Delhi High Court
Nitin Aggarwal vs State on 2 July, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: May 05, 2010
Judgment delivered on: July 02, 2010
+ CRIMINAL APPEAL NO.13/2008
SAURABH GUPTA ....APPELLANT
Through: Mr. Sandeep Sethi, Sr. Advocate with
Mr. Anurag Jain, Advocate
Versus
STATE ....RESPONDENT
Through: Mr. M.N. Dudeja, APP
WITH
CRIMINAL APPEAL NO. 62/2008
PUNIT SUNEJA & ANR ....APPELLANTS
Through: Mr. Raman Sahney, Advocate
Versus
STATE ....RESPONDENT
Through: Mr. M.N. Dudeja, APP
AND
CRIMINAL APPEAL NO. 70/2008
NITIN AGGARWAL ....APPELLANT
Through: Mr. Sandeep Sethi, Sr. Advocate with
Mr. Anurag Jain, Advocate
Versus
STATE ....RESPONDENT
Through: Mr. M.N. Dudeja, APP
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
Crl.A.Nos.13/2008, 62/2008 & 70/2008 Page 1 of 25
AJIT BHARIHOKE, J.
1. Above three appeals are directed against the impugned judgment
in Sessions Case No.74/06, FIR No.558/2000 in terms of which the
appellants Punit Suneja, Vineet Suneja, Ram Bahadur, Saurabh Gupta
and Nitin Aggarwal have been convicted for the offences punishable
under Section 120B IPC and Section 364-A IPC read with Section 120-B
IPC for abducting Nidhi, daughter of Narender Jain for ransom in
furtherance of their criminal conspiracy, as also against the consequent
order on sentence dated 07.09.2007.
2. Briefly stated, case of the prosecution is that on 22.09.2000 at
about 11:05 am, an information was received at P.S. Ashok Vihar from
the police control room that a girl aged 23-24 years has been abducted
in a black car from near A-1/13, Shakti Nagar Extension. This
information was recorded as DD No.25B (Ex.PW15/A) and copy of the
DD report was sent to SI Satya Prakash through Constable Rajesh for
necessary action.
3. On 22.09.2000 at around 11:30 am, complainant Ankur Jain
(PW23) was informed by one Anupam (PW16) of STG Computer Centre
on telephone that his cousin Nidhi Jain (PW1) has been abducted by
some boys. On this, he along with his uncle Narender Kumar (PW2)
and his cousin Ajay Jain immediately proceeded for STG Computer
Centre. On their way to the Computer Centre, Ankur Jain made a
telephone call at his house and he was told that some unknown person
has telephonically demanded a ransom of Rs.30 lakhs. On hearing this,
PW Narender Kumar went back to his house and he along with his
cousin Ajay Jain reached at STG Computer Centre. There he came to
know that when Nidhi Jain, after attending the class, was in the process
of opening the lock of her car, one black coloured Cielo Car with dark
window panes stopped near her and Nidhi was forcibly pushed into the
car and the car was driven away.
4. SI Satya Prakash (PW26) reached at the spot of occurrence and
recorded the statement of Ankur Jain Ex.PW23/A wherein he narrated
the above referred facts. SI Satya Prakash appended his endorsement
Ex.PW26/A on the said statement and sent it to the Police Station
through Constable Rajesh, on basis of which formal FIR under Section
364-A/34 IPC was registered at the Police Station.
5. SI Satya Prakash inspected the spot and prepared a rough site
plan of the place of abduction. Crime Team was called at the spot but
despite of the efforts, the registration number of the Cielo Car could
not be found. The descriptions of the car as well as physical features
of the abducted girl Nidhi were flashed to all the SHOs in Delhi.
6. On the same day, SI Satya Prakash visited the house of the
prosecutrix Nidhi Jain. On enquiry from her father Narender Kumar
Jain, it was revealed that the kidnappers had initially demanded
ransom of Rs.30 lakhs, but they later reduced their demand from Rs.30
lakhs to Rs.10 lakhs. Narender Kumar Jain was making preparation to
go to deliver the ransom amount. The Investigating Officer asked PW
Narender Kumar Jain to disclose the details, but Narender Kumar Jain
told him that he would tell all the facts after securing the release of his
daughter.
7. The Investigating Officer advised Narender Kumar Jain to append
his signatures on first and last currency notes of the packets of ransom
amount of Rs.10 lakhs, which comprised of 20 packets of Rs.500/-
each. Shri Narender Kumar Jain accordingly signed first and last
currency notes of each packet and left alone to deliver the ransom
amount.
