Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 1 of 33 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: May 24, 2010 Judgment Delivered On: May 28, 2010 + CRL.APPEAL No.587/2008 RAKESH ..... Appellant Through: Mr.Sudershan Rajan, Advocate versus STATE ..... Respondent Through: Mr.M.N.Dudeja, Advocate CRL.APPEAL No.588/2008 RAJNEESH ..... Appellant Through: Mr.K.K.Sud, Senior Advocate with Mr.Kunal Malhotra and Mr.Ashish Das, Advocates versus STATE ..... Respondent Through: Mr.M.N.Dudeja, Advocate CRL.APPEAL No.1027/2008 LAL MOHAMMAD ..... Appellant Through: Mr.Bhupesh Narula, Advocate versus STATE ..... Respondent Through: Mr.M.N.Dudeja, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 2 of 33 1. There is some confusion, but it hardly matters, whereas Vijay Bhandari PW-5 (father of deceased Vikas Bhandari) deposed that when he could not locate his son Vikas till it became dark on 13.11.2000 he lodged a missing person‟s complaint by ringing up the police control room; HC Veer Singh PW-6 deposed that on 14.11.2000 Vijay Bhandari came to PS Anand Vihar at 10:30 AM and got recorded his statement which was straight away reduced into a First Information Report Ex.PW-5/S. The fact of the matter remains that Vikas Bhandari left his house at around 4:30 PM for taking tuitions and never returned home. On 15.11.2000 his dead body was found in District Ghaziabad UP. 2. It is the case of the prosecution that the appellants and their co-conspirator Romil Sharma, who has turned approver and has earned a pardon, conspired to kidnap Vikas Bhandari and extract ransom from his father to release Vikas, who was known to appellant Rajneesh since Rajneesh had in the past taken private tuitions for Vikas. In furtherance of their conspiracy the four kidnapped Vikas from outside Sai Baba Mandir, Savita Vihar and took him to A-157, Sector-I, Vaishali, Ghaziabad which was taken on rent by Rajneesh. The plan went haywire since Vikas, who was drugged after he was kidnapped could not be properly re- sedated and lest his cries of distress summon people in the neighbourhood for rescue, the appellants and Romil Sharma strangulated to death their victim i.e. Vikas. To dispose of the body they borrowed a Maruti Car No.DVD 6717 from Vinesh Kumar PW-2 and after wrapping the body in a holdole (bisterband) threw the body at an isolated spot in Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 3 of 33 front of Pahar Pur Factory, Maharajpur Industrial Area within jurisdiction of PS Link Road Ghaziabad. 3. Thus, charge framed against the appellants and co-accused Romil Sharma, who by the date when the charge was framed i.e. on 28.5.2001 had not turned an approver, was of entering into a conspiracy to kidnap for ransom Vikas Bhandari; to murder Vikas Bhandari and destroy/conceal evidence of the crime i.e. the offences punishable under Section 120B/364/302/201 IPC. 4. No demand for ransom being made appears to be the reason why charge framed was for the offence punishable under Section 364 IPC and not Section 364-A IPC. 5. Since much turns on the credibility of how the investigating officer claims to have cracked the offence, it would be useful to have a look as to how the investigating officer claims to have investigated the offence and achieved a break through. 6. Three police officers have investigated the crime. Firstly, SI Prakash Singh PW-12 investigated the crime till 15.11.2000 when dead body of Vikas was found. From 15.11.2000 till 18.11.2000 Insp.Sarabjit Singh PW-15 conducted the investigation and taking over the investigation on 19.11.2000 till charge-sheet was filed, Insp.Ramesh Kumar PW-16 was incharge of the investigation. 7. The FIR was registered at around 10:30 AM on 14.11.2000 and as deposed to by SI Prakash Singh PW-12 the investigation was entrusted to him and since he was told that Vikas had gone to House No.A-98, Yojna Vihar for taking tuitions he went there and met Sudha Bhatnagar who used to teach Sanskrit to Vikas. She told him that on 13.11.2000 Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 4 of 33 Vikas had left at 5:30 PM for taking tuition in English and Science (should read only Science since father of Vikas has clearly stated that his son used to take tuition in Sanskrit and Science. He has not deposed that his son used to take tuition in English) at A-41, Yojna Vihar, at which house he found nobody. He along with Const.Pramod searched for Vikas and could not locate him. He informed the PCR giving particulars of Vikas and at 4:30 PM, Vijay Bhandari, father of Vikas came to the police station with Ashwani Kumar PW-3 who told him that on 13.11.2000 at about 5:45 PM