Delhi High Court
Prabhat Singh vs State on 8 July, 2014
Author: Sunita Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 8th July, 2014
+ Crl. A. 926/2009
PRABHAT SINGH ..... Appellant
Through: Mr. Sanjeev Singh, Advocate.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP for the
State.
+ Crl. A.1010/2009
AJIT SINGH ..... Appellant
Through: Mr. Chander Shekhar, Advocate.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP for the
State.
+ Crl.A. 422/2010
SUBHASH CHANDER ..... Appellant
Through: Mr. Rajeev Sirohi, Advocate.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP for the
State.
+ Crl.A. 452/2010
JITENDER @ JITU ..... Appellant
Through: Mr. Mohit Mathur and Mr.
Amish Dabas, Advocates.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP for the
State.
Crl. A.Nos.926,1010/09, 422,452/2010, 192/11 & 230/14 Page 1 of 116
+ Crl. A. 192/2011
JAGMINDER @ HAPPY ..... Appellant
Through: Mr. Rajeev Sirohi, Advocate.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP for the
State.
+ Crl. A. 230/2014
SANDEEP AHLAWAT ..... Appellant
Through: Mr. Sunil Kumar, Advocate.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP for the
State.
%
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. This judgment will dispose of six connected appeals directed
against a common judgment dated 22nd September, 2009 and orders
on sentence passed by the learned Additional Sessions Judge (East),
Karkardooma Courts, Delhi dated 25th September, 2009 and 7th
November, 2013 respectively in Sessions Case No.66/08 arising out
of FIR No.175/01 u/s 120B/364A/343/353/307/34 IPC and u/s 25/27
Arms Act registered with PS New Ashok Nagar whereby the
appellants were convicted.
2. The gravamen of the prosecution case is that on 16th June, 2001,
Shilpa Gogia (PW12) wife of Amit Gogia (PW10) had gone to her
parental house at Vikas Puri and from there she was to attend the
Ramayan Path which was to be held in the house of Smt. Lata Vohra,
her mother‟s friend. Amit Gogia left his home at about 10:15 AM on
17.6.2001 in his Santro Car No.DL 4C M 5073 to attend the Bhog
ceremony and also to bring back his wife. At about 11 or 11:15 AM,
when he reached the crossing at Pankha Road, Najafgarh Road, all of
a sudden, a white Zen Car No. HR Z6 M 5199 and a red colour motor
cycle came from his back and overtook his car and also hit the car
from the back. In the meantime, the traffic light turned green but he
was obstructed by the Maruti Zen car. Three persons stepped down
from the car and the motor cyclist also came to him. All of them
showed a police I-card to him and two of them made him to sit at the
back seat of his Santro car by putting revolver/pistol on both side. A
third person sat on the driver seat and started driving the car. He was
made to bow down his head and was threatened not to speak or make
any alarm otherwise he would be shot. The car was taken to South
Extension and Amit Gogia was made to get down on the service road
and one boy who had been summoned there, drove away his Santro
Car. Amit Gogia was taken to Noida and was kept confined in a room
there. On 19.06.2001, he was shifted to the place from where he was
recovered. The culprits made ransom calls from the mobile phone of
Amit Gogia to his family members.
3. On 20.06.2001, accused Smt. Lata Vohra telephoned Shri Sunil
Gogia, father of Amit Gogia that Braham Pradhan was known to her
and that he could contact the kidnappers and get his son released. The
meeting was fixed in Connaught Place. Braham Pradhan came there
in a white Zen car. Accused Smt. Lata Vohra came in another car
driven by accused Bijender @ Dhile. After negotiations, the ransom
amount was settled at Rs.2 crores. Braham Pradhan told Sunil Gogia
that as soon as he made the payment on 22.06.2001 in the afternoon,
his son would be released.
4. In the meantime, on 22.06.2001, Inspector Ishwar Singh of the
Anti Extortion Cell received a secret information at about 7:00 AM
that the kidnappers would come to the factory of Amit Gogia at B-
135, Sector-6, Noida for settling the ransom amount. Police officials
laid nakabandi at the above mentioned factory. At about 3:45 PM, a
Maruti Zen Car No. DL 4C N 1438 was seen moving around the
factory in a suspicious manner. The car was stopped. It was being
driven by accused Jitender @ Jitu and accused Ajit Singh was sitting
beside him. On being apprehended by the police, they disclosed that
they were members of the gang of Braham Pradhan and that Amit
Gogia was kept on the First floor of House No.B-49, Gharoli Dairy
Farm. The premises were raided at about 4:05 PM. The culprits
started firing and an exchange of fire took place between the culprits
and the police. Braham Pradhan died in the firing. Subhash Chander,
Jagmidner Singh @ Happy, Sandeep Ahlawat and Prabhat Singh
were apprehended from there. Pistols and cartridges were recovered
from accused Jagmidner, Sandeep Ahlawat and Subhash Chander.
Amit Gogia was rescued from there. Accused Sandeep and Jagminder
Singh sustained gunshot injuries in the rescue operation. Accused
Subhash Chander and Prabhat Singh sustained simple injuries caused
by blunt object.
5. On 23rd June, accused Bijender @ Dhile was arrested and a
parking ticket of Safdarjung Hospital in respect of the Santro car of
the victim-Amit Gogia was recovered from his possession and the car
was recovered from the parking of the hospital at the instance of
accused Bijender. Lata Vohra was also arrested. Mukesh and
Vijaypal @ Kale were absconding. After completing investigation,
charge sheet was submitted against accused Jagminder Singh @
Happy, Sandeep Ahlawat, Subhash Chander, Prabhat Singh, Jitender
@ Jeetu, Ajeet Singh and Bijender @ Dhile and Lata Vohra.
Subsequently accused Mukesh and Vijay Pal @ Kale were also
arrested. After investigation, police filed charge sheet under Section
364A/186/353/332/343/506/307/120B/34 IPC and 25/27 of Arms
Act.
6. The accused persons abjured their guilt on the ground of false
implication and claimed to be tried.
7. During course of trial, prosecution examined as many as 44
witnesses. All the incriminating evidence was put to the accused
persons while recording their statement under Section 313 Cr. P.C. in
which they denied all the prosecution evidence and alleged false
implication in this case.
8. After meticulously examining the evidence led by the parties,
learned trial Court vide impugned judgment dated 22nd September,
2009, convicted accused Jagminder @ Happy, Sandeep Ahlawat,
Subhash Chander, Prabhat Singh, Jitender @ Jeetu and Ajeet Singh
and acquitted accused Bijender @ Dhile, Smt. Lata Vohra, Vijay Pal
@ Kala and Mukesh.
9. Accused Jagminder @ Happy, Sandeep Ahlawat and Subhash
Chandra were convicted under Section 120B/364A r/w Section 120B
IPC, Section 343 r/w Section 120B IPC and Section 307/353/34 IPC
and Section 27 Arms Act, 1959. Accused Jagminder and Subhash
were sentenced as under:
(i) For offence under Section 364A r/w Section 120B they
were sentenced to life imprisonment with a fine of
Rs.5000/-, in default to undergo SI for 6 months.
