Delhi High Court
Rahul Rana vs State Of The Nct Of Delhi on 13 April, 2015
Author: Sanjiv Khanna
$~R-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 491/1999
Reserved on: 22nd January, 2015
Date of decision: 13th April, 2015
RAHUL RANA ..... Appellant
Through Mr. Arvind Dahiya, Adv.
versus
STATE OF THE NCT OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP for the state.
Insp. Joginder Singh PS Patel Nagar.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
SANJIV KHANNA, J.
The appellant Rahul Rana challenges his conviction under Sections
364A/394/323/506 read with Section 120B of the Indian Penal Code, 1860
(IPC, for short) by the impugned judgment dated 21st August, 1999.
2. By order on sentence dated 25th August, 1999, the appellant Rahul
Rana has been sentenced as under:-
Section Sentence Fine In default of
payment of fine
364A, IPC Imprisonment for life Rs.1,00,000/- SI for 1 Year
394, IPC RI for 10 years Rs.50,000/- SI for 6 Months
120B r/w Imprisonment for life Rs.50,000/- SI for 6 Months
364A, IPC
120B r/w RI for 10 years Rs.50,000/- SI for 6 Months
394, IPC
Separate sentences have not been awarded for the offences under Sections
323 and 506 IPC, observing that these were minor offences and the
ingredients of these two offences were covered under Section 364A, IPC.
The sentences are to run concurrently and benefit of Section 428 of the Code
of Criminal Procedure, 1973 (Cr.P.C., for short) has been granted.
3. The impugned judgment also convicts co-accused Amit Yadav. The
said Amit Yadav had filed Crl.A. No.569/1999 against the said conviction
and was granted interim bail. He absconded. This appeal by Amit Yadav
was dismissed in default by order dated 13 th December, 2000. Amit Yadav
has been declared a proclaimed offender and his appeal has been consigned
to record room.
4. We have heard the counsel for the appellant and the State, and have
perused the trial court record. We proceed to examine the evidence and the
contentions raised.
5. Rishi Sethi (PW-22), the victim, has deposed that he was kidnapped at
about 07:00 p.m. on 12th September, 1995, when he was sitting on the
driver‟s seat in his car, which was parked near the residence of the Director
of All India Institute of Medical Sciences (AIIMS). Three-four persons had
confronted and pushed him to the front side seat of his car. He was forced to
put his face down. He was beaten and they tried to strangulate him. A
bandage was forcibly wrapped around his eyes. He became unconscious.
When he regained consciousness, he was still in the car. He could not see as
he was blindfolded throughout. Subsequently, he was taken to a room and
confined there. There again, he suffered loss of consciousness because of
the pain due to the injuries caused. On 16th September, 1995, he regained
consciousness and found himself in his house. PW-22 claimed that he did
not know how he reached his house. In his examination-in-chief, PW-22
could not identify the three-four perpetrators who had kidnapped, beaten and
confined him in a room. He could not recollect anything about the
place/location where he was. He, however, identified the car in which he
was kidnapped as bearing No.DL7C-7777. PW-22 was unable to recognise
the appellant Rahul Rana as well as the co-accused, Amit Yadav. On being
cross-examined by the Public Prosecutor, he maintained his stance and
denied as incorrect that Rahul Rana present in the court had dragged him to
the rear seat or had given fist blows on his face. He denied the suggestion
that while he was confined to a room, the appellant Rahul Rana had asked
him to give telephone numbers of his near relatives which he was forced to
furnish. He identified the hair brush, pen, shoes, purse, driving license, etc.
and other articles which were there in his car when he was kidnapped. He
also identified the car. After some initial hesitation, he identified the pistol
(Ex.P-1) which was used to threaten him.
6. The deposition of PW-22 would establish and prove that he was
kidnapped, the manner in which he was kidnapped, and that he was rescued.
He hesitated and could not identify and affirm whether the appellant Rahul
Rana was one of the perpetrators. On the question of Rahul Rana‟s
involvement, the prosecution, therefore, must rely on other evidence.
7. On the question of rescue operation, testimonies of police witnesses,
namely, Insp. R.K. Rathi (PW-10), Insp. R.K. Ojha (PW-11) and Insp.
Surinder Kapoor (PW-44) are relevant. Insp. R.K. Rathi (PW-10) has
deposed that he had joined investigation with other police staff and had gone
to Hotel Mayur, Meerut with the family members of Rishi Sethi, the victim,
with ransom money. The said money was kept in room No.221 by the
receptionist Sanjay Abraham (PW-42). The room was booked in the name
of Sandeep Jain. PW-10 along with other members of the raiding party kept
a watch. On the next day, i.e. on 16.09.1995 at about 10:00 a.m., a person
who identified himself as Sandeep Jain made a call informing that he would
be sending his man for taking luggage from room No.221. At about 11:00
a.m., one Ambassador car bearing No.UMT-3314 arrived and the driver
came in and spoke to the receptionist. He paid the balance amount of room
rent of Rs.100 and went to room No.221. The driver brought back the bag
after about 10-15 minutes and kept it on the rear seat of the car. The police
team, which was keeping a watch, followed the car. The said car stopped
near Vardhman Market, Meerut. At about 5:00 p.m. Amit Yadav, the co-
accused came and sat in the car. He checked the bag and kept it on his lap.