8. On 23.09.2000, the Investigating Officer came to know that the
prosecutrix had returned back home. Thus, he went to the house of
the prosecutrix and recorded her statement. Thereafter, the
Investigating Officer along with PW Narender Kumar Jain proceeded in
search of the kidnappers. On the way, they met Inspector Jagbir Singh
Malik and Special Staff Team near Britannia Chowk and they were also
taken along. At about 11:15 am when the police party was present
near Punjabi Bagh Club, on the pointing of PW Narender Kumar, one
Maruti Car No.DL 6CC 3396 was stopped and checked. There were two
boys in the Maruti Car. On enquiry, those boys disclosed their names
as Nitin Aggarwal S/o Arun Kumar R/o WZ-16, Punjabi Garden, Punjabi
Bagh, Delhi and Saurabh Gupta S/o Arun Kumar R/o Jaidev Park, East
Punjabi Bagh, Delhi. Narender Kumar Jain identified Nitin Aggarwal as
the person who had come on Scooter No.DL 4SQ 9693 following the
aforesaid Maruti Zen for collecting the amount of ransom.
9. Both Nitin Aggarwal and Saurabh Gupta were searched and a
sum of Rs.3,50,000/- out of the ransom money was recovered from
Nitin Aggarwal, whereas a sum of Rs.1 lakh out of the ransom money
was recovered from the possession of Saurabh Gupta. Both of them
were arrested and the money recovered from them was seized vide
separate seizure memos. The Maruti Zen Car was also seized.
10. Nitin Aggarwal and Saurabh Gupta were interrogated. They both
made disclosure statements. Their three accomplices, namely Vineet
Suneja, Punit Suneja and Ram Bahadur @ Raj Bahadur were arrested
from Punjabi Park. On search, Rs.4 lakhs contained in a suitcase and a
mobile phone was recovered from the possession of Vineet Suneja.
From the search of Ram Bahadur, a bundle comprising of Rs.50,000/-
was recovered. Similarly, from the possession of accused Punit Suneja,
a bundle comprising of Rs.50,000/- was recovered.
11. The black Cielo Car No. DL 4CD 9388 which was used for
kidnapping was found parked near the Punjabi Bagh Park. Crime Team
was called for inspection of said car. During inspection, some strands
of hair were recovered from the backseat of the car which were
converted into a sealed packet and taken into possession by the police.
The car was also taken into possession.
12. Punit Suneja, Vineet Suneja and Ram Bahadur were interrogated
and their disclosure statements were recorded. On 23.09.2000 said
three accused persons led the police party to the house of Jatin Kharab,
50/17, East Punjabi Bagh, Delhi, who was also arrested.
13. On 24.09.2000, Vineet Suneja, Punit Suneja and Ram Bahadur
were produced in the court in muffled face, whereas Nitin Aggarwal,
Saurabh Gupta and Jatin Kharab were produced in un-muffled face.
Application for holding test identification parade of Vineet Suneja, Punit
Suneja and Ram Bahadur was moved. Punit Suneja refused to
participate in the TIP, whereas the other two accused participated in
the TIP and they were correctly identified by the prosecutrix Nidhi Jain.
14. Statement of Nidhi Jain under Section 164 Cr.P.C. was also got
recorded on 30.09.2000. Accused Ganga Das was arrested and
produced before the Magistrate in muffled face with a request for
conducting test identification parade to fix his identity. Accused Ganga
Das refused to participate in the TIP. Though police custody remand of
Ganga Das was obtained to recover his share of ransom amount but
nothing could be recovered.
15. Hair samples of prosecutrix Nidhi Jain were obtained. Her hair
sample along with the hair seized from the backseat of Cielo Car were
sent to FSL, Malviya Nagar for comparison. Chance finger prints lifted
from the Cielo Car were also sent for comparison with the specimen
finger prints of the accused persons and Nidhi Jain. Reports of finger
print and FSL report were collected. As per the FSL report, the hair
sample of Nidhi Jain matched with the hairs recovered from the rear
seat of the car. The fingerprints of Ram Bahadur and Punit Suneja also
tallied with the chance fingerprints lifted from the Cielo Car. The call
details of the mobile phone wer also collected. On conclusion of the
formalities of investigation, the appellants as well as their co-accused
Jatin Kharab and Ganga Das were challaned and sent for trial.