(ii) For offence u/s 343 read with section 120B IPC, they were
sentenced to undergo imprisonment for 2 years and a fine
of Rs.1000/-, in default to undergo SI for one month.
(iii) For offence punishable u/s 120B IPC they were sentenced
to undergo imprisonment for life with fine in the sum of
Rs.5000/-, in default to undergo SI for 6 months.
(iv) For offence punishable u/s 307 read with section 34 IPC,
they were sentenced to imprisonment for 7 years and to
pay a fine of Rs.3000/-, in default to undergo SI for 3
months.
(v) For offence punishable u/s 353 read with section 34 IPC,
they were sentenced to undergo imprisonment for 2 years
and fine of Rs.1000/-, in default to undergo SI for one
month.
(vi) For offence punishable u/s 27 Arms Act, 1959, they were
sentenced to undergo imprisonment for 3 years and fine of
Rs.1000/-, in default to undergo SI for one month. All the
sentences were to run concurrently. Benefit of Section
428 Cr.P.C. was given to the convicts.
10. Accused Prabhat Singh was convicted u/s 120B/364A r/w
Section 120B IPC, Section 343 r/w Section 120B and Section
307/353/34 IPC and sentenced as under:
(i) For offence under Section 364A r/w Section 120B, he was
sentenced to undergo life imprisonment with a fine of
Rs.5000/-, in default to undergo SI for 6 months.
(ii) For offence u/s 343 read with section 120B IPC, he was
sentenced to undergo imprisonment for 2 years with a fine
of Rs.1000/-, in default to undergo SI for one month.
(iii) For offence punishable u/s 120B IPC, he was sentenced to
undergo imprisonment for life with fine of Rs.5000/-, in
default to undergo SI for 6 months.
(iv) For offence punishable u/s 307 read with section 34 IPC,
he was sentenced to imprisonment for 7 years and to pay
fine of Rs.3000/-, in default to undergo SI for 3 months.
(v) For offence punishable u/s 353 read with section 34 IPC,
he was sentenced to undergo imprisonment for 2 years and
fine of Rs.1000/-, in default to undergo SI for one month.
All the sentences were to run concurrently. He was given
benefit of Section 428 Cr. P.C.
11. Accused Jitender @ Jeetu and Ajeet Singh were convicted under
Section 120B/364A r/w Section 120B and u/s 343 r/w Section 120B
IPC and sentenced as under:
(i) For offence under Section 364A read with section 120B,
they were sentenced to undergo life imprisonment with a
fine of Rs.5000/-, in default to undergo SI for 6 months.
(ii) For offence u/s 343 read with section 120B IPC, they were
sentenced to undergo imprisonment for 2 years with a fine
of Rs.1000/-, in default to undergo SI for one month.
(iii) For offence punishable u/s 120B IPC, they were sentenced
to undergo imprisonment for life with a fine of Rs.5000/-,
in default to undergo SI for 6 months. All the sentences
were to run concurrently. They were given benefit of
Section 428 Cr.P.C.
12. After passing of the order of conviction on 22nd September,
2009, accused Sandeep absconded, therefore, on his re-arrest, order
on sentence was passed qua him on 7th November, 2013 and he was
sentenced as under:-
(i) For offence u/s 364A r/w Section 120B IPC, he was
sentenced to undergo life imprisonment with a fine of
Rs.5000/-, in default to undergo SI for 6 months.
(ii) For offence u/s 343 read with section 120B IPC, he was
sentenced to undergo Rigorous Imprisonment for 2 years
with a fine of Rs.1000/-, in default to undergo SI for one
month.
(iii) For offence punishable u/s 120B IPC, he was sentenced to
undergo imprisonment for life with fine of Rs.5000/-, in
default to undergo SI for 6 months.
(iv) For offence punishable u/s 307 read with section 34 IPC,
he was sentenced to undergo Rigorous Imprisonment for 7
years with a fine of Rs.3000/-, in default to undergo SI for
3 months.
(v) For offence punishable u/s 353 read with section 34 IPC,
he was sentenced to undergo Rigorous Imprisonment for 2
years with a fine of Rs.1000/- in default to undergo SI for
one month.
(vi) For offences punishable u/s 27 Arms Act, 1959, he was
sentenced to undergo Rigorous Imprisonment for 3 years
with a fine of Rs.1000/-, in default to undergo SI for one
month. All the sentences were to run concurrently. He
was given benefit of Section 428 Cr.P.C.
13. Feeling aggrieved, separate appeals have been preferred by the
appellants.
14. We have heard learned counsels for the appellants and learned
Additional Public Prosecutor for the State at great length and have
perused the record including Trial Court Record.
15. Mr. Mohit Mathur, the learned counsel argued on behalf of the
appellant-Jitender @ Jeetu. It was submitted that as per the case of
the prosecution on 22.06.2001, the police officials were present in the
area of Sector-6, Noida near factory No.B-135 and at about 3:45 pm
one Maruti Zen car bearing number DL 4CN 1438 was found
roaming there in suspicious circumstances. The car was stopped and
two persons who were in the car were interrogated. They disclosed
their names as Jitender @ Jeetu and Ajit. They were apprehended by
the police and disclosed that the kidnapped person Amit Gogia was
kept confined at B-49, Gharoli Dairy Farm. It was submitted that the
appellant has been convicted only for the charge of conspiracy to
commit offences and not for any substantive offence. What amounts
therefrom is that there must be meeting of minds between the
appellant and some other persons to conspire to commit such offence.
In the instant case, there is no material or evidence supporting such
allegation. Secondly, mere knowledge of any fact on the part of the
appellant is not sufficient to convict him of the charge of criminal
conspiracy. Even at the time of recording statement of the accused
under Section 313 Cr.PC, no question was put to the appellant that he
conspired with other co-accused to commit offences for kidnapping
for ransom and wrongful confinement. In the absence of the same, the
conviction of the appellant under Sections 120B, 120B read with
Section 364A and 120B read with Section 343 is bad in law.
16. It was next highlighted that for convicting the appellant under
Section 120B read with Section 364A IPC, the learned trial court
ought to have found material proving beyond reasonable doubt that
the appellant entered into a criminal conspiracy with each other; that
the ransom was the object for kidnapping/abduction right from the
initial stage; subsequently, the appellant must have
kidnapped/abducted any person to get the ransom amount and
subsequent to the kidnapping/abduction, the demand for ransom was
made by the appellant or under his conspiracy. However, in the
instant case, there is no material connecting the appellant to the crime
committed on 17.06.2001 and at the most, the appellant may only be
treated as an accessory to the fact and not the fact itself. Reliance was
placed on Suman Sood v. State of Rajasthan, (2007) 5 SCC 634. The
prosecution has also failed to prove its case beyond reasonable doubt
under Section 120B read with Section 343 IPC. Even as per the case
of the prosecution, the petitioner never kidnapped PW-10 for
wrongfully confining him.