The police raiding team immediately swung into action and apprehended
Amit Yadav. The bag with the ransom amount was recovered. Amit Yadav
was arrested and made a disclosure statement (Ex.PW-10/A). Thereafter,
Amit Yadav led the police party to house No.R-63, Raj Kunj, Raj Nagar,
Ghaziabad. The house was opened using the keys recovered from Amit
Yadav, and the victim Rishi Sethi was found locked and chained in the store
room. Photographs were taken and incriminating evidence like lock, key, T-
shirt, bandages, etc. recovered were seized vide seizure memo, Ex.PW10/B.
Rishi Sethi, thereafter, was taken to the Deen Dayal Upadhyaya Hospital and
was medically examined by Dr. R.K. Gupta (PW-45) vide MLC, Ex.PW-
45/A.
8. Insp. R.K. Ojha (PW-11), who was also a part of the raiding team, has
similarly deposed regarding ransom money being kept in room No.221 of
Hotel Mayur, Meerut, booked in the name of Sandeep Jain; how on 16th
September, 1995, driver of car No.UMT-3314 collected the amount;
apprehension of Amit Yadav at 05:00 PM with the ransom money; and the
subsequent rescue of Rishi Sethi. Insp. Surender Kapoor (PW-44), SHO,
police station Anand Parbat was leading the police team. He has identically
testified and proved the arrest of Amit Yadav; how the entire operation was
conducted on 15th September, 1995 and 16th September, 1995; and Rishi
Sethi was saved.
9. At this stage, it may be relevant to refer to the testimony of Sanjay
Abraham (PW-42), receptionist of Hotel Mayur, Meerut and Rakesh Kumar
Sharma (PW-14), driver of car bearing No.UMT-3314. Sanjay Abraham
(PW-42) has deposed that he was working as a manager and on 15-16th
September, a room was booked in the name of Sandeep Jain on advance
payment of Rs.600/-. He had issued a receipt and had made relevant entries
in the register, which were marked Ex.PW42/A to Ex.PW42/C. However,
he could not identify the person who had made the said booking. He
accepted that he was given an envelope by the person who had booked the
room and given instructions. At about 7:30 or 8:00 p.m. while he was on
duty, a person who called himself Mr. Sethi had spoken to him and desired
to know about Sandeep Jain. He handed over an envelope to Mr. Sethi, who
in turn gave him a bag. He was asked to keep the bag in room No.221.
Accordingly, PW-42 instructed an attendant to keep the said bag in room
No.221. Next day, at about 10:00-10:30 a.m., he received a call from
Sandeep Jain stating that he would be sending his driver along with a receipt
to collect the bag and settle the account. After sometime, a person came and
made balance payment of Rs.100 and the bag was handed over to the said
person. After 5-6 days, police came and his statement was recorded. As per
the prosecution evidence, the said room was booked by Amit Yadav,
impersonating himself as Sandeep Jain. Sanjay Abraham (PW-42) did not
identify the appellant Rahul Rana. It is also not the contention of the State
that PW-42 had seen or could have identified the appellant Rahul Rana.
10. Rakesh Sharma (PW-14), in his court deposition, asserted that he was
working as a taxi driver and on 16th September, 1995, one person had
booked the taxi No.UMT-3314 at the Union Counter at Meerut. He could
not identify the passenger/person who had booked the taxi. He claimed that
on reaching Abu Lane, Meerut, the passenger alighted and went to the
market. At about 5.00 p.m., the passenger returned and he brought the taxi
to the stand. Thereupon, arrival entry was made. Subsequently, 5-6 police
officials wearing plain clothes pounced upon him and he was brought to the
police station, Patel Nagar. PW-14 was declared hostile and was cross-
examined by the Additional Public Prosecutor. He admitted having signed
certain papers but denied that he had given any statement to the police. He
denied several other suggestions given to him by the Additional Public
Prosecutor including the factum that he had gone to Hotel Mayur, Meerut
and taken the money, etc. PW-14‟s testimony, we observe, as per the
prosecution version is not relevant and was not recorded for directly
implicating and to establish the appellant Rahul Rana‟s participation in the
kidnapping of Rishi Sethi.
11. Sunil Dutt Sharma (PW-16) had deposed to the effect that he was the
counter in-charge of the taxi stand and on 16.09.1995, taxi No.UMT-3314
was booked by a person who called himself Mukesh Jain but the said person
was not known to him personally. The taxi was hired at about 11:00 a.m. and
came back after dropping at about 4:00 p.m. Thereafter, some police
persons in plain clothes had picked up the taxi driver, Rakesh Sharma (PW-
14). He had informed the local police station and the SSP, Meerut as he was
under the impression that Rakesh Sharma (PW-14) had been kidnapped.
Later on, from the office of the SSP, Meerut, they came to know that the
said persons were police officers from the Police Station Patel Nagar, Delhi.
