Delhi High Court
Amrik Singh & Anr. vs The State Nct Of Delhi on 8 October, 2015
$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : JULY 09, 2015
DECIDED ON : OCTOBER 08, 2015
+ CRL.A.320-321/2005
AMRIK SINGH & ANR. ..... Appellants
Through : Mr.Arun Sharma, Advocate.
VERSUS
THE STATE NCT OF DELHI ..... Respondent
Through : Ms.Fizani Husain, APP.
+ CRL.A.323/2005
SHAMSHER SINGH ..... Appellant
Through : Mr.Tushar Sharma, Advocate.
versus
STATE .... Respondent
Through : Ms.Fizani Husain, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Aggrieved by a judgment dated 16.03.2005 of learned
Additional Sessions Judge in Sessions Case No.01/03 arising out of FIR
No.656/01 registered at Police Station Jahangirpuri by which the
appellants Amrik Singh, Gurmeet Singh and Shamsher Singh were held
guilty for committing offences punishable under Sections 363/365/34 IPC,
they have preferred the instant appeals. By an order dated 17.03.2005,
they were sentenced to undergo Rigorous Imprisonment for seven years
with fine `25,000/- each under both the heads. Substantive sentences
were to operate concurrently.
2. Briefly stated the prosecution case, as reflected in the charge-
sheet, was that on 05.10.2001 Amrik Singh, Gurmeet Singh, Shamsher
Singh and Ajeet Singh (Proclaimed Offender) kidnapped the prosecutrix
'X' (assumed name), aged around 15 years, from the lawful guardianship
of her mother Rita Mehta from Turner Road, Dehradun, U.P. where she
had gone for morning walk. She was brought to Delhi in an ambassador
car against her consent. `2,00,000/- were demanded as ransom from her
mother for her release. 'X' was wrongfully confined firstly at House
No.K-100 and thereafter at K-1482-1483, Jahangirpuri, Delhi from
05.10.2001 to 09.10.2001 by the kidnappers in furtherance of common
intention with Gurpreet Kaur and Surjeet Kaur (since acquitted). 'X; was
criminally intimidated and her modesty was outraged in the house. She
was recovered by the police of Police Station Jahangirpuri on 09.10.2001.
'X' was medically examined; her statement under Section 164 Cr.P.C.
was record. The accused persons were arrested. 'X's mobile and wrist
watch were recovered. Statement of witnesses conversant with the facts
were recorded. Upon completion of investigation, a charge-sheet was laid
before the Trial Court against Amrik Singh (A-1), Gurpreet Kaur (A-2),
Gurmeet Singh (A-3), Surjeet Kaur (A-4), Ajeet Singh (A-5) and
Shamsher Singh (A-6) for commission of various offences punishable
under Sections 363/364A/343/354/372/506/34 IPC. By an order dated
11.03.2002 A-1 to A-6 were charged under Sections 368/354/506/372
read with Section 511/34 IPC. A-1, A-3, A-5 and A-6 in addition were
charged under Section 363/364A/34 IPC. The accused persons pleaded
not guilty to the charges and claimed trial. The prosecution examined 18
witnesses to substantiate its case. In 313 Cr.P.C. statement, the accused
persons denied their complicity in the crime and pleaded false implication.
They examined DW-1 (S.P.Singh) in defence. It is relevant to note that
A-5 absconded during trial and by an order dated 25.03.2004, he was
declared Proclaimed Offender. After hearing the rival contentions of the
parties and on appreciation of the entire evidence, the Trial Court by the
impugned judgment acquitted A-2 and A-4 of all the charges. A-1, A-3
and A-6 were acquitted of the charges under Section
364A/368/354/372/34 IPC. They were convicted only under Sections
363/365/34 IPC. It is pertinent to note that State did not challenge their
acquittal. Being aggrieved and dissatisfied, the appellants have preferred
the instant appeals.
3. I have heard the learned counsel for the parties and have
examined the record minutely. The appellants' conviction is primarily
based upon the testimonies of PW-1 (Rita Mehta), 'X's mother and that of
the prosecutrix herself (PW-2). Their evidence was, however, not found
adequate or sufficient to convict A-2 and A-4. Evidence was also found
scanty to convict the appellants for commission of serious offences under
Sections 364A/368/354/372 IPC.
