Neutral Citation No.2022/DHC/005267
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 21st September, 2022
Decided on: 2nd December, 2022
+ CRL.A. 343/2020
KUNAL BHANDARI @ ROCKY ..... Appellant
Represented by: Ms. Aruna Mehta, Adv.
versus
STATE ..... Respondent
Represented by: Mr. Prithu Garg, APP for State with
Insp. Kuldeep Singh, PS Vikaspuri.
+ CRL.A. 501/2020
GAURAV CHADHA ..... Appellant
Represented by: Ms. Manika Tripathy, Mr. Shubham
Hasija, Mr. Roshan Roy, Mr. Manish
Vashist, Advs.
versus
STATE GNCT OF DELHI ..... Respondent
Represented by: Mr. Prithu Garg, APP for State with
Insp. Kuldeep Singh, PS Vikaspuri.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
MUKTA GUPTA, J.
1. By these appeals, the appellants challenge the impugned judgment dated 08th May, 2020 convicting Kunal Bhandari @ Rocky and Gaurav Chadha for kidnapping for ransom and committing murder of Master Ribhu (in short, "deceased") in furtherance of common intention and also causing disappearance of evidence by dumping the dead body at secluded place; and the order on sentence dated 3rd June, 2020 directing both Kunal Bhandari @ Rocky and Gaurav Chadha to undergo life imprisonment and to pay a fine of ₹10,000/- and in default to undergo rigorous imprisonment for 1 year under
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Section 364A of the Indian Penal Code, 1860 (in short, "IPC"); to undergo rigorous imprisonment for life alongwith fine of ₹10,000/- and in default to undergo rigorous imprisonment for 1 year under Section 302 IPC; and further to undergo rigorous imprisonment for 7 years alongwith a fine of ₹5,000/- each and in default to undergo rigorous imprisonment for 6 months under Section 201 IPC. The other two accused persons Sukhvinder and Rishabh Chauhan were acquitted for charges under Sections 364A/302/201/34 IPC, but were held guilty under Section 411 IPC for receiving the stolen mobile phone of the deceased and receiving property obtained from ransom respectively. Both Sukhvinder and Rishabh Chauhan were sentenced to rigorous imprisonment for 3 years alongwith a fine of ₹10,000/- each, and in default simple imprisonment for 6 months.
2. Brief facts of the case are that on 28th July, 2009, at about 2.45 pm, four persons kidnapped the deceased Ribhu Chawla aged about 16 years in a WagonR car from the road near Ujjwal Apartments, Vikas Puri. Despite receiving the ransom amount of ₹15 Lacs, the accused persons murdered the deceased and disposed of the dead body in the morning of 29 th July, 2009 in the Vasant Kunj Jungle near Peer Baba Mandir, in front of Ryan International School, Vasant Kunj. The investigation was set into motion on the date of incident itself i.e. 28th July, 2009 pursuant to ruqqa Ex.PW-2/B, 11/A, 20/A wherein it was disclosed by Sanjay Chawla (PW-2) complainant/ father of the deceased that he had received a call from his wife at about 2.45 pm stating that their son was kidnapped by 2-3 boys in a WagonR car no. DL-3378, after which he himself received a call from the mobile phone of his son and he was informed by the kidnappers that his son was in their custody and they demanded ₹20 Lacs as ransom amount. FIR No. 217/2009
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(Ex.PW-11/A) dated 28th July, 2009 was registered under Sections 364A/34 IPC at P.S. Vikaspuri. Eyewitness of the incident Shwetank (PW-3) narrated the entire incident to the IO Anand Lakra (PW-36) and then a team of police officials waited for a WagonR car with last digits „76‟ near Karnal by-pass but no such car was found and on the next morning at about 8-8.30 am, a call was received from PS Vasant Kunj that a dead body of a school boy was found near Mazar opposite Pocket C-8, DDA Flats, Vasant Kunj. The body of the deceased was taken to the AIIMS Mortuary, where the post mortem was conducted. The body was identified by father of the deceased (PW-2) and after the post mortem, was handed over to the father.
3. Post mortem was conducted by Dr. Sunay Mahesh (PW-24) on 29th July, 2009 at 1.30 pm. He tendered his report vide Ex.PW-24/A which noted:
i. Neck: On removing the ligature material from the neck, two ligature marks were visible. Ligature mark 1 was 6cm from chin and 14 cm from suprasternal notch of chest, 6 cm and 6.2 cm from right and left mastoid tips respectively. It was running backwards and upwards merging with posterior hair line. Ligature mark 2 was situated 10 cm from mentum of chin and 9.3 cm from the suprasternal notch, 7.5 and 7.3 cm from right and left mastoid tips respectively and it was running horizontally around the neck and on the back of the neck it was 6 cm from occipital prominents and 4 cm from C7 vertebra. Both these ligature marks were reddish brown in colour, non parchmentize with a width of 1.2 to 1.5 cm. Both these ligature marks were pattern abrasions. The pattern of which co-relating with the ligature material i.e. nylon rope. Circumference of the neck was 35 cm. Dried blood stains present on the right side of the face, neck and thigh. Blood clots were present In nose. bilateral eyes were congested. Subconjunctival haemorrhage present on Inner aspect of left eye.