PW-16 was declared hostile and the Public Prosecutor cross-examined him.
After examining the booking slip, PW-16 accepted that the taxi was booked
in the name of Sandeep Jain and the booking slips were marked Ex.PW-
16/A and Ex.PW-16/B.
12. Ombir Singh (PW-29) was the president of the taxi union and had
deposed about the presence of Delhi Police at the union office. He accepted
that taxi No.UMT-3314 was hired from the taxi stand and police had
checked the records in this regard. However, as he turned hostile, the Public
Prosecutor had cross-examined him. In his cross-examination, PW-29
accepted having signed memo, Ex.PW-16/A with regard to the booking slip
seized by the police. He also accepted that earlier in the examination-in-
chief he had wrongly given the date of hiring as 22nd September, 1995 and
the correct date was 16th September, 1995. However, PW-29 refused to
identify Amit Yadav as the person who hired the taxi and also refused to
accept the fact that when the police came at the taxi stand, Amit Yadav was
in their custody.
13. Testimony of Sohraj Singh (PW-12), finger print expert should be
noted. PW-12 in his cross-examination accepted that finger-prints of
appellant Rahul Rana did not match with any of the chance prints lifted from
the car.
14. It is clear from the testimony of the aforesaid witnesses that none of
them had identified the appellant Rahul Rana in the court depositions. Rahul
Rana was not arrested from the spot or from the taxi when the ransom
money was seized or from the premises where Rishi Sethi was rescued. He
had not been seen in the hotel. He was not recognised or identified by
Rakesh Sharma (PW-14), Sunil Dutt Sharma (PW-16) and Ombir Singh
(PW-29). In fact, it is not the prosecution case that the said witnesses had
seen or interacted with the appellant Rahul Rana.
15. Rahul Rana had surrendered before the Court on 23rd September,
1995. He was not apprehended by the police.
16. Prosecution case against the appellant Rahul Rana rests upon the
testimony of Kailash (PW-17), Neeraj Bhatnagar (PW-41), Naresh Kumar
(PW-28) and recovery of clothes pursuant to the purported disclosure
statement dated 01.10.1995 made by appellant Rahul Rana (Ex.PW32/B).
The clothes were seized vide Ex.PW32/C allegedly from first floor of
premises No.R-63, Raj Kunj, Ghaziabad, U.P. In order to properly
appreciate the said testimonies, we would like to reproduce the findings
recorded by the trial court on the question of conspiracy and involvement of
the appellant Rahul Rana as a co-conspirator. Trial court in this regard has
observed:-
"139. Till 16.9.95 the police was not aware of the involvement of any
person in the offence of abduction of Rishi Sethi. It was only after the
apprehension of the accused Amit Yadav on 16.9.95 at about 5 PM
who was apprehended with the ransom money in the car used by him
and driven by PW-14 Rakesh Sharma. After the recovery of ransom
disclosure statement of accused Amit Yadav was recorded and it was
during his statement Ex.PW10/A where accused Amit Yadav has
mentioned the name of accused Rahul Rana involved with him for the
abduction of Rishi Sethi and in that statement EX.PW10/A, he had also
disclosed the place where Rishi Sethi was confined. Involvement of
accused Rahul Rana as well as the place where Rishi Sethi was
confined are the facts which were not in the knowledge of the police
prior to the apprehension of the accused Amit Yadav and since
recovery of Rishi Sethi has been effected in pursuance of the
information disclosed by the accused recorded vide memo
EX.PW10/A; disclosure statement to that effect is admissible and
therefrom the involvement of accused Rahul Rana has come on record.
Detailed disclosure statement made by accused Amit Yadav at R-63
Raj Kunj, Raj Nager, Ghaziabad, which is EX.P10/C discloses the
detailed facts how the offence was planned and executed by him with
the help of accused Rahul Rana. However, the disclosure statement is
not sufficient to rely the involvement of accused Rahul Rana for the
purpose of his involvement, unless same is corroborated on some
account by other evidence on record. PW17 Sh. Kailash who was
running a toy shop at 38, Hauz Khas, Arvindo Palace, New Delhi
states that he knew accused Rahul Rana present in court. In his
statement he states that about 2½ years back in the month of
September, accused Rahul Rana purchased a toy pistol from his shop
for Rs.60/- and that toy pistol has been used for threatening the victim
Rishi Sethi. He identified the toy pistol EX.P.1 which was purchased
from his shop.. PW22 Rishi Sethi on cross--examination seen the toy
pistol EX.P1 states that it was the same which was used for threatening
him. Not only this, PW41 Neeraj Bhatnagar, R/o.R-6/151, Raj Nagar,
Ghaziabad states that he is running a travel agency with the name of
Meghna Travels situated at R-10/114, Raj Nagar, Ghaziabad, UP
during the period of September,1995 and he was knowing accused
Amit Yadav and Rahul Rana since they were his regular customers. On
16.9.95 both accused persons came to his office and booked the Maruti
Van no.DL-4C-D-7349 for Meerut and this Maruti Van has been
driven by Naresh on 16.9.95 and duty slip for that purpose was also
handedover to him. Ho had identified both accused persons who came
for booking the said Maruti Van and he has also made entry in the
booking register as well as the payment register. PW28 Naresh Kumar
who was driver with Meghna Travels Agency, situated R-10/114, Raj
Nagar, Ghaziabad, UP states that in the month of September, 1995 he
was on duty on Maruti Van no.DL-4C-D-7349. On 16.9.95 his Maruti
Van was booked by his owner for Meerut. As per prosecution case,
this van has been used to carry both these accused persons to Meerut.
