Delhi High Court

Surjeet Singh & Anr. vs State on 10 March, 2010

Author: Pradeep Nandrajog

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on : March 04, 2010
                        Judgment Delivered on : March 10, 2010

+                            CRL.APPEAL NO.735/2001

         SURJEET SINGH & ANR.              ..... Appellants
                   Through: Mr.R.D.Sharma and Ms.Samta Jain,
                            Advocates

                                   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?          Yes

     3. Whether the judgment should be reported in the
        Digest?                                   Yes

PRADEEP NANDRAJOG, J.

1. The above captioned appeal has been filed by the

appellants challenging the impugned judgment and order

dated 13.9.2001 convicting them for the offences punishable

under Sections 342/364-A/380/384/394/506(2)/34 IPC. Co-

accused Navin has been acquitted.

2. Navin has been acquitted for the reason the case of

the prosecution against him that he was the person who

withdrew Rs.15,000/- from the account of Davinder Dhawan,

the person who was allegedly kidnapped, could not be proved

since the witnesses from the bank failed to identify him as the

person who presented the cheque for encashment; and the

handwriting expert gave an inconclusive opinion with

reference to the sample writings of Navin and that on the

cheque in question. Surjeet Singh has been convicted on

account of two gold bangles (karas) and the mobile phone of

the victim being held proved to be recovered pursuant to the

disclosure statement of Surjeet Singh, which articles have

been held to be duly proved as belonging to the victim.

Chandroop has been convicted on account of a gold mangal-

sutra belonging and proved to be belonging to the wife of the

victim being recovered pursuant to his disclosure statement.

3. Briefly stated, the case set up by the prosecution is

that on 6.6.1997, at about 6:00 P.M., when Davinder Dhawan

PW-2 was leaving from his office at Jet Engine Overhaul

Complex at IGI Airport and was heading towards his car

bearing registration No.DL-2CF-8611 parked in the parking lot,

two persons were standing near the said car and requested

Davinder Dhawan PW-2 to drop them near Centaur Hotel.

Davinder Dhawan consented. All commenced their journey.

On the way the third accused was seen walking besides the

road and at behest of the two accused, Davinder Dhawan

offered a lift to the third accused as well. After traveling some

distance, the accused made Davinder Dhawan stop the car.

The accused grappled with Davinder Dhawan and compelled

him to lie down in the rear portion of the car and covered his

face. One of the accused took the driver's seat and drove the

car outside Delhi into some fields in Village Ghuman Khera.

The accused blind folded Davinder Dhawan and confined him

in a room constructed in between the said fields. They queried

Davinder Dhawan about his financial capacity and accordingly

demanded Rs.20,000/- from him for his release and threatened

that if the said amount was not paid, they would kill him. They

also gave beatings to Davinder Dhawan. When Davinder

Dhawan informed them that none of his family members were

in town to be able to pay the amount, the accused snatched

the keys of the house of Davinder Dhawan from him and

compelled Davinder Dhawan to draw up a site plan of his

house i.e. house bearing No.B-9/9232 at Vasant Apartments,

LIG Musoodpur, Main Road, Vasant Kunj. In the night

intervening 6.6.1997 and 7.6.1997, at about 3:00 or 4:00 A.M.

two of the accused visited said house belonging to Davinder

Dhawan and on basis of the site plan drawn by Davinder

Dhawan, stole a cheque book pertaining to the bank account

of Davinder Dhawan and some jewellery items from the said

house. They took the cheque book to Davinder Dhawan and

compelled him to draw a bearer's cheque for whatever

balance was there in his account. Thus, Davinder Dhawan

drew a bearer's cheque for Rs.15,000/-. The accused further

snatched a gold chain which Davinder Dhawan was wearing,

Rs.2,000/- to 2,500/- cash which Davinder Dhawan was

carrying at that time, and his Motorola cell phone from

Davinder Dhawan. After doing so, on the persuasion of

Davinder Dhawan, the accused took him to his car and let him

go.

4. Thus, it is apparent that as per Davinder Dhawan he

was kidnapped on 6.6.1997 and was set free the next day on

7.6.1997.

5. Process of criminal law was set into motion when on

9.6.1997 (two days after he was freed from captivity) Davinder

Dhawan submitted a written complaint Ex.PW-2/B at PS IGI

Airport enumerating the entire incident commencing from his

giving a lift to the three boys, the boys using force upon him

and forcibly taking and confining him in a room in some fields

outside Delhi, extracting details about his financial position

and his residence from him, thereafter going to his house and

bringing his cheque book, compelling him to draw a bearer's

cheque and snatching cash and gold chain from his person and

subsequently releasing him. In the complaint, he additionally

stated that during the time he was confined in the room in the

fields, the three persons who had confined him constantly

used his cell phone having a sim card bearing number

9810073959 to contact some person named Anoop. Davinder

Dhawan also stated in the complaint that when he reached his

house he found that gold bangles, mangal sutra, and two gold

chains belonging to his wife were missing from the house.

