Delhi High Court
Manoj Kumar vs The State on 10 December, 2012
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 18th SEPTEMBER, 2012
DECIDED ON : 10th DECEMBER, 2012
+ CRL.A.744/2011, CRL.M.B.816/2012 & CRL.M.A.7175/2012
MANOJ KUMAR ....Appellant
Through : Mr.Rajat Aneja and Ms.Sumati Jumlani,
Advocates.
versus
THE STATE ....Respondent
Through : Mr.Sanjay Lao, APP.
+ CRL.A.835/2011
CHAMAN LAL @ KAKE ....Appellant
Through : Mr.Naveen Gaur, Advocate.
versus
STATE (GOVT. OF N.C.T.) ....Respondent
Through : Mr.Sanjay Lao, APP.
+ CRL.A.687/2011 & CRL.M.A.15630/2012
MANISH @ MONU ....Appellant
Through : Mr.Siddhartha Singh Ranghuvanshi,
Advocate with Mr.A.P.S.Jadaun,
Advocate.
versus
THE STATE (GNCT OF DELHI) ....Respondent
Through : Mr.Sanjay Lao, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG
Crl.A.Nos.744/2011, Crl.A.835/2011 & 687/2011 Page 1 of 37
S.P.GARG, J.
1. Manoj Kumar (A-1), Chaman Lal @ Kake (A-2) and Manish
Kumar @ Monu (A-3) have preferred the appeals against the judgment
dated 11.03.2011 and order on sentence dated 16.03.2011 of
Addl.Sessions Judge in SC No.21/2009 by which they were convicted for
committing offences punishable under Sections 120-B, Section
364/364A/302/201 IPC read with Section 120-B and sentenced to undergo
imprisonment for life with fine. They were further directed to undergo
actual sentence of imprisonment for 40 years before grant of any
remission.
2. On 07.04.2005, Sandeep Kumar @ Sonu left his house at
about 5.00 or 6.00 P.M. stating that he would return within ten minutes.
However, he never returned. Efforts were made to trace him but in vain.
On 08.04.2005, Balbir Singh lodged missing person report (Ex.PW-1/A)
and informed the police that Sandeep had a mobile No.9868202872 but
was switched off. On 11.04.2005, Balbir Singh received ransom calls on
his mobile No.9313944225 and the caller demanded a sum of `5,00,000/-
for the release of his son. He informed the police and handed over invoice
of the mobile phone and the insurance papers. SI S.S.Sandhu recorded
Balbir Singh's statement (Ex.PW-1/A), prepared rukka (Ex.PW-20/D) and
lodged First Information Report. On 13.04.2005 and 14.04.2005, Balbir
Singh again received ransom calls from the mobile of his son Sonu. The
caller threatened him that if the ransom amount was not paid, kidney of
his son would be sold to recover the money. On 15.04.2005, investigation
of the case was taken over by Insp.B.R.Mann. SI S.S.Sandhu collected
call details of IMEI No.35252400425395 on 14.04.2005 from the office of
ACP Panjabi Bagh. He also collected address of the SIM used in the
mobile and found it issued in the name of Rattan Lal R/o D-3, Shiv Ram
Park. He provided the call details and the address of SIM to
Insp.B.R.Mann. A-3 was arrested from D-3, Shiv Ram Park, Nangloi. He
disclosed that SIM No.9811627626 (HUTCH) used in the mobile
instrument of the deceased was in the name of his father Rattan Lal. A
purse containing `800/-, driving licence, SIM No.9868202872 (Dolphin)
and a mobile phone make Nokia-1100 with SIM No.9811627626 was
recovered in his personal search vide seizure memo Ex.PW-19/B.
Pursuant to A-3's disclosure statement (Ex.PW-19/D), A-1 was arrested
from his house no. 36, Extension-4, Nangloi. He was also interrogated and
his disclosure statement (Ex.PW-19/G) was recorded. A-1 informed the
police that after kidnapping Sandeep, they had committed his murder and
had thrown the body in an abandoned room near police station Dharuhera
and could recover it. He also implicated A-2 in the kidnapping and
murder of Sandeep. It led to A-2's arrest from his house 34B Extention-4
Nangloi. He also made similar disclosure statement and volunteered to
recover the body and clothes of the deceased. The police set out with the
accused for the recovery of the body. The accused pointed out an
abandoned building of Irrigation Department at NH-8 about 3-4
Kilometres ahead of police station Dharuhera and recovered decomposed
body of Sandeep. Inspector B.R.Mann conducted inquest proceedings
after associating the local police and sent the body for post-mortem
examination. Dr.S.K.Duttarwal conducted post-mortem examination of
the body. Deceased's clothes were recovered by A-2 from a godown 8/2,
Kamruddin Nagar, Nangloi. A-1 recovered the motocycle bearing No.
DL 4SA U3578 make Karizma (Hero Honda) from the back street of
House No.11, Extension-4, Nangloi. During the course of investigation,
the investigating officer collected call details from various service
providers and recorded statements of the witnesses conversant with facts.
Exhibits were sent to Forensic Science Laboratory and reports were
collected. After completion of the investigation, a charge-sheet was
submitted against A-1 to A-3 for committing the aforesaid offences. The
accused were duly charged and brought to trial.
3. The prosecution examined twenty-three witness in all to
substantiate the charges. A-1 to A-3 were examined under Section 313
Cr.P.C. They pleaded false implication. The appellants examined DW-1
(HC Surender) and DW-2 (B.K.Sharma) in defence.
4. Learned counsel for the appellants vehemently assailed the
findings of the Trial Court and urged that it did not appreciate the
evidence in its true and proper perspective and fell into grave error in
relying upon the testimonies of PW-1 (Balbir Singh), PW-7 (Lakhi Ram
Verma) and PW-8 (Raghbir Singh) without ensuring their credibility as
they were related to the deceased and were interested witnesses. The Trial
Court, urged the counsel, overlooked major discrepancies and
inconsistencies in the prosecution's case. The reliance on call details
without compliance of Section 65B to procure and prove the electronic
record was eroneous. The appellants had no reasons to ask for ransom
when Sandeep was no more alive. A-2's disclosure statement was
inadmissible as nothing new was recovered or discovered pursuant to it.
