Crl.Appeal Nos.147, 208, 209/2008 Page 1 of 41 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 6th May, 2009 Judgment Pronounced on: 29th May, 2009 + CRL.A.147/2008 VIKRAM YADAV ..... Appellant Through: Mr.Brijesh K.Singh, Advocate. versus STATE ..... Respondent Through: Mr.Pawan Sharma, Advocate CRL.A.208/2008 NEERAJ KUMAR CHAUDHARY ..... Appellant Through: Mr.Ramesh Gupta, Advocate with Mr.Sumit Arora, Advocate. Mr.Sulaiman Khan, Advocate and Ms.Meera Kaura Patel, Advocate. versus STATE ..... Respondent Through: Mr.Pawan Sharma, Advocate CRL.A.209/2008 RAJENDER SINGH ..... Appellant Through: Mr.Manoj Kohli, Advocate. versus STATE ..... Respondent Through: Mr.Pawan Sharma, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Crl.Appeal Nos.147, 208, 209/2008 Page 2 of 41 PRADEEP NANDRAJOG, J. 1. On the intervening night of 21st and 22nd November 2001, Mosami Roy PW-1, received a call around 9 PM from Shri T.K. Roy PW-3, the elder brother of Ratan Roy, enquiring whether Ratan Roy was back from office or not. On being told that Ratan Roy had not returned, T.K.Roy informed Mosami that he had received a call on the mobile phone of Ratan Roy. First Ratan Roy spoke to him and thereafter a kidnapper spoke to him and he learnt that Ratan Roy has been abducted and ransom in sum of Rs.10 Lacs would have to be paid to secure his release. Mosami Roy contacted Harmeek PW-2, who was a subordinate to Ratan Roy in his office, and was told that Ratan Roy had left the office at around 6.30 PM. On being told that Ratan Roy had been abducted, Harmeek reached the house of Ratan Roy. Sometimes later she received a call from Romy Chopra PW-5, who was a senior to Ratan Roy in his office i.e. Schnieder Electric India Ltd. Romy informed her that he had received a call from Ratan Roy who told him that he needed Rs.10 Lacs and that the call got suddenly disconnected. He contacted Mr.Deepak Sahni who was the immediate superior of Ratan Roy and told him of his conversation with Ratan Roy. Deepak Sahni contacted him after a few minutes and told him that Ratan Roy had been probably abducted. Crl.Appeal Nos.147, 208, 209/2008 Page 3 of 41 2. Mosami Roy rang up police station Dilshad Garden and informed the duty officer that her husband had been abducted and ransom calls were received by his brother and his friend. Said information was noted vide DD No.17A, Ex.PW-14/A, at 12.29 AM and a copy of the same was given to SI Brij Mohan PW-14. Accompanied by Const. Ashok Kumar PW-15 and Const. Vijender, SI Brij Mohan reached the house of Ratan Roy i.e. C-60/2 Dilshad Garden, where he met Mosami Roy and Harmeek Singh. He informed PS Badarpur about the incident, since the place from where Ratan Roy was abducted, fell under the jurisdiction of PS Badarpur. At PS Badarpur, DD No.29A, Ex.PW-12/A, was recorded at 1.15 AM pertaining to the abduction of Ratan Roy. 3. A copy of DD No.29A was handed over to SI Rahul Sahni PW-26, who along with Const. Ashok PW-24 went to the office premises of Ratan Roy i.e. P-1/A-11, Mohan Cooperatives, Mathura Road and finding nobody in the office SI Rahul Sahni made an endorsement Ex.PW-26/A on the copy of the DD No.29A and sent the same for registration of an FIR through Const. Ashok PW-24. At the police station, HC Vijay Singh PW- 12 registered the FIR Ex.PW-12/B under Section 364-A IPC. 4. Thereafter the officials of both the police stations i.e. PS Dilshad Garden and PS Badarpur co-ordinated with each other and decided to meet at Maharajpur Chowk. SI Brij Mohan, Crl.Appeal Nos.147, 208, 209/2008 Page 4 of 41 Const. Ashok Kumar and Const. Vijender from PS Dilshad Garden, accompanied by Harmeek Singh left from the residence of Ratan Roy and reached Maharajpur Chowk. From PS Badarpur, Inspector S.S. Malik PW-32, SI Rahul Sahni PW- 26, Const. Ashok Kumar PW-24 and Rohit Kumar Bansal, a colleague of Ratan Roy, left for Maharajpur Chowk. On the way they met Romy Chopra who handed them his mobile phone on which the ransom calls were being received. The two police teams met at Maharajpur Chowk. As per their plan SI Brij Mohan, two constables and Harmeek Singh were to be seated in the car of Harmeek Singh. The rest of the officials were to follow the car of Harmeek Singh in two other cars. 5. Needless to state, the police team had to await for a call to be made by the abductors, who were expected to disclose the place where the ransom had to be paid. This would have enabled the police officers to lay a track. A call was received through the mobile phone of Ratan Roy by Harmeek Singh on the mobile phone of Romy Chopra since Romy