4. The alleged incident of kidnapping occurred on 05.10.2001
when 'X' had gone alone for a morning walk at around 6/6.15 a.m. at
Turner Road, Dehradun (U.P.). She was carrying a mobile and was
wearing a wrist watch that time. PW-1 (Rita Mehta) in her examination-
in-chief stated that on that day she lived along with her daughter 'X' and a
son at 47, Turner Road, Dehradun. 'X' had gone for a morning walk at
around 6/6.15 a.m. alone as she was not feeling well. When she did not
return as usual, she searched her at various places but was unable to trace
her. On 06.10.2001 during noon hours, she received a telephone call from
7126336 on her mobile from A-1 and he demanded `2,00,000/- as ransom
for her release. PW-2 ('X') corroborated her version on this aspect and
testified in the Court about her kidnapping on 05.10.2001 when she had
gone alone for a morning walk. She elaborated that hardly she had
covered a short distance from her house when an Ambassador car of white
colour came and stopped by her side. An individual (identified as A-5)
came out of the car, gagged her mouth and made her to sit in the car.
Besides A-5, she also identified A-1, A-3 and A-6 to be the individuals
present in the said car. She was threatened at the point of knife and
prevented to raise alarm. The culprits consumed liquor in the moving
vehicle and finally brought her to House No.K-100, Jahangirpuri. On the
way to Delhi, she was molested by the assailants. Her wrist watch and
mobile were taken by them. She further deposed that she was forced to
disclose her mother's mobile number i.e. 983725863 on which they made
ransom calls for her release.
5. Both the prosecutrix and her mother were categorical and
certain that kidnapping incident took place at Turner Road, Dehradun
(U.P.). Appellants' case from the very inception was that they have been
falsely implicated at the complainant's behest and she was well
acquainted with them and had taken a loan of `1,00,000/- from A-1.
When she declined to return the loan amount, the appellants were roped
in. In the lengthy cross-examination, repeatedly the prosecutrix and her
mother were questioned about their definite address at Dehradun. They
(the appellants) categorically asserted that 'X' and her mother-
complainant never lived at Dehradun and no kidnapping as such took
place in the manner alleged by them there. Apparently, the prosecution
was under legal obligation to prove beyond reasonable doubt that 'X' was
kidnapped on 05.10.2001 from 'Turner Road, Dehradun' where she and
her mother used to live.
6. On scanning the entire record, it reveals that the prosecution
has miserably failed to establish that on the relevant date, 'X' and her
mother lived at Dehradun or that 'X' was kidnapped from 'Turner Road',
as alleged. Conflicting and inconsistent versions have been given by the
prosecution witnesses about their place of residence at Dehradun. In her
statement which formed the basis of the FIR (Ex.PW-5/A), the
complainant disclosed her residence at House No.47, Turner Road,
Dehradun with phone number 9837123784. At the time of disposal of the
bail application moved by the appellants during investigation, it was
specifically claimed by them that the complainant never lived at the said
address. Vide order dated 06.03.2002 the Investigating Officer was
directed to verify the complainant's address. PW-17 (SI Attar Singh), the
Investigating Officer, in his examination-in-chief itself admitted that on
15.01.2001 he had gone to Dehradun to verify the complainant's address
at House No.47, Turner Road, Dehradun but it could not be done as it was
'untraceable'. He further deposed that it came to his knowledge that she
was residing at House No.52/01, Lane No.5, Turner Road, Dehradun.
When specifically asked as to if any notice was issued to the complainant
under Section 160 Cr.P.C. to furnish her correct address, his reply was
that she was not 'traceable'. He further disclosed that even at 52/01, Lane
No.5, Turner Road, 'X' and her mother were not available. He further
admitted that summons issued to procure their attendance were never
served to 'X' and her mother at 47, Turner Road, Dehradun. Efforts were
made to serve the summons at 52/01, Lane No.5, Turner Road also but in
vain.