Recovery of clothes of the deceased is doubtful. PW-4 (Sunil Kumar) did
not support the prosecution on this aspect. The counsel highlighted
contradictions in the testimonies of the prosecution witnesses to create
doubt about the recovery of the dead body at the instance of the accused.
The local police was not informed prior to the recovery of the body.
5. Learned Addl. Public Prosecutor while supporting the
judgment urged that it does not call for interference. Elaborate reasons
have been given in the impugned judgment to establish the guilt of the
accused. The oral testimony is coupled with electronic evidence of Nodal
Officers from various service providers who proved the call records in the
court. Minor discrepancies or contradictions are of no consequence to
discredit the prosecution case as a whole. The police was able to lay hand
upon A-3 when PW-1 (Balbir Singh) received ransom calls from the
mobile set of his son. Pursuant to the disclosure statement of the accused,
the police was able to recover the body of the deceased from a remote
place near police station Dharuhera. Recovery of the body is a strong
incriminating circumstance. The recovery of the mobile phone and SIM
card of the deceased from the possession of A-3 without any plausible
explanation connects him with the crime. Disclosure statement of A-2 was
recorded within five minutes after A-1's arrest and is relevant under
Section 27 of Evidence Act. The dead body was recovered pursuant to the
joint disclosure statements of the accused.
6. We have considered the submissions of the parties and have
examined the Trial Court record. At the outset, it may be mentioned that
case of the prosecution hinges upon circumstantial evidence alone.
(A) Homicidal death
7. Homicidal death of Sandeep is not under challenge. The dead
body was recovered from an abandoned room within the jurisdiction of
PS. Dharuhera. PW-6 (Dr.S.K.Dhattarwal) conducted post-mortem
examination of the body on 16.04.2005 and proved post-mortem report
(Ex.PW-6/A). Cause of death was strangulation by ligature. There was a
transverse ligature mark on the neck completely encircling it. On
05.07.2005, after examining the ligature material i.e. white bra he was of
the opinion that strangulation was possible with that ligature material vide
report Ex.PW-6/B. Time since death was ascertained about ten days.
Undoubtedly, it was a case of culpable homicide.
(B) Recovery of the dead body
8. Sandeep Kumar (since deceased) did not return after he went
out on 07.04.2005 at about 5/6.00 P.M. stating that he would return within
ten minutes. He was searched throughout the night but his whereabouts
were not known. On 08.04.2005, PW-1 (Balbir Singh), his father lodged
missing person report (Ex.PW-1/A). He attempted to contact Sandeep on
mobile No.9868202872 but it was switched off. He (PW-1 -Balbir Singh)
received ransom calls on 11.04.2005, 13.04.2005 and 14.04.2005 on his
mobile No.9313944225 and the caller demanded a sum of `5,00,000/- for
the release of his son. Sandeep's body was recovered on 15.04.2005 from
a room situated on the bank of Sadi river pursuant to the disclosure
statements of the accused at their instance. The appellants have
vehemently denied the recovery of the body by them. On scrutinizing the
evidence and documents, we are of the firm view that the prosecution has
succeeded to establish that deceased's body was recovered from that room
on the disclosure and statement of A-1. On 15.04.2005, A-3 was
apprehended from his House No.D-3, Shiv Ram Park and was found in
possession of Hutch sim No.9811627626 in the name of his father Rattan
Lal which was used by him. He was also found in possession of a purse
containing `800/-, driving licence, sim bearing No.9868202872 and
mobile phone make Nokia-110 of sky blue colour with sim
No.9811627626. He was interrogated and in his disclosure statement
(Ex.PW-19/D), A-3 elaborated that A-1 and A-2 were responsible for
kidnapping and murder of Sandeep. He opted to get them arrested.
Thereafter, A-1 was arrested from his house and his disclosure statement
(Ex.PW-19/G) was recorded. Consequent to his disclosure statement, the
police apprehended A-2 from his house at 34-B Extension, Nangloi and
recorded disclosure statement (Ex.PW-19/J). They confessed that after
kidnapping and murder of Sandeep, they had thrown the body in an
abandoned room in the area of police station Dharuhera and could recover
it.
9. Further case of the prosecution is that thereafter, the accused
(A-1 to A-3) led the police to road No.NH-8 (Jaipur Highways) about 3-4
kilometers ahead of police station Dharuhera. From there, they took the
police to an abandoned building of Irrigation Department and pointed out
a room without door where they had thrown Sandeep's body. They
entered the room where Sandeep's decomposed body was lying without
clothes except an underwear on it. A bra was found encircled in the
deceased's neck. PW-1 (Balbir Singh) identified the body. Thereafter,
PW-22 (Insp.B.R.Mann) went to police station Dharuhera and vide
application mark PW-19/K intimated the recovery of the dead body. PW-
SI Anshi Lal and PW-ASI Nand Lal reached the spot. Scene of the crime
was photographed. Insp.B.R.Mann prepared pointing out cum recovery
memo of the body. He conducted inquest proceedings and sent the body
for post-mortem examination.