17. It was further submitted that the prosecution has not even proved
beyond reasonable doubt that the appellant was in possession of
Maruti Zen Car bearing registration number DL4CN 1438, which
according to PW4-Anil belonged to one Hari Chand. Hari Chand
was not examined by the prosecution and nothing has been brought
on record to show whether the car was in appellant‟s possession.
Therefore, adverse inference under Section 114 of Evidence Act
ought to be drawn against the prosecution.
18. It was next urged that no reliance can be placed on the disclosure
statement of the appellant [Ex.PW34/Q5], as the same is dated
23.06.2001, i.e., after the incident had taken place on 22.06.2001 and
therefore the fact was not discovered pursuant to arrest of the accused
and thus not protected under Section 27 of the Evidence Act.
19. It was next submitted that the case of the prosecution is false,
inasmuch as, the arrest and personal search memos Ex.PW34/M1 and
Ex.PW34/M2 respectively and the disclosure statements
Ex.PW34/Q5 are all dated 23.06.2001 while the prosecution
witnesses stated that the same were prepared at the spot. Reference
was also made to the testimony of PW20-Ct. G. Ganeshan, who took
the photographs of the place of incident and has deposed that he
received the information at about 12.00 noon. He reached B-49,
Gharoli Dairy Farm along with FSL team and started taking
photographs at about 3:00 pm. This run contrary to the case of the
prosecution which states that the police officials came to know of the
Gharoli Dairy Farm only after the arrest of the appellant at 3:45 pm.
Moreover, there is no record to support the version of the police
officials that the appellant was apprehended at Noida. The police
officials neither took any permission nor intimated any authority in
writing about their surveillance raid in Noida. Even the place of arrest
of the appellant in the arrest memo has been shown as B-49, Gharoli
Dairy Farm, Delhi on 23.06.2001. No site plan of the alleged place of
arrest at Noida has been prepared. The prosecution has failed to prove
as to from where and whom they got the information of the place of
incident in light of the fact that none of the family members had ever
informed the police. Six police persons were allegedly present when
the appellant Jitender and Ajeet were apprehended at Noida but only
three were examined as prosecution witnesses. PW16-Brij Bhushan
and PW19-Satbir Singh whose houses were near B-49, Gharoli Dairy
Farm where the encounter took place have not supported the case of
the prosecution. This creates a serious doubt in the entire prosecution
story. Further, as per the prosecution case, the victim was kidnapped
on 17.06.2001 and was rescued on 22.06.2001 after the encounter. As
per the evidence of PW7-Parmod Kumar, a property dealer and
PW8-Rajeev Sondhi, the house was taken on rent only on
19.06.2001. That being so, it was incumbent upon the prosecution to
prove as to where the victim was kept from 17th to 19th June, 2001.
20. It was further submitted that the appellant has examined Sanjay
Kishore as a defence witness, who had testified that Jitender @ Jeetu
was picked up by the police from his house at Krishna Nagar.
However, his testimony was disbelieved by the learned Additional
Sessions Judge. The defence witnesses are also entitled to equal
respect and treatment as that of the prosecution. In support of this
submission, reliance was placed on Munshi Prasad and Ors. v. State
of Bihar, (2002) 1 SCC 351 and Dudh Nath Pandey v. State of UP,
(1981) 2 SCC 166.
21. Lastly, it was submitted that medical examination of the
appellant was never conducted. No recovery was affected from him
and no independent witness was examined, as such, the appellant
deserves acquittal. In any case, he has already undergone sentence of
approximately eight years.
22. Besides subscribing to the submissions of the learned counsel for
the appellant-Jitender @ Jeetu, it was submitted by Sh. Chander
Shekhar, the learned counsel for the appellant-Ajit Singh that he was
working as a driver of Jitender @ Jeetu and has absolutely no role to
play. The learned counsel relied upon the observations made by the
Supreme Court in State v. Nalini, (1999) 5 SCC 253, dealing with
law pertaining to criminal conspiracy and submitted that there is
nothing on record to show that the appellant-Ajit had any knowledge
or information about the conspiracy of abduction hatched by Braham
Pradhan. The learned counsel for the appellant also referred to
Section 142 of the Indian Evidence Act, 1872 for submitting that the
Public Prosecutor put various leading questions to the witnesses
which does not fall under the category specified in Section 142 of the
Act and as such those leading questions are to be ignored.
23. Mr. Sanjeev Singh, Advocate for the appellant-Prabhat Singh
submitted that the victim-Amit Gogia has not identified the appellant.
No other public witness has made any reference in regard to any role
played by the appellant-Prabhat Singh in the entire case. It is not even
the case of the prosecution that Prabhat Singh was involved in
abduction or planning in any manner whatsoever. The presence of
Prabhat Singh at the place of raid/spot has not been proved beyond
doubt. Material contradictions have appeared in the statement of
police officers with regard to apprehension of Prabhat Singh on the
spot where the alleged encounter took place. Moreover, the arrest
memo of the appellant is dated 23.06.2001 whereas as per the case of
the prosecution, the appellant was arrested at the spot on 22.06.2001.
In pursuance to the questions put to the appellant while recording his
statement under Section 313 Cr.P.C., he has stated that he was lifted
from the house of his father‟s sister in Moti Bagh on 22.06.2001 at
about 11 am and was questioned about accused Mukesh, who is the
son-in-law of his father‟s sister. Even in the arrest memo of the
appellant, the intimation of arrest is shown to have been given to Bua
of the appellant residing at Moti Bagh. DW7-Amit who is son of Bua
of the appellant confirmed that appellant was taken away by the
police on 22.06.2001 from his residence and since he was examined
after seven (7) years of the incident, small discrepancy appeared
regarding timings. In view of the multiple contradictions appearing in
the evidence of police witnesses, the appellant deserves benefit of
doubt.
24. Sh. Rajeev Sirohi, learned counsel for the appellants - Subhash
Chander and Jagminder @ Happy submitted that although the
incident alleged to have taken place at 4.30 pm, however, PW20-
Ct.G. Ganeshan deposed that he received information at about 12
noon and reached the spot at 3 pm., i.e., prior to the incident. Much
emphasis was laid on the testimony of Inspector Ishwar Singh for
submitting that everywhere he has deposed about Ashok Pahwa and
no mention was made of Subhash Pahwa. Moreover, according to him
Subhash Pahwa received bullet injuries, but as per MLC, there is no
bullet injury on the person of Subhash Pahwa. He also referred to the
contradictions appearing in the testimony of the police officers.
Moreover, despite the fact that the accused persons were alleged to
have been apprehended from the spot on 22.06.2001, the arrest
memos were prepared on 23.06.2001.
25. Sh. Sunil Kumar, learned counsel for appellant-Sandeep also
reiterated the same submissions as made by the other counsels. It is
the submission of all the counsels for the appellants that the police
wanted to kill Braham Pradhan, who was a notorious criminal and
was shot dead by them. All the accused persons were already in the
custody of the police. In order to cover up their illegal act, the
operation was staged and crime branch has concocted this false story.