In her Court statement recorded on 06.06.2002, the
complainant disclosed her residential address as House No.1047, Turner
Road, Police Station Rajpur Road, Dehradun. When she re-appeared for
examination on 01.11.2002, she claimed herself to be a resident of Son
Star Heritage, near Radha Swami Satsang Mandir, Delhi. In the cross-
examination, she claimed that her residence at Dehradun was there for the
last 10/11 years. She had changed two houses during her whole stay at
Dehradun. She, however, did not furnish the address of her rented
accommodation in which she had resided for about six years before. She
was unable to disclose the name of her landlord. She further disclosed that
accommodation presently in her occupation was arranged through a
property dealer Mr.Mahajan at Jakhal, Dehradun and she was paying
`2,000/- p.m. as rent. She, however, did not have any rent receipt or ration
card. In the further cross-examination, she disclosed that her residential
address at Dehradun was at 73/32, Arya Nagar, Dehradun. She admitted
that this address was not disclosed by her previously and it was occupied
by her mother-in-law. She was unable to give details of the individuals
residing at 1047, Turner Road. Though she claimed to be in possession of
ration card at 1047, Turner Road and opted to produce it but it was never
done. She did not offer any explanation for not producing the ration-card
despite informing the Court that she would produce it. Again in the cross-
examination, the prosecutrix disclosed that they were residing at H.No.83,
Krishankunj Chungi, Dehradun. Needless to say, the prosecurtix and her
mother have not given the correct address where they used to live at
Dehradun. No rent receipt, ration card, voter I-card, electricity or
telephone bills etc. or any other document has been produced on record to
show their residence for any particular duration at Dehradun. Contrary to
that, during address verification, the I.O. recorded statement of the owner
of the house (Meenakshi Semwal) on 20.10.2001 who stated that house
No.47, Lane No.6, was in the name of B.R.Semwal and at no stage Rita
Mehta (PW-1) or 'X' (PW-2) lived there. DD No.16B dated 10.03.2002
recorded at Police Station Jahangirpuri by Investigating Officer which is
on judicial record ( Page No.1861) is based upon the statements of
Shekhar Chand Dhiyani (Page 1863), Krishan Kumar Mahajan (Page
1865), Certificate by B.R.Semwal (Page 1867) and statement of Preetam
Singh (Page 1869). It records that the complainant had stayed in the
portion of the house belonging to Shekhar Chand Dhyani along with her
daughter and two sons only for fifteen days at House No.52/1, Lane No.5,
Turner Road and it was subsequently abandoned by them. Krishan Kumar
Mahajan disclosed in his statement (Page 1865) that House No.247, Dun
Vihar belonging to Preetam Singh was arranged by him. Preetam Singh
in his statement (Page 1869) disclosed that the complainant along with her
two sons and a daughter had lived there for fifteen days in October, 2001.
Obviously, the complainant had no permanent address at Dehradun and
the prosecution miserably failed to establish that she was residing at
Turner Road at a specific address from where the prosecutrix had left for
morning walk, as alleged.
7. Another glaring feature of the case is that throughout the
prosecutrix and her mother claimed that 'X' was a student of Savitri Devi
Public School, Dehradun. PW-1 in her cross-examination informed that
after studying upto 10th Standard in the said school 'X' had passed out in
the year 2000. She had studied from 1st Standard to 10th standard
continuously there. Similar is the claim of PW-2 (X). She went to the
extent of stating that her school was located at Majra, Dehradun and
Smt.Sunita Mittal was its Principal. In the further cross-examination, she
disclosed that name of her school was P.T.College Dehradun. The
prosecutrix or her mother did not produce any document, whatsoever, to
show if 'X' studied in the said school at Dehradun any time. It appears
that 'X' and her mother were taken by surprise and they never expected to
face these questions. Admitted position is that on 09.10.2001 PW-1, the
complainant, had handed over 'X's School Leaving Certificate (Ex.PW-
16/A) to the police. It is so admitted by PW-17 (SI Attar Singh), the
Investigating Officer. In the cross-examination he admitted that the
School Leaving Certificate (Ex.PW-16/A) given by the complainant on
09.10.2001 was already in her possession and it was given by her in the
Court to him. PW-16 (Hari Shankar), Lab Assistant, Govt. Girls
Sr.Sec.School, New Friends Colony brought the summoned record and
deposed that as per School Leaving Certificate (Ex.PW-16/A), 'X's date
of birth recorded therein was 05.01.1986. On perusal of School Leaving
Certificate (Ex.PW-16/A), it reveals that 'X' was a student of VIIth class
in 'C' Section in the said school. Ex.PW-16/DA is an application moved
by 'X' to the concerned Principal to issue Transfer Certificate. In the said
application too, she claimed herself to be a student of 7(C ) in the said
school as on 29.10.1999. It falsifies the claim of the prosecutrix and her
mother that 'X' was a regular student from 1st standard to 10th standard at
Dehradun. This material inconsistency has remained unexplained.
