Ajay Kumar Jain & Anr. vs State
2012 Latest Caselaw 5788 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                        CRL. APPEAL NO. 679/99

+                            Date of Decision: 26th September, 2012

#      AJAY KUMAR JAIN & ANR.                ....Appellants
!                    Through: Mr. Arjun Bhandari, Mr. S.
                     S. Sobti & Ms. Aarti Batra, Advocates

                                 Versus

$      STATE                                          ...Respondent
                            Through: Mr. M.N. Dudeja, APP for State

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                                JUDGMENT

P.K.BHASIN, J:

The present appeal is directed against the judgment of conviction dated 24.11.1999 and order on sentence dated 26.11.1999 passed by the Additional Sessions Judge in Sessions Case No. 147/98 whereby the appellants were convicted for the offences punishable under Sections 364 /34 and 325/34 of the Indian Penal Code („IPC‟ for short) and sentenced to undergo rigorous imprisonment for six months for their conviction under Section 364/34 IPC and for six months under Section 325/34. Fine

was also imposed upon both them with a default clause on both counts and they were also ordered to pay compensation of ` 30,000/- to the victim.

2. The prosecution case is that on 17/08/1997 at about 6 p.m. the complainant Ashok Kumar(PW-5) was abducted from his shop at Tilak Nagar by the two appellants, who are brothers, and had demanded ransom for his release and while he was in their custody he was severely beaten also due to which he had sustained grievous injury and was released same night but only after they had been paid ransom money of `10,000/-.

3. The complainant went to the police station on 19.08.1997 at about 2.35 p.m. and then lodged his report(Ex.PW-3/A) in which he had claimed that on 17.08.1997 Ajay, who had business in Kinari Bazar in the name of Kesri Chand Mohan Lal Gote Wale, and his brother had come to him when he was doing his business at the patri and told him that he should come to car parking where in a car the owner(of their Firm) was sitting and was calling him and when he went to the car parking with Ajay and his brother owner Kesri Chand was sitting in a car with three more persons and then he was forced to sit in the car and he was then taken to a godown in Kinari Bazar where he was given beatings due to which his two teeth had got damaged . He also claimed that he owed ` 9581/- to

Kesri Chand but he had paid `10,000/- but still a bond had been obtained from him that he still had to pay ` 19,581/- Thereafter he was got medically examined by the police that day and the doctor who examined him found the injuries sustained by him to be grievous.

4. The police filed the charge sheet in the concerned court after completing the investigation against the appellants and on the same being committed to sessions court the learned Additional Sessions Judge framed charges under Sections 364-A/325/34 IPC against the appellants had pleaded not guilty the prosecution was called upon t adduce its evidence in support of these charges.

5. In order to being home the guilt of the appellants the prosecution examined eight witnesses in all. The complainant was examined as PW-5 and three other witnesses who had during the investigation stage had claimed before the police that they had seen the appellants taking away the complainant on 17.08.1997 in a car were also examined by the prosecution. The appellants had also examined two witnesses in their defence that they had been falsely implicated by the complainant to avoid payment of money which he was to pay to them on account of some goods purchased by him from their Firm on credit and because they had refused to

give him more goods on credit without his clearing the earlier dues.

6. The trial Court after examining the evidence adduced by the prosecution and the appellants held them guilty under Sections 364/34 IPC(and not under Section 364-A IPC) as well as under Section 325/34 IPC in the impugned judgment. The appellants then filed the present appeal.

7. Mr. Arjun Bhandari, learned counsel for the appellants had contended that the entire prosecution case was highly doubtful and so benefit of doubt should have been extended to them by the trial Court. Learned Additional Public Prosecutor Mr.M.N.Dudeja, on the other hand, had supported the judgment of the trial Court as well as the order on sentence.

8. After having examined the trial record and the submissions made at the bar during the course of hearing of this appeal I have come to the conclusion that the prosecution cannot be said to have proved its case beyond reasonable doubt and the appellants deserved to be acquitted.