6. Relevant would it be to note that in the complaint

the description of the three persons who allegedly kidnapped

Davinder Dhawan has been given with graphic details being

that one person was dark complexioned and had curly hair.

His approximate height was 5'10" or 5'11", had a small

trimmed moustache and during the captivity wore a white T-

shirt and jeans with sports shoes. The second person was

described to be approximately 5'10" in height, had straight

hair and moustache and during the period of confinement

wore a light blue coloured shirt with jeans and sports shoes.

The third person was described to be dark complexioned,

wearing specs, slightly shorter in height than the other two

persons and during the period of confinement wore a grey-

coloured pant and shirt with sports shoes.

7. The said complaint was assigned to SI Ravinder

Kumar PW-17 for investigation, who on the basis of the

complaint got registered FIR No.192/1997 Ex.PW-20/A at PS IGI

Airport. He inspected the site from where the accused took lift

from the complainant. He obtained the call records Ex.PW-

17/C of the cell phone bearing number 9810073959 from

4.6.1997 to 7.6.1997. As per said call records, on 7.6.1997 at

08:23 A.M. a call was made from the cell phone belonging to

the complainant to telephone bearing number 011-5182918

and on the same day at 10:01 A.M. and 12:14 Noon two calls

were made from said cell phone to the telephone bearing

number 011-5012313. SI Ravinder Kumar tracked the said

telephones and learnt that the number 011-5182918 was in

the name of one Anoop Kumar while the number 011-5012313

was in the name of one Bharti of Village Ghumman Hera. On

12.6.1997, SI Ravinder Kumar reached village Ghumman Hera

and on interrogating Bharti and her two sons learnt that the

said telephone number was installed in a grocery shop and

was in public use. When SI Ravinder Kumar described the

features of the persons as described by complainant Davinder

Dhawan in his complaint to the sons of Bharti, the said sons of

Bharti acknowledged that the description matched Surjeet and

Chandroop. They told SI Ravinder that Surjeet was working in

a workshop of Indian Airlines and that both Surjeet and

Chandroop often used the telephone in question to make or to

receive calls. Taking cue from said information, SI Ravinder

contacted the brother of Surjeet Singh i.e. Veer Singh who

confirmed that Surjeet Singh worked in the repair workshop of

Jet Planes. On learning from Veer Singh that Surjeet Singh was

expected to return soon, SI Ravinder waited there and when

Surjeet Singh appeared arrested him. He interrogated Surjeet

and recorded his disclosure statement wherein Surjeet

disclosed the involvement of accused Navin in the incident

apart from Chandroop and him. He also stated that he can get

recovered Rs.5,000/- in cash, the two gold karas and the

mobile phone belonging to the complainant. Pursuant to the

said disclosure statement, Surjeet led the investigating officer

to his house and from a room got recovered Rs.5,000/- cash,

two gold karas i.e. his share of the loot along with a battery of

a mobile phone and a mobile phone of Motorola make. The

same were seized vide memo Ex.PW-15/A. At the instance of

Surjeet Singh, appellant Chandroop was also arrested. His

disclosure statement was also recorded as per which he stated

that he can get recovered the mangal-sutra belonging to the

wife of the complainant. Thereafter Chandroop led the

investigating officer to his house and from a room therein got

recovered a mangal sutra belonging to the wife of the

complainant and a toy pistol stated to be used in the

commission of the offence. The two were seized vide memo

Ex.PW-17/G.

8. The seized jewellery articles were put up for TIP

before Sh.Brijesh, learned Metropolitan Magistrate, on

4.8.1997. As per the TIP proceedings as recorded in Ex.PW-

12/A duly proved by Sh.Brijesh Sethi PW-12, the Gold Karas

Ex.P-2 and the Mangal Sutra Ex.P-1 were correctly identified by

the complainant Davinder Dhawan and his wife Nisha Dhawan

PW-3. Relevant would it be to note that the mobile phone

allegedly got recovered by appellant Surjeet was not put up for

TIP.

9. Complainant Davinder Dhawan deposed the facts

as noted in para 3 above pertaining to how he was kidnapped

on 6.6.1997 and what happened to him during captivity and

his being set free on 7.6.1997, but with a material difference

qua the identity of the accused.

10. In direct conflict with the contents of his written

complaint Ex.PW-2/B in which he gave graphic details of the

physical features of the accused, while deposing in Court, he

failed to identify any accused and stated that he could not

identify the accused because they were wearing black goggles

and caps and that he was blind folded when he was

kidnapped.

11. Relevant would it be to further note that with

reference to his testimony in court that the two gold karas and

the mangal-sutra got recovered by the appellants belonged to

his wife, on being cross-examined he admitted that the gold

karas and the mangal-sutra were shown to him at the police

station before the Test Identification Proceedings were held. It

may be noted that for the first time in court a mobile phone

was identified by him as belonging to him; this was the mobile

phone claimed by the prosecution which was got recovered by

appellant Surjeet.