10. Recovery of the body from the room of Irrigation Department
is not under challenge. The appellants however, emphasized that the
recovery was not done at their instance. Indisputably, A-3 was arrested
from his House No.D-3, Shiv Ram Park on 15.04.2005 and his disclosure
statement (Ex.PW-19/D) led to A-1's arrest from his house No.36,
Extention-4, Nangloi. A-3 did not give details of the place/spot from
where dead body of Sandeep could be recovered. A-1 in the confessional
statement, gave graphic details as to how and under what circumstances,
Sandeep was kidnapped and murdered. He also disclosed the place where
the body was thrown after the murder. A-1 volunteered to point out the
said place and recover the body. Apparently, A-2 was not in the custody
of the police at that time. In the disclosure statement of A-1, the police
had discovered the fact that Sandeep's dead body was thrown in a room of
Irrigation Department and he (A-1) could recover the same. The police did
not proceed immediately for the recovery of the body. They set out to
apprehend A-2 and arrested him from his house at the instance of A-1
after some time. He in his disclosure statement volunteered to recover
deceased's body from the said room. In our view, recovery/ discovery of
this fact in the disclosure statement (Ex.PW-19/J) of A-2 is not admissible
in evidence as the police already knew and was aware of A-1's disclosure
statement about the 'place' where the dead body was thrown and could be
recovered. For the 'fact' which was already in the knowledge of the
police, the disclosure statement of A-2 was irrelevant. It is not a case of
simultaneous disclosure on or about the same time. The law is fairly well
settled that the admissibility of the evidence under Section 27 of the
Indian Evidence Act relates to the fact discovered on the information
volunteered by the accused. The authorship of concealment and existence
of such concealment within the exclusive knowledge of the accused is the
criteria. If the fact discovered relates to the authorship of concealment
and exclusive knowledge of the accused, that would be relevant and
admissible. Under Section 27 of the Evidence Act it is only the
information which is first given that is admissible and once a fact has been
discovered in consequence of information received from a person accused
of an offence, it cannot be said to be rediscovered in consequence of
information received from another accused person. The prosecution is
required to adduce evidence to prove as to which of the accused gave the
information first. There must be clear, unimpeachable evidence as to
independent and authentic statements of the nature referred to in Section
27, Evidence Act, having been made by several accused persons, either
simultaneously or otherwise. Section 27 has to be strictly construed and
it refers only to a 'discovery' that is made as a result of the statement of
'one' particular individual and it does not contemplate the proof of
successive recoveries of the same thing being proved as a result of
successive statements by different accused persons. In the case of Puttu
vs. Emperor' AIR 1945 Oudh 235 the court held that :-
"Section 27 ought to be construed strictly. The use of the
word "a person" in singular, in Section 27, is somewhat
significant. The word was used in singular designedly
because the joint statement of a number of persons, cannot
be said to be an information received from any particular
one of them. When a fact is discovered in consequence of
information received from one of several persons charged
with an offence, and when others give like information, it is
impossible to treat the discovery as having been made from
the information received from, each of them."
11. In Budha vs. Emperor AIR 1925 Nag 407 it was held as
under:-
"Once property has been discovered in consequence of
information received from a suspected person, it cannot be
re-discovered in consequence of information received from
another suspected person. It is only the in-formation that
was given by the first person and which led to the actual
discovery which may be proved under the terms of Section
27 of the Evidence Act."
12. A thing cannot be discovered several times. If, in
consequence of an information, given by one of the several accused
persons, the incriminating material is discovered, it does not remain to be
discovered within the meaning of Section 27, Evidence Act, in
consequence of any subsequent information, given by any other. That
would amount to discovery of a thing already 'discovered'. In the instant
case, there is cogent evidence that in the disclosure statement of A-1
recorded earlier to the disclosure statement of A-2, the police discovered
the fact that the dead body of the deceased was lying in the abandoned
room near police station Dharuhera and could be recovered by him (A-1).
13. We are conscious that joint/simultaneous disclosures though
improbable, are not per se inadmissible. The Supreme Court in State (NCT
of Delhi) vs. Navjot Sandhu, 2005 11 SCC 700, held :
"Joint disclosures, to be more accurate, simultaneous
disclosures, per se, are not inadmissible under Section 27.
'A person accused' need not necessarily be a single person,
but it could be plurality of accused. It seems to us that the
real reason for not acting upon the joint disclosures by
taking resort to Section 27 is the inherent difficulty in
placing reliance on such information supposed to have
emerged from the mouths of two or more accused at a
time. In fact, joint or simultaneous disclosure is a myth,
because two or more accused persons would not have
uttered informatory words in a chorus. At best, one person
would have made the statement orally and the other person
would have stated so substantially in similar terms a few
seconds or minutes later, or the second person would have
given unequivocal nod to what has been said by the first
person. Or, two persons in custody may be interrogated
separately and simultaneously and both of them may
furnish similar information leading to the discovery of fact.
Or, in rare cases, both the accused may reduce the
information into writing and hand over the written notes to
the police officer at the same time. We do not think that
such disclosures by two or more persons in police custody
go out of the purview of Section 27 altogether. If
information is given one after the other without any break
almost simultaneously, and if such information is followed
up by pointing out the material thing by both of them, we
find no good reason to eschew such evidence from the
regime of Section 27. However, there may be practical
difficulties in placing reliance on such evidence. It may be
difficult for the witness (generally the police officer), to
depose which accused spoke what words and in what
sequence. In other words, the deposition in regard to the
information given by the two accused may be exposed to
criticism from the stand point of credibility and its nexus
with discovery. Admissibility and credibility are two
distinct aspects, as pointed out by Mr. Gopal
Subramanium. Whether and to what extent such a
simultaneous disclosure could be relied upon by the Court
is really a matter of evaluation of evidence. With these
preparatory remarks, we have to refer to two decisions of
this Court which are relied upon by the learned defence
counsel."
14. However, in the instant case the prosecution did not assert
that A-1 and A-2 made joint/simultaneous disclosure statements. It is
accepted position that when disclosure statement (Ex.PW-19/G) was made
by A-1 in police custody, A-2 was not under arrest. After recording A-1's
disclosure statement (Ex.PW-19/G) at the police station, the police set out
to apprehend and arrest A-2 from his house. After his arrest from his
house, A-2 was interrogated and confessional statement (Ex.PW-19/J) was
made. Apparently, there was time gap between the arrest of A-1 and A-2.
When A-1 furnished the required information in his disclosure statement,
A-2 was not in the custody of the police at the police station. Moreover,
we have reasons to note that only A-1 pointed out the place from where
the dead body was recovered.
15. The witnesses have given inconsistent version as to at whose
instance the body of the deceased was recovered. The scene of incident
was photographed. PW-12 (P.K.Madan) took eight photographs Ex.PW-
12/B1 to B8 (Negatives Ex.PW-12/P1 to P8). The photographs reveal that
A-1 alone pointed out the room from where the body was recovered.