However he has proved his signatures on the documents EX PW28/A
pointing--out memo prepared by the police for pointing-out the place
wherefrom the said taxi was booked. So from booking of the van by
both accused persons on 16.9.95 in the morning and at the same time
purchase of the toy pistol EX.P1 by accused Rahul Rana used for
threatening victim Rishi Sethi on 12.9.95 at the time of abduction, as
stated by PW41 Neeraj Bhatnagar and PW17 Kailash both public
witnesses, respectively, I. find that prosecution has proved the overt
act committed by accused Rahul Rana in agreement with accused Amit
Yadav for the commission of crime u/s 364A, 394, 323, 506 IPC and
accordingly, I find that prosecution has proved the reasonable ground
for the Court to believe that two or more persons i.e. Amit Yadav and
Rahul Rana were the members of the conspiracy to commit the crime
and accordingly the first condition stands proved by the prosecution
and contemplated by the Hon‟ble Supreme Court in the aforesaid-
judgment.
140. The second Ingredients as held by the Hon'ble Supreme Court in
the aforesaid cases, is that if the said condition is fullfilled, than
anything said done or written by anyone of them in reference to their
common intention, will be evidence against the other. Accordingly, in
view of this requirement, whatever is done by accused Amit Yadav in
order to commit the offences punishable u/s 364A, 394, 323, 506 IPC
is the evidence against the accused Rahul Rana also.
141. Third ingredient is that anything said, done written by him should
have been said done or written by him after the intention was formed
by any one of them. In the present case, the clear intention has been
proved to commit the crimes punishable u/s 364A, 394, 323, 506 IPC,
that has been proved by reliable evidence on record and the offence
has been proved committed by one of the accused i.e. Amit Yadav and
it has to be presumed that such offences have been intended to be
committed and accordingly such intention was fanned after, the had
been made between him and accused Rahul Rana.
142. Fourth ingredient as held by the Hon‟ble Supreme Court in the
aforesaid case is that, it would also be relevant for the said purpose
against another who entered the conspiracy whether it was said, done
or written before he entered the conspiracy or after he left it. Toy pistol
EX.P1 has been purchased before the commission of the crime and that
has been used to threaten Rishi Sethi on 12.9.95 and that proves the
concert of accused Rahul Rana with accused Amit Yadav and
thereafter the concert has been proved when both of them have booked
the van on 16.9.95 to go to Meerut. Accordingly, requirement of this
ingredient has also been proved by the prosecution.
143. Fifth ingredient as per the aforesaid judgment of the Hon‟ble
Supreme Court that it can only be used against the co-conspirator and
not in his favour in accordance with requirement whatever evidence
have produced by the prosecution against Amit Yadav has to be used
against Rahul Rana and not in hiv favour. Accordingly, prosecution
has proved by reliable evidence on record that Rahul Rana-accused
was party to the criminal conspiracy with accused Amit Yadav for
committing the offence punishable u/s 364A, 394, 323 and 506 IPC.
Accordingly, prosecution has proved necessary ingredients by reliable
evidence on record for the purpose of bringing home the charge u/s
120B IPC against the accused Rahul Rana and therefore in view of
these findings, I hold that the contention raised by Ld. Counsel for the
accused persons Amit Yadav and Rahul Rana has no substance or
merit at all and the same are liable to be rejected, since no motive or
animosity has been suggested or proved by accused Rahul Rana
against the witnesses who stated and proved his common design with
accused Amit Yadav and it was only accused Amit Yadav who could
know as to who were participants in the commission of the crime and
nobodyelse, till 16.9.95. If accused Amit Yadav have not disclosed the
name of other persons who may have also participated with him, it was
difficult-for the police to take cognizance against those persons and it
appears that other persons have been saved by accused Amit Yadav, if
there were 3/4 persons to abduct Rishi Sethi from AIMS as stated by
him. Money makes the mare go. Crimes are committed by sometimes
by hired persons who work for money and if at that stage accused
Amit Yadav had used other persons also, in addition to these two, and
later on he did not disclose those persons certainly it was impossible
for the police to reach upto those persons and that is why other persons
could not be arrested, since their roles have not been specified by
accused Amit Yadav or accused Rahul Rana and, therefore, it was
impossible for the police to investigate the case against any other
person. At the same time, it is certain that in the facts and
circumstances of the case, there was no chance for false implication of
the accused persons, because none of the accused persons was within
the knowledge of the police even during the course of investigation
w.e.f. 13.9.95 till 15.9.95. Had it been there in the knowledge of the
police prior to 15.9.95, police might have taken-the steps to apprehend
the accused persons and might have recovered the Rishi Sethi prior to
16.9.95. Rahul Rana is also not resident of Delhi and from the
evidence on record, he is resident of Bullandsahar and in those
circumstances there appears no reason for the police to falsely
implicate the accused Rahul Rana with accused Amit Yadav, if he has
not participated in the commission of crime and there was no reason
for other two witnesses to depose against him. Discrepancies are
bound to occur what-so- ever intelligent or expert person he may be
but discrepancies on minor facts are bound to occur in the statement of
any witness because no person can make the statement on two
occasions at a different of 2/3 years in the same words, in the same
expression and in the-same manner because the potentialities of the
senses of perception, reception, retention memory and expression
differ from mind to mind and many men and many minds and no two
minds can be the same. Accordingly by natural consequences the
contradictions are bound to occur, but unless the malafides are proved
for false implication against such witnesses, their testimony cannot be
thrown away, as untrustworthy merely on such minor contradictions.