16. We may note that Ganga Das @ Ajay Kumar expired during
pendency of the trial, as such proceedings against him stood abated.
Accused Jatin Kharab was discharged by the learned Additional
Sessions Judge vide order dated 24.02.2001.
17. The appellants were charged by the learned Additional Sessions
Judge for the offences punishable under Section 120B IPC as well as
under Section 364-A IPC read with Section 120B IPC. The appellants
pleaded not guilty to the charges and claimed to be tried.
18. In order to bring home the guilt of the appellants, prosecution has
examined 34 witnesses in all.
19. On conclusion of the prosecution evidence, statements of the
respective accused persons were recorded under Section 313 Cr.P.C.
The appellants, in their respective statements, denied the prosecution
case in its entirety and claimed that they have been falsely implicated
in this case. Appellant Nitin Aggarwal examined DW1 Shri Rajiv Chawla
and DW2 Satish Sehgal in his defence. They have claimed that on
23.09.2000, 10/12 police officials came to the house of Shri S.P.
Aggarwal, grandfather of appellant Nitin Aggarwal and took him as well
as his scooter to the Police Station. When they inquired from the police
officials about reason for their taking Nitin Aggarwal to Police Station,
they were told that he was wanted in some investigation.
20. Learned Sh. Sandeep Sethi, Sr. Advocate appearing on behalf of
the appellants Saurabh Gupta and Nitin Aggarwal in Criminal Appeals
Nos. 13/2008 and 70/2008 has taken us through the impugned
judgment and submitted that the learned Trial Judge has found them
guilty of conspiracy for the reason that as per the testimony of PW2
N.K.Jain, they both came to collect the ransom money from him on the
night intervening 22nd and 23rd September, 2000 and also for the
reason that on 23.09.2000, they were found in a white Maruti Zen Car
with „Sony‟ sticker and on search, Rs.1 Lakh comprising of two wads of
Rs.500/- each was recovered from the possession of appellant Saurabh
Gupta and Rs.3.5 Lakhs comprising of seven wads of Rs.500/- each was
recovered from the possession of the appellant Nitin Aggarwal, which
currency notes were identified by PW2 N.K.Jain as part of the ransom
money on the basis of his signatures being there on the first and last
currency note of those wads. Learned Senior Advocate submitted that
the evidence of PW2 Sh. N.K.Jain on both the counts is highly unreliable
and also that the story put forth by the prosecution regarding the
manner in which the ransom amount was collected and also regarding
the arrest of these two appellants and recovery of part of ransom
amount from their possession is unnatural, thus, not reliable.
21. As per the version of PW2 N.K.Jain, police came at his residence
on the night of 22.09.2000. On the instructions of the Investigating
Officer, he signed first and last currency notes of twenty wads of
Rs.500/- each, which he carried to deliver to the abductors in a TSR at
11:00 pm in the night. Thereafter, he went to Chest Clinic, Gulabi Bagh
and from there, on telephone instructions of the abductors, he kept on
moving around at various places and ultimately when he reached at
Raja Garden Chowk, he was instructed to move straight towards Maya
Puri and when his TSR reached near Maya Puri Chowk, it was stopped
by one white Maruti Zen Car and a person (Saurabh Gupta) got down
from said car. In the meanwhile, one other person (Nitin Aggarwal)
came on a two wheeler scooter. He also joined Saurabh Gupta and
they demanded the bag containing the ransom amount from him,
which he handed over to them and the bag was carried by the person
who came in the Maruti Zen. PW26 SI Satya Prakash has claimed that
the police party also followed the TSR in an official vehicle, but they
lost track of the TSR on Punjabi Bag Road because of heavy traffic. If
aforesaid version is to be believed, then it is apparent that the
Investigating Officer had tried to set up a trap to catch the abductors
red-handed. If that was so, under the natural course of circumstances,
the Investigating Officer was expected to note down the number of the
TSR in which N.K.Jain left to deliver the ransom amount and also
particulars of the TSR driver so as to ensure that there was a witness to
corroborate the version of PW2 N.K.Jain. There is nothing on record to
show that SI Satya Prakash took those steps which were naturally
expected from an experienced Investigating Officer. This circumstance
cast a doubt against the prosecution story regarding the manner of the
delivery of the ransom amount to the abductors. Further, it does not
appeal to reason that if Saurabh Gupta and Nitin Aggarwal were
deputed to collect the ransom amount from PW2 N.K.Jain, why they
would go to collect the amount on two different vehicles. Further, PW2
N.K.Jain, in his testimony, could not definitely identify either Saurabh
Gupta or Nitin Aggarwal as the persons who had come to collect the
ransom amount from him. In response to a court question on whether
he was sure about those two persons being present in the court or not,
he responded "Yes those persons are present in the court amongst six
accused but I can‟t identify them". From this, it is apparent that PW2
N.K.Jain was not definite about the identity of the two persons who
allegedly came to collect the ransom amount from him. From the
above circumstances, we find it difficult to conclude that appellants
Saurabh Gupta and Nitin Aggarwal had actually gone to collect the
ransom amount on the night of 22.09.2000.