ii. Multiple contusions abrasions In an area of 5 X 6 cm on the right side of the face Involving right zygomatic prominence the outer aspect of right orbit of eye and right chin. Dried blood stains were
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present on these wounds. These wounds were bright red In colour and fresh in nature.
iii. Contusion of size 3 X 2.8 cm present on the tip of the nose. Red blue In colour. Contusion abrasion of 1 X 1 cm present on the tip of the nose too.
iv. Contusion of size 2 X 1 cm present on outer aspect of left upper eye lid. Reddish blue In colour.
v. Abrasion with contusion of size 2 X 1 cm present on left forehead two cm above the left eyebrow.
vi. Contusion of size 2 X 1 cm present on Inner aspect of lower Hp on right side. It was purplish In colour.
vii. Contusion with laceration present on left angle of mouth.
Contusion of size 1 X 1 cm and the laceration was 0.5 X 0.2 cm in size.
viii. Two abrasions. Both are 1 X 0.2 cm in size. Crescentic in shape present on dorsal aspect of first web space of right hand. ix. A crescentic shape abrasion of size 0.9 X 0.3 cm present on dorsal aspect of lower one third of right forearm which is 2 cm from the wrist joint.
x. A grazed abrasion of size 1 X 1.5 cm present on back of right elbow joint.
xi. A contusion purplish in colour of size 2 X 1 cm on outer aspect of mid one third of right arm.
xii. Two crescentic abrasion of size 1 X 0.2 cm each present on outer aspect of mid one third of left arm.
xiii. An abrasion of size 1.5 X 0.3 cm present on inner aspect of lower one third of left forearm.
xiv. Brain was congested. Both the lungs were congested. Stomach contained semi digested food of about 50 cc.
Cause of death was opined to be asphyxia due to combined effect of smothering and ligature strangulation. All the above mentioned injuries were ante mortem in nature and the pattern of ligature marks corresponds with ligature material.
4. Upon completion of investigation, chargesheet was filed for offences punishable under Sections 364A/302/411/34 IPC and charges were framed
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under Sections 364A/302/201/34 IPC against all the four accused persons. Case of prosecution is based on the testimony of the sole eye witness (PW-3) and circumstantial evidence and for proving its case, the prosecution examined 36 witnesses.
5. Assailing the impugned judgment and order on sentence learned counsel for the appellants contend that the sole eyewitness Shwetank (PW-3) is a planted witness. There is no mention of any eyewitness either in the ruqqa or FIR. Further, PW-3 remained at the spot for about 10 minutes till the mother of the deceased arrived and there was a police booth near his society but he neither informed the police about the said incident nor to any of his family members which was an unnatural conduct. PW-3 failed to elaborate the crime scene and failed to answer the basic questions relating to crime scene. He even failed to give any description about the appearance of the kidnappers. There was a delay of about two and a half hours in registration of FIR, which was recorded at the instance of the father of the deceased (PW-2) and not at the instance of the eyewitness (PW-3). The investigating officer (PW-36) on one occasion stated that Shwetank PW-3 was perplexed and was not able to narrate the facts properly and therefore the FIR was not registered on his instance, but on another occasion he stated that the eyewitness was very cool, was in his senses and narrated all the facts properly, hence a material contradiction. It was further the case of the appellants that as per PW-36, the site plan was prepared at the instance of PW-3, whereas, PW-3 did not mention in his statement under Section 161 Code of Criminal Procedure, 1973 ("CrPC") that the site plan (Ex.PW-36/A) was prepared at the his instance. According to the appellants, the site plan was also unreliable as it does not show the position of the car, scooty and the
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motor cycle and does not even reveal the position from where PW-3 witnessed the incident. It was also the case that despite the fact that IO PW- 36 was aware about the make of the car, its color, its numeric no. of the Delhi registration, however, IO did not make any inquiries from the RTO about the same, rather a car with a different registration no. DL3CAW9076 belonging to the father of Rishabh was seized. The said car was not even got identified from the eyewitness PW-3. The said car was kept parked in the common area of the police station in an unsealed condition. No investigation was made to find out the car with registration no. DL3378. Further, one Joginder PW-8 who was the owner of a hardware shop, from whom Gaurav Chadha allegedly purchased the nylon rope, denied having seen Gaurav Chadha or that the appellant purchased any rope from his shop or that PW-8 gave any sample to the police. He stated that he was forced to sign on the blank paper. There is also a doubt over the number of persons involved in the commission of crime. DD No.20A (Ex.PW-10/A) mentions 4-5 boys, mother (PW-1) and father (PW-2) of the deceased, both in their statement under Section 161 CrPC stated that there were 2-3 boys, but in his cross examination, PW-2 stated that there were 4-5 boys. Shwetank PW-3 stated that there were 4 boys.