he saw Vikas on a two-wheeler with his tutor Rajneesh near Sai Baba Temple, Savita Vihar and that Romil Sharma as also Lal Mohd. along with another person were on a motorcycle and all went away on the respective vehicles. Ashwani Kumar‟s statement under Section 161 Cr.P.C. finds a place in the police record as also the charge-sheet filed. It bears the date 14.11.2000 and is Ex.PW-3/DA. 8. This became the lead for the investigation to proceed. Before SI Prakash Singh could lay his hands on the appellants or Romil Sharma, as deposed to by SI Anil Pratap PW-13 who was posted as a Sub-Inspector at PS Link Road, one Rajender Yadav gave information at the police station that he had seen the dead body of a person in front of Pahar Pur Factory which was noted vide GD No.22. He took along with him Const.Laxman Swaroop and Const.Siyaram and recovered the dead body of a male wrapped inside a bisterband. He drew up the Panchnama Ex.PW-13/A. Completing the formalities and filling up the inquest papers he sent the body to the mortuary and at 7:00 PM Vijay Bhandari and SI Prakash Singh who had learnt about a dead Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 5 of 33 body being recovered came to the police station. The two were taken to the mortuary where Vijay Bhandari identified the dead body as that of his son. Relevant would it be to note that the clothes and the shoes were on the dead body which were seized vide memo Ex.PW-11/A by SI Anil Pratap. 9. The body being identified, post-mortem was conducted on 16.11.2000 and as per post-mortem report Ex.PW-14/A, ligature marks were detected on the neck. Multiple contusions on the chest, back and shoulders was noted. Cause of death opined was asphyxia due to strangulation. Dr.Anil Kumar PW-14, the author of the report duly proved the same. 10. The appellants and Romil Sharma were to be apprehended since Ashwani Kumar PW-3 had disclosed their likely involvement. 11. The prosecution claims that on 18.11.2000 appellant Rajneesh and Romil Sharma were spotted at Gate No.1, Yamuna Sports Complex, a place which they ostensibly used to visit for recreation. As recorded in the arrest memos Ex.PW-16/B and Ex.PW-16/A pertaining to Rajneesh and Romil Sharma respectively they were arrested together on 18.11.2000 (time of arrest not recorded but claimed to be around 1:30 PM as deposed to by Insp.Sarabjit Singh PW-15 as also Vijay Bhandari PW-5). Both of them made disclosure statements; that of Rajneesh being Ex.PW- 9/A and that of Romil Sharma being Ex.PW-1/D. Not only did the two confess to the crime but disclosed that they had with them two more accomplices; namely, Lal Mohd. and Rakesh. The two disclosed that they had taken Vikas to House No.A-157, Sector-I, Vaishali, Ghaziabad, taken on rent by Rajneesh where they firstly gave him tranquilizer tablets Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 6 of 33 and since he regained consciousness they injected compose injection of diazepam. Fearing that Vikas may yell and attract attention of persons in the neighbourhood they strangulated him to death and borrowed a motor vehicle from Vinesh PW-2 and threw the dead body at the place wherefrom it was recovered by the police at Ghaziabad. Both of them volunteered to take the investigating officer to the house in question and get the notebooks, chappal, and spectacles of Vikas recovered from the house. 12. The pointing out memo Ex.PW-1/E which bears the signatures of Romil Sharma records that Romil Sharma pointed out House No.A-157, Sector-I, Vaishali and told that the belongings of Vikas were inside the house. 13. As claimed by Insp.Sarabjit Singh, on making entry inside the house, appellant Rakesh was found and was immediately arrested as per arrest memo Ex.PW-16/B. (We note that two memos have been exhibited as Ex.PW-16/B, being the arrest memo of Rakesh as well as that of Rajneesh). 14. Seven recovery memos Ex.PW-5/G, Ex.PW-5/D, Ex.PW-5/J, Ex.PW-5/F, Ex.PW-5/H, Ex.PW-5/E and Ex.PW-5/K stand drawn up, each dated 18.11.2000 and recording the respective exhibit recovered from inside the house. For facility of reference it be noted as under:- Memo No. Person attributed to. Exhibit recovered. Ex.PW-5/G Attributed to Rajneesh Pen Ex.P-6 Ex.PW-5/D Attributed to Rakesh Spectacles Ex.P-1 Ex.PW-5/J Attributed to Rajneesh Chakla Ex.P-7, Belan Ex.P-8 Ex.PW-5/F Attributed to Rajneesh Black coloured rubber slippers Ex.P-2 Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 7 of 33 Ex.PW-5/H Attributed to Rajneesh Syringe Ex.P-9, Tablet Wrapper Ex.P-10 (Diazepm Tablets), Injection Vial Ex.P-11 (Diazepm Injection) Ex.PW-5/E Attributed to Rajneesh Book (Social Science) Ex.P-3, Copy (Sanskrit) Ex.P-4 and Copy (English) Ex.P-5 Ex.PW-5/K Attributed to Rajneesh Mattress Ex.P-12 15. It may be noted that whereas other memos record as to at whose instance and pointing out the exhibits were recovered, the memo Ex.PW-5/E does not record as to at whose instance Ex.P-3, Ex.P-4 and Ex.P-5 were recovered, but bears the signatures of Rajneesh. Similarly is the position with respect to the memo Ex.PW-5/J wherein the recovery of the chakla Ex.P-7 and belan Ex.P-8 have been recorded and the memo Ex.PW-5/F which records the recovery of the pair of chappals Ex.P-2. 