8. Exact date of birth of the prosecutrix has not surfaced on
record. In the FIR (Ex.PW-5/A) age of the prosecutrix was disclosed as
14 years. It was emphasized that her date of birth was 5 th January, 1986
so recorded in the School Leaving Certificate (Ex.PW-16/A).
Genuineness of this document is suspect as 'X' and her mother claimed
that she was a student throughout in a school at Dehradun. No school
record from Dehradun showing her date of birth recorded therein has
emerged. PW-10 (Chokey Lal), Sub Registrar, MCD, West Zone, Helath
Department, Rajouri Garden, Delhi brought the summoned record and as
per his deposition, there was no entry in their records regarding the birth
of a 'baby' whose parents' name were Reeta Mehta and Vinod Mehta
respectively. It is relevant to note that the prosecution relied on original
Birth Certificate (Page 77 of Trial Court record) where her date of birth
was shown as 5th January, 1986. Needless to say, forged and fabricated
document to show 'X's age as 5th January 1986 was placed on record. It
did not find mention in the record brought by PW-10 (Chokey Lal). There
is no other document on record to reflect the exact date of birth of the
prosecutrix. The prosecution was unable to establish beyond reasonable
doubt if 'X' was 'minor' on the date of occurrence.
9. The alleged incident of kidnapping happened at Turner Road,
Dehradun on 05.10.2001. Strange enough, the complainant did not lodge
any First Information Report at Dehradun. Even after getting ransom calls
from Delhi on 6th and 7th October, 2001, she did not inform Dehradun
Police. Her conduct is unnatural and unreasonable. She even did not
inform any of her relatives about 'X's kidnapping at Dehradun. Even
after coming to know that ransom calls were being made from a specific
land line number from Delhi, she did not inform the concerned Police
Station at Delhi to take preventive steps. Conveniently, she travelled
alone by bus from Dehradun to ISBT on 08.10.2001. She even did not
take her son elder to 'X' with her. Even after coming to Delhi, she did not
take into confidence any of her relatives in Delhi. She opted to lodge the
complaint in a dramatic manner with Police Station Jahangir Puri on
8.10.2001 at night time. Considerable delay in lodging the FIR has
remained unexplained.
10. Early reporting of the occurrence by the informant with all its
vivid details gives an assurance regarding truth of the version. In the case
of Jail Prakash Singh v.State of Bihar & Anr. 2012 CRI.L.J.2101 the
Supreme Court held:-
"The FIR in criminal case is vital and valuable piece of
evidence though may not be substantive piece of evidence. The
object of insisting upon prompt lodging of the FIR in respect of
the commission of an offence is to obtain early information
regarding the circumstances in which the crime was
committed, the names of actual culprits and the part played by
them as well as the names of eye-witnesses present at the scene
of occurrence. If there is a delay in lodging the FIR, it looses
the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or
concocted story as a result of large number of
consultations/deliberations. Undoubtedly, the promptness in
lodging the FIR is an assurance regarding truth of the
informant's version. A promptly lodged FIR reflects the first
hand account of what has actually happened, and who was
responsible for the offence in question."
11. PW-17 (SI Attar Singh) admitted that at no stage, he verified
if the kidnapping had taken place from Turner Road, Dehradun. The
concerned Police Station having jurisdiction over that area was never
informed or intimated. The prosecutrix and her mother did not take Delhi
police to the said crime spot. Without verifying the information given by
the complainant, the police of Police Station Jahangirpuri lost no time to
lodge the FIR though no such kidnapping had taken place in the area
under their Police Station.