22. Another incriminating circumstance relied upon by the
prosecution to connect the appellants Saurabh Gupta and Nitin
Aggarwal with the conspiracy to abduct Nidhi Jain for ransom is the
purported recovery of the part of ransom amount from the said two
appellants when they were found in a white Maruti Zen Car near
Punjabi Bag Club. It is claimed by the Investigating Officer SI Satya
Prakash (PW26) that in the morning of 23.09.2000, after the return of
prosecutrix Nidhi Jain, he took along PW2 N.K.Jain for the investigation
of the case. When they reached at Britannia Chowk in the car of PW2
N.K.Jain, they met Inspector Jagvir Mallik and his staff, who also joined
them. From Britannia Chowk, they went to Punjabi Bag Club. When
they reached near the red light crossing, they saw a Maruti Zen coming
from the side of Punjabi Bag. PW2 N.K.Jain identified the car and told
him that it was the same car in which one of the accused had come to
collect the ransom amount. Thus, the car was stopped. Appellants
Saurabh Gupta and Nitin Aggarwal were travelling in that car and when
they were searched, a sum of Rs.3.5 Lakhs comprising seven bundles
of Rs.500/- denomination was recovered from the possession of the
appellant Nitin Aggarwal and Rs.1 Lakh comprising of two bundles of
Rs.500/- denomination were recovered from the possession of the
appellant Saurabh Gupta, which money was identified by PW2 N.K.Jain
from his signatures on first and last currency notes of each wad as
part of the ransom amount. Though, PW2 N.K.Jain has also deposed in
almost similar manner but his version is contradictory to the version of
the Investigating Officer on one material aspect i.e. as per PW2, the
white Maruti Zen was found parked on the road-side, whereas the
Investigating Officer has stated that Maruti Zen Car was found coming
from the side of Punjabi Bagh. According to PW2 N.K.Jain, he identified
the Maruti Zen Car on the basis of „Sony‟ sticker pasted on the rear
glass of the car. This version of PW2 N.K.Jain appears to be highly
unnatural. It is improbable that the witness could have identified the
Maruti Zen Car only on the basis of „Sony‟ sticker. Further, the
prosecution story regarding the arrest of the appellants and the
recovery is too good to be true. It cannot be a sheer coincidence that
while aimlessly moving around in Punjabi Bag area, the police party
came across the said Maruti Zen and it was also identified by PW2
N.K.Jain on the basis of a sticker pasted on the same. Further, PW2
N.K.Jain has stated in his cross-examination that at the relevant time,
his car was being driven by his driver. The said driver has not been
cited or produced as a witness. There is no explanation on the record
as to why the driver, who was the most independent person in the
police party, was not made a witness to the arrest and recovery of the
ransom amount from the possession of the appellants Nitin Aggarwal
and Saurabh Gupta. In view of the above circumstances, the evidence
of the prosecution relating to the complicity of appellants Nitin
Aggarwal and Saurabh Gupta in the conspiracy to abduct Nidhi Jain is
highly suspect. Therefore, we find it difficult to sustain the conviction
of the appellants Nitin Aggarwal and Saurabh Gupta on charges under
Section 120B IPC and Section 364-A IPC read with Section 120B IPC.
23. Coming to Crl.A. No.62/2008 filed by the appellants Punit Suneja,
Vineet Suneja and Ram Bahadur, learned Shri Raman Sahney,
Advocate appearing on behalf of the above referred three appellants
has submitted that the impugned judgment holding them guilty of
charges is based upon wrong appreciation of facts. He submitted that
the learned Additional Sessions Judge failed to appreciate that the
testimony of the star witness Nidhi Jain-PW1 and her father Shri N.K.