6. Learned counsel for appellant Kunal Bhandari further contends that despite four accused being involved, TIP of only two accused was got conducted. The appellant refused TIP proceedings, for the reason, he was shown to the witnesses in the police station on 30th July 2009 after his arrest and the TIP was conducted on 3rd August 2009, which fact he also stated to the learned M.M. during the TIP proceedings vide Ex.PW-13/B. Reliance is placed on the decisions reported as (2010) 7 SCC 697 Siddanki Ram Reddy
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Vs. State of Andhra Pradesh, AIR 1982 SC 839 Mohan Lal Vs. State of M.P., (1998) 4 SCC 605 George & Ors. Vs. State of Kerala and 1955 SCR 903 Ram Kishan Mithan Lal Vs. State of Bombay. Though PW-9 stated that blood was found on the driver seat and hair were found near the hand brake, however, PW-30 who drove the car from Rishabh‟s house to CFSL denied having seen any blood on the driver seat. It is a case of the prosecution that the deceased was pushed from the rear window behind the driver seat, however, the blood was found on the driver seat which is self-contradictory. The samples of blood and hair were not sealed and thus, the tampering could not be ruled out. Reliance is placed on the decisions reported as 1999 SCC OnLine Bombay 227 Tulshiram Bhanudas Kambale & Ors. Vs. State of Maharashtra and (2004) 10 SCC 647 Ouseph v. State of Kerala. Despite the seizure memo noted the registration number of the Wagon-R car, however, as per the CFSL, the car had no registration number. No road certificate or DD entry was proved as to how the car was taken and brought back to the police station. Further, PW-30 stated that the car was taken to CFSL on 30th July 2009, whereas, PW-31 stated that the car was taken on 31st July 2009.
7. That the father of the deceased (PW-2) testified that he could identify the voice of the person making the ransom calls, however no efforts was made by the IO to get the voice of the accused persons identified by PW-2. Further, no fingerprints were lifted from the car, mobile phone, currency notes, uniform of the deceased or rope to establish the participation of appellant in the crime. No TIP was conducted of the Nokia phone recovered at the instance of Sukhvinder. Phone location of the appellant was not proved to be same with that of the deceased and deceased‟s phone from which ransom calls were made. Further, as per PW-27, the rope sent to
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AIIMS was a purple colored rope whereas, Ex.P1 was a maroon colored rope, and as per the CFSL report, the rope used in crime and the sample rope taken from the shop of PW-9 were different. Further, the prosecution failed to prove how PW-2 had arranged the ransom amount of ₹15 Lacs. As per the prosecution story, PW-2 withdrew ₹4 Lacs from his account. As per the statement of PW-2, he received the ransom call at about 4.15 pm, so it is doubtful how he withdrew ₹4 Lacs after the banking hours. And there are serious contradictions in the version of PW-2, PW-4 and PW-5 as to how he arranged ₹15 Lacs. It was further contended on behalf of the appellant that there was a single disclosure statement, however, recoveries were made on two different dates i.e. first on 30th July 2009 and second on 06th August 2009. Further, PW-2 was also not called by the police to identify the notes. The seizure memos were stated to be prepared at the house of the appellant, however the same was not signed by any of the family members and no DD entry was placed on record to establish as to when the police party went to the house of the accused to effect the recovery.
8. Learned counsel on behalf of appellant Gaurav Chadha contended that the height of the deceased was about 5 feet 5 inches so it was improbable as to how the deceased was put in the car through the window which has a narrow space and that he did not make any scuffle; that the prosecution story that the Shwetank (PW-3) was helping the deceased in dropping the bike is unreliable as the same was neither there was any mention about the bike, nor was any bike recovered by the police. There is no mention in DD No.20A or in the FIR. Mother of deceased (PW-1) stated that the deceased used to go to school on a scooty and the father stated that he owned 4 cars and no other vehicle; that mother of deceased (PW-1) is not a reliable witness as different
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names were told by her in her examination in chief and cross examination. Further, there is no mention about any Shwetank (PW-3) in her statement given to the IO (PW-36). Even the credibility of Insp. Dharampal (PW-34) is doubtful as although the dead bodies were already recovered, PW-34 stated that on 5th August, 2009, they took the accused to Rangpuri Pahari Jungle for the recovery of a dead body; that the recovery of the ransom amount was doubtful and the same was neither photographed nor video-graphed. There are contradiction in the versions of PW-30, PW-33, PW-34, PW-35 and PW- 36 with respect to the order in which the recoveries were effected from all the four accused persons. Further, the IO (PW-36) failed to take the sample signatures of the father PW-2 which he had put on the currency notes in order to get the recovery corroborated. It was further the case of the appellant that the tampering of the alleged recovery notes cannot be ruled out as all the currency notes released on superdari to PW-2 did not have the signed slips with "AL" seal as admitted by PW-2 himself; that as per PW-9, a rough note was prepared by him during the preparation of the forensic report, however the same was missing from the judicial file; that the forensic report pertaining to the hair found in the car was based on morphological and microscopical hair analysis which is inherently weak and less reliable. And no efforts were made by the police to trace the ransom calls.