Accordingly, in view of the above discussion I find that prosecution
has proved, essential ingredients for all the aforesaid offences and
contention raised by Id. counsels for the accused persons in that regard
are devoid of any merit or substance. However, the chain of the
circumstances of the prosecution case to be considered with reliable
and documentary evidence on record while dealing with the other
contentions raised by ld. counsels for the both accused persons.
144. Ld. Counsel for accused Rahul Rana contended that identity of
the accused Rahul Rana not been established and refusal of the TIP
was justified and that his identity was not established by any other
witness. I have given thoughtful consideration to this contention raised
by Id. counsel for accused Rahul Rana and gone through the evidence
on record, Since the role of accused Rahul Rana has already been
discussed in respect of purchasing the toy pistol and ,accompanying
the accused Amit Yadav in order to hire the van on 16.9.95 and
identified positively by PW17 Kailash and PW41 Neeraj Bhatnagar, so
I found that this contention has no merit at all. So the same is rejected.
145. Next contention raised by ld. counsel for the accused Rahul Rana
is that since PW22 Rishi Sethi is hostile and there is no evidence that
accused Rahul Rana has abducted the victim Rishi Sethi and on the
same basis, it is not proved if Rahul Rana confined Rishi Sethi or used
force against him. PW45 Doctor R.K.Gupta who examined Rishi Sethi
has made the prosecution story topsy turbi, he has deposed that injury
of Rishi Sethi were 24 hours. old; that how it can be so, when injuries
found caused on 12.9.95 and the victim was examined on 16.9195.
146. I have given thoughtful considerations to this contention and
f y
,
gone through the evidence on record and find that this contention has
no substance or merit at all, since the hostility of PW Rishi Sethi on
certain points cannot be sufficient to throw away his entire statement
on record, which is found reliable and it does not effect the other
positive evidence on record, which supports the charges against the
accused Rahul Rana. PW Rishi Sethi has specifically stated that before
getting his writing on the letter Ex.PW6/A unknown person has given
him severe beatings and that letter has been got written on 15.9.95 and
the witness has been examined on 16.9.95. There is no challenge on
the factum of inflicting injury on the person of Rishi Sethi on 15.9.95
that letter was got written during the course of his confinement or
detention at R-63, Raj Kunj, Raj Nagar, Ghaziabad, UP. He has also
specifically stated the circumstances under which he we was
compelled to write that letter and that letter PW6/A was used to encash
rupees ten lacs. Therefore, giving beatings and inflicting injury on the
person of Rishi Sethi while under detention, have been corroborated by
the medical evidence on record i.e. the testimony of PW45, Dr. R.K.
Gupta, I find that whatever offence has been committed and whatever
evidence has been produced to prove such offences eve against the
accused Amit Yadav, the same shall be used against the accused Rahul
Rana, since it has-already been found that he was the party to the
criminal conspiracy as-has already been discussed while dealing with
charge u/S 120B IPC- read with section 10 of the Evidence Act. So all
:the evidences proving the charge or evidence against accused Amit
Yadav, shall be used as evidence against Rahul Rana, as held by
Hon‟ble Supreme Court in case titled as CBI V/s. V.C. Shukla &,
others (supra). So this contention has no merit or substances at all. So
the same is rejected.
147. Ld. Counsel for the accused Rahul Rana further contended that
there is no evidence against the accused Rahul Rana; that he never
threatened or caused hurt for the purpose of ransom, hence Section
364A IPC is not attracted at all. In view of the detailed discussion
already undertaken while considering the ingredients of Section 364A
IPC and the relevant and reliable evidence to prove the charge against
the accused and the discussion, detailed above, in respect of the
Section 10 of the Evidence Act, the entire evidence used to prove the
evidence against the accused Amit Yadav has to be taken as evidence
against the accused Rahul Rana. Hence this contention has also no
substance or merit, at all. The same is rejected."
17. When we analyse the aforesaid paragraphs, it is lucid that the trial
court relied upon the disclosure statement of Amit Yadav (Ex.PW10/A) on
the involvement of appellant Rahul Rana and held that this fact was not in
the knowledge of the police prior to information from Amit Yadav.