Chopra had handed over his mobile phone to Harmeek Singh. The caller directed that Harmeek Singh should reach Seemapuri Border and bring with him the ransom money. In two cars, the police team trailed the car driven by Harmeek Singh to Seemapuri Border. Another call was received by Harmeek Singh directing that he should reach GTB Hospital Shahdara. Proceeding Crl.Appeal Nos.147, 208, 209/2008 Page 5 of 41 towards GTB Hospital, Harmeek Singh spotted a gold coloured car at Deepak Automobile Petrol Pump. Since Ratan Roy had a car of said colour, he reversed his car up to the petrol pump and stopped his car behind the said gold coloured car. He identified the car as the car of Ratan Roy. It was a gold coloured Ford Ikon bearing registration No.DL 3CS 9438. SI Brij Mohan told his staff to surround the said car and he himself went to the left side window of the car. However, before he could make any enquiries, the persons inside the car opened fire. SI Brij Mohan fired back, as a result of which, the front left side window pane of the car broke. The car sped away in the direction from which it had come. SI Brij Mohan and the constables got back into the car of Harmeek Singh and chased the car. The Ford Ikon hit a street cart being pushed by a vendor. The abductors thereafter threw somebody out of the car. This led the police team to give a short break in the chase to pick up the person who was thrown on the road. He was none other than Ratan Roy. Leaving HC Munsi Lal of PS Dilshad Garden behind to remove Ratan Roy to the hospital, SI Brij Mohan and Harmeek Singh continued the chase; however, they lost track of the car. 6. The police personnel in the other cars were informed over the phone and they reached Deepak Petrol pump and from there back to GTB hospital where Ratan Roy was Crl.Appeal Nos.147, 208, 209/2008 Page 6 of 41 admitted. SI Brij Mohan also returned with Harmeek Singh to GTB hospital. He collected MLC Ex.PW-35/A of Ratan Roy which declared the patient unfit to make any statement. He prepared a statement of brief facts (RUKKA) Ex.PW-14/B about the incident of firing at the petrol pump and sent the same to PS Seemapuri for registration of an FIR, as the place where the incident took place fell within the jurisdiction of PS Seemapuri. At PS Seemapuri FIR No. 261/2001 was registered. 7. Thereafter SI Raj Kumar PW-36 of PS Seemapuri also joined the investigation. He prepared a rough site plan Ex.PW- 36/A at the instance of SI Brij Mohan pertaining to the place where the exchange of fire took place. He got photographed the place of the incident vide photographs marked A1 to A6. Broken pieces of glass and a used cartridge were seized from the place of the occurrence as recorded in memo Ex.PW-6/A. Const. Ashok Kumar PW-14 handed over two empty cartridges from his service revolver which were seized as recorded in memo Ex.PW-15/A. 8. SI Rahul Sahni recorded the statement of Rajbir PW-6, the gunman at Deepak Petrol Pump, who had witnessed the incident. On returning to GTB hospital, SI Rahul Sahni learnt that the injured Ratan Roy had been shifted to Apollo Hospital. 9. Efforts were made to search the car of Ratan Roy in which the abductors had fled and at about 2.30 PM on Crl.Appeal Nos.147, 208, 209/2008 Page 7 of 41 22.11.2001, information was received from PP Indirapuram of PS Loni, Ghaziabad, that a car bearing registration No.DL 3CS 9438 was found abandoned near Carbon Factory on Arya Nagar Road. SI Rajkumar proceeded to the said spot and got the car photographed as per photographs marked A-7 to A-14. The left side front window of the car was found broken. Two deformed bullets were found in the car and were seized as recorded in memo Ex.PW-36/D. There were blood stains on the steering wheel of the car which were lifted and seized as recorded in memo Ex.PW-36/C. The car was taken into possession as recorded in memo Ex.PW-36/B. From the car, a mobile phone without a SIM card and a diary were also recovered. Said recovery was recorded in the seizure memo Ex.PW-36/B. It is noted in the seizure memo that a black coloured leather bag having some registers and papers was in the car. But we note that the same i.e. the bag, the registers and papers have not been produced at the trial and even an inventory of the contents of the bag has not been prepared, save and except to broadly note, as noted hereinbefore. SI Raj Kumar took possession of the pistol used by SI Brij Mohan and the revolver used by Const.Ashok Kumar when there was an exchange of fire at the petrol pump the previous day as recorded in the memo