26. Countering the submissions made by learned counsel for the
appellants, Ms. Richa Kapoor, learned Additional Public Prosecutor
for the State urged that the learned trial court‟s finding does not call
for any interference. She argued that having regard to the facts proved
during the trial, the appellants conviction and sentences were justified
and proper. It was submitted that Section 364A of the IPC was
brought in the statute book with the intent of tackling the menace of
kidnapping or abduction for ransom. She further submitted that the
legislative intent has to be gathered from the Statement of Objects and
Reasons which led to amending the Act. The offence is an
aggravated form of kidnapping or abduction. The conditions of
aggravation are that the kidnapping or abduction is accompanied by
the administration of a threat of causing death or hurt on the one hand
and the underlying purpose of the kidnapping or abduction on the
other. The expression "in order to" emphasis that the underlying
purpose and intent of kidnapping or abduction is to demand a ransom
or to compel the doing of or abstention from doing any act. In order to
illustrate the expression "in order to" reliance was placed on this
expression appearing in Section 449, 364 and 368 of the Code and the
judgments Matiullah Sheikh v State of West Bengal. AIR 1965 SC
132, State of West Bengal v Mir Mohammad Omar, 2000 SCC (Cri.)
1516; Gabbu v. State of M.P., (2006) 5 SCC 740; Badshah v. State
of U.P. JT 2008 (2) 316; Upendra Nath Ghose v. Emperor, AIR
1940 Calcutta 561, where the words "in order to" were construed.
27. The learned Additional Public Prosecutor further submitted that
there can be no room for doubt from the testimony of PW10 - Amit
Gogia that he was abducted against his will. Use of force or threat of
bodily injuries were proved by PW10, who mentioned that three
persons, while taking him in the car, had held him at gun point and
asked him to keep the face down during the car ride. The victim was
held against his will and shifted from one place to another. The
learned APP further submitted that the kidnappers‟ object was to
obtain ransom which was proved through the testimony of PW10-
Amit Gogia, PW9-Sunil Kumar Gogia and PW6-Pawan Taneja, who
specifically mentioned about the demand of Rs.5 crores as ransom,
being made through telephone calls. It was further urged that the
transcriptions of the audio-cassettes regarding ransom Ex.27/T seized
by the Investigating Officer also corroborated this.
28. It was further urged that due to threat administered by the
abductors, Sunil Kumar Gogia, father of the victim was under fear
and, therefore, did not report the matter to the police. However,
Inspector Ishwar Singh of Anti Extortion Branch received
information that one Braham Pradhan, a criminal, had kidnapped one
person and was asking for ransom from the family of the victim. As
per the information, the criminals were to collect ransom from family
of the victim located at Sector-6, Noida. A team consisting of 15-20
police officers was constituted under the supervision of Inspector
Ishwar Singh (PW42) and ACP H.P.S. Cheema (PW29). They
reached Sector-6, Noida and apprehended two associates, Jitender and
Ajit, of Braham Pradhan‟s gang. On interrogation, they revealed that
the victim was at B-49, Gharoli Dairy Farm, Delhi and led the police
party to the said house. The house was raided by the police and
exchange of fire took place in which Braham Pradhan was shot dead.
The victim Amit Gogia was rescued from there and four accused
persons namely Jagminder, Sandeep, Subhash Chander and Prabhat
Singh were apprehended.
29. It was further submitted that one .30 bore pistol with live
magazine was recovered. From the room where the encounter took
place, four fired cartridges were recovered. From the gallery of the
first floor, two used lead and from the room on the first floor, three
used lead were recovered. One used lead of bullet was recovered from
the door of toilet. Besides that police uniform, fake identity card,
mobile phone were also seized from the spot. The chance prints were
lifted from Bone China plate and Bisleri bottle. As per the Finger
Print Expert Report, the chance prints were identical with that of
accused Prabhat, Subhash and Sandeep. From accused Subhash,
Jagminder and Sandeep, illegal arms were recovered.
30. It was further submitted that in pursuance of the disclosure
statement made by accused Jitender and Ajit Singh, the police party
could reach B-49, Gharoli, Dairy Farm, Delhi from where ultimately
the victim was rescued. The mere fact that arrest memo is dated
23.06.2001 does not mean that the accused were not in fact arrested
or discovery of fact was inadmissible in evidence under Section 27 of
the Evidence Act. For raising this contention, reliance was placed on
Dharam Deo Yadav v. State of U.P., (2014) 5 SCC 509. It was
submitted that the case was cracked up at the instance of appellants-
Jitender and Ajit Singh who were having exclusive knowledge as to
where the victim was kept. It was only at their pointing out that the
police party could reach the premises in question and could rescue the
victim. This recovery/discovery is admissible under Section 27 of the
Evidence Act. The car was seized in which they were roaming in
suspicious circumstances. As per record, the car was in the name of
Hari Chand who had subsequently taken the vehicle on Superdari.
Although he was cited as a witness, but could not be examined by the
prosecution due to his non-availability. The presence of accused
Sandeep and Jagminder stands proved from the fact that during the
incident they tried to escape and as such sustained gunshot injuries.
The chance prints lifted from the spot matched with the prints taken
from the appellants-Prabhat, Sandeep and Subhash. They also
sustained injuries as such their presence at the spot stands established
beyond reasonable doubt. Moreover, the voice sample of accused
Subhash was sought to be taken by moving an application before the
learned Metropolitan Magistrate, but he refused to give his voice
sample as such adverse inference has to be drawn against him. The
learned Additional Public Prosecutor also referred to the statement of
accused persons recorded under Section 313 Cr.P.C. wherein on
material aspects they did not chose to give any satisfactory reply but
satisfied themselves by replying "I do not know". It was submitted
that when incriminating evidence is put to the accused, it is
incumbent upon him to offer satisfactory explanation, but in the
instant case, the accused persons instead of furnishing any
satisfactory explanation, evaded the answers. It was further submitted
that although four of the accused persons have been acquitted and
although the order of acquittal cannot be set aside since the same has
not been challenged by the prosecution, but the co-accused cannot get
any benefit from the same. As such, it was submitted that appeals
are liable to be dismissed.
31. The basic charge against the appellants is u/s 364A, 120B and
343 IPC. The object of incorporating Section 364A IPC was
succinctly dealt with by this Court in Amar Misra & Ors. v. State
2011 VIII AD (Delhi) 590 as under:
"1. Section 364-A IPC was inserted in 1993, through an amending Act
(Act 42 of 1993). Before introduction of Section 364-A IPC, by Act No.42
of 1993, (applicable w.e.f. 22.5.1993) the only penal provision for
punishing the accused for kidnapping or abduction was for murdering or
so disposing of the victim or to put the victim in danger of being
murdered. Section 364 IPC existed for that purpose; it reads as follows:-
"364. Kidnapping or abducting in order to murder:
"Whoever kidnaps or abducts any person in order that such person
may be murdered or may be so disposed of as to be put in danger
of being murdered, shall be punished with imprisonment for life or
rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine."