Impliedly, reference is to Section 27 of the Indian Evidence Act, 1872. The
said Section would have no application as far as the appellant Rahul Rana is
concerned. The appellant Rahul Rana is not the author or maker of the
disclosure statement. He did not reveal or disseminate any information.
What is admissible under Section 27 of the Indian Evidence Act, 1872
would be discovery of a fact which was not within the knowledge of the
police confirmed by the recovery of a physical object. Prosecution would
certainly rely upon Section 8 of the Indian Evidence Act, 1872, as Amit
Yadav had mentioned and indicted the appellant Rahul Rana. However, to
secure conviction of Rahul Rana, this fact would not be sufficient but should
have enabled the investigating agency to collect cogent, trustworthy and
reliable evidence to prove and establish involvement of appellant Rahul
Rana. The leads given by the co-accused cannot be and would not
constitute the primary or sufficient receptive evidence/material to attribute
and impute guilt. On the aspect of material and evidence against the
appellant, trial court has relied upon two witnesses, i.e. testimonies of
Kailash (PW-17) and Neeraj Bhatnagar (PW-41). It would be, therefore,
relevant to discuss and examine the testimonies of Kailash (PW-17) and
Neeraj Bhatnagar (PW-41) and whether the said testimonies establish
involvement of the appellant Rahul Rana in the conspiracy.
18. Kailash (PW-17) elucidated that he was having a toy shop in
Aurobindo Place, New Delhi and two and a half years back on 18 th
September, the appellant Rahul Rana had purchased a toy pistol from him
for Rs.60/-. After 10-15 days, police came with Amit Yadav to confirm the
purchase of toy pistol. He could not remember whether Amit Yadav or any
other person had accompanied or came with Rahul Rana. He identified the
toy pistol (Ex.P-1). He was cross-examined by the public prosecutor who
had suggested that it was Amit Yadav who had purchased the toy pistol. He
reiterated that it was Rahul Rana who had purchased the toy pistol. It is
noticeable that as per the prosecution version and the charge-sheet, Amit
Yadav had purchased a toy pistol from Kailash (PW-17) and not the
appellant Rahul Rana. In his cross-examination, Kailash (PW-17) was
confronted with his statement under Section 161, Cr.P.C. (Ex.PW17/DA) to
the effect that Amit Yadav and not Rahul Rana had purchased the toy pistol.
Thus, assertion of Kailash (PW-17) that the appellant Rahul Rana had
purchased the toy pistol is contrary to the prosecution‟s case and was not
what the charge-sheet had alleged and asserted. This act was not assigned to
Rahul Rana. What is equally intriguing is the recollection by Kailash (PW-
17), after two and a half years, that Rahul Rana had come to his shop and
that a toy gun was purchased by Rahul Rana from him. There is, thus, merit
in the contention raised by the counsel for the appellant Rahul Rana, that
Kailash (PW-17) was trying to save and rather protect the co-accused Amit
Yadav by blaming or implicating the appellant Rahul Rana. In these
circumstances, we are not inclined to accept identification by Kailash (PW-
17) that Rahul Rana had purchased the toy pistol.
19. Neeraj Bhatnagar (PW-41) had deposed that he used to run a travel
agency Megha Travels during the period 1990-1995 from his office situated
at Raj Nagar, Ghaziabad. He knew the appellant Rahul Rana and Amit
Yadav as they were his regular customers. On 16th September, 1995, the
two had come to his office and booked a taxi for going to Meerut. A Maruti
Van with driver Naresh was hired by them. Relevant entry was made in the
booking and payment register. In the evening, the driver had brought back
the vehicle. After 3 days, on 19th September, 1995, a police team visited his
office and checked out the entries but at that time neither Rahul Rana nor
Amit Yadav was with them. He identified his signature on photocopies of
seized documents, i.e. booking register and payment register. The originals
were not traceable. In his cross-examination, PW-41 accepted that taxi had
come back in the evening and he did not know the addresses of Amit Yadav
and Rahul Rana. PW-41 had employed 20 drivers in all and he was not
aware whether two ladies, a child and an old man were taken from 2/34, Raj
Nagar, Ghaziabad to Shastri Nagar, Meerut.
20. Naresh Kumar, the driver had appeared and deposed as PW-28. He
testified that on 16th September, 1995, a Maruti van bearing No. DL4CD-
7349 at about 8.30 a.m. was driven by him to 2/34, Raj Nagar, Ghaziabad
and from there, two ladies, one child and an old man were driven by him to
Shastri Nagar, Meerut. Thereafter, he came to the taxi stand at Ghaziabad.
After 2-3 days, police came to the taxi stand along with a man in their
custody. He did not know who the said man was. Police also inquired from
Neeraj (PW-41) about the said man. Even Neeraj (PW-41) did not know the
said person.