9. The prosecution case rested mainly on the testimony of the abducted person, PW-5 Ashok. The relevant part of his examination-in-chief is re-produced below:-

" On 17/8/97 I had installed Rakhi shop at Patri in the area of Tilak Nagar at about 5/6 p.m. Accused pointed out the witness whose name disclosed as Chander Parkash. I did not know his name at that time he came along with 4/5 persons. He told me that the owner is sitting in the car and he is calling me. I was made to sit in the car by the accused. Other persons having shops at Patri, Jai Prakash, Mithlesh Kr. And Gurdev Jaiswal were also there. There was one more person in the car in addition to driver. I asked accused that not to take me with him because I had installed the shop and that was festival of the year. They took me to Kinari Bazar and I was confined in the Godown. The 3/4 persons brought by the accused gave me beating one of the accused was from Maya Puri who claimed to be Dada (Badmash). I received injuries on my abdomen as well as on my teeth, two of my teeth were broken and blood came out from the teeth as a result of which I had to get those teeth removed. They gave me ` 50/- and asked me to go from that place straightaway................ I was to pay the amount of ` 9,000/- to Kesri Chand Mohan Lal Chand. They obtained Bond of `19,581/- from me. The owner of 11/6 Tilak Nagar paid ` 10,000/- to Ajay and asked Ajay not to beat me........ I came to my house after the incident and was terrified and did not lodge a report. Later on I reported the matter to the police. I was medically examined............Accused Ajay who gave me beating is also present in the Court.

10. The incident of complainant‟s abduction took place on 17th August, 1997 and the complainant was released also by the appellants same day but the FIR was lodged on 19th August, 1997 and that delay had not been explained satisfactorily by the prosecution. To the police he did not given any reason as to why

he had not reported the incident on the date of his abduction itself or even next morning. However, in Court during his evidence he stated that he did not lodge the report with the police same day as he was terrified and that explanation has been accepted by the learned trial Court but in fact that explanation does not inspire confidence since he did not even claim to have informed anyone about the incident nor did he go to any doctor also despite the fact that he had sustained grievous injuries and he claimed that his two teeth had been broken. It is not acceptable that a person who has suffered grievous injuries would not even go to some doctor. And when he was examined by the doctor after he had lodged the FIR on 19.08.1997 PW-8 Dr. A.K.Khare, dental surgeon, had opined the injuries to be fresh and he also clarified that by fresh injuries he meant the injuries to be 2/3 hours duration. That statement of the prosecution‟s own medical witness also renders the complainant‟s version that he was abducted by the appellants on 17.08.1997 and thereafter was badly beaten also during the period of his confinement highly doubtful. In these circumstances, the delay in lodging of the FIR assumes more significance. So the prosecution case was doubtful and the plea of false implication taken by the appellants because the complainant owed money to them became probable since the complainant himself had admitted in his evidence that he owed money to them and he did not claim

that he had paid the money as was claimed by him in his complaint to the police.

11. As noticed already, the complainant had claimed in the FIR that appellant Ajay had come to him along with his brother and told him to come near the car in which the owner of their Firm was sitting but in evidence he did not say that Ajay had told him to come to the car. He simply deposed that his brothers (Ajay and Chandra Prakash) had taken Ashok. And in evidence he also claimed that when he was kept under confinement accused Ajay had beaten him. So, the complainant, who is the star prosecution witness has not been even otherwise consistent in his version of the incident and all these facts render his evidence doubtful.

12. Though according to the statement of the complainant made in Court there were three other persons present when he was taken away in a car and they were also examined by the prosecution as PWs 2,4 and 6 but none of them claimed that on 17.08.1997 the appellants had taken away Ashok in a car. PW-2 Mithlesh Kumar is the brother of the complainant and he had deposed that a telephonic message had been received at the shop of his uncle Gurdev Jaiswal(PW-6) that his brother had been taken and he was with Ajay and when Ashok came back to the shop at about 8.30 p.m. he saw blood coming out from his mouth and his eyes were swollen due to beating. He was then cross-examined by the public

prosecutor but even then he did claim that the appellants had taken away his brother in a car.

