demands. It is also strange that this witness did not report the matter to the school authorities nor took them into confidence regarding the kidnapping of his child from the gate of the school. In any event of the matter, as already noted, the statement of PW-5 is the nature of information received second hand.

9. The next material witness of the Prosecution is PW-4, Smt. Vijaya Awasthy. She states that on 23.12.1999 around 1:35 p.m., she had gone to the school to fetch her son Saurabh, who was a student of 11th standard studying in Saint Saviour School, Paschim Vihar. The witness claims she was on foot when her son met her, again said, she saw him coming from school while she had just reached near Adarsh Apartments. There, she saw a white maruti car coming behind her son. Accused Rajesh Dalal and Pankaj Gambhir alighted from the maruti van Along with other two colleagues, whom she did not know. They all forced her son to sit in the van, although her son Saurabh was resisting. At that time, she cried for help and after sometime saw her husband present at the spot. The witness goes on to say that she saw her husband spontaneously, that is, almost at the same time when the accused persons had taken away her son, Saurabh. She told her husband everything. After sometime, police reached and enquired from her as to how the incident took place. The police recorded her statement. The witness states that at the time when the kidnapping had taken place, the van had no number plate on it. In cross-examination, she states that Saurabh was coming from school Along with 4-5 other boys.

Page 2812

The witness admits that neither she nor her husband had rang up the police but public had gathered including the Vice- Principal of the school and he informed them that the police had been contacted. She did not know the name of the Vice-Principal. When the police arrived, there were around 20-25 persons present. Neighbours were also present. She admits that marriage of her daughter and Rajesh Dalal was against their wishes. Immediately after the incident, she did not go inside the school to seek help of the authorities.

10. From the statement of this witness, it appears that she was very close to the point of the so-called abduction and at the same time her husband was also present there. She narrates her story to the husband but the husband did not tell her anything about what he had heard. This witness is also not the maker of the F.I.R., even though, alleged to be an eye-witness to the occurrence.

11. PW-6, Saurabh Awasthy, has descriptively narrated the incident in his examination-in-chief but in cross-examination, he states that his statement was recorded by the police on 24.12.1999, when he returned home from kidnapping. He did not remember if he had come to the court on 30.2.2000. He did not know the boys who were Along with him at the time of the incident. He narrates that all the four persons lifted him and put him in the van and thereafter Rajesh Dalal started driving the van while the other three caught hold of him. He states that he was studying in the 11th standard during the time. He states that he had told the Magistrate that a white van came and stopped, confronted with Exhibit PW 6/A, where it is not so recorded. He claimed to have stated that Rajesh Dalal was driving the van at the time, confronted with Exhibit PW 6/A, where it is not so recorded. He did not recollect whether Pankaj Gambhir caught hold of his hands or that there was some film on the windscreen, confronted with Exhibit PW 6/A, where it is not so recorded. However, he states that Rajesh Dalal was at the driving seat while the other three persons were on the rear seat. There was lot of traffic and the van was required to stop at a number of red lights. He denies he was not kidnapped.

12. While analyzing the statement of witnesses and the material on record, we find that the first informant, namely, Azad Singh, has not been examined. We also find that the F.I.R., which was purportedly recorded on 23.12.1999, was sent to the Illaka Magistrate on 4.1.2000. There is no explanation for this delay. PW-6, Saurabh Awasthy, while giving a detailed description of how he was kidnapped, has deposed about being beaten through out the night by the kidnappers but there is no medical evidence on record to show that PW-6 was subjected to any brutality. He deposes to the effect that a large number of telephone calls were made throughout the night by the kidnappers to his house, yet no record of such calls has been relied upon by the Prosecution. Even the so-called audio cassette which purportedly records the conversation between the kidnappers and PW-5, did not fix the location nor the telephone number from which the calls were received. PW-6 talks of a suicide note having got written by Page 2813 the kidnappers but the Prosecution did not recover the same nor relied upon it. His dramatic escape on 24.12.1999 from near White House, Paschim Vihar, adjacent to his family's residence, throws grave doubt regarding the probability of the so-called kidnapping. Surely, the kidnappers would not take rounds of the house of the victim, if there was any seriousness in their action.

13. PW-10, A.S.Roy, is the property dealer who is purported to have negotiated with PW-9, Mahinder Singh, for the purposes of procuring the room on rent on behalf of the appellants. This witness does not identify the appellants. PW-9, the so-called house owner does not even remember the number of the house in which the room was sought to be let out to the appellants. He admits that the rent receipt was got prepared by him by the police at the police station.