12. The appellants had repeatedly claimed that the complainant
was well acquainted with them prior to the incident. She used to live in a
rented accommodation belonging to one Surender Rohila on 1st Floor at
371, Gali No.13, Sant Nagar, Burari and A-1 was running dental clinic on
the ground floor of the said house. The complainant and 'X' vehemently
denied at first instance if they ever lived in the said premises any time.
However, truth came out when the complainant in further cross-
examination (page 279) admitted that she was a tenant under Mr.Rohila in
Burari village. PW-4 (Des Raj), A-1's landlord informed that he was
residing in one room on the ground floor at K-99/100, Jahangirpuri along
with his family for the last one and a half year. In the cross-examination
he elaborated that A-1 was dentist by profession and used to run clinic at
Sant Nagar, Burari. He further deposed that he used to visit the said
clinic. Complainant used to reside on the first floor portion in Burari
whereas A-1 was running his clinic on the ground floor portion. He
further stated that he knew the complainant and she had good relations
with A-1. The learned Additional Public Prosecutor did not opt to
reexamine him. PW-17 (SI Attar Singh), the Investigating Officer was
fair to admit that during investigation on 14.11.2001, he had verified the
previous address of Smt.Reeta Mehta, House No.371, Gali No.13, Sant
Nagar, Burari and had come to know that she was residing at the said
address. The prosecutrix and her mother have not given any justification
for denying this fact previously. PW-17 further admitted in the cross-
examination (Page 595) that A-1 used to work in a Dental Clinic on the
ground floor of property No.371, Gali No.13, Sant Nagar, Burari, Delhi
with a Dentist Krishan Kumar.
13. It was appellants' specific defence that they were roped in
falsely due to money dispute with the complainant. She vehemently
denied if the appellants were known to her before the incident or there
was any money transaction with them. The appellants brought on record
'Undertaking' Mark 'X' (Page 747) purportedly bearing signatures of the
complainant at point 'A'. By this document, the complainant had
allegedly received a friendly loan of ` 1 lac from A-1. This document is
dated 15.09.2000 executed at Delhi. The complainant affirmatively
denied her signatures on Mark 'X' at point 'A'. She was, however,
contradicted by PW-2 ('X') when she admitted in the cross-examination
(page 353) that Mark 'X' bore signatures of her mother at point 'A'.
14. In her cross-examination (Page 279 and 283), the
complainant admitted that on 07.09.2001 and 10.09.2001, telephone calls
were exchanged with the accused. She was aware of mobile numbers on
which the accused had made telephone calls on 7th and 10th September,
2001. The complainant did not elaborate as to in what connection, she was
in touch with the accused on both these dates prior to the incident. This
fact also finds mention in the order dated 06.06.2002 (Page 821). Certain
documents issued by the Managing Director Escotel Mobile
Communication, Meerut, U.P. were filed and on verification it emerged
that the complainant used to talk to the accused-Shamsher (A-5) on
mobile prior to the incident.
15. In the FIR, the complainant did not reveal the telephone
number much less 7126336 from where she had received ransom calls on
6th October, 2001. She merely alleged that on 07.10.2001 when she
received a telephone call on her mobile and inquired as to who was the
caller, she was informed that it was Ajit Singh from Crime Branch, Delhi
and her daughter 'X' was with him. She was directed to arrange ` 1 lac
and to make a telephone call on 7126336 after reaching at Jahangirpuri,
Delhi and he would tell her the place where the ransom amount was to be
delivered. The FIR records the complainant's mobile No. as 9837123784.
Admittedly, the mobile in complainant's possession and ownership was
never seized during investigation. No Call Details Record (CDRs)
pertaining to this mobile were collected. In their deposition, both 'X' and
complainant made vital improvements and disclosed about receiving of
ransom calls on 6th and 7th October, 2001 from A-1 and A-5. The
complainant claimed that from her mobile, she had made repeated calls to
the prosecutrix on 5th October, 2001 after she did not return from a
morning walk. PW-8 (Dawan Kumar Arya) from Escotel Mobile
Communication Ltd. tendered report (Ex.PW-8/A) in evidence. PW-17
(SI Attar Singh) (Page 565) deposed that he had approached hotel
Madhuban at Madhubani, Rajpur Road, Dehradun for the verification of
call details of complainant's mobile No.9837123784 and had given an
application to the concerned authority for this purpose. He was directed
to call them on telephone after about 12 days as the particulars were not
available that time. After 12-13 days, he again called the concerned
authority at Dehradun and they instructed him to contact Escotel, Meerut.