16. Relevant would it be to further note that Vijay Bhandari is a witness to all the recoveries. SI Shailender Tomar and Insp.R.K.Shukla are the other two witnesses to the recoveries. 17. As claimed and deposed to by Insp.Sarabjit Singh when he and the other police officers were in the house, Lal Mohd. walked in and was immediately arrested. 18. Appellant Rakesh and appellant Lal Mohd. made confessional statements. No recoveries were made attributable to Lal Mohd. As noted above the recovery of the specs Ex.P-1 as entered in the memo Ex.PW-5/D is Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 8 of 33 attributable to Rakesh, but it is not clear from the evidence whether the recovery preceded the disclosure statement of Rakesh or was subsequent thereto. 19. All the accused were produced before the concerned Magistrate in Delhi on 19.11.2000 when the investigating officer did not seek police remand of Rajneesh and prayed that the other three accused be remanded to police custody stating in the application that the Maruti Car in which the body of Vikas was thrown had to be recovered as also the place wherefrom the medicines and injections were purchased had to be located for which assistance of Romil Sharma was needed. Qua Lal Mohd. it was stated that the source of a rope used as ligature material as also to tie the bisterband in which the dead body was thrown was to be located for which Lal Mohd.‟s assistance was needed. Qua Rakesh it was stated that the source of some cloth used in the commission of the crime needed to be located with his assistance. We are left to wonder what cloth was contemplated, for indeed none has surfaced. 20. Relevant would it be to note that on 19.11.2000 a request was made by the accused to the learned Magistrate before whom all accused were produced for signing the case diary with the investigating officer, lest interpolations be made. Admittedly, the learned Metropolitan Magistrate signed the case diary and affixed his stamp thereon, but we find that the case diary preceding 17.11.2000 which was produced at the trial and in respect whereof statements recorded under Section 161 Cr.P.C. prior to 17.11.2000 do not bear the signatures of the learned Magistrate, much less his stamp. The memos prepared on 18.11.2000 and recording contained in the Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 9 of 33 inner case diary bear the signatures as also the stamp of the learned Metropolitan Magistrate. 21. The charge-sheet was submitted. It is apparent that the prosecution was relying very heavily on the evidence of last seen and the recoveries effected on 18.11.2000. But the prosecution was fairly unsure of itself. Notwithstanding the fact that charges were pressed against all the accused on 28.5.2001, Romil Sharma filed an application before the learned Trial Judge praying that he desires to make a confession and turn approver. In the application Romil Sharma stated that his turning approver would strengthen the case of the prosecution which was predicated on very weak evidence. In a written reply filed by the learned Additional Public Prosecutor, the State supported the application of Romil Sharma. On 16.11.2001 the learned Additional Sessions Judge passed an order allowing the application granting pardon to Romil Sharma and proceedings remitted to the learned ACMM to complete necessary proceedings contemplated by Section 306 Cr.P.C. i.e. to record the confessional statement of Romil Sharma under Section 164 Cr.P.C. after recording the satisfaction of the learned ACMM as contemplated by law. 22. As recorded vide order dated 1.11.2001, Romil Sharma was produced before Sh.Sanjay Sharma MM Delhi who wrote:- “I have explained to the accused that he is duty bound to make a true and complete disclosure of facts and all the circumstances within his knowledge related to the offence as alleged in the present case and that in case his statement is found to be false at any subsequent stage, he shall be made to face the trial of this case along with other co-accused and further that he may also be tried for the offence of perjury as per law. The Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 10 of 33 accused has still stated that he is prepared to disclose the complete state of facts within his knowledge. I now hereby proceed to record the statement of the accused.” 