Ex.PW-14/C. Crl.Appeal Nos.147, 208, 209/2008 Page 8 of 41 10. On the same day, i.e. 22.11.2001, another FIR No.276/01 under Sections 279/337 IPC, was lodged at PS Dilshad Garden pertaining to the injuries suffered by Ram Sharan, the hand cart vendor; the injuries being the ones resulting when the Ford Ikon of Ratan Roy, being driven by the abductors had hit the hand cart. 11. On 23.11.2001 SI Rahul Sahni obtained the call records, Ex.PW-11/B, from Airtel Company pertaining to the mobile number 9810158032 which belonged to Ratan Roy for the obvious reason the abductors had been making the ransom calls on the mobile number of T.K.Roy and on the mobile number of Romy Chopra through said mobile number. On pursuing the call records, it was learnt, that on the night intervening 21.11.2001 and 22.11.2001 i.e. the night in which Ratan Roy was abducted and the night when ransom calls were received, the SIM card pertaining to the mobile No.9810158032 i.e. the mobile number of Ratan Roy was used on a handset bearing No.449125550757180 and after around 12:00 midnight, the said SIM card i.e. the SIM card pertaining to mobile No.9810158032 was used on a handset having IMEI No.449269200615380. Further inquiry pertaining to the handset having IMEI No.449269200615380 revealed that the SIM card pertaining to mobile No.9810590104 was being used on the said handset, till the said handset was used on the SIM Crl.Appeal Nos.147, 208, 209/2008 Page 9 of 41 card pertaining to the mobile number of Ratan Roy in the night when Ratan Roy was abducted. The said mobile number as also the handset pertaining to IMEI No.449269200615380 was directed to be kept under surveillance. 12. Ratan Roy expired on 29.11.2001. Post-mortem of the body of the deceased was conducted and the post-mortem report Ex.PW-23/A recorded the cause of death as comma due to head injury caused by blunt force. 13. On 30.11.2001, i.e. immediately after the death of Ratan Roy, the investigation of the case was handed over to Insp. S.S.Malik PW-32. After a few days, information was received from Airtel Mobile Company that the handset having IMEI No.449269200615380 was being used again. 14. Acting under the instructions of Insp. S.S.Malik, SI Rahul Sahni obtained the details of calls respecting instrument bearing IMEI No.449269200615380. The details, Ex.PW-11/DA, revealed that a few landline numbers pertaining to the telephone exchange at Ram Nagar, Ashok Nagar and Shahdara were in contact through the said instrument. On 14.12.2001 at around 8.15 PM a call was received on the instrument having the aforementioned IMEI number. The mobile number traced was 9810590104. Call details Ex.PW-26/C1-C6 pertaining to the said mobile number were obtained for the Crl.Appeal Nos.147, 208, 209/2008 Page 10 of 41 period 3.12.2001 to 14.12.2001. Call details were also obtained of a mobile number 9810691713 which was used to call at the aforementioned mobile number i.e. mobile No.9810590104 on 14.12.2001. From the said call records, a landline number 2111031 was revealed as being in frequent contact with the said mobile number. 15. On 15.12.2001 a police party raided the house where the landline number 2111031 was installed. The house was in Ashok Nagar and was in the occupation of Sandeep Sharma PW-7. Sandeep Sharma was asked regarding the mobile number 9810691713 to which he informed that it was his mobile number. He was further questioned regarding mobile number 9810590104. He informed that the said mobile number belonged to appellant Rajender. Sandeep Sharma gave the address of Rajender where the police party headed by Inspector S.S.Malik met Rajender and apprehended him around 12:30 noon. They recovered a mobile instrument Ex.P- 5 having IMEI number 449269200615380, lying on the table. The same was seized as recorded in memo Ex.PW-10/F. An I- card, Ex.P-1, of Delhi police in the name of Const.Neeraj Kumar (with his number allotted by the Delhi Police) but with photograph of Rajender thereon was also taken into possession as recorded in Ex.PW-10/G. Rajender was interrogated by Insp. S.S.Malik, who recorded his disclosure Crl.Appeal Nos.147, 208, 209/2008 Page 11 of 41 statement Ex.PW-10/B wherein inter alia he stated that appellant Neeraj and Vikram were also involved in the crime and that he could get recovered a country made pistol used in the commission of the crime which he had hidden in the bushes near GTB Hospital. On 20.12.2001, Rajender led the police party to the bushes near GTB Hospital and got a country made pistol Ex.P-2 recovered along with an empty cartridge Ex.P-3; a sketch Ex.PW-32/D of the pistol was prepared by Insp. S.S.Malik. As recorded in the seizure memo Ex.PW-32/E, the pistol and the cartridge were taken into possession. 