On 10.12.2001, he had given an authority letter to Constable Pramod to
collect the particulars. The said authority had given 'nil' report of the call
details from 01.10.2001 to 10.10.2001 on the said mobile. Apparently,
there were no calls exchanged during this period and it falsifies
complainant's claim about receipt of ransom calls on the relevant dates.
16. Telephone No. 7126336 is the one from which the appellants
allegedly used to make ransom calls to the complainant on her mobile.
PW-3 (Manoj Kumar) disclosed that phone bearing No.7126336, was a
PCO connection installed at his shop on the ground floor of House No.K-
100, Jahangirpuri, Delhi. He disclosed that A-1 who used to live along
with his family on the ground floor portion of the said house as a tenant
used to make telephone calls often. The Investigating Agency did not
collect any call details record pertaining to this connection. The
complainant claimed that after arriving ISBT, Delhi, on 08.10.2001 she
had contacted the kidnappers on telephone No.7126336. A-1's wife had
talked to her that time and informed that the said telephone was installed
at Jahangirpuri and she should approach them at main Bus terminal at
Jahangirpuri. PW-3 (Manoj Kumar) did not corroborate her version. He
expressed inability to disclose as to when A-1 received telephone call on
his PCO. He did not testify if A-1's wife had any telephone call at the
relevant time from the complainant at his PCO booth. In the cross-
examination, he denied to have disclosed to the police in his statement
that on hearing the call, A-1 along with his wife, brother and other
individual had left the house. Adverse inference is to be drawn against the
investigating agency for not collecting the call details record pertaining to
this telephone connection. PW-2 ('X') gave a contradictory version
stating in her examination-in-chief that the accused persons used to
converse with her mother on a cordless instrument. She further disclosed
that there was a base phone installed in the house and a cordless
instrument kept over it was used for making telephone calls to her mother.
At the time of alleged recovery of the prosecutrix from the said house, no
such cordless telephone or base phone was detected or recovered by the
police. The prosecutrix had a mobile phone (Ex.P-2) which was allegedly
taken from her by the accused persons during her confinement there.
Again, call details of the said mobile seized in this case at the time of
alleged recovery of the prosecutrix from the accused persons were not
collected and proved.
17. The complainant and the prosecutrix have given evasive and
vague answers when specifically inquired about the mobiles in their
possession. The complainant was unable to produce the mobile in her
possession on the day of incident claiming that it was sold after a few days
as she was in urgent need of money. Both the witnesses were unable to
give satisfactory replies as to when and from where the mobiles were
purchased or from where SIMs were arranged. The mobile is alleged to
have been sold for a sum of `1,000/-. It is unthinkable that the accused
persons would kidnap the prosecutrix to get ransom from the complainant
who had to sell her mobile for a meager sum of `1,000/-. No details of
its sale were divulged.
18. The story invented by the complainant about 'X' kidnapping
does not inspire confidence at all. The ambassador vehicle in which 'X'
was allegedly kidnapped on 5th October, 2001 could not be recovered.
The prosecutrix who has given minute details of the case was unable to
disclose its registration number. Crime weapon i.e. knife allegedly used to
scare the prosecutrix by the kidnappers was never recovered. 'X's nude
photographs allegedly taken by the kidnappers after disrobing her were
never recovered.
19. After her recovery, the prosecutrix was promptly medically
examined vide MLC (Ex.PW-6/A) proved by Dr.Lalmani. As per MLC,
no external fresh injuries were found on her body. It ruled out physical
torture to her in captivity. 'X' declined to submit for gynae examination.
An endorsement at portion (Ex.PW-6/B) was made in this regard.
Document showing the ownership of the Wrist watch recovered in this
case were not collected from the prosecutrix or her mother. They failed to
disclose as to when and from where the Wrist watch was purchased.
20. In her 164 Cr.P.C. statement the prosecutrix admittedly did
not implicate A-6 and no role was assigned to him. PW-17 (SI Attar
Singh) admitted in the cross-examination (Page 619) that as per
investigation carried out by him, role and participation of A-6 surfaced
only after 8th October, 2001 and he had no knowledge of kidnapping and
ransom demand prior to it. He was not even named by the prosecutrix at
the time her statement was recorded by him. Contrary to that in her Court
statement, the prosecutrix idenfied A-6 to be one of the kidnappers.
21. It is the prosecution case that after arriving Jahangirpuri, the
complainant made telephone call from an STD booth located outside the
Police Station after lodging report (Ex.PW-5/A) to the kidnappers and
asked them to bring her daughter 'X' and collect the money at Lucky
Juice Shop at Jahangirpuri. The Investigating Officer did not examine the
STD booth owner to establish if any telephone call was made by the
complainant to A-5 and if so at what number? The said conversation was
not heard by the police officials present at the spot to trap the kidnappers.
None from the Lucky Juice shop was joined at any stage of investigation.
22. It is unbelievable that just after having conversation with the
complainant, A-1 and his wife (since acquitted) would arrive at the spot to
collect money. They were allegedly followed by A-3 and A-5 on a
scooter. They were not armed with any weapon. The complainant did not
disclose the scooter number used to arrive at the spot by A-3 and A-5.
PW-9 (Arvind Rawat) from Transport Authority proved that the scooter
DL-6S-K-0933 was registered in the name of A-6. The appellants were
the resident of definite and specific houses. They had not concealed their
true identity. Even the scooter number which was seized in the case was
found correct. The appellants had no previous criminal antecedents and
lived with their families in a residential locality. It is unbelievable that the
appellants who were not ardent criminals would dare to call the victim's
mother near their residence to collect the ransom amount. There was no
necessity for all of them to gather at the spot to collect the ransom.
Apprehension of the accused persons at the spot in the manner alleged by
the prosecution is highly suspect. At about 11.00 p.m. media people also
arrived at the police station and took interviews from all of them including
the complainant and her daughter 'X'. The complainant admitted in the
cross-examination that 'X' informed them in detail about the names of the
assailants and their role in her kidnapping. The interview continued for
about 30-40 minutes.
23. The prosecutrix remained in the family of the appellants for
number of days. During this period she was allegedly shifted during day
time from H.No.K-100 Jahangirpuri to H.No.K-1482-83. At no stage from
the time of her kidnapping till her recovery, the prosecutrix raised alarm.
Admittedly, the vehicle had crossed several traffic lights and Police Posts
from Dehradun to Delhi but at no stage the complainant raised hue and
cry. She has made vital improvements in her deposition and was duly
confronted in the cross-examination.
24. The Trial Court did not appreciate the facts extracted in the
searching cross-examination from the prosecutrix and her mother. The
Trial Court was unable to ascertain as to what particular motive actuated
the appellants to kidnap the prosecutrix as ransom demand allegedly made
by them for her release was not accepted. Mere recovery of the
prosecutrix from the residence of one of the appellants i.e. H.No.1482-83,
Jahangirpuri, Delhi is not sufficient to establish the appellants' guilt
particularly when it has come on record that the 'X's mother was
acquainted with them prior to the incident and there were money
transactions. Possibility of the prosecutrix visiting the residence of one of
the appellants voluntarily cannot be ruled out. It is quite possible that in
order to get money from the complainant, she was not permitted to leave
the premises. The whole plan seems to have been made to give it a colour
of kidnapping. 'X' and her complainant mother have not presented true
facts.
25. On the same set of evidence, A-2 and A-4 were acquitted of
all the charges. The appellants were also acquitted of serious charges
under Sections 354/364A/372 IPC. The investigation conducted is not
upto the mark.
26. In the light of the above discussion, I am of the considered
view that the prosecution has failed to establish its case beyond reasonable
doubt. The conviction recorded by the impugned judgment cannot be
sustained and is set aside. The appeals filed by the appellants are
accepted. Trial Court record along with the copy of this order be sent
back forthwith. Copy of the order be sent to Superintendent Jail for
information. Bail bonds and surety bonds stand discharged.
(S.P.GARG)
JUDGE
OCTOBER 08, 2015/sa