There is no similar photograph of A-2 and A-3 pointing towards the said
room. The Investigating Officer did not offer any plausible explanation as
to why only A-1's photo appears in the photographs pointing towards the
place of recovery. If and in case A-2 and A-3 were with them, the cause
and reason for their absence in the photographs is unfathomable and not
expounded. Presence of A-2 and A-3 at the place of recovery therefore is
a grave suspect.
16. Seizure memo Ex.PW-1/A (pointing out cum recovery of
dead body memo) bears signatures of A-1 alone. It mentions that the place
was pointed out by A-1 and the body was recovered at his instance. There
is no averment that A-2 and A-3 were present at the time of recovery and
it was recovered at their instance also. The Investigating Officer did not
explain as to why signatures of A-2 and A-3 are missing on the seizure
memo (Ex.PW-1/A). In the application mark PW-19/K to the SHO police
station Dharuhera, Distt. Rewari, Insp.B.R.Mann, the Investigating
Officer claimed recovery of body at the instance of A-1 only. Had A-2
and A-3 been present at the time of recovery. PW-22 (Insp.B.R.Mann)
must have mentioned that in the application mark Ex.PW-19/K. PW-1
(Balbir Singh) who accompanied the police implicated only A-1 and A-2
for the recovery of the body. He did not claim A-3's presence there at that
time. PW-7 (Lakhi Ram Verma) and PW-8 (Raghbir Singh) were specific
that A-1 pointed out the body. PW-15 (SI Anshi Lal) from police station
Dharuhera gave entirely different version and deposed that both A-1 and
A-2 were brought by Delhi police at police station Dharuhera and
thereafter, they pointed out the place where the dead body was thrown.
PW-19 (SI Satish Kumar) & PW-22 (Insp.B.R.Mann) deposed that the
body was recovered by A-1 to A-3. It transpires that the witnesses have
given inconsistent and contradictory statements as to how many accused
led the police team to the place of recovery and at whose pointing out the
body was recovered.
17. The documents/memos prepared at the spot regarding
recovery etc. do not bear signatures of A-2 and A-3. They are not visible
in the photographs taken at the spot. The prosecution did not adduce
cogent and clinching evidence to establish that the body of Sandeep was
recovered at the instance of A-2 and A-3 pursuant to their disclosure
statements. Of course, the police was able to prove beyond doubt that it
was recovered from an abandoned room hitherto unknown to the police at
the instance of A-1 when he opted to recover it in his disclosure statement.
18. Recovery of the dead body by A-1 is a vital and material
incriminating circumstance against him. Prior to it, the family members of
the deceased and the police were not aware about the fate of kidnapped
boy. PW-1 (Balbir Singh) was receiving ransom/threatening calls till
14.04.2005. Only after the arrest and disclosure of A-1, the police
discovered that the kidnapped boy was done to death and his body was
lying in a room of Irrigation Department. A-1 led the police and recovered
the body from a remote place about 60 kilometers away from Delhi. A-1
did not explain as to how else he had known that deceased's body was
lying in an abandoned and deserted room. The said place was not
accessible to the public at large.
19. The Supreme Court while discussing the law on Section 27,
106 and 114 of the Evidence Act in State of Maharashtra vs.Suresh
(2000) 1 SCC 471 held as under:-
"We too countenance three possibilities when an accused
points out the place where a dead body or an incriminating
material was concealed without stating that it was
concealed by himself. One is that he himself would have
concealed it. Second is that he would have seen somebody
else concealing it. And the third is that he would have been
told by another person that it was concealed there. But if the
accused declines to tell the criminal court that his
knowledge about the concealment was on account of one of
the last two possibilities the criminal court can presume that
it was concealed by the accused himself. This is because the
accused is the only person who can offer the explanation as
to how else he came to know of such concealment and if he
chooses to refrain from telling the court as to how else he
came to know of it, the presumption is a well-justified
course to be adopted by the criminal court that the
concealment was made by himself. Such an interpretation is
not inconsistent with the principle embodied in Section 27 of
the Evidence Act."
20. In the case of Suresh Chandra Bhari v.State of Bihar
1995 Supp(1) SCC 80 the Supreme Court while discussing the essentiality
of Section 78 of Evidence Act held as under:-
"71. The two essential requirements for the application of
Section 27 of the Evidence Act are that (1) the person giving
information must be an accused of any offence and (2) he
must also be in police custody. In the present case it cannot
be disputed that although these essential requirements
existed on the date when Gurbachan Singh led PW 59 and
others to the hillock where according to him he had thrown
the dead body of Urshia but instead of the dead body the
articles by which her body was wrapped were found. The
provisions of Section 27 of the Evidence Act are based on
the view that if a fact is actually discovered in consequence
of information given, some guarantee is afforded thereby
that the information was true and consequently the said
information can safely be allowed to be given in evidence
because if such an information is further fortified and
confirmed by the discovery of articles or the instrument of
crime and which leads to the belief that the information
about the confession made as to the articles of crime cannot
be false. In the present case as discussed above the
confessional statement of the disclosure made by the
appellant Gurbachan Singh is confirmed by the recovery of
the incriminating articles as said above and, therefore,
there is reason to believe that the disclosure statement was
true and the evidence led in that behalf is also worthy of
credence.
72. In the light of the facts stated above we are afraid the
two decisions mentioned above and relied on by the learned
counsel for the appellants have no application to the facts of
the present case and do not advance the case of the
appellants challenging the discovery and seizure of the
incriminating articles discussed above. In Nari Santa the
accused of that case was charged for the theft and it is said
that in the course of investigation the accused produced
certain articles and thereafter made a confessional
statement and it was in these facts and circumstances it was
held that there was no disclosure statement within the
meaning of Section 27 as the confessional statement was
made only when the articles were already discovered having
been produced by the accused. Similarly the decision
rendered in Abdul Sattar also does not help the appellants
in the present case. In the case of Abdul Sattar recovery of
wearing apparels of the deceased is said to have been made
at the instance of the accused of that case more than three
weeks after the occurrence from a public place accessible to
the people of the locality and, therefore, no reliance was
placed on the disclosure statement and recovery of the
wearing apparels of the deceased. But in the present case it
was soon after the arrest of appellant Gurbachan Singh that
he took the Police Officer while in custody to the place
where according to him he had thrown the dead body of
Urshia wrapped by the incriminating articles. Those articles
were not found lying on the surface of the ground but they
were found after unearthing the Khad gaddha dumping
ground under the hillock. Those articles were neither visible
nor accessible to the people but were hidden under the
ground. They were discovered only after the place was
pointed out and it was unearthed by the labourers. No fault
therefore could be found with regard to the discovery and
seizure of the incriminating articles."