21. The aforesaid testimonies of Neeraj Bhatnagar (PW-41) and Naresh
(PW-28), thus prove that Amit Yadav and the appellant Rahul Rana were
known to each other and it can be inferred that they were on comradely
terms. But, the question is whether this and other demonstrable proof and
evidence is substantial and sufficient to establish the appellant Rahul Rana‟s
involvement in the conspiracy.
22. The term „criminal conspiracy‟ as defined in Section 120A of the IPC,
requires that two or more persons should have agreed to do or caused to be
done an illegal act or an act which was not illegal by illegal means.
However, no agreement to commit an offence amounts to criminal
conspiracy unless some act besides the agreement is done by one or more
conspirators to such agreement in pursuance thereto. Thus, for offence of
criminal conspiracy, there should be an agreement between two or more
persons do or cause to be done an illegal act or an act which is not illegal by
illegal means. Secondly, it requires an overt act by a member of the
criminal conspiracy. The said overt act need not be by all such
conspirators. If criminal conspiracy is proved, then all conspirators would
be liable for the offence, even if he had not actively participated in the
commission of the offence or indulged in a specific illegal act. The first
stage and importance, therefore, is to find out whether there was any
agreement/common design and there is a reasonable ground to believe that
two or more persons had conspired for any of the two aforesaid purposes.
Existence of the agreement is a necessary precept and mandatory canon for
proving existence of conspiracy.
23. In Kehar Singh & Ors. vs. State (Delhi Admn.) (1988) 3 SCC 609, at
page 731, para 271, reference was made to a passage from Russel on Crime
(12th Edn. Vol. I, at page 202); Criminal Law by Glanville Williams (2nd
Edition, page 382); and, to Coleridge J. summing up the case to the jury in
Regina vs. Murphy, 173 ER 504 to highlight that the core of the offence of
conspiracy lies not in doing an act or effectuating the purpose for which the
conspiracy is formed, or on attempt to effectuate, or inciting others to do an
act, but forming a scheme, i.e. an agreement between the parties is
quintessential. Albeit, mere knowledge or even discussion of the plan is not
enough per se. There should be a concert in action, which has reference to
common intention. The decision highlights the difficulties and impediments
in establishing a conspiracy, which by no means is easy to prove as it is
hatched in secrecy and direct evidence may not be available. The conspiracy
can be proved by either direct or circumstantial evidence, and it is for the
Court to ascertain and find out whether two or more persons had pursued the
same object independently or had they come together in pursuit of the
unlawful object to form a group or irrelevant facts have been artfully
arranged so as to give an appearance of coherence. Relative act or conduct
of the parties must be conscientious and clear to mark their concurrence.
Inference cannot be drawn that the two or more persons were engaged in a
conspiracy to effect an unlawful object merely because they had a common
design and they had used common means. There must be some kind of
"physical manifestation" of the agreement. However, proving of an express
agreement, actual meeting of the two persons, or the actual words uttered, is
not necessary. As per Shetty, J., "[t]he evidence as to transmission of
thoughts sharing the unlawful design may be sufficient." The act or the
conduct of the parties must be conscientious and must mark their
concurrence towards the unlawful object and the means to achieve the same.
Shetty, J., however, cautioned that,
"... The concurrence cannot be inferred by a group of
irrelevant facts artfully arranged so as to give an appearance
of coherence. The innocuous, innocent or inadvertent events
and incidents should not enter the judicial verdict. We must
thus be strictly on our guard."
Reference in this regard can be made to the decision of the Supreme Court in
State (NCT of Delhi) versus Navjot Sandhu @ Afsan Guru, (2005) 11 SCC
600, wherein it was explained that the expression „physical manifestation‟
cannot be equated with an overt act, but has reference to the manifestation of
the agreement itself, such as by way of meetings or communications. As
conspiracy is seldom an open affair, they are mostly proved by way of
circumstantial evidence. The rule governing circumstantial evidence is that
each and every incriminating circumstantial evidence must be established by
reliable evidence and the circumstances so proved must form a chain of
events from which the only irresistible conclusion is that the accused is
guilty and no other hypothesis against the guilt is possible (See paragraph
97). The inferences must have a foundation of solid and cogent facts,
including surrounding circumstances, antecedents and subsequent conduct
and all other factors that constitute relevant material. Thus, innocuous,
innocent or inadvertent events or incidents should not enter the judicial
verdict. The said views have been reiterated time and again (see John
Pandian versus State, (2010) 14 SCC 129 and Yakub Abdul Razak Memon
versus State of Maharashtra, (2013) 13 SCC 1, paragraph 125 onwards)
24. Applying the aforesaid ratio, when we examine the testimonies of
Naresh (PW-28) and Neeraj Bhatnagar (PW-41), it is difficult to accept that
their testimonies are indication of physical manifestation to show
conspiracy. The purpose of hiring a taxi has not been shown as linked or
connected with the offence in question. It was not relatable to the
kidnapping.