It is apparent from a plain look at the above provision that it was silent as
regard those instances where the abductors or kidnappers used to
threaten to cause death or hurt for ransom. The Courts in such cases,
used to convict the accused under Section 364 with the aid of Section 384
IPC. Parliament, with intent to widen the scope of penal provisions and to
punish abductors for the offence of kidnapping "for ransom" introduced
Section 364-A. Section 364-A as added by that amendment, originally
read as follows:-
"364-A. Kidnapping for ransom, etc. -
Whoever kidnaps or abducts any person or keeps a person in
detention after such kidnapping or abduction, and threatens to
cause death or hurt to such person, or by his conduct gives rise to
a reasonable apprehension that such person may be put to death
or hurt, or causes hurt or death to such person in order to compel
the Government or "any other person" to do or abstain from doing
any act or to pay a ransom, shall be punishable with death, or
imprisonment for life, and shall also be liable to fine.
The statement of objects and reasons for the Amendment Act of 1993,
reads as follows:
"Statement of Objects and Reasons.-Kidnappings by terrorists for
ransom, for creating panic amongst the people and for securing
release of arrested associates and cadres have assumed serious
dimensions. The existing provisions of law have proved to be
inadequate as deterrence. The Law Commission in its 42nd Report
has also recommended a specific provision to deal with this
menace. It [was] necessary to amend the Indian Penal Code to
provide for deterrent punishment to persons committing such acts
and to make consequential amendments to the Code of Criminal
Procedure, 1973.
The provision, as originally inserted was considered inadequate, when
the offence of kidnapping for ransom in order to compel any foreign State
or international inter-governmental organization was committed. To
cater to the menace of kidnapping for ransom in order to compel the
foreign State or international inter governmental organization, and to
further widen the scope of Section the words "any other person" already
existing in Section 364-A prior to 1995 was substituted with words "any
foreign State, international inter- governmental organization or any
other person" by Act No.24 of 1995 in Section 364-A IPC, brought into
force w.e.f. 26.5.1995. The provision, after amendment after 1995, reads
as follows:
"Whoever kidnaps or abducts any person or keeps a person in
detention after such kidnapping or abduction, and threatens to
cause death or hurt to such person, or by his conduct gives rise to
a reasonable apprehension that such person may be put to death
or hurt, or causes hurt or death to such person in order to compel
the Government or (any foreign State or international
intergovernmental organization or any other person) to do or
abstain from doing any act or to pay a ransom, shall be punishable
with death, or imprisonment for life, and shall also be liable to
fine."
Thus with effect from 26.05.1995, the offence of kidnapping or abduction
did not cover only private individuals but also cases of abduction to
compel private individuals for ransom as well as compel any foreign
State, international inter-governmental organization to do or abstain
from doing any act or to pay ransom. It is worth mentioning that the
amending Act 42 of 1993, also introduced an amendment to Section 39 of
the Code of Criminal Procedure, which mandates
"every person aware of the commission of, or of the intention of
any other person to commit any offence punishable under any of
the following provisions of the Indian Penal Code, (45 of 1860),
namely-
... (va) section 364-A, that is to say, offence relating to
kidnapping for ransom, etc;
....
shall in the absence of any reasonable excuse, the burden
of proving which excuse shall lie upon the person so aware,
forthwith give information to any of the nearest magistrate
or indulging police officer of such commission or such
intention."
2. Section 364-A alludes to "Kidnapping" as well as "Abduction". Section
359 defines Kidnapping. It envisions two types of kidnapping i.e. (1)
kidnapping from India; and (2) kidnapping from lawful guardianship.
Abduction (defined by Section 362) envisages two types of abduction i.e.
(1) by force or by compulsion; and/or (2) inducement by deceitful means.
The object of such compulsion or inducement must be the removal of the
victim from any place by force (involuntarily) or by deceit (voluntarily,
through false promises or representations).
3. The decision in Vishwanath Gupta v. State of Uttaranchal (2007) 11
SCC 633 held that for the prosecution to prove the offence, three facts
had to be established. The court held that:
"8. According to Section 364A, whoever kidnaps or
abducts any person and keeps him in detention and
threatens to cause death or hurt to such person and by his
conduct gives rise to a reasonable apprehension that such
person may be put to death or hurt, and claims a ransom
and if death is caused then in that case the accused can be
punished with death or imprisonment for life and also
liable to pay fine.
9. The important ingredient of Section 364A is the
abduction or kidnapping, as the case may be. Thereafter, a
threat to the kidnapped/abducted that if the demand for
ransom is not made then the victim is likely to be put to
death and in the event death is caused, the offence of
Section 364A is complete. There are three stages in this
Section, one is the kidnapping or abduction, second is
threat of death coupled with the demand of money and
lastly when the demand is not made, then causing death. If
the three ingredients are available, that will constitute the
offence under Section 364A of the Indian Penal Code. Any
of the three ingredients can take place at one place or at
different places...."
In Suman Sood (supra), it was held that:
"57. Before the above section is attracted and a person is convicted,
the prosecution must prove the following ingredients;
(1) The accused must have kidnapped, abducted or detained any person;
(2) He must have kept such person under custody or detention; and
(3) Kidnapping, abduction or detention must have been for ransom.
58. The term 'ransom' has not been defined in the Code.
59. As a noun, 'ransom' means "a sum of money demanded or paid for
the release of a captive". As a verb, 'ransom' means "to obtain the
release of (someone) by paying a ransom", "detain (someone) and
demand a ransom for his release". "To hold someone to ransom" means
"to hold someone captive and demand payment for his release". (Concise
Oxford English Dictionary, 2002; p.1186).
60. Kidnapping for ransom is an offence of unlawfully seizing a person
and then confining the person usually in a secrete place, while
attempting to extort ransom. This grave crime is sometimes made a
capital offence. In addition to the abductor a person who acts as a go
between to collect the ransom is generally considered guilty of the crime.
61. According to Advanced Law Lexicon, (3rd Edn., p.3932); "Ransom is a
sum of money paid for redeeming a captive or prisoner of war, or a prize.
It is also used to signify a sum of money paid for the pardoning of some
great offence and or setting the offender who was imprisoned".
62. Stated simply, 'ransom' is a sum of money to be demanded to be paid
for releasing a captive, prisoner or detenu."
32. Section 364A is a statutory provision which has been
introduced by Parliament into the Penal Code specifically in order to
combat the menace of kidnapping or abduction for ransom. The
offence is an aggravated form of kidnapping or abduction. The
conditions of aggravation are that the kidnapping or abduction is
accompanied by the administration of a threat of causing death or hurt
on the one hand and the underlying purpose of the kidnapping or
abduction on the other. The expression "in order to" emphasizes that
the underlying purpose and intent of the kidnapping or abduction is to
demand a ransom or to compel the doing of or abstention from doing
any act.