(C ) Recovery of clothes of the deceased
21. It is alleged that A-2 recovered the deceased's clothes from a
godown of PW-4 (Sunil Kumar) at 8/2, Kamruddin Nagar, Nangloi. The
prosecution relies on the testimony of PW-4 (Sunil Kumar), who proved
seizure memo Ex.PW-1/F but revealed that on 15.04.2005 the godown
was not searched in his presence. On 15.04.2005, his signatures were
obtained on blank papers. The key of the godown used to remain with a
shopkeeper in front of his godown. Apparently, PW-4 gave inconsistent
and contradictory version. The Addl. Public Prosecutor did not cross-
examine/ re-examine him. No document regarding A-1's employment
with PW-4 (Sunil Kumar) and the nature of his duty was collected and
proved. It is not clear how A-2 had access to the godown. It is
unbelievable that A-2 would carry clothes of insignificant value and
conceal them in PW-4 (Sunil Kumar)'s godown. The body was
identifiable even in the absence of these clothes and the assailants had not
attempted to completely disfigure the face of the deceased to conceal his
identification. PW-1 (Balbir Singh) identified articles (Ex.P2 to P6)
without there been any specific mark of identification on it. The deceased
had left the house in his absence on 07.04.2005. PW-7 (Lakhi Ram
Verma) a chance witness did not elaborate how and under what
circumstances, A-2 recovered the articles from the godown. PW-8
(Raghbir Singh) omitted to state that articles of the deceased were
recovered at the instance of A-2. The Investigating Officer did not explain
why PW-8 was not joined in the investigation at that time. No local person
was joined in the recovery proceedings. The recovery of clothes by A-2
on 15.04.2005 from the godown where A-1 was employed with PW-4
(Sunil Kumar) is doubtful. There was no purpose for the articles to be
concealed after bringing it from the place of incident covering a distance
of 60 kilometers. The ligature material Ex.P1 was not taken away by the
accused. The recovery of these articles cannot be considered a vital
incriminating circumstance against A-2.
(D) Recovery of motorcycle
22. It is alleged that on 16.04.2005, A-1 recovered motorcycle
bearing No.DL 4SA U3578 make Karizma (Hero Honda) seized vide
seizure memo Ex.PW-1/G. The motor cycle (Ex.P1) was allegedly used
for travelling to Dharuhera. Seizure memo Ex.PW-1/G reveals that the
motor cycle (Ex.P1) was recovered from an open space (back street)
accessible to the public at large. No independent public witness was
associated at the time of recovery of the motorcycle. It is not explained as
to why the recovery could not be effected on 15.04.2005 when A-1 was in
police custody and the place of recovery was nearby. PW-4 (Sunil Kumar)
was categorical to state that the motorcycle used to remain in possession
of employees of the godown and he had not seen who had taken the
motorcycle and it was in the godown on 15.04.2005. He did not know
when the police removed the motorcycle. The Investigating Officer did
not explain to whom the motorcycle belonged and how and when it came
to the exclusive possession of A-1. PW-1 (Balbir Singh) did not depose if
the motorcycle was recovered in the presence of PW-4 (Sunil Kumar) on
16.04.2005. Beside this, recovery of motorcycle (Ex.P1) is not at all
incriminating as no evidence was collected to establish that the deceased
was seen in possession of the motorcycle. No witness was examined to
ascertain if on the day of kidnapping or soon thereafter, the accused or the
deceased had travelled on the motorcycle. PW-4 (Sunil Kumar), the owner
of the godown did not prove exclusive possession of the motorcycle with
A-1. No finger prints of the accused were detected on the motorcycle.
(E) Call details
23. Undoubtedly on 07.04.2005, Sandeep Kumar @ Sonu went
missing and PW-1 (Balbir Singh) lodged missing person report (Ex.PW-
1/A) on 08.04.2005. It is also not under challenge that Sandeep had a
mobile make Nokia 1100 (IMEI No.3525240042539505) with SIM
No.9868202872. When PW-1 (Balbir Singh) attempted to contact him on
mobile, it was switched off. PW-10 (Rakesh Soni) proved that mobile
No.9868202872 belonged to PW-1 (Balbir Singh), deceased's father. PW-
5 (Surat Singh) proved bill (Ex.PW-5/A) by which mobile Nokia 1100,
IMEI No.352554004253954 was purchased for a sum of `4,000/- by the
deceased. Insurance certificate is Ex.PW-5/B. On 11.04.2005, 13.04.2005
and 14.04.2005, PW-1 (Balbir Singh) received ransom calls and the caller
demanded a sum of `5,00,000/- for the release of his son Sandeep. The
caller did not permit him to have conversation with his son Sandeep on
phone. Calls were received from the Sandeep's mobile number. PW-1
conveyed information to the police and his statement was recorded. He
elaborated that on 11.04.2005, during day time, the ransom call was
received before the registration of the FIR. PW-20 (SI S.S.Sandhu)
corroborated his version and testified that on 11.04.2005 complainant
Balbir Singh came to him and apprised him about the receipt of telephone
calls from the mobile of his son. He recorded his statement (Ex.PW-1/A);
prepared rukka (Ex.PW-20/D) and lodged First Information Report. He
further deposed that complainant Balbir Singh apprised him about the
ransom calls received on 13.04.2005 and 14.04.2005 also. The ransom
calls put the police machinery into motion. PW-20 (SI S.S.Sandhu)
collected call details of IMEI No.35252400425395 on 14.04.2005 from
the office of ACP Punjabi Bagh where internet facility was available and
collected the address of the SIM 9811627626 used in the said instrument.