25. The trial court being ceased of the said position had relied upon
Section 10 of the Indian Evidence Act, 1872 which introduces the doctrine
of agency and if the conditions laid down and stipulated therein are satisfied
the facts deposed by one accused/perpetrator are admissible against the
other. However, for the said Section to apply there should be prima facie
evidence affording reasonable ground for the court to believe that two or
more persons were members to a conspiracy. We have already referred to
our findings on the said issue and have recorded that there is hardly any
evidence proving an „agreement‟ between Amit Yadav and the appellant
Rahul Rana. The Supreme Court in State (NCT of Delhi) versus Navjot
Sandhu @ Afsan Guru (supra) had examined the contours and ambit of
Section 10 of the Indian Evidence Act, 1872. The challenge made to the
ratio expounded by the Privy Council in Mirza Akbar versus King Emperor
AIR (supra) was rejected, elucidating that a statement made by the
conspirator after his arrest cannot be brought within ambit of Section 10 of
the Indian Evidence Act, 1872 as by that time the link/connection of the said
conspirator snaps and cracks as the communicator stands arrested. In the
context of the accused, in the said case it was held that the confessional
statement made to the police under Section 32(1) of the Prevention of
Terrorism Act, 2002, cannot be pressed into service. The contention of the
prosecution that Section 10 incorporates a deeming provision was rejected.
It was observed that no doubt Section 10 rests on the principle of agency, but
it does not in terms, treat the statements made and acts done by one to be
statements or acts of all. Section 10 only lays down a rule of relevancy.
Endeavour to bring confessional statement of a co-accused after arrest as
evidence through the route of Section 10 of the Indian Evidence Act, 1872
has been repeatedly rejected by the Supreme Court.
26. Before we end, we must also take into account an assertion made on
behalf of the prosecution, which is not recorded in the aforesaid paragraphs
of the impugned judgment. As noted, appellant Rahul Rana had surrendered
in the court on 23rd September, 1995. As per the police version, the
appellant had made a disclosure statement marked Ex.PW-44/F on the same
date. He had then given his residential address as 586, Civil Lines,
Bulandshahar, U.P. and as per the police version, he had revealed that his
blood stained clothes were kept at Bulandshahar. No recoveries were made
pursuant to the said disclosure statement. Prosecutor relies upon the second
disclosure statement marked Ex.PW-32/B dated 1st October, 1995. Insp.
Mohinder Singh (PW-32) had taken up investigation of the case on 1st
October, 1995, and had gone to Meerut with appellant Rahul Rana. Later on
the same day, the appellant had made disclosure statement at Bulandshahar
marked Ex.PW-32/B and led them to R-63, Rajkunj, Raj Nagar, Ghaziabad.
In a room on the first floor from an almirah, the appellant Rahul Rana had
produced one pant and shirt having blood stains. These were seized and
sealed vide Ex.PW-32/C. In his cross-examination, Insp. Mohinder Singh
(PW-32) deposed that mother of Amit Yadav was present in the property
No.R-63, Rajkunj, Raj Nagar, Ghaziabad. They had gone up to the first
floor of the house. No person had joined in the recovery proceedings as a
witness. The almirah from where the clothes were recovered was closed but
was not locked. Before the trial court, as well as before us, it has been
accepted that R-63 Raj Kunj, Raj Nagar, Ghaziabad, U.P. was the house of
Amit Yadav. The said house was not as such directly linked with or
residence of the appellant Rahul Rana. Rescue operations were undertaken
in the same house on 16th September, 1995. The clothes were recovered on
1st October, 1995. Insp. Surender Kapur (PW-44) had deposed that on 16th
September, 1995, they had rushed to R-63 Raj Kunj, Raj Nagar, Ghaziabad,
U.P. and rescued the victim Rishi Sethi. At that time also, they had
recovered and seized various blood stained clothes, etc. Alleged recovery of
the aforesaid clothes, therefore, on 1st October, 1995, i.e. nearly 14 days after
the place had already been searched and explored, is highly debatable and
importunate. In these circumstances, reliance placed on the CFSL report
(Ex.PW-48/A) that human blood of Group „A‟ was found on the clothes and
the same matches the blood group of the deceased loses significance and
importance.
27. When we examine the entire evidence proved and established by the
prosecution, it is apparent that it would not meet the test and parameter to
secure conviction in a case based upon circumstantial evidence. What has
been proved and established is hiring of a taxi by the appellant-Rahul Rana
along with Amit Yadav for going to Meerut on 16th September, 1995. Two
ladies, a child and an old man were, thereafter, driven and dropped at Shastri
Nagar in Meerut, U.P. This evidence is not even remotely a manifestation of
conspiracy to kidnap Rishi Sethi. The said fact is not sufficient to hold and
draw an irresistible conclusion about the guilt of the appellant-Rahul Rana.
We cannot safely draw any such irresistible conclusion. It cannot be said
that no other hypothesis against the guilt is possible.
28. In view of the aforesaid discussion, we allow the present appeal and
the conviction and sentence of the appellant-Rahul Rana is set aside. Appeal
is allowed. The bail bond given by the appellant will be cancelled. The trial
court records will be sent back.
-sd-
(SANJIV KHANNA)
Judge
-sd-
(ASHUTOSH KUMAR)
Judge
APRIL 13, 2015
ab/NA/kkb