Jain-PW2 suffers from several infirmities, making their testimony
unworthy of reliance. We are not reproducing the arguments for the
sake of brevity and we propose to deal with those arguments at later
stage.
24. Learned counsel for the State, on the other hand, argued in
support of the impugned judgment. He submitted that the learned
Trial Judge has rightly relied upon the evidence of PW1 Nidhi Jain as
well as PW2 Shri N.K. Jain which finds corroboration from the testimony
of the other, to hold the appellants guilty of the offence of conspiracy
to abduct and also for the offence of abducting the prosecutrix Nidhi
Jain for ransom in furtherance of the conspiracy.
25. In view of the rival contentions made by the parties, the first
question which arises for determination is whether or not prosecutrix
Nidhi Jain was abducted and if so, who are the abductors?
26. The star witness of the prosecution to prove abduction is PW1
Nidhi Jain. She has deposed that on 22.09.2000, she went to attend
computer class at STG Institute, Shakti Nagar in her Honda City Car.
After the class was over, she proceeded towards her car, which was
parked near the wall of STG Computer Centre. When she reached near
the car, a black Cielo Car with damaged front number plate suddenly
came and stopped near her. One person came out of the car after
opening the rear door. He pushed her into the Cielo car on the rear
seat and the other person sitting on the rear seat of the car pulled her
in. Thereafter, said person also sat on the rear seat of the car and the
car moved away. She further claimed that she was carrying a mobile
phone number 9810039990, which was snatched from her. Sometime
later, she was asked by the abductors to give telephone number of the
phone at her residence. She gave them the number and she was
asked to dial that number. She claimed that she dialled her residential
phone number 39951144 and the phone was picked up by her mother.
The abductors took the phone from her and they told her mother that
she was in their custody and they demanded a ransom of Rs.30 Lakhs
for her release, failing which, they threatened that she would be killed.
She was also asked to talk with her mother and she told her mother
that those persons were asking for Rs.30 Lakhs and if the amount was
not paid, they would kill her and throw her in a „nala‟. She stated that
from the conversation of those persons, she could make out that driver
of the car was Vineet Suneja. Person sitting in the front passenger‟s
seat was Punit Suneja. The person who had pushed her into the car
was Ram Bahadur and the person who had pulled her inside the car
was Ganga Das. She also claimed that she was again asked to dial her
residence number from her mobile phone and this time, the call was
attended by her father Narender Kumar and she told her father that
the abductors were demanding a sum of Rs. 30 Lakhs. Appellant
Vineet then snatched the mobile phone from her and initially
demanded ransom of Rs.30 Lakhs, but he ultimately reduced the
ransom amount to Rs.10 Lakhs and told her father to bring that
amount to Chest Clinic, Gulabi Bagh at 11:00 pm. She further stated
that while the car was moving, she was blind-folded by the persons
sitting on the rear seat and after some time, that car stopped. She
claimed that she was able to see through the slit in the blind-fold that
the car was in a drive way of a house where one other white car was
also parked. She stated that she was detained in the car throughout
the night till 04:00-04:30 am when she was told by the abductors that
they had received the money and she would be set free. Thereafter,
she was taken to Piragarhi Chowk in the same Cielo Car by the
appellants Punit and Ram Bahadur and dropped there. From there, she
took a three wheeler scooter to drop her near Oberoi Maidens. From
there, she rang her residence and her family members came and took
her to the residence.
27. Learned Shri Raman Sahney, Advocate appearing on behalf of the
appellants Punit Suneja, Vineet Suneja and Ram Bahadur has
vehemently argued that the learned trial Judge has committed an error
in relying upon the testimony of PW1 Nidhi Jain regarding the
abduction. He submitted that PW1 Nidhi Jain is not a reliable witness
because her ocular testimony is not corroborated by the documentary
evidence. Expanding on this argument, learned counsel for the
appellants submitted that according to Nidhi Jain, she was abducted at
11:15 am, which fact is belied by the Form-1 filled in at the police
control room wherein it is recorded that the information regarding
abduction of the girl was received at PCR at 10:56 am and even the DD
No.25B (Ex.PW15/A) pertaining to the abduction was recorded much
earlier at 11:05 am at P.S. Ahok Vihar. He also argued that as per PW1
Nidhi Jain, first ransom call was made from her mobile phone
No.9810039990 to her residential phone No. 39951144 within 10
minutes of her abduction and if this version is to be believed, then
going by the time of the abduction recorded in the Form-1 filled in at
PCR, the first ransom call was made by the abductors somewhere
around 11:06 am. This is also belied by the call record Ex.PW19/D,
according to which the first outgoing call from the mobile phone of
Nidhi Jain to her residential phone No.39951144 was made at 11:36:45
am. From these circumstances, learned counsel for the appellants has
urged us to infer that PW1 Nidhi Jain is not a truthful witness and it is
not safe to rely upon her testimony.