23. Thereafter, before recording the statement of Romil Sharma, the learned Metropolitan Magistrate completed the formality of complying with law as per the mandate of Section 164 Cr.P.C., to record a memorandum in the form of evidence of the statement being voluntary. It stands recorded as under:- “Statement of the accused Romil Sharma, S/o Sh.Jitender Swaroop Sharma, R/o IIIrd A, 128, Rachna, Vaishali, Ghaziabad, UP (Presently lodged in Central Jail Tihar), aged about 23 years (On S.A.) Q.1 Are you making the statement voluntarily and without any compulsion, threat or fear? Ans. Yes. I am making the statement voluntarily. Q.2 Did you move the application U/S 306 Cr.P.C. under the influence of somebody or of your own sweat will? Ans. I moved the application of my own.” 24. Thereafter the statement of Romil Sharma has been recorded and signed by the learned Metropolitan Magistrate and signatures of Romil Sharma have been obtained on each page. At the tail end is the certificate that the statement has been recorded in the open Court and it contains a true and complete account of the statement made by Romil Sharma before the learned Metropolitan Magistrate. 25. Needless to state Romil Sharma was dropped as an accused, having earned a pardon. Needless to state that the prosecution sought to prove the guilt of the appellants Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 11 of 33 through the testimony of Romil Sharma who attained the status of being an eye witness; through the testimony of Ashwani Kumar PW-3 to prove that Vikas was seen in the company of the appellants and lastly the recoveries attributed against the appellants. It was obvious that the witnesses to the recoveries as entered in the various memos were cited as the witnesses of the prosecution. 26. Romil Sharma PW-1 disclosed the contours of the conspiracy, he stated that they picked up Vikas from outside Sai Baba Temple, Savita Vihar at about 5:45 PM on 13.11.2000 and as per their plan took him to the house A- 157, Sector-I, Vaishali taken on rent by Rajneesh. From the telephone Vikas was made to speak to his father. Thereafter, they crushed compose tablets and mixed it in a drink which was given to Vikas so that he became unconscious. As Vikas regained consciousness they injected him with a drug and as he resisted they all strangulated him to death. He i.e. Romil Sharma caught hold of the legs of Vikas. Lal Mohd. sat on the stomach of Vikas. Rakesh caught the arms and Rajneesh did the act of strangulation. After keeping the body in the bathroom they went to the shop of Vinesh, a friend of Rajneesh and borrowed his car. They threw the dead body at Maharajpur after wrapping the same in a dhoti and thereafter in a bisterband. He deposed to the various recoveries as per memos noted in para 14 above as effected in his presence. During cross- examination he admitted 22 improvements vis-à-vis his initial confessional-cum-disclosure statement Ex.PW-1/D being as under:- “1. It is correct hat I had narrated the entire incident without any concealment to the IO. I had not disclosed to the police in my statement made Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 12 of 33 after my arrest that in the last week of October 2000 accused Rajnish gave me an idea to kidnap a boy from rich family for ransom as he was in the need of money. 2. It is correct that I had not stated to the police in my disclosure statement Ex.PW-1/D that Rajnish accused told me that he was in need of money as he had paid Rs.63,000/- for a factory premises at Okhala and had to pay Rs.3,00,000/- more by 25.11.2000. 3. It is correct that I had not stated in my disclosure statement Ex.PW-1/D that accused Rajnish told me that his first target was Rahul Chaudhary, resident of Yojna Vihar bye then he choose Vikas Bhandari as he expected more money from his as ransom. 4. It is correct that I had not stated in my disclosure statement Ex.PW-1/D that on or before 10.11.2000, accused Rajnish took me alongwith Lal Mohd. And Anul Haq to the house of Vikas Bhandari at Yojna Vihar and pointed out the house where Vikas Bhandari was also standing and got identified him. 5. It is correct that I did not disclose in my statement Ex.PW-1/D that we all planned that on 13.11.2000, at around 5/5.15 P.M. I, Lal Mohd. And Anul Haq would bring Vikas Bhandari on my scooter. 