9. Learned APP for the State relies upon the following facts and circumstances which have been proved by the prosecution to contend that all these circumstances and facts taken together irresistibly point to the guilt of the appellants, kidnapping the deceased for ransom and subsequently committing the murder, and therefore the judgment of conviction and order on sentence be upheld:
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a. CDR of the deceased‟s mobile number shows 2 calls were made from the mobile no. of deceased to the mobile no. of PW-3 at 14.38.48 hours and 14.39.48 hours (Ex.PW-15/C2). b. PW-3‟s acceptance of his inability to identify the other 2 accused person shows that he is genuine and a credible witness. c. Appellant Gaurav Chadha was correctly identified by PW-3 in TIP proceedings (Ex.PW-13/C) whereas, Kunal Bhandari had refused to participate in the TIP (Ex.PW-13/B).
d. CDR of the mother of deceased PW-1 shows that a call was made to no. 100 at 14.52.25 hours (Ex.PW-14/C1-C5) on the basis of which DD No.20A was recorded. It also reveals a call made by PW-1 to the deceased at 15.05.16 hours.
e. CDR of the father of deceased PW-2 corroborated his testimony (Ex.PW-16/C1-C6). Further, the testimony of the neighbor PW-4 and his friend PW-5 corroborates the version regarding arranging the ransom amount.
f. ₹1 Lac cash and Nokia mobile phone E-71 with IMEI No.351940030932232 was recovered from the house of Sukhvinder on 30th July, 2009 (Ex.PW-33/J & K respectively). Further ₹1 Lac cash was again recovered from his house on 6th August, 2009 (Ex.PW-30/C).
g. ₹1 Lac cash was recovered from the house of Gaurav Chadha (Ex.PW-33/H). Further, on 6th August, 2009, ₹82,000/- cash was again recovered from his house (Ex.PW-30/D).
h. On 30th July 2009, ₹3 Lacs cash was recovered from the house of Kunal Bhandari (Ex.PW-33/N) and ₹1 Lac cash was recovered
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from the house of father of Kunal (Ex.PW-33/P). Further on 6th August 2009, ₹2.2 Lacs was recovered in cash from the house of mother in law of the accused Kunal Bhandari (Ex.PW30/G). i. On 30th July 2009, ₹2 Lacs cash was recovered from the house of Rishabh Chauhan (Ex.PW-33/T) and a WagonR car with registration no. DL3CAW9076 (silver colour) was recovered from the parking of the apartment of Rishabh Chauhan. Further, on 6th August, 2009, ₹1.5 Lacs cash was again recovered from his house (Ex.PW-30/E).
j. The disclosure statement of the accused Kunal, Gaurav and Sukhvinder records that Kunal had changed the car no. to "8878" by using a black marker pen for committing the offence and Shwetank (PW-3) had stated to have seen the car no. as "3378". k. As per the FSL Report (Ex.PW-9/A) and serological report (Ex.PW-9/B), the blood stains found from the driver seat of the car and the hair found near the hand brake of the car matched with that of the deceased‟s blood sample and hair.
l. Appellants Kunal Bhandari and Gaurav Chadha had kidnapped the deceased and the father of the deceased (PW-2) last spoke with the deceased at midnight around 12.30 am on the intervening night of 28th-29th July, 2009, after which he got the news of dead body of his son being found. Therefore, the burden lies on the Appellants to explain the circumstances in which the deceased had died. Reliance was placed on case cited as (2000) 8 SCC 382 State of West Bengal v. Mir Mohammad Omar and (2021) 11 SCC 1 Arvind Singh v. State of Maharashtra.
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10. Having heard learned counsel for the parties at length and perusing the record the following evidence led by the prosecution emerges on record.
11. Shwetank (PW-3) in his examination in chief stated that on 28th July, 2009, deceased called him and asked for his help in taking the scooty parked at the society of PW-3 as the deceased was on a bike. He stated that two persons were standing near the car who might be knowing the deceased, called him and told deceased that some of his belongings were in the car. PW-3 turned around, and saw that one guy picked up Ribhu from his shoulder and the second guy picked him from his legs put him in the car and rushed away. He identified Kunal and Gaurav in the court but did not identify the other two persons sitting in the car. Thereafter, about 5-10 minutes, mother of deceased came down to whom he narrated the incident and went back home and did not tell anyone about the incident. In his cross examination, he stated that the distance between his society and that of the deceased was 2 minutes walk. He stated that the bike of the deceased was left on the spot and the scooty was also left by him at the spot only. The deceased was put inside the car from the driver side rear window. He stated that the entire incident took place within 5-7 minutes and he did not raise any alarm during those 5-7 minutes as the appellants were talking with the deceased during that time. Police met him in the evening when he went to the spot the second time. He denied having seen Gaurav before the TIP on 3rd August, 2009 in the police station.