28. There is no merit in the above contention. On perusal of the
testimony of PW1 Nidhi Jain, we find that she had stated that after
attending the class, when she was returning back at about 11:00 am a
Cielo Car suddenly came and she was abducted in the car. In her
cross-examination conducted on behalf of co-accused Jatin Kharab, she
stated that in the institute, there was no hard and fast rule that no
student could leave the class before 11:00 am. She also stated that on
22.09.2000, it was a day for Practical Class and in Practical Classes the
students were free to leave earlier to 11:00 am if he or she had
finished the practical assignment. From the above version of Nidhi
Jain, it is apparent that she necessarily did not leave the institute after
11:00 am and the user of word "about" by her is indicative that she
had given the time of leaving the institute on the basis of her
approximate assessment. Therefore, the marginal time difference
pointed out by the learned counsel for the appellants between the
ocular version of Nidhi Jain and the time regarding information of
abduction recorded in PCR form and the DD report cannot be taken as
a reason to suspect the testimony of PW1 Nidhi Jain.
29. Learned Sh. Raman Sahney, Advocate for the appellants also
submitted that the story of prosecution regarding abduction of PW1
Nidhi Jain is doubtful because of the fact that the FIR in this case was
admittedly recorded on 22.09.2000 at 12:10 Noon. Despite of that, the
parents of PW1 Nidhi Jain (prosecutrix) admittedly, were not contacted
by the police/Investigating Officer till 11:00 pm and during this period
of 11 hours, no effort whatsoever was done to ensure taping of the
phone calls of N.K.Jain. This argument, in our opinion, is of no help to
the appellants. It is true that the aforesaid factor is indicative of the
callous and non-serious approach adopted by the Investigating Officer,
but his negligent conduct, by no means, can be taken as a
circumstance to doubt the credibility of PW1 Nidhi Jain, whose version
is consistent with the case of prosecution and who has withstood the
test of cross-examination.
30. Learned counsel for the appellants submitted that it is admitted
case of the prosecution that Nidhi Jain was abducted in the Cielo Car at
around 11:00 am on 22.09.2000 and she was kept detained in the car
till 4/4:30 am in the morning of 23.09.2000, when she was released. If
this version is true, there ought to have been some chance fingerprints
of Nidhi Jain in the Cielo Car. He submitted that though as per Nidhi
Jain, her specimen fingerprints were obtained by the Investigating
Officer, yet none of the chance fingerprints tallied with her specimen
fingerprints. From this circumstance, learned counsel has urged us to
infer that the story of her abduction and detention in the car is false.
He argued that aforesaid doubt against the correctness of the version
of PW1 Nidhi Jain is further compounded by the fact that she
admittedly refused to subject herself for medical examination.
31. We are not convinced with this argument. Merely because the
chance fingerprints lifted from the Cielo Car did not tally with the
specimen fingerprints of Nidhi Jain, it cannot be concluded that she was
not abducted or detained in the said car. We may note that as per the
evidence of Nidhi Jain, she was sitting in between the appellant Ram
Bahadur and his co-accused Ganga Das (since expired) on the rear seat
of the car. Therefore, it is apparent that she had no occasion to touch
any hard or smooth surface of the car which explains the absence of
her chance prints in the Cielo Car. As regards her refusal to subject
herself to medical examination, it is of no significance because the
charge against the appellants is only of abduction and ransom and it is
not the case of the prosecution that anyone molested the prosecutrix.
Once there was no allegation of molestation/rape, there was no
occasion for conducting a medical examination during investigation.
32. It was also submitted by the learned counsel that as per the case
of the prosecution, Nidhi Jain was abducted in a black Cielo Car having
black window glasses whereas Nidhi Jain during her cross-examination,
admitted that the glasses of Cielo Car Ex.P2 produced as case property
were plain and there was no windowpane on the driver side door of
said car. From this, learned counsel has urged us to infer that PW1
Nidhi Jain is not a reliable witness. This discrepancy pointed out by
learned counsel for the appellants, in our considered view, is not so
significant as to doubt the testimony of PW1 Nidhi Jain.