12. SI Ravinder Kumar PW-17 deposed that on 9.6.1997

the complaint Ex.PW-2/B was assigned to him for investigation.

He collected the call details of the SIM card pertaining to the

No.9810073959 belonging to the complainant and from the

same learnt that on 7.6.1997 calls were made to two

telephone numbers having No.5182918 and 5012313

respectively. On tracking the said telephone numbers he

learnt that one of the said number was installed in village

Ghumman Hera. On visiting village Ghumman Hera, from the

lady in whose name the said telephone was installed he learnt

that the description given by the complainant matched Surjeet

and Chandroop. He arrested Surjeet from the said village and

recorded his disclosure statement wherein he stated that he

could get two gold karas, a mobile phone and Rs.5,000/- cash

recovered from his house. Pursuant to his disclosure

statement Surjeet got recovered Rs.5,000/- cash and two gold

karas and a mobile phone from an iron almirah lying in a room

in his house. Thereafter, accused Chandroop was arrested at

the instance of Surjeet. Chandroop made a disclosure

statement and stated that he could get a gold mangal sutra

recovered from his house. Pursuant to said disclosure

statement Chandroop got recovered a gold mangal sutra from

a sandook lying in his house.

13. HC Ram Phal PW-15 deposed that on 12.6.1997 he

accompanied SI Ravinder Kumar when SI Ravinder arrested

accused Surjeet from his house and effected recovery of a cell

phone, two gold karas and Rs.5,000/- cash at the instance of

Surjeet from his house. SI Ravinder also arrested Chandroop

in his presence and effected the recovery of a gold mangal

sutra from the house of Chandroop at his instance pursuant to

his disclosure statement.

14. Davinder Dhawan PW-2 and Nisha Dhawan PW-3

identified the two gold karas and the mangal-sutra got

recovered by the appellants as belonging to them.

15. In view of the testimony of Davinder Dhawan that

he could not recognized any accused because he was blind

folded and that the three persons who had kidnapped were

wearing caps and dark glasses, casts a very serious doubt on

the very foundation of the case of the prosecution for the

reason SI Ravinder Kumar PW-17 claims to have tracked the

appellants on the basis of their descriptions disclosed to him

by Davinder Dhawan.

16. It also assumes significance that Davinder Dhawan,

who claims to have been kidnapped on 06.06.1997 and

released on 7.06.1997, took time till 09.06.1997 to report the

matter to the police. He has rendered no satisfactory

explanation why he took two days to report the time. If

indeed, Davinder Dhawan was kidnapped as claimed by him, it

was expected that he would report the crime immediately

when he regained his freedom. If at all he was kidnapped, it is

obvious that Davinder Dhawan thought over for two days as to

what he should tell the police. This delay which has remained

unexplained becomes fatal to the prosecution.

17. As regards the recoveries attributable to the

appellants, suffice would it be to note that in the peculiar facts

of the instant case, there is a possibility of planting taking

place. We find it strange that three persons would kidnap

Davinder Dhawan who is a man of some means evidenced by

the fact that he owns a motor vehicle and lives in a reasonably

well of colony, but would release him on a paltry gain of

Rs.15,000/-, two gold karas and a gold mangal-sutra. The

whole story as told by Davinder Dhawan appears to be a fairy

tale. That the police in India resorts to planting articles was

noticed as far back as 67 years past. The Lahore High Court,

in the decision reported as Shera v. Emperor AIR 1943 Null 5

observed:-

"..........When the evidence of recovery of stolen property is attacked, the Court has to examine the evidence in the light of the following alternative hypothesis: (1) The complainant might have been persuaded by the police to state in the first information report that property which in fact was not stolen

had been stolen and to hand over such property to the police to be used in fabricating recoveries from the accused persons. This assumes a conspiracy between the informant and the police from the very start. (2) The police might have obtained property similar to the stolen property from the complainant or some one else and used it for the purpose of fabricating the recoveries. (3) The police might have suppressed some of the stolen property recovered from an accused person and utilized it in inventing a recovery from another accused person, (4) The property might have been recovered from a third party and used by the police in one of the impugned recoveries."

18. Giving emphasis to the fact that the architect of

the case of the prosecution Sh.Davinder Dhawan who also

happens to be the victim of the crime has not supported the

case of the prosecution, additionally noting afore-noted facts

as per paras 13 to 17 above, we are of the opinion that the

appellants are entitled to at least, the benefit of doubt.

19. We do so and acquit the appellants of the charge

held proved against them. The appeal is allowed. The

appellants are acquitted of the charge framed against them.

The impugned judgment and order dated 13.09.2001 is set

aside and also the order on sentence dated 14.09.2001.

20. The appellants are on bail. The bail bond and