It was found that it was D-3, Shiv Ram Park and the owner was Rattan
Lal. He provided call details (Ex.PW-20/F) and the address to Inspector
B.R.Mann. He also moved an application (Ex.PW-20/G) to MTNL to
provide the call details of the mobile bearing IMEI No.35252400425395.
24. Rattan Lal' house no.D-3, Shiv Ram Park, Nangloi was
raided; A-1 came out of the house. On enquiry about Hutch SIM
No.9811627626, he told that it was in the name of his father but was used
by him. Since this SIM was used in the mobile set of the kidnapped child
Sandeep, A-3 was apprehended and arrested vide memo Ex.PW-19/K. A
purse containing `800/-, driving licence, Dolphin SIM bearing
No.9868202872 and mobile phone make Nokia-1100 of sky blue gray
colour having SIM No.9811627626 was recovered. The accused was
interrogated and he made disclosure statement (Ex.PW-19/D).
25. It is not in controversy that Hutch SIM No.9811627626 was
issued to Rattan Lal, A-3's father. PW-17 (Anuj Bhatia) brought computer
generated record of mobile No.9811627626 and deposed that it was in the
name of Rattan Lal, D-3, Shiv Ram Park, Nangloi vide ownership
document Ex.PW-17/A. PW-23 (Ajay Kumar) deposed that A-3 was
having mobile No.9811627626 of Hutch and he used to have conversation
with him on that number. PW-23 (Ajay Kumar) had business and family
relations with A-3 and had no ulterior motive to make false statement. In
the statement under Section 313 Cr.P.C., A-3 admitted that mobile
number 9811627626 was in the name of his father Rattan Lal. A-3 did not
examine Rattan Lal in defence to explain that this mobile number was not
used during the relevant period either by him or A-3.
26. The prosecution examined PW-10 (Rakesh Soni) to prove
call details (Ex.PW-10/C) for the period from 30.03.2005 to 14.04.2005
received from mobile number 9868202872. In the cross-examination, he
clarified that he handed over Ex.PW-10/A to Ex.PW-10/C to the I.O. after
seeking oral permission from DJM. An e-Mail letter was also sent on the
ID of the Police Officer. PW-11 (Col.A.K.Sachdeva), Nodal Officer,
Reliance, produced original record of mobile No.9313944225. PW-1
(Balbir Singh) was its subscriber. Call details (PW-11/B) for the period
from 06.04.2005 to 16.04.2005 were also proved. Photocopy of the post
paid customer application form with its annexure is Ex.PW-11/A
(collectively). The accused did not challenge the testimony regarding the
ownership and call details of the mobile phone number. Call details
(Ex.PW-11/B) dated 11.04.2005 show that two calls were received from
mobile number 9868202872 that day. On 13.04.2005 and 14.04.2005 also
two calls were received by PW-1 (Balbir Singh) on his mobile from the
said mobile number of his son. The corresponding call details (Ex.PW-
10/C) corroborate that mobile No.9868202872 was used to call to PW-1
(Balbir Singh) on 11/13/14.04.2005. Location of the tower from where the
six calls were made was Z-10 and all the calls were made from the same
place. It stands established that SIM card in possession of the deceased
was used to make ransom calls to PW-1 (Balbir Singh).
27. PW-17 (Anuj Bhatia) from Hutch brought the computer
generated record of mobile No.9811627626 in the name of Rattan Lal. He
also proved the call details for the period w.e.f. 01.04.2005 to 12.05.2005
(Ex.PW-17/B) and compared it with the original record brought by him.
He deposed that as per the record there was an incoming call on mobile
No.9811627626 from landline No.01203969321 and it was made at 1901
and its duration was 73 seconds. As per record, the location of the mobile
No.9811627626 was in the area of cell ID 1968 at Karol Bagh, New
Delhi. As per Ex.PW-17/B, the mobile No.9811627626 remained in
operation in mobile set having IMEI No.3525460076221106 for the
period from A to A in Ex.PW-17/B. On 09.04.2005, this number remained
operated in mobile set having IMEI No.3525240042539405 till
14.04.2005 as per portion B to B in Ex.PW-17/B. It proves beyond doubt
that from 09.04.2005 to 14.04.2005 SIM No.9811627626 was used in
hand set/ instrument with IMEI No.3525240042539505. The mobile
make Nokia-1100 Ex. P1 produced before the Court had the said IMEI
number and it belonged to Sandeep Kumar, the victim. The call details
Ex.PW-10/C (of deceased Sandeep Kumar), PW-11/B (of complainant
Balbir Singh) and PW-17/B (of A-3/Rattan Lal) establish that during the
period from 09.04.2005 to 14.04.2005 these three numbers remained
connected for making and receiving calls. It further stands established that
the towers from which the calls were routed were situated at Nangloi and
Karol Bagh area during 09.04.2005 to 14.04.2005 as per Ex.PW-17/B.
28. PW-17 (Anuj Bhatia), Nodal Officer, Vodafone Mobile
Services Ltd. brought the original record of mobile No.9811627626 and
call details for the period from 01.04.2005 to 12.05.2005 (Ex.PW-17/B).
He compared the call details with the original record brought by him. He
elaborated after looking at first column (MSISDN) of Ex.PW-20/F,
mobile handset was used by two mobile numbers i.e. 9899776612 and
9811627626. First mobile No.9899776612 was used on 07.03.2005
thereafter, the handset was used by mobile No.9811627626 from
09.04.2005 onwards up to 13.04.2005. He further clarified that mobile
No.9899776612 was issued in the name of Mr.Dekiom, R/o 18, Daulat
Ram Hostel, Delhi University, second mobile No.9811627626 was in the
name of Rattan Lal, R/o D-3, Shiv Ram Park, Nangloi, Delhi.