16. At the instance of appellant Rajender, on 15.12.2001, appellant Neeraj was apprehended; the time of Neeraj‟s arrest is not on record, but since Rajender was apprehended at around 12:30 noon and it was on his disclosure statement that involvement of Neeraj was disclosed, followed by his arrest, it is apparent that Neeraj was arrested after 2:00 PM. Neeraj was interrogated by Insp. S.S.Malik. In his disclosure statement, Ex.PW-10/C, he disclosed that he was driving the car of the deceased when the firing took place at Deepak Petrol Pump and that a bullet had grazed the jacket and a wind sheater at the shoulder worn by him at the time of the offence and had grazed his chin. He disclosed that he could get recovered the jacket and the winder sheater which he had hidden. Neeraj produced from within his house a police jacket Crl.Appeal Nos.147, 208, 209/2008 Page 12 of 41 and the wind sheater which were seized as recorded in the seizure memo Ex.PW-32/H. The jacket and the wind sheater were damaged at the top of the left sleeve and at the top of the left shoulder. On 19.12.2001 Neeraj led SI Rahul Sahni to Murti Nursing Home in Barot (UP) where Dr.Narender Kumar PW-19 had treated him pertaining to the injury on his shoulder and chin. Appellant Neeraj was taken to AIIMS Hospital on 26.12.2001, where he was examined by Dr.Varun Dixit who prepared the MLC Ex.PW-38/A recording the following injuries on his person :- “1. Old healed stitched wound over the chin on the right and the left side size about 2cm on left and 1cm on right. (Stitches already removed) 2. Healed wound on the left shoulder two in number about 1cm each.” 17. The wounds were opined to be more than two weeks old. It was further opined that the possibility of the wounds on the shoulder due to a firearm cannot be ruled out. 18. Appellant Vikram Yadav was arrested on 15.12.2001 at 3.45 PM, at the instance of appellant Rajender and Neeraj. Vikram Yadav got recovered two cheque books Ex.P-7 and Ex.P-8 from an almirah in his house, issued in the name of Ratan Roy by ICICI Bank and Canara Bank which were taken into possession as recorded in Ex.PW-10/N. Crl.Appeal Nos.147, 208, 209/2008 Page 13 of 41 19. On 24.12.2001 the appellants were produced before Shri R.B.Singh learned Metropolitan Magistrate Kakardooma Court for Test Identification Parade, but all three refused to participate in the Test Identification Parade. The Ld.MM prepared a report Ex.PW-34/A in this regard. 20. Insp. S.S.Malik sent the exhibits of the case to FSL Malviya Nagar. The FSL report Ex.PW-37/A records that the marks on the cartridge test fired from the country made pistol recovered at the instance of appellant Rajender were found to be identical with the cartridge recovered from the said pistol. Pertaining to the pistol and the revolver used by SI Brij Mohan and Const.Ashok respectively, when the firing took place at the petrol pump, the second report Ex.PW-37/B, opined that the empty shell recovered from the petrol pump where the exchange of fire had taken place, were fired from the revolver used by Const.Ashok and the two deformed bullets recovered from the Ford Ikon car of the deceased were also fired through the said revolver. The Report Ex.PW-37/B also opines that an empty cartridge found at the spot was fired from the pistol used by SI Brij Mohan. That the two empty cartridges seized from the revolver of Const. Ashok were fired from the same revolver. That one of the two deformed bullet recovered from the car was fired from the pistol of SI Brij Mohan. However, the individual characteristic striations found on the other bullet Crl.Appeal Nos.147, 208, 209/2008 Page 14 of 41 were found insufficient for comparison. The wind sheater and police jacket recovered from the house of accused Neeraj and seized vide seizure memo Ex.PW-10/K were also examined and no gunshot residue particles were detected on the same. Vide FSL report Ex.CW-1/X the blood stains lifted from the car of the deceased were opined to be of human origin and of group „A‟, however it would be pertinent to mention that the blood group of the blood sample of appellant Neeraj could not be detected at that stage and a fresh sample of the blood of appellant Neeraj was taken and the blood in the fresh sample was detected to be of Group „A‟, vide Report Ex.PW-32/K dated 24.1.2003 of the serologist. 