12. Sanjay Chawla (PW-2), father of the deceased, deposed that on 28th July, 2009, he received a call from his wife Shalini (PW-1) that 2-3 boys had kidnapped their son from near Ujjwal Apartments, in a WagonR car no. DL3378. Thereafter at about 4.15 pm, he received a call at his mobile no.
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9212004268 from the mobile no. of his son 9999274657, wherein he was told that his son was kidnapped and a ransom of ₹20 Lacs was demanded. He continuously received calls from his son‟s phone and he spoke with his son as well and after about one and a half hour he informed the kidnappers that he was able to arrange only ₹15 Lacs, to which kidnappers replied that on receiving ₹15 Lacs, they would release his son. At about 8.30 pm, the kidnappers asked him to come near Karnal Bypass. He went alone with a bag containing ₹15 Lacs. Thereafter, he received a call and was instructed to keep the bag containing cash near a yellow board near the Budhpur bus stop after the Gurudwara at NH1. After about 10-15 monutes he received a call that the kidnappers had received the money on which he asked him to release his son. He stated that he returned back home at around 12 am, and last spoke with his son at about 12.30 am. Thereafter, his son‟s phone was switched off for the entire night, and on the next morning, he got to know through TV that the body of his son was lying having monogram of KR Mangalam School on his shirt. Thereafter, he was called to AIIMS, where he went with his cousin Amit Chawla (PW-7) identified the body of his son, and thereafter, received the body. In his cross examination, he stated that the police had prepared the drawing on the spot in presence of Shwetank and police did not obtain signature on the site plan prepared. He stated that he informed the police about the ransom calls but did not tell them about collecting the money and taking the same to the kidnappers. He also stated that he own 4 cars and no other vehicle.
13. Shalini Chawla (PW-1), mother of deceased deposed that on 28th July, 2009, her had gone to the school and he was to return home by 2.30 pm, but as he did not arrive, she went downstairs to check. There she heard a noise
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that a boy was being taken in a car. She rushed towards the noise near Ujwal Apartments and saw that Aviator scooty of her son was lying at the corner of the Ujwal Apartments and one boy Shwetank of the same school and same class was standing there and told her that 3-4 boys had forcibly taken her son in a WagonR car of light color. She thereafter called no. 100 and then made a call to her husband. Within 5-7 minutes, she received a call from the mobile of her son and she was threatened that her son was kidnapped and that if she informs the police her son would be cut down (kaat dalenge), and was told that they would call her husband after one hour.
14. Joginder (PW-8) who turned hostile denied having given one sample piece of 1.5 feet length of pink color nylon rope from the bundle lying at his shop and also denied having given any statement to the police. When confronted with statement, he admitted the signatures on the statement and stated that he was forced to sign on blank papers. He did not identify the maroon color nylon rope measuring about 1.5 feet from the pulanda brought by MHC(M).
15. Investigating Officer (IO) Insp. Anand Lakra (PW-36) stated that after registration of the FIR, he met the eyewitness Shwetank at the spot who narrated the incident to him. On the next day at about 8-8.30 am, he received a call from SHO PS Vasant Kunj that a dead body of a school boy was found near Mazar, opposite Pocket C-8, DDA Flats Vasant Kunj. The dead body was identified by Sanjay Chawla (PW-2) and accordingly, the body was handed over to him. On 30th July, 2009, he was informed by Insp. Raj Kumar (PW-35) that Sukhwinder and Gaurav Chadha were arrested. He recorded their disclosure statements and they led him to Tilak Nagar from where Kunal Bhandari and Rishabh were arrested. Recoveries of cash were effected
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from their houses and a total of ₹13.20 Lacs was recovered as also a WagonR car and mobile phone of the deceased. In his cross examination he stated that Shwetank was a child who was not able to narrate the facts properly as he was perplexed, and for which reason the FIR was not registered on the statement of Shwetank. But later he stated that when the statement of Shwetank was recorded, he was cool, in his senses and narrated all the facts. He admitted that no TIP of the mobile phone of the deceased was got conducted. He further admitted that Shwetank never stated the number of culprits to be four. He stated that the first statement of Shwetank was recorded at about 7-8 pm on the day of incident. He did not record the no. of currency notes that were recovered by him nor was the recovery proceedings photographed or video-graphed. He admitted having not investigated anything about the vehicle no. DL3378 which was mentioned in the FIR. He stated that Shwetank was first introduced to him when the site plan (Ex.PW-36/A) was prepared at around 6-6.30 pm.