6. It is correct that I had not disclosed in my statement Ex.PW-1/D that Rajnish talked with Vikas Bhandari fro about 1 and 1½ minute at Sai Baba Mandir and then signalled us to follow him. 7. It is correct that I had not stated in my statement Ex.PW-1/D that in the kitchen some compose tablets and injections had already been kept by Rajnish, for this purpose. 8. It is correct that I had not stated in my statement Ex.PW-1/D that Lal Mohd. took the glass of the said drink and handed over that to Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 13 of 33 Rajnish, to gave it to Vikas Bhandari offering and asking him to drink. 9. It is correct that I had not stated in my statement Ex.PW-1/D that when Vikas Bhandari became unconscious Rajnish asked all three of us to stay in the room and he went away saying that he would call the father of Vikas from Connaught Place to demand a ransom of about Rs.20,00,000/- from him as his son in his possession. 10. It is correct that I had not stated in my statement Ex.PW-1/D that it was the plan of Rajnish that he would call the father of Vikas at some hill station and I alongwith Lal Mohd. Would stay at the room at Vaishali and he would go to the hill station alongwith Anul Haq @ Rakesh accused and that Anul Haq would collect the ransom money from the father of Vikas at some public place. 11. It is correct that I have not stated in my statement Ex.PW-1/D that Rajnish had further planned that he would be watching Anul Haq from some distance alongwith pistol and in case the father of Vikas would inform police he would shot him. 12. It is correct that I have not stated in my statement Ex.PW-1/D that Rajnish had disclosed me that he was having a mousher pistol. 13. I also did not stated in my said disclosure that Rajnish had promised to distribute the ransom money among four of us equally. 14. I also did not stated in my said statement Ex.PW-1/D that Rajnish told us that he tried to contact the father of Vikas Bhandari on phone but he could not succeed that he would again try in the morning. 15. I also have not stated in my statement Ex.PW-1/D that accused Rajnish again directed Lal Mohd. To adminter Injection to Vikas for Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 14 of 33 sedatation and that Lal Mohd. Injected a compose injection to Vikas as a result he again slept. 16. It is correct that I have not stated in my statement Ex.PW-1/D that at about 12 midnight when Vikas again got conscious, Rajnish said that Vikas was shouting too much and someone may hear his cry and therefore he decide to kill him. 17. It is correct that I have note stated in my statement Ex.PW-1/D that Lal Mohd. Went on the motorcycle of Rajnish to find a place where the dead body can be disposed of safely and that it was again decided that he would meet in the same before 7 PM. 18. It is correct that I have not stated in my statement Ex.PW-1/D that Rajnish and Lal Mohd. went on the motorcycle and returned back with a rope and two pieces of dhoti. 19. It is correct that I have not stated in my statement that the hole-dole in which the dead body of Vikas Bhandari was wrapped belonged to Rajnish. 20. It is correct that I have stated in my statement Ex.PW-1/D that I alone went to the house of my friend Vinesh at Kaushambi and borrowed his car. 21. It is correct that I did not stated in my said statement that Vinesh was friend of Rajnish. It is correct that I have not stated in my statement Ex.PW-1/D that Rajnish borrowed the car from Vinesh which was the Maruti 800 car. 22. I also did not stated in my statement Ex.PW- 1/D that Accused Rajnish had taken the car on the pretext that he had picked up his friend from railway station. I had not stated in my statement Ex.PW-1/D that the details of sitting arrangements in the car while taking the dead body for disposal and the place where it was to be dumped.” Crl.A.Nos.587/2008, 588/2008 & 1027/2008 Page 15 of 33 27. Vinesh PW-2 stated that he knew Rajneesh and that on 14.11.2000 he had lent his brother‟s car No.DVD 6717 to Rajneesh who returned the car to him same night at around midnight. On being cross-examined he stated that he knew that Rajneesh was residing in Gangotri but could not give any particulars of the house nor he could give any particulars about the parents, brother and sisters of Rajneesh; not even their number. To put it simply he could give no information about the family or the affairs of Rajneesh. It is apparent that the purport of the cross- examination is to drive home the point that only a good friend lends his brother‟s car to a friend and the test of two persons being good friends is the knowledge of one qua