33. PW1 Nidhi Jain in her testimony has claimed that she was
abducted from inside STG Computer Centre, Shakti Nagar at around
11:00 am. Form-1 of PCR referred to above by the learned counsels for
the appellants records the information about the abduction of a girl
from Shakti Nagar Extension at 10:56 am Ex.PW15/A i.e. DD No. 25B
dated 22.09.2000 also records about abduction of a girl in a black
colour car from near A-1/13, Shakti Nagar Extension at 11:05 am.
These two documents tend to corroborate the version of PW1 Nidhi
Jain. Not only this, as per PW1 Nidhi Jain, she was dragged on the rear
seat of the Cielo Car and she was made to sit there till early morning
when she was released. According to the Investigating Officer, Cielo
Car was seized on 23.09.2000 and on inspection of the car, some
strands of hair were found on the rear seat of the car. It has also come
in evidence that hair samples of Nidhi Jain were obtained and said
samples were sent to CFSL along with the hairs recovered from the
rear seat of Cielo Car to CFSL for analysis. As per the testimony of Sh.
D.S.Chakutra (PW33) and his report Ex.PW33/A, the aforesaid hair
samples on examination matched with the hair seized from the rear
seat of Cielo Car. Though, this evidence is not conclusive, yet it tends
to corroborate the version of PW1 Nidhi Jain. From the above, it can be
safely concluded that Nidhi Jain is telling the truth. Otherwise also,
there is nothing on record to suggest any enmity or motive on the part
of the prosecutrix or her family members which could have impelled
them to falsely implicate the appellants. In our view, it is highly
improbable that a Hindu unmarried girl without any motive would make
false allegation of her abduction against someone at the stake of her
honour and reputation. Thus, we find that the learned Additions
Sessions Judge has rightly concluded that Nidhi Jain was actually
abducted on the fateful day.
34. Next question which arises for determination is who were the
abductors? In this regard, PW1 Nidhi Jain has categorically stated that
before she was blind-folded by the abductors, she was able to see their
faces. She also stated that from their conversation, she could make
out that driver of the Cielo Car was Vineet and the person sitting on the
front seat with the driver was Punit. Other two persons on the rear seat
were appellants Ram Bahadur and Ganga Das (since expired). She
identified the appellants Punit Suneja, Vineet Suneja and Ram Bahadur
as the abductors. Her testimony regarding identification cannot be
doubted because after the arrest of the appellants, Test Identification
Parade was conducted to fix their identity. As per the evidence, PW32
M.S. Datir, Metropolitan Magistrate conducted the Test Identification
Parade for fixing the identity of the appellants Vineet Suneja and Ram
Bahadur as abductors on 30.09.2000 and the witness Nidhi Jain
correctly identified them as the abductors. As regards appellant Punit
Suneja, learned Metropolitan Magistrate deposed that when he was
produced before him in Central Jail No. 5 by Deputy Superintendent
(Jail) for holding of Test Identification Parade, Punit Suneja refused to
participate in the TIP, despite of warning that his refusal may be taken
as a circumstance against him during the trial. Perusal of relevant
proceedings Ex.PW32/C relating to refusal to participate in the TIP by
Punit Suneja, explanation given by him for refusal was that he had
been shown by the police to the witnesses. There is nothing on record
to substantiate aforesaid explanation for refusal to participate in TIP by
the accused Punit Suneja; therefore, we are inclined to draw an
adverse presumption that had this appellant participated in TIP, he
would have been identified by PW1 Nidhi Jain. Further, as per the
prosecution as well as testimony of PW1 Nidhi Jain, she was abducted
in a black Cielo Car. Said Cielo Car was seized by the police on
23.09.2000. As per PW11 Narender Singh, finger print experts, on
23.09.2000 on the request of SI Satya Prakash, he had lifted 20 chance
prints from the aforesaid Cielo Car number DL-4CD-9388. PW21
Gyanender Singh, Senior Finger Print Expert, FSL, Malviya Nagar has
stated that on 08.11.2000, he had compared the chance finger prints
developed by PW11 Narender Singh with the specimen finger prints of
five persons and on comparison, he found that chance finger prints
Q19 tallied with the specimen finger prints mark X6 of the left ring
finger of the accused Ram Bahadur. Similarly, chance finger print Q7
tallied with the specimen finger print S10 of Punit Suneja. However,
the specimen finger prints of other three persons namely Vineet
Suneja, Ganga Das and the prosecutrix Nidhi Jain did not match with
any of the chance prints. This evidence also establishes the presence
of appellant Punit Suneja as well as Ram Bahadur in the Cielo Car. In
view of the above, we find no reason to suspect the testimony of PW1
Nidhi Jain regarding the identity of the appellants Vineet Suneja, Punit
Suneja and Ram Bahadur as abductors. Moreso, because of the fact
that neither of the aforesaid three appellants in their statement under
Section 313 Cr.P.C. have come out with any explanation as to why PW1
Nidhi Jain would falsely implicate them at the cost of her reputation.