16. Naresh Kumar (PW-9) Sr. Scientific Asstt. (Biology), FSL deposed that he inspected a silver color WagonR car without any registration no. bearing engine no. F10DN4541067 and that blood stains were picked up from the driver seat of the seat cover and hairs were found near the hand brake. He prepared the crime scene report (Ex.PW-9/A). In his cross examination he stated that he did not examine the fact whether the hair found were cut or pulled from the root.
17. As per the FSL report (Ex.PW-9/B), the blood stain found from the driver seat (Ex.8) was of Human origin and matched with B blood group of the deceased. Further, the hairs found from the car (Ex.9) also matched with
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the hair of the deceased. Furthermore, the piece of nylon rope seized by the police was found to be different than the "ligature nylon rope".
18. In his statement under Section 313 CrPC, appellant Kunal Bhandari stated that on 30th July, 2009, he was called form his house to PS Vikas Puri, where he was made to sit and was shown to the witnesses already present there, and therefore, he refused to join the TIP proceedings. He stated that he was innocent and has been falsely implicated in the case. He does not know Gaurav and Sukhwinder and nothing was recovered from him or from his possession. Appellant Gaurav Chadha in his statement under Section 313 CrPC stated that no recovery was effected from him, the currency notes were planted on him and that he did not make any disclosure statement to the police. He stated that he is innocent and was falsely implicated in the case.
19. It is the case of the prosecution that eyewitness Shwetank (PW-3) was a school friend and classmate of the deceased and deceased called PW-3 and asked for his help to take his scooty home as he himself was on a bike. After PW-3 went for help, the deceased was called by the appellants who were standing near a car and as the deceased approached them, appellant Kunal Bhandari picked the deceased from his shoulder and the other appellant Gaurav Chadha picked the deceased from his feet and took him in a WagonR car with no. DL3376. The mother of the deceased came downstairs to see why her son had not reached the home, where she heard noises that a boy was taken in a car. She rushed towards the spot, where she met Shwetank (PW-3), who informed her that 3-4 boys had taken the deceased. She then made a call to the police on no. 100 at 14:52:25 hours and thereafter, she also made a call to the mobile of the deceased which was answered by the kidnappers and she was threatened that her son was kidnapped and that if she
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informed about the same to police, they would cut down the boy ("kaat daalenge"). Thereafter, a call was made by her to her husband Sanjay (PW-
2) informing about the incident. The father of the deceased (PW-2) reached home at about 4.15 pm, and he also received a call from the mobile no. of the deceased, wherein the caller informed him that his boy was kidnapped and asked him to arrange ₹20 Lacs. After about one and a half hour, PW-2 informed the kidnappers that he had arranged ₹15 Lacs, and he was guided by the kidnappers to drop the ransom amount near Karnal Bypass. The ransom amount was dropped at the location notified by the kidnappers and thereafter, the kidnappers informed PW-2 that they had received the amount. PW-2 last spoke with his son at around 12.30 am on the intervening night of 28-29th July, 2009 and, on the next morning, through TV the parents got to know that dead body of a boy, having monogram of KR Mangalam School on the shirt, was found lying in Vasant Kunj. Shalini Soni (PW-6) found the dead body of the deceased at about 8 am near Peer Baba Wala Road, Rangpuri Pahari Nanrkali Khander, with a rope tied on the neck of the deceased. The body was sent to the AIIMS mortuary and was identified by the father (PW-2) and deceased‟s uncle Amit Chawla (PW-7). Secret information was received by the police that 2 of the 4 accused persons namely Gaurav and Sukhvinder who were involved in the kidnapping of the deceased had gone to Haridwar, and pursuant thereto, Insp. Dharampal (PW-
35) constituted a raiding team and apprehended the two accused at Haridwar Bus Stop. Thereafter, on the disclosure of these two accused persons, the other two accused Kunal Bhandari and Rishabh were arrested from Tilak Nagar.
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20. Learned counsels for the appellants have sought to assail the testimony of eye-witness Shwetank on the ground that he was not the maker of the FIR and on the incident having taken place despite the police booth being nearby, he made no complaint. It may be noted that both the victim and the eye witness were school students, PW-3 being aged around 16 years at the time of incident, it was natural for him to have been overcome by the course of event which was so sudden and within a period of 5-6 minutes, mother of Ribhu also reached at the spot, called the police as also the father of Ribhu. He has testified that on the police reaching at the spot, they mapped out the area in his presence and in the presence of the father of Ribhu. He was asked as to what had happened and where he was standing. The mere fact that the FIR was not registered at his instance will not lead to the conclusion that he was a planted witness. Version of Shwetank (PW-3) that he was called by Ribhu and after Ribhu was taken away, his mother reached the spot is duly corroborated by the mobile phone call details of Shwetank and mother of Ribhu. Further, the mother of Ribhu having made the PCR call within five to six minutes of the abduction taking place and on arrival of the police, FIR having been registered at police station after sending the ruqqa on the statement of the father of the victim, which itself will take the time of around two and a half hour, there is no delay in registration of the FIR.