14. There is ample evidence on record to show that the marriage between Dolly and Rajesh Dalal was not appreciated by PW-4, Vijaya Awasthy and PW-5, Vijay Awasthy, who admit to the same and that there was bad blood between the accused and the witnesses on this account. The so-called audio conversation recorded on cassettes has not been proved. There is also nothing in the cassettes to reveal ransom demand. Even, the trial court has termed this as valueless piece of evidence. The alleged mobile phone recoveries from Rajesh Dalal are not connected with Rajesh Dalal inasmuch as there is no evidence on record to show that Rajesh Dalal was the owner of the mobile phones or that the same were used by him. This fact is also noted by the trial court as having not been proved. Surprisingly, even the maruti van has not been connected with the appellants. Its ownership has not been traced to the appellants nor is there any evidence as to how the appellants came into possession of the van.

15. Further, even the location of the house in which PW-6, Saurabh Awasthy, is stated to have been detained by the kidnappers, is not identified. Rent receipt Exhibit PW 9/A shows the location as Chander Vihar, Kaccha Colony, where as PW-10 deposes that it is in Guru Nanak Enclave, while PW-13 deposes the same to be House No. 39, Nilothi. PW-17 deposes that it is in Teacher Vihar while PW-18 deposes that it is in Nilothi Extension. We also find that the circumstance of conspiracy sought to be proved, has not even been put to the accused in their statement under Section 313 of Code of Criminal Procedure. Moreover, PW-6 admits that he did not see any weapon or firearm with the accused.

16. The trial court, while appreciating the evidence on record, has returned a finding that the Investigating Officer has planted rent receipt Exhibit PW 9/A in this case in order to link the accused with the alleged premises used for detaining PW-6, Saurabh Awasthy. The court also notes that even though Manoj and Rajesh Rana were identified by PW-6 as the assailants, yet they stand acquitted since the court did not rely upon the evidence of PW-6 qua Manoj and Rajesh Rana. The court, while acquitting Manoj and Rajesh Rana, returned a finding that the testimony of Investigating Officer, PW-17, was not reliable, yet used the testimony of PW-6 and PW-17, S.I. Rajiv Godial, to hold the appellants guilty. The trial court, while agreeing that there Page 2814 was a possibility of false implication of the accused, has gone on to convict the appellants.

17. Having carefully analyzed the material on record, we find that the entire Prosecution story of kidnapping of PW-6 by Rajesh Dalal and Pankaj Gambhir, for ransom is unreal and does not inspire confidence. The conviction based on the evidence of PW-4, Vijaya Awasthy, PW-5, Vijay Awasthy as also PW-6, Saurabh Awasthy, is not sustainable. Since, the testimony of these witnesses contradict each other on material aspect, are not totally reliable and exhibits an unnatural conduct besides, the witnesses nurturing grudge against the accused as has been observed by the trial court itself. The testimony of these witnesses, when analyzed against the touchstone of rationality, does not inspire confidence. Even the First Information Report received on 2:20 p.m. of 23.12.1999, was dispatched to the Illaka Magistrate on 4.1.2000 giving ample opportunity to tamper with the same. It is surprising that a 17 years old boy, who is a Basket Ball champion, could be picked up at the school gate in the presence of a huge gathering without anyone interfering, helping nor being examined as witness of the kidnapping. The very fact that PW-4, Vijaya Awasthy, states that her husband was present at the time her son was being abducted, belies the stand taken by her husband, PW-5, that he had come to the spot after having received a call from the kidnappers and after having talked to Saurabh Awasthy on the phone. The conduct of PW-5 in not reporting the matter to the police immediately raises grave doubt in respect of his testimony. The testimony of PW-6, Saurabh Awasthy, to say the least, appears to be a result of tutoring only to nail the appellants, who are none other than the discarded husband of Dolly and his friends.

18. The very fact that the trial court itself did not place implicit reliance on the statement of PW-6 while acquitting Manoj and Rajesh Rana and also the fact that the Prosecution tried to introduce a rent receipt to implicate the accused persons and introduced a room which has never been identified, raises grave doubts as to the veracity of the Prosecution's case.

19. In view of our discussion above, we find that the judgment of conviction dated 30.10.2003 and the order on sentence dated 31.10.2003 of the trial court cannot be justified. The same are, therefore, set aside and the appellants herein are acquitted of all the charges framed. Criminal Appeal Nos. 800 of 2003 and 129 of 2004 are allowed. The appellants, who are in jail, shall be set at liberty forthwith unless wanted in any other case.