13. PW-4 Jai Parkash was also examined as eye witness of abduction but he also did not claim that Ashok had been taken away by the appellants and in fact stated that Ajay was not the person with whom Ashok had gone. The relevant part of his testimony is as under:-

.... On 17/8/97 at 7/8 p.mm I was in shop when one boy came there. I told Ashok that somebody Ajay was calling accused Ajay present in Court today. Ashok was selling Rakhi at that time. I do not know name of that boy who took Ashok. Ajay was not that person with whom Ashok accompanied. No other boy went to any other shop. At 12/1 night when Ashok came back I saw lips and portion near eyes in swollen condition. Blood was coming from lips as well as from portion near eyes, his one teeth was also broken. Telephone received from accused Ajay after 1 ½ hour of taking Ashok.

I came to know from accused Ajay that Ashok was with them but I can‟t say as to how he was taken there.

Accused Ajay told on telephone that he would release Ashok only after receiving amount. Accused had telephonic talk with Gurudev Jaiswal. He was having conversation with accused Ajay in my presence when I was in shop. I did not have any talk with Ajay on telephone. Sh. KL Arora and one market Pardhan Lalwani Gi, I do not know his full name intervened. They took guarantee for making payment of ` 10,000/- which were to be paid by Ashok. This guarantee was given by them to accused Ajay. After taking guarantee accused Ajay assured then to release Ashok."

From this statement of PW-4 it becomes clear that he did not see himself the appellants taking away Ashok and also that he

himself did not have any talk with appellant Ajay regarding payment of money to him for releasing Ashok. According to this witness such talk had taken place on telephone with Gurudev Jaiswal.(PW-6).

14. PW-6, Gurudev Jaiswal, also deposed in his examination in chief that it was Ajay who took the complainant. He also did not support the prosecution case as far as the abduction of the complainant Ashok by the appellants is concerned. This is what he deposed in his examination-in-chief.

"I do not remember date. It was month of August. About 2 years ago one day before Rakhi festival. At 8/8.30 pm I could not identify persons who came to me. That person was asking about Ashok and I tole me that he was there. After sometime telephone came from Ashok and he told me that he told me name of Ajay and one other person saying that he is in their custody and they would release him on payment of money but, somebody else was there and not Ajay Kumar, on telephone. I deposited my sale amount of ` 10,000/- on that day with Krishna Trader to get Ashok released. We were selling Rakhi at patri at Tilak Nagar Chowk. Ashok came at night time, I do not remember and some blood was coming from his mouth. I identify Ajay present in Court as I used to purchase material from his vol. But person came on that day is not Ajay who is present in court.

At this stage Ld. APP request to cross examine witness as he resiled from previous statement on some points. Heard. Allowed.

Police recorded my statement. It is correct that on 17/8/97 at 6 pm Ajay‟s brother and with 2/3 persons came to my shop and asked from me about Ashok. And under impression that he has some work with him. I told that Ashok is at nearby shop. This question was put by ld. APP in form that witness made such statement before police and witness stated so".

15. Even when he was cross-examined by the Additional Public Prosecutor he did not claim that Ashok was taken away by the appellants. Though he claimed that he had deposited a sum of ` 10,000/- with Krishna Trader to get Ashok released but PW-4 Jai Parkash who was an employee of Krishna Trader did not claim so and he stated that one K.L. Arora and Talwani had agreed to make the payment of ` 10,000/- which was to be paid by Ashok and Ajay.

16. These were the only prosecution witnesses whose evidence was referred to from both the sides during the course of hearing of the appeal and in my view the prosecution cannot be said to have established its case against any of the appellants beyond reasonable doubt and therefore, both of them have become entitled to be acquitted.

17. This appeal is accordingly allowed and the judgment of the learned Additional Sessions Judge convicting the two appellants under Sections 364/325/34 IPC is set aside and both of them are acquitted of these charges. Their bail bonds stand discharged.

P.K. BHASIN, J

SEPTEMBER 26, 2012