21. As per Shwetank (PW-3), deceased made a call to him and then reached his place which is corroborated by the CDR analysis of the deceased who made two calls to PW-3 on 28th July 2009 at 14:35:48 hours and 14:39:48 hours. When the deceased reached the place of PW-3 to get the scooty, they saw silver colour Wagon-R car parked there and two persons standing near the car. The two persons put the deceased into the car and fled
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away. Immediately, mother of the deceased PW-1 reached the spot as she was already coming down to see why her son had not come from the school when she heard a noise and saw her son‟s Aviator scooty lying at the corner of Ujjawal Apartment. She met PW-3 who informed her that 3-4 boys had forcibly taken her son away in a car having car No. 3378. She immediately made a call on number 100 and her husband. From the CDR analysis of PW-1, (Ex. PW-14/C1 to C5), it is evident that she made a call to 100 number at 14:52:25 hours, on the basis of which, DD No. 20-A was registered which was at 3:17 pm vide Ex. PW-10/A. Thus, the entire cause of events that is, the deceased calling Shwetank at 14.35.48 hours, the second call being at 14:39:48 hours, going to the society of Shwetank, scooty of deceased being carried by Shwetank, seeing the two persons standing by the WagonR car, then talking to deceased and the two of them pushing Ribhu in the car and in the meantime, mother (PW-1) having come down to see her son as he got delayed from the school, the mother seeing the scooty lying and after being informed of the incident as to what happened, she made a PCR call at 14:52:25 hours, all happened within 11 minutes.
22. Shwetank had duly identified the two appellants who were outside the silver colour Wagon-R car and participated in the T.I.P. proceedings. Vide Ex.PW-13/C, he correctly identified Gaurav Chadha in the T.I.P. proceedings and appellant Kunal Bhandari refused to participate in the same as noted vide Ex.PW-13/B. The plea taken by Kunal Bhandari for not participating in the T.I.P. proceedings was that he has been shown to the witnesses at Crime Branch. The only eye-witness of the incident was Shwetank (PW-3). There is no suggestion to this witness in the cross- examination on behalf of the appellant Kunal Bhandari that before his T.I.P.
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was conducted, Kunal Bhandari was shown to the witness by the police officials of the crime branch. Appellant Kunal Bhandari was arrested on 30th July 2009 at 11:05 am at the instance of Sukhvinder and Gaurav Chadha, whereafter, their disclosure statements were recorded and they led to their respective houses and recovery of Wagon-R car and cash was made. Accused were produced in muffled faces on the same day; the TIP proceedings were fixed for 3rd August 2009 and they were sent to judicial custody. Only on 4th August 2009 after Gaurav Chadha was identified in TIP proceedings and Kunal Bhandari refused TIP that they were again produced and their police custody remand was sought. It may be noted that the accused were produced before the Court on the same day i.e. 30th July, 2009 and they were sent to judicial custody. No suggestion has been put to Shwetank, the only eye-witness that Kunal Bhandari was shown to him in the police station on 30th July 2009. In his cross-examination, Shwetank rather stated that he had not even seen the news of the arrest of kidnappers of Ribhu on the T.V. and police met him again in connection with this case on 3rd August 2009 when he was called for TIP but no statement was recorded and his statement was recorded on 5th August 2009.
23. There is no contradiction in the testimony of PW-3 as to how many people were involved, for the reason, he was clear that two persons were standing outside and obviously, there would be other people in the car, which could be one or two who immediately on pushing the deceased in the car, drove the car and took the deceased away. Since PW-3 had only seen the two persons outside, thus, the investigating agency rightly subjected only two of them who were seen by PW-3 to TIP proceedings.
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24. It may be noted that PW-3, in his statement before the Court deposed that he could identify the car which was of silver colour Wagon-R if shown to him as he had noticed its number as DL 3378. He identified the seized car through photographs Mark G to J, respectively, stating that the car shown in the photographs was like that of silver colour Wagon-R car no. DL-3378, used in kidnapping Ribhu. Regarding the number of the car being given as DL3378, whereas, the recovery of the car having the last digit as 76 is concerned, when the car belonging to the father of Rishabh was seized, the last digit was converted from 6 to 8 by a marker on the number plate. Thus, the observation of Shwetank that the last number was 8 on the number plate was correct.
25. The plea that since the height of the deceased was 5 feet 5 inches and thus, it was not probable that he could be put in a car, deserves to be rejected as the deceased was a young boy aged about 16 years, thin built and thus, could be easily pushed inside the car.