33. The expression "in order to" has legislative and judicial
precedent in penal law. Section 449 of the Penal Code deals with a
situation where a person commits house trespass in order to the
committing of any offence punishable with death. In Matiullah
Sheikh (supra), the Supreme Court held that an act can be said to be
committed "in order to the committing of an offence" even though the
offence may not be completed. If a person commits a house trespass
with a purpose of committing a theft but has failed to accomplish the
purpose, it would be proper to say that he has committed the house
trespass in order to the committing of theft. The Supreme Court noted
that a higher punishment is enunciated where the act of house trespass
is committed in order to the commission of other offences. The
Supreme Court held that the expression "in order to" means "with the
purpose of" Higher punishment is prescribed where house trespass is
committed "in order to" the commission of the other offences. An
examination of Sections 449, 450,451, 454 and 457 shows that the
penalty prescribed has been graded according to the nature of the
offence "in order to" the commission of which house trespass is
committed. It is quite clear that these punishments for house trespass
are prescribed quite independent of the question whether the offence
"in order to" the commission of which the house trespass was
committed has been actually committed or not. It was further
observed that there can be no doubt that the words "in order to" have
been used to mean "with the purpose of". If the purpose in
committing the house trespass is the commission of an offence
punishable with death, the house trespass becomes punishable under
Section 449 of the Indian Penal Code. If the purpose in committing
the house trespass is the commission of an offence punishable with
imprisonment for life the house trespass is punishable under section
450 of the Indian Penal Code. Similarly, Sections 451, 454 and 457
will apply where the house trespass or lurking house trespass, or
lurking house trespass by night or house breaking by night are
committed for the purpose of the offence indicated in those sections.
Whether or not the purpose was actually accomplished is quite
irrelevant in these cases. The fact that the murder was not actually
committed will not affect the applicability of Section 449 of the
Indian Penal Code.
34. Section 364 of the Penal Code creates an offence where a
person is abducted "in order that such a person may be murdered or
may be so disposed of as to be put in danger of being murdered".
Interpreting the words, "in order that" in Mir Mohammad Omar
(supra), the Supreme Court held thus:
"So the important task of the prosecution was to demonstrate that
abduction of Mahesh was for murdering him. Even if the murder did not
take place, the offence would be complete if the abduction was
completed with the said objective. Conversely, if there was no such
objective when the abduction was perpetrated, but later the abductors
murdered the victim, Section 364 IPC would not be attracted, though in
such a case the court may have to consider whether the offence of
culpable homicide (amounting to or not amounting to murder) was
committed."
35. In Gabbu (supra), the Supreme Court interpreted the provisions
of Section 366 which deals with kidnapping or abduction of a woman
with intent that she may be compelled or knowing it to be likely to be
compelled to marry a person against her will or that in order that she
may be forced or seduced to illicit intercourse. The Supreme Court
held that abduction alone does not bring the accused under the ambit
of the penal provision. Unless the prosecution proves that the
abduction is for the purposes mentioned in Section 366 IPC, the Court
cannot hold the accused guilty and punish him under Section 366
IPC.
36. In Badshah (supra), the Supreme Court explained the
ingredients of Section 364 of the Penal Code with the following
observations:
"Ingredients of the said offence are (1) Kidnapping by the accused must
be proved, (2) it must also be proved that he was kidnapped in order : (a)
that such person may be murdered; or (b) that such person might be
disposed of as to be put in danger of being murdered. The intention for
which a person is kidnapped must be gathered from the circumstances
attending prior to, at the time of and subsequent to the commission of
the offence. A kidnapping per se may not lead to any inference as to for
what purpose or with what intent he has been kidnapped."
37. A Division Bench of the Calcutta High Court in Upendra Nath
Ghose (supra) dealt with a case arising out of a prosecution for an
offence under Section 364 - kidnapping or abduction of a person "in
order that such person may be murdered or may be so disposed of as
to be put in danger of being murdered". The Court observed as
follows:
"To establish an offence punishable under Section 364, Penal Code, it
must be proved that the person charged with the offence had the
intention at the time of the abduction that the person abducted would be
murdered or would be so disposed of as to be put in danger of being
murdered."
38. These judgments, which have been rendered while construing
the words "in order to" in the context of penal provisions emphasize
that the underlying purpose of the unlawful act must be what is
stipulated in the legislative provision. The words "in order to" are
used by the legislature to indicate that the unlawful act must be
carried out with the intent and object of achieving the purpose which
is stipulated. The legislature seeks to deal with an aggravated form of
an existing offence, be it house trespass, kidnapping or abduction,
where the unlawful act is carried out in order to achieve a specified
object or purpose. The existence of the object or purpose, when the
unlawful act is carried out, constitutes the condition of aggravation
which incurs a heightened penalty.
39. The provisions of Section 364A came up for consideration
before the Supreme Court in Malleshi v. State of Karnataka, (2004)
8 SCC 95, the Supreme Court elaborated upon the essential
ingredients of Section 364A thus:
"To attract the provisions of Section 364A what is required to be proved
is: (1) that the accused kidnapped or abducted the person; (2) kept him
under detention after such kidnapping and abduction; and (3) that the
kidnapping or abduction was for ransom."
40. The Supreme Court noted that to pay a ransom means "to pay a
price or demand for ransom". The Court noted that while the object of
abduction is ransom, it cannot be laid down as the straitjacket formula
that the demand for payment has to be made to a person who
ultimately pays. A person may be abducted and may be told that in
order to secure his release the members of his family would have to
pay a certain amount of money. The money may actually belong to
the person abducted. The payment for release is made by a person to
whom the demand is made. Merely because the demand could not be
conveyed to some other person after it was made to the kidnapped or
abducted person as the accused is arrested in the meantime, that does
not take away the offence out of the purview of Section 364A. The
Supreme Court noted that the true test is:
"What was the object" of the kidnapping or abduction: Ultimately the
question to be decided is 'What was the intention? Was it demand or
ransom?"
41. The judgment in Malleshi‟s case have been followed and
reiterated in Vinod v. State of Haryana, (2008) 2 SCC 246,
P.Liaquat Ali Khan v. State of Andhra Pradesh, (2009) 12 SCC 707
and Shyam Babu v. State of Haryana, (2008) 15 SCC 418.
42. The offence under Section 364A is not made out only upon the
commission of the unlawful act of kidnapping or abduction. The
essential ingredients of the statutory provision, apart from the act of
kidnapping or abduction as the case may be, keeping a person in
detention thereafter, a threat to cause hurt or a reasonable
apprehension of such a consequence or causing death or hurt, in order
to compel the payment of ransom or the doing or abstention from
doing any act by the government, a foreign state, an inter
governmental body or by any person. The purpose of the unlawful act
is to demand ransom or to compel the doing or abstention from doing
of a particular act. Kidnapping or the abduction by itself does not lead
to an inference of the underlying purpose with which it was carried
out. The purpose must exist at the time when the act of kidnapping or
abduction takes place. Whether such a purpose existed at that time
will have to be deduced from all the attendant circumstances. Events
which take place prior to, at the time of and subsequent to the
commission of the offence would weigh in the balance. In interpreting
Section 364A the Court must be cognizant of the fact that the
provision was introduced in order to deal with the serious menace
posed by terrorism to the stability of civil society. Hence, while the
underlying purpose, which is an ingredient of Section 364A, must
demonstrably be found to exist as the foundation of the unlawful act,
the Court would not be justified in abridging the parameters of the
statutory provision with reference to requirements which have not
been imposed by Parliament. Situations involving kidnapping or
abduction for ransom are fluid. Demands which are raised by
abductors may in the very nature of things evolve as the situation
progresses. The law does not prescribe that the nature of the demand
for ransom be precisely spelt out when the kidnapping or abduction is
carried out. So long as the unlawful act of kidnapping or abduction is
carried out for the propose of making a demand for ransom, the
requirement of the section would be met. Moreover, as the Supreme
Court noted, it may well happen that after the demand is made known
to the victim, but before it is communicated to a third person, the
accused may be arrested. That again would not detract from the
circumstance that act of kidnapping or abduction was carried out with
the object and purpose of demanding ransom. A statutory provision
like Section 364A must undoubtedly, like penal legislation, be
construed strictly. But while construing a provision such as Section
364A the Court must be careful not to interpret it in a manner which
would denude it of its legislative efficacy. More so when the stated
object of Parliament was to deal with an aggravated form of an
offence, the effect of which is to seriously undermine the stability of
civil society.