29. Learned counsel for the appellants assailed call details of
IMEI No.3525240042539505 (Ex.PW-20/F) and highlighted various
inconsistencies and discrepancies. It was pointed out that there was no call
detail for the period from 07.03.2005 to 09.04.2005. The call details
comparison of Ex.PW-20/F and Ex.PW-10/C show that on 30.03.2005,
04.04.2005, 06.04.2005 and 07.04.2005, IMEI No.3525240042539505
was used by the deceased. They argued that no authenticity can be
attached to the computer generated document (Ex.PW-20/F) and there was
possibility of its manipulation. They demonstrated that documents DX1,
DX2 and DX3 could be created and generated. They also pointed out that
there are blanks in the call details record (Ex.PW-11/B) from 15.04.2005
to 16.04.2005. They challenged the admissibility of these call details
under Section 65-B of the Indian Evidence Act.
30. We have examined the call details in the light of objections
of the appellants to their admissibility but find no merits. The Trial Court
has dealt with all these objections minutely in para Nos.34, 35 and 36 of
the impugned judgment and we have no reasons to deviate from it. The
prosecution collected call details (Ex.PW-20/F) pertaining to IMEI
No.3525240042539505 at the earliest even prior to the arrest of the
accused. The prosecution examined the concerned Nodal Officers to prove
the call details provided by them during investigation. The Nodal Officers
from various service providers brought original record in the court to
prove the computer generated documents made available to the police
during investigation. They were cross-examined at length. These service
providers had no ulterior motive to manipulate original record to favour
the prosecution. Minor difference about the time of call/duration does not
affect the authenticity of the call details obtained during investigation. The
Trial Court relied upon the judgment 'State vs. Navjot Sandhu @ Afsan
Guru', 2005 Cr.L.J.3950.
31. It is established that mobile instrument in possession of
deceased Sandeep after his kidnapping was used by A-3 with SIM
No.9811627626 (in the name of his father Rattan Lal). At the time of
arrest, A-3 was found in possession of both SIM Nos.9811627626 and
9868202872 (of the deceased). The ransom calls were made from the
mobile/instrument IMEI No. 3525240042539505 of the deceased. It was
heavily for A-3 to explain as to how and under what circumstances the
mobile make Nokia-1100 having IMEI No.3525240042539505 and SIM
No.9868202872 of the deceased came in his possession and when. These
peculiar facts were in his exclusive knowledge and under Section 106 of
the Evidence Act, the burden to prove was upon him. However, A-3 did
not explain in his 313 Cr.P.C. statement as to when and how he came into
possession of the SIM and mobile/ instrument making Nokia-1100 IMEI
No.3525240042539505. He did not come up with any defence as to how
SIM No.9811627626 of his father Rattan Lal was used in the
mobile/instrument of deceased Sandeep. A-3 even did not examine
Rattan Lal in his defence to demolish the prosecution version.
32. Recovery of the SIM and mobile of the deceased from A-3
and making of calls from that mobile/ instrument using SIM of his father
Rattan Lal is a strong incriminating circumstance against A-3 to establish
that he conspired with co-accused to plan kidnapping for ransom.
33. Call details of mobile No. 9811627626, reveal that this sim
was used in mobile Instrument bearing IMEI No. 35252400425395 from
9th April, 2005 till 14th April, 2005. No calls were made from Sim for
mobile No. 9811627626 between 6th April, 2005 to 9th April, 2005
between 13.18 Hrs to 19.01 Hrs. During the period 2nd April, 2005 till 6th
April, 2005, the said sim card was used in mobile phone bearing IMEI No.
35254600762211. As noted above, telephone number 9811627626 was
procured by and was allotted to Rattan Lal, father of A-3, by mobile
service provider Hutch. There is incontrovertible evidence on record that
the said number was being used by A3. There is also incontrovertible
evidence that the deceased Sandeep Kumar had a mobile instrument by
IMEI No. 35252400425395. Sandeep Kumar had been missing since
5.00/6.00 PM on 7th April, 2005 and w.e.f. 9th April, 2005 at 19.01 Hrs.
A-3 was using the said instrument with IMEI No. 35252400425395 (See
Ex.No.PW17/B). Mobile No. of Sandeep 9868202872 was used between
7th April, 2005 till 14th April, 2005, as per details given below:-
SERVICE NO CALLTYPE CALLEDNO CALL BILLABLE CALL DATE CALL TIME
DURATION AMOUNT
919868202872 LOCMTT 911125947210 1 1.2 07-Apr-2005 113537
919868202872 LOCMTT 919350909908 12 1.2 07-Apr-2005 164248
919868202872 LOCMTT 919313944225 42 1.2 11-Apr-2005 103825
919868202872 LOCMTT 919313944225 65 2.4 11-Apr-2005 104308
919868202872 LOCMTT 919313944225 76 2.4 13-Apr-2005 205131
919868202872 LOCMTT 919313944225 13 1.2 13-Apr-2005 205105
919868202872 LOCMTT 919313944225 334 7.2 14-Apr-2005 151150
919868202872 LOCMTT 919313944225 298 6 14-Apr-2005 152152
34. The mobile number 9313944225 belongs to Balbir Singh, father of
Sandeep. In the call details provided by MTNL Service provider for
number 9868202872 (Ex. PW10/C), the IMEI No. of 2 phones in question
is not indicated. Call details of Instrument having IMEI
No.35252400425395 provided by Hutch Cellular Limited, mark PW20/F
for the period between 7th March, 2005 to 13th April, 2005, reveal that
between the period 9th April, 2005 till 13th April, 2005, the said phone was
used from time to time.
35. In Saju vs. State of Kerela (Crl.A.No.699/1998) the Supreme
Court held as under:
"To prove the charge of criminal conspiracy the
prosecution is required to establish that two or more
persons had agreed to do or caused to be done, an illegal
act or an act which is not illegal, by illegal means. It is
immaterial whether the illegal act is the ultimate object of
such crime or is merely incidental to that object. To attract
the applicability of Section 120B it has to be proved that all
the accused had the intention and they had agreed to
commit the crime. There is no doubt that conspiracy is
hatched in private and in secretary for which direct
evidence would rarely be available. It is also not necessary
that each member to a conspiracy must know all the details
of the conspiracy. This Court in Yash Pal Mittal v. State of
Punjab : 1978CriLJ189 held:
"The offence of criminal conspiracy under Section 120A is
a distinct offence introduced for the first time in 1913 in
Chapt. V-A of the Penal Code. The very agreement, concert
or league is the ingredient of the offence. It is not necessary
that all the conspirators must know each and every detail of
the conspiracy as long as they are co-conspirators in the
main object of the conspiracy. There may be so many
devices and techniques adopted to achieve the common goal
of the conspiracy and there may be division of performances
in the chain of actions with one object to achieve the real
end of which every collaborator must be aware and in
which each one of them must be interested. There must be
unity of object or purpose but there may be plurality of
means sometimes even unknown to one another, amongst
the conspiratOrs. In achieving the goal several offences may
be committed by some of the conspirators even unknown to
the others. The only relevant factor is that all means
adopted and illegal acts done must be and purported to be
in furtherance of the object of the conspiracy even though
there may be sometimes misfire of overshooting by some of
the conspiratOrs. Even if some steps are resorted to by one
or two of the conspirators without the knowledge of the
others it will not affect the culpability of those others when
they are associated with the object of the conspiracy. The
significance of criminal conspiracy under Section 120A is
brought out pithily by this Court in E.G. Barsay v. The State
of Bombay : 1961CriLJ828 thus:
The gist of the offence is an agreement to break the law. The
parties to such an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be done has not
been done. So too, it is not an ingredient of the offence that
all the parties should agree to do a single illegal act. It may
comprise the commission of a number of acts. Under
Section 43 of the Indian Penal Code, an act would be illegal
if it is an offence or if it is prohibited by law. Under the first
charge the accused are charged with having conspired to do
three categories of illegal acts, and the mere fact that all of
them could not be convicted separately in respect of each of
the offences has no relevancy in considering the question
whether the offence of conspiracy has been committed. They
are all guilty of the offence of conspiracy to do illegal acts,
though for individual offences all of them may be liable".
36. In the present case, specific overt act of A-3 was highlighted
and proved whereby he made call to PW-1 (Balbir Singh), father of the
victim and threatened him on various dates to pay `5,00,000/- for the
release of the victim or else his kidney would be sold to realize the
amount. The ransom calls made by A-3 alerted the police and they were
successful to nab him on the basis of the electronic evidence. A-3 was
found in possession of mobile set make Nokia 1100 and the Hutch SIM
No.9811627626 of the deceased with him. The mobile set/instrument of
the deceased was used in making calls using the SIM number of the
deceased and No.9811627626 of his father. All these facts and
circumstances establish beyond doubt that A-3 was aware about the
kidnapping and murder of the victim and was in constant touch with co-
accused. His disclosure statement led to the arrest of A-1 who recovered
the dead body of the victim from a remote place in consequence of his
disclosure statement. A-3 actively participated in the commission of the
crime.
(F) Recovery of chappal/shoes
37. It is pointed out by the counsel for the appellants that in
Ex.PW-20/B (wireless message) flashed on 09.04.2005 it was described
that the deceased was wearing blue colour chappals. No such chappals
have been recovered. The prosecution has proved the recovery of sports
shoes at the instance of A-2. In our view, this minor discrepancy does not
cause dent in the prosecution case. PW-1 (Balbir Singh) specifically
mentioned in DD No.9A recorded on 08.04.2005 (Ex.PW-20/A) that
Sandeep Kumar @ Sonu was wearing sports shoes. It appears that due to
inadvertence the official who flashed the wireless message Ex.PW-20/B
erroneously mentioned that the deceased was wearing blue colour
chappals. PW-3 (HC Suresh) proved DD entry (Ex.PW-20/A) and was not
cross-examined by the accused. As discussed above, the homicidal death
of deceased Sandeep is not under challenge. So recovery of the shoes or
chappals is of no consequence.
(G) Conclusion
38. In the light of the above discussion we find no merit in the
appeals preferred by A-1 and A-3 and maintain their conviction. The
prosecution, however, failed to adduce cogent, reliable and clinching
evidence against A-2 for committing the crime in conspiracy with A-1 and
A-3. No incriminating material was recovered from A-2's possession or
at his instance. He did not make any ransom call to the father of the
victim, no article of the deceased was recovered from his possession. The
body of the deceased was not found at his behest. The evidence against
him is very scanty to record his conviction. He deserves benefit of doubt
and is acquitted. Crl.A.835/2011 is accordingly allowed. A-2 be released
forthwith if not required to be detained in other case. Bail bond and surety
bond, if any, furnished on behalf of A-2, shall stand discharged.
39. The Trial Court ordered the convicts to undergo actual
imprisonment for 40 years before remission could be considered. We find
no reasonableness in the said directions. A-1 and A-3 have been
sentenced to undergo imprisonment for life. The right to grant remission
is governed by the provisions of Section 432 Cr.P.C. which vests the said
power with 'appropriate government'. The power to grant remission is a
matter of policy and it is for the executive branch of the government to
decide as to when, to what extent and in what manner remission is to be
granted. The law governing remission is Statutory. The stage for the
exercise of this power is post-judicial. There was no material before the
Trial Court to put restrictions upon the 'appropriate government' to
consider remission on any ground whatsoever before 40 years of actual
imprisonment. We accordingly modify the order on sentence and delete
the said directions.
40. Crl.A.744/2011 and Crl.A.687/2011 stand disposed of in the
above terms. Trial Court records be sent back forthwith.
41. Crl.M.B.816/2012 & Crl.M.A.Crl.M.A.7175/2012 in
Crl.A.744/2011
In view of the orders passed above, the applications are
disposed of as having become infructuous.
42. Crl.M.A.15630/2012 in Crl.A.687/2011
Since the accused is in custody, the FD furnished by the
surety before the trial court at the time of his bail/interim bail, if any, be
released to the surety as per rules.
Application stands disposed of.
(S.P.GARG)
JUDGE
(SANJIV KHANNA)
JUDGE
DECEMBER 10, 2012
tr/sa