26. Though no road certificate for transit of car is on record, but, Malkhana record of the car being seized is on record (Ex.PW-26/C). The witnesses PW-33, PW-35 and PW-36 stated that the car was recovered from Rishabh Chauhan vide seizure memo Ex.PW-33/U. PW-33 deposed that the said car was taken to the police station by one constable. PW-30 deposed to have taken the car from the MHCM to FSL Rohini on 31 st July, 2009. In his cross-examination, he stated that the vehicle was parked at the compound of the police station where other vehicles were parked and that the car was locked and not sealed. He stated to have handed over the road certificate to one Naresh who was an employee of the FSL and after inspection, he had brought the vehicle back to the police station at about 3.30-4 pm.
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27. As deposed by PW-2, ransom amount was dropped by the father (PW-
2) at the spot as directed by the kidnappers. PW-2 was directed that there was bus stop of Budhpur at NH-1 ahead of Gurudwara where some construction was going on, where he would find a yellow color board. PW-2 was asked to put the money on the back side of that board. PW-2 deposed that he withdrew ₹4 lacs from his bank account no. 10505583449 at SBI, Mansarover Garden, ₹2 Lacs were arranged from S.C. Vachher (PW-4), ₹3 Lacs were kept at his home and ₹6 Lacs were arranged from Mukesh Batra (PW-5). The denominations were „1000 x 2 pkts = ₹2 Lacs‟; „500 x 24 pkts = ₹12 Lacs‟; „100 x 10 pkts = ₹1 Lac‟ and all packets were signed by him on a slip of paper on it.
28. Learned counsel for the appellant has assailed that though the call for ransom was received at 4.15 pm, however, thereafter also, the father of the deceased withdrew a sum of ₹4 lakhs from the bank after the banking hours, which is unusual. There is no cross-examination of Sanjay Chawla on this count as to how he withdrew the said amount and in his testimony, he clarified that the said money was withdrawn from his bank account No. 10505583449 at SBI, Mansarover Garden. Needless to note that ATM withdrawals are permissible 24 hours.
29. PW-8, owner of the hardware shop has already turned hostile. The evidence of the CFSL report exhibited as Ex.PW-9/B with regard to the non- matching of the nylon rope seized from shop of PW-8 with that of the one which was used as a ligature is of no consequence and thus the evidence on this count is required to be discarded, however, this part of the evidence, does not affect the other cogent and convincing evidence led by the prosecution.
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30. Contention of the appellant Kunal Bhandari claiming that only single disclosure statement was recorded but recoveries were made on two different occasions i.e. 30th July 2009 and 6th August 2009, is for the reason, immediately on arrest on 30th July 2009 after recording of the disclosure statement, ₹1 lakh cash was recovered from the father of the house of Kunal Bhandari and since his TIP was got to be conducted, he was produced before the Court and sent to judicial custody. Only on refusal of the TIP, when further P.C. remand was granted that recoveries of cash of ₹2.2 lakhs could be done at the instance of Kunal Bhandari from the house of his mother-in- law on 6th August 2009.
31. Further, even if no TIP of the mobile phone recovered vide Ex.PW33/K was conducted, the seizure memo depicts IMEI No. 351940030932232 of the phone which is the same as reflected in the call detail records chart Ex.PW-15/C2.
32. Learned counsel for the appellant has assailed that though as per Shwetank, deceased was pushed in the car from the rear seat but the blood was found on the driver seat. As noted in the evidence of CFSL expert Naresh Kumar, the blood was found on the front seat of the driver and hairs were found near the hand brake of the car. It is not that after the deceased was pushed in the car, he was not assaulted. As noted in the post-mortem report, besides the ligature injury, the deceased had multiple contusions and abrasions with dried blood stains over the wounds on the eyes, right chin, nose, upper eye lid, forehead, mouth, hands, arms etc. Hence, the blood spilling over on the driver seat is quite possible. Further, the deceased was also taken out from the car and thrown in the jungle where the dead body was found. There is no challenge to the report of the FSL expert exhibited as
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Ex.PW-9/B which opined that the blood stains found on the driver seat was of human origin and tallied with blood group of the deceased and the hairs recovered from the car also morphologically tallied with that of the deceased.
33. In view of the testimony of the eye-witness Shwetank and the other circumstantial evidence as enumerated above, this Court finds that the prosecution has proved that the appellants committed the offences punishable under Sections 364A/302/34 IPC besides 201 IPC. Hence, there is no error in the impugned judgment of conviction and order on sentence.
34. Appeals are accordingly dismissed.
35. Copy of the judgment be uploaded on the website of this Court and be also sent to the Superintendent Tihar Jail for intimation to the appellants and updation of record.
(MUKTA GUPTA) JUDGE
(ANISH DAYAL) JUDGE DECEMBER 02, 2022/akb
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