21. The appellants were charged for the offence of abducting for ransom Ratan Roy and murdering him. They were also charged for the offences punishable under Section 186, 302, 307, 353, 364-A, 384 and 419 IPC; needless to state with the aid of Section 34 IPC as also for the offence punishable under Section 120-B IPC. 22. At the trial, the prosecution examined 38 witnesses. To summarize, the conclusions drawn by the learned Trial Judge from the testimony of the said witnesses and the documentary evidence, the learned Trial Judge has accepted the testimony of SI Brij Mohan PW-14 and Const.Ashok PW-15 who identified the appellants as the occupants of the car belonging to the Crl.Appeal Nos.147, 208, 209/2008 Page 15 of 41 deceased in which he was abducted. As per the testimony of the said police officers appellant Neeraj was driving the car. Appellant Vikram was sitting in the front, next to the driver‟s seat and appellant Rajinder was sitting in the rear seat with the deceased when the firing took place at Deepak Petrol Pump. As the left side front glass window pane of the car in which the appellants were sitting got shattered, the said two police officers claimed to have had an occasion to see the accused. Against appellant Rajinder, the learned Trial Judge has opined that the recovery of the handset having IMEI No.449269200615380 was further incriminating evidence because the call details of mobile number 9810158032 belonging to the deceased showed that on 21.11.2001, in the night calls were made from said number using the handset in question demanding ransom i.e. Rajinder was present in the car with his handset and used the SIM card of the mobile number of the deceased on his handset. The recovery of a fake identity card having the photograph of Rajinder, but the name and other particulars of Neeraj from his house i.e. the house of Rajinder was held to be further incriminating evidence against him. Against appellant Neeraj, apart from his being identified by SI Brij Mohan and Const.Ashok, it has been held that his blood group being „A‟ and blood of same group being lifted from the steering of the car in which the deceased Crl.Appeal Nos.147, 208, 209/2008 Page 16 of 41 was abducted as also the fact that he had bullet grazing injuries on his left shoulder and the chin established his being injured inside the car when the firing took place at Deepak Petrol Pump. Needless to the state the police jacket and the wind sheater recovered at the instance of Neeraj and claimed by him to be worn at the time of the shooting were also found to be damaged by a projectile from a firearm, which has been held to be corroborative of the fact that he was injured at the exchange of fire which took place at Deepak Petrol Pump. Qua appellant Vikram Yadav, apart from his being identified by SI Brij Mohan and Const.Ashok the incriminating evidence held established is the recovery of the cheque books issued by ICICI Bank and Canara Bank in the name of the deceased which were recovered from his house. Inference drawn by the learned Judge is that being in possession of a part of the fruits of the crime, Neeraj‟s involvement was apparent. Lastly, against all three accused, their refusal to join in the TIP has been held to be further incriminating evidence against them. 23. We need not note the testimony of all the witnesses examined for many of them are formal witnesses. Needless to state, we need to note the testimony of such witnesses which establish that Ratan Roy was abducted in the early hours of the night of 21st November, 2001; ransom calls were received through the mobile number of Ratan Roy and that the handset Crl.Appeal Nos.147, 208, 209/2008 Page 17 of 41 recovered from appellant Rajinder was used for making the calls using the SIM card of the mobile number of the deceased; the disclosure statements of the appellants and the recoveries effected pursuant thereto; the incident of firing which took place at Deepak Petrol Pump. Needless to state it was not seriously disputed during trial and during appeal that the post- mortem report of the deceased evidencing that the deceased died when he was thrown out of a running car is seriously not in dispute. We also note that the recovery of the Ford Ikon car of the deceased with recovery of two bullets and blood stains on the steering of the car as also the fact that cross firing took place at the petrol pump with the abductors of Ratan Roy being inside the Ford Ikon car is also not a matter in dispute. The dispute is, not whether the crime was committed in the manner as alleged by the prosecution. The dispute is whether the appellants were the offenders. 24. At the trial,