43. It is the prosecution‟s obligation to prove all the ingredients,
particularly the use of force or threat to do so, to cause death or bodily
injury, to the victim, coupled with the demand of ransom.
44. In view of the legal proposition enunciated above, let us advert
to the case in hand.
45. PW10 Amit Gogia is the victim. He has deposed that he was
running a factory of electronics manufacturing at B-135, Sector - 6
Noida, U.P. for the last 10-12 years. On 16th June, 2001, his wife
Shilpa Gogia had gone to her parental house at Vikaspuri and from
there she was to attend Ramayan Path which was to be held at the
house of Smt. Lata Vohra who was her mother‟s friend. On 17 th
June, 2001 at about 10:30/11:00 a.m. he was going in his Santro car
bearing No. DL 4CM 5073 to the house of Smt. Lata Vohra to pick
his wife Shilpa Gogia where the Bhog ceremony with regard to the
Ramayan Path was to be held. When he reached the crossing at
Pankha Road, Najafgarh at about 11:00 a.m., one Maruti Zen and one
motorcycle rider came from his back and overtook his car. Maruti
Zen car also hit his car from back. Before he could react, the signal
became green. Occupants of the Maruti Zen car stopped him after
coming on the front side. Three persons from the Maruti Zen stepped
down and one or two of them got out and showed him the identity
card of police. He became perplexed. Before he could react, two of
them dragged him on the back seat of his car and put revolver/pistol
on both his sides, while the third person sat on the driver‟s seat of his
car and started driving it. He could not see where the motorcycle had
gone. Both the persons who caught hold of him on the back seat of
the car asked him to bow down his head and thereafter threatened him
not to speak or make any alarm otherwise they would shoot him.
They drove the car in which he was made to sit for about half an hour
and he could not know as to where and which place he was being
taken. After about half an hour they changed the vehicle and he was
again made to sit on the back seat of the car which had hit his car.
When he was shifted to the other car those persons tied a strip (patti)
on his eyes and thereafter he was taken to an unknown place and was
made to sit in a corner of a room for a long period. He heard the
voice of 3-4 persons. Whenever he was required to ease himself, he
was escorted by two persons. One day one person told him that he
was going to be released, as such, he was being taken to some
unknown place, however, he was not released from there and at that
place also he was made to sit in a corner of a room and he was
constantly being threatened. Later on, one person assured him that he
would be definitely released that day. After sometime he heard the
voice of police officials who were giving warnings that they had
surrounded them from all sides and police further asked them to come
out. Thereafter, bullet firing went on for about 2-3 minutes. He
heard the voice of hue and cry. The police came and removed the
strip tied on his eyes. At that time he was too much perplexed, as
such, he could not see any person except police. From there he was
taken to Police Headquarters, where press conference was held. On
the next day of his release he went to Police Station Dev Nagar and
from there he accompanied the police to the place from where he was
kidnapped. He pointed out the place of his kidnapping vide pointing
out memo Ex.PW10/A. He, however, could not identify any of the
persons who kidnapped him. Since the witness did not support the
case of the prosecution in all material particulars, he was cross-
examined by learned Additional Public Prosecutor. In his cross-
examination he denied that occupants of the car took him through
Hari Nagar, Dhaula Kuan Ring Road to South Extension or that
thereafter he was taken in a two room set where strip from his eyes
was removed. He, however, admitted that the kidnappers in order to
release him were demanding huge amount from his family members.
He also admitted that on the day of occurrence he was too afraid of
the kidnappers. He denied the suggestion that he was not deliberately
identifying the accused persons due to fear.
46. PW9 Sunil Kumar Gogia is the father of the victim-Amit
Gogia. He has also deposed that on 17th June, 2001 at about 10:30
a.m. his son Amit Gogia had gone to attend Ramayan Path which was
held in the house of Smt. Lata Vohra who was a friend of mother-in-
law of Amit Gogia. One day prior, Smt. Shilpa Gogia, wife of Sh.
Amit Gogia had gone to her parents house and from there she was to
attend the Ramayan Path in the house of Lata Vohra. Amit Gogia had
gone to take his wife Shilpa Gogia after attending Ramayan Path and
taking lunch from the house of Lata Vohra. On that day Amit Gogia
did not reach his in-law‟s house or at the house of Lata Vohra till
12:30 noon, as such, his daughter-in-law Shilpa Gogia telephoned
him from Lata Vohra‟s house and inquired about Amit Gogia.
Thereafter, he gave a telephone call on the mobile phone of Amit
Gogia, which was received by some other person who informed him
that his son has been kidnapped for money and he should not inform
the police. He further told him that he would tell him the amount
required by him later. Due to fear he did not inform the police. At
about 3:30 p.m. on that very day, he again received a telephone call
demanding a ransom of Rs. 5 crores to release his son Amit Gogia,
but he expressed his inability to give such a huge amount of money.
He continued giving telephone calls on the mobile phone of Amit
Gogia. The ransom call used to come either at his mobile No.
9810009327 or on the mobile number 9810069300 of Amit‟s
maternal uncle. He had recorded the voice of the persons who had
given him telephone calls on audio cassettes. On 22nd June, 2001 in
the evening he received a telephone call from Police Headquarters
informing that his son has been rescued. He along with his 2-3
relatives went to the police Head Quarters at about 7:30 p.m. and
brought Amit with him. On 23rd June, 2001 he went along with Amit
Gogia to Police Station Dev Nagar where Amit pointed out the place
from where he was kidnapped at Pankha Road. He also handed over
two audio cassettes Ex.P-1 and P-2 to the police in which he had
recorded the voice of the person who had given him telephone call for
demanding ransom and the said cassettes were seized vide memo
Ex.PW9/A. Since this witness also did not support the case of
prosecution in all material particulars he was cross-examined by
learned Additional Public Prosecutor wherein he admitted that he was
threatened that his son would be killed in case he would inform the
police about his kidnapping. He also admitted that he had stated to
the police that on 20th June, 2001 Smt. Lata Vohra had given a
telephone call to him informing that Braham Pradhan was well known
to her and Braham Pradhan can get his son released after contacting
the kidnappers. However, he could not say if the meeting was fixed
at Connaught Place or that he had gone to Connaught Place where
Braham Pradhan along with his son Bijender @ Dhila and Lata Vohra
came and Lata Vohra got the amount settled for Rs.2 crores or that
Braham Pradhan told him that on 22nd June, 2001 after noon time he
had to pay the fixed amount and then he will get his son released. He
admitted that he was constantly in contact with the kidnappers. He
also admitted that on the next day in the evening his son Amit Gogia
was released from the clutches of the kidnappers by Crime Branch
Police, R.K. Puram staff from B-49, Gharoli, Dairy Farm.