35. Learned Shri Raman Sahney, Advocate also adopted the
arguments advanced on behalf of other two appellants by learned Shri
Sandeep Sethi, Sr. Advocate and submitted that the prosecution story
regarding the delivery of ransom amount by PW2 Shri N.K. Jain to the
appellant Saurabh Gupta and Nitin Aggarwal, their subsequent arrest
on 23.9.2000 from near Punjabi Bagh Club which purportedly led to the
arrest of above referred three appellants from Punjabi Bagh Park and
recovery of their respective shares of ransom amount from each of
them is highly doubtful. Learned counsel submitted that once the story
of arrest and recovery is doubtful, it is not safe to rely upon the
testimony of PW1 Nidhi Jain regarding her abduction and demand for
ransom.
36. We have already concluded that the testimony of PW2 Shri N.K.
Jain and the police officials regarding arrest of Saurabh Gupta and Nitin
Aggarwal from near Punjabi Bagh Club and recovery of part ransom
amount from their respective possession is not very convincing and it
is not safe to rely upon the same. Once the story of prosecution
regarding the arrest of the appellants Saurabh Gupta and Nitin
Aggarwal from near Punjabi Bagh Club is found to be unreliable, we do
not find it safe to rely upon the evidence of the prosecution regarding
the arrest of the above referred three appellants at the instance of
Saurabh Gupta and Nitin Aggarwal leading to recovery of ransom
amount from their respective possession. This, however, does not
mean that PW1 Nidhi Jain is not a reliable witness. In view of the
discussion above, we have already found her to be a reliable witness,
therefore, just because of weakness of prosecution case pertaining to
the arrest of the appellants and recovery of ransom amount from them,
testimony of PW1 Nidhi Jain cannot be ignored which is consistent with
the prosecution case.
37. PW1 Nidhi Jain is categoric that while in the car, she was asked to
give the telephone number of her residence and on her mobile phone,
calls were made at that number and the abductors demanded ransom
of Rs.30 Lakhs from her parents and in the event of their failure to
exceed to their demand, they threatened that she would be killed. Her
aforesaid version stands corroborated from the call record pertaining to
her mobile phone Ex.PW19/D. Therefore, it is also established on
record that she was abducted for ransom and even the ransom was
demanded. Thus, from the testimony of PW1 Nidhi Jain, complicity of
the appellants Vineet Suneja, Punit Suneja and Ram Bahadur in her
abduction for ransom is established beyond reasonable doubt. Since all
the above three appellants were together in the car at the time of
abduction and they were party to the detention of Nidhi Jain till ransom
was paid, it could be safely concluded that they had entered into a
conspiracy to abduct Nidhi Jain with a view to extort ransom from her
parents. Thus, we do not find any infirmity in the impugned judgment
so far as the conviction of the appellants Vineet Suneja, Punit Suneja
and Ram Bahadur on charges under Section 120B IPC as well as
Section 364A IPC read with Section 120B IPC is concerned.
38. In view of the discussion above, we accept Criminal Appeals No.
13/2008 and 70/2008 of the appellants Saurabh Gupta and Nitin
Aggarwal respectively and set aside their conviction under Section
120B IPC as also under Section 364-A IPC read with Section 120B IPC
as well as the sentence awarded to them and acquit them.
39. The appellants Saurabh Gupta and Nitin Aggarwal are in jail.
They are, therefore, directed to be released forthwith, if not required in
any other case.
40. As regards the appellants Punit Suneja, Vineet Suneja and Ram
Bahadur, being Criminal Appeal No.62/2008, we do not find any reason
to interfere with their conviction and consequent order on sentence.
We accordingly dismiss their appeal.
41. The appeals are disposed of accordingly.
AJIT BHARIHOKE, J
JULY 02, 2010 A.K. SIKRI, J.
pst/gm