47. PW6 Pawan Taneja is the maternal uncle of Amit Gogia. He
has also deposed regarding kidnapping of Amit Gogia and that after
his kidnapping the kidnappers started demanding ransom amount on
his phone as well as on the phone of his brother-in-law Sunil Gogia
from 17th June, 2001. Ultimately, on 22nd June, 2001 Amit Gogia was
rescued by the police.
48. PW12 Shilpa Gogia is the wife of Amit Gogia. She has also
deposed that on 16th June, 2001 she had gone to her parental house to
live with her mother. One week prior to the occurrence, Lata Vohra
had invited her to attend Ramayan Path which was scheduled to be
held on 16th June, 2001. On 16th June, 2001 she along with her
mother had gone to the house of Lata Vohra to attend the Ramayan
Path and thereafter returned back to her parental house. Her husband
made a telephone call to her in the morning of 17 th June, 2001 that he
was coming to take her to the matrimonial home. At that time he also
told her that he was on the way. When her husband did not come
even after about two hours she made a call at her matrimonial home
and then she was informed by her in-laws that he had already left the
house. She also made telephone call on the mobile phone of her
husband but there was no response. Later on, in the evening she came
to know that her husband has been kidnapped. As this witness also
did not support the case of prosecution, she was cross examined by
learned Additional Public Prosecutor and in the cross-examination
she admitted that on 17th June, 2001 at about 11 o‟clock Amit made a
telephone call to her and informed that he was on the way and was
likely to reach at Vikaspuri within 10 to 15 minutes and despite her
waiting he did not reach there. She admitted that she came to know
that her husband Amit was kidnapped by notorious criminals and they
were demanding a handsome amount to release him.
49. None of these witnesses have been cross-examined by any of
the appellants. The effect of not cross-examining a witness on a
particular fact/circumstance has been dealt with and explained by the
Supreme Court in Laxmibai (Dead) thr. L.Rs. and Anr. v.
Bhagwanthuva (Dead) thr. L.Rs. and Ors., AIR 2013 SC 1204
observing as under:
"31. Furthermore, there cannot be any dispute with respect to the settled
legal proposition, that if a party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said witness must be given
an opportunity to explain his statement by drawing his attention to that
part of it, which has been objected to by the other party, as being untrue.
Without this, it is not possible to impeach his credibility. Such a law has
been advanced in view of the statutory provisions enshrined in Section
138 of the Evidence Act, 1872, which enable the opposite party to cross-
examine a witness as regards information tendered in evidence by him
during his initial examination in chief, and the scope of this provision
stands enlarged by Section 146 of the Evidence Act, which permits a
witness to be questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to be relied upon, for
the reason that it is impossible for the witness to explain or elaborate
upon any doubts as regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that the version of
events provided by him, is not fit to be believed, and the witness himself,
is unworthy of credit. Thus, if a party intends to impeach a witness, he
must provide adequate opportunity to the witness in the witness box, to
give a full and proper explanation. The same is essential to ensure fair
play and fairness in dealing with witnesses."
50. The defence did not put any question to any of these witnesses
regarding abduction of Amit Gogia, keeping him in custody or threat
to cause death or hurt or purpose of detention was to demand ransom,
as such, their testimony goes unchallenged and unrebutted. That
being so, prosecution succeeded in establishing that:
(i) Amit Gogia was abducted;
(ii) He was kept under custody/detention;
(iii) There was a threat to cause death or hurt and reasonable
apprehension of such a consequence;
(iv) The purpose of the unlawful act was to demand ransom
of Rs. 5 crores which was subsequently reduced to Rs.2
crores. As such, essential ingredient of Section 364A
IPC were duly proved. Merely because appellants were
arrested before payment of ransom amount does not take
away the offence out of the purview of Section 364A
IPC.
51. The crucial question for consideration is - Who kidnapped the
victim? Where was he detained and who made the ransom call for
releasing Amit Gogia?
52. As per the prosecution case, the entire plan could be divided in
four parts
(1) On 17th June, 2001 when Amit Gogia was going in his
car three persons in a Maruti Zen and one motorcycle
rider came and got his car stopped. They showed him an
identity card of police and thereafter two of them
dragged him on the back seat of the car and put revolver
on both his sides while the third person sat on the driver
seat of the car and started driving it. Thereafter, he was
taken from one place to another.
(2) Inspector Ishwar Singh had information that Braham
Pradhan had abducted a person and ransom calls are
being made. On 22nd June, 2001 on receipt of
information that Braham Pradhan and his associates were
coming to the factory of the victim located in Sector-6,
Noida for collecting ransom, a team of police officers
reached Sector 6, Noida, U.P. One maruti Zen car was
found roaming in suspicious circumstances. Accused
Jitender @ Jeetu was driving that vehicle and accused
Ajit Singh was sitting by his side. They were stopped
and on interrogation they revealed that Amit Gogia was
detained in premises No. B-49, Gharoli, Dairy Farm. In
pursuance to that information they took the police party
to B-49 Gharoli, Dairy Farm.
(3) Raid was conducted at B-49 Gharoli, Dairy Farm and
during the encounter, Braham Pradhan was shot dead.
Accused Jagminder, Sandeep, Prabhat and Subhash
Pawa were apprehended and the victim was rescued.
(4) On 23rd June, 2001 accused Bijender @ Dhila and Lata
Vohra were arrested and from the parking of Safderjung
Hospital, the Santro car of the victim-Amit Gogia was
recovered at the instance of accused Bijender.
53. To establish its case prosecution has examined seven witnesses
of the Anti-Extortion Cell, Crime Branch, R.K. Puram, New Delhi.
Out of these seven witnesses PW-42 Inspector Ishwar Singh is the
main witness, as it was he who had received information about
kidnapping of Amit Gogia by Braham Pradhan. He deposed that for
the last one or two days he had information that Braham Pradhan had
abducted a person and ransom calls were being made by him. On
22.06.2001 during morning hours, he received an information that
Braham Pradhan and his associates may come to the factory of the
victim located in Sector-6, Noida for collection of ransom amount.
He informed his senior officers regarding this information. One team
comprising of 15-20 police officers were prepared, under the
supervision of Ishwar Singh ACP and HPS Cheema ACP. They all
boarded six private vehicles and left for the spot at 11 a.m., after
getting arms and ammunition issued. They reached Sector-6, Noida,
U.P. He alongwith SI Suresh Kumar, Ct. Dalbir and Ct. Chander
Vijay were deputed near B-135, Sector-6, Noida, U.P. They were
keeping an eye at the factory of the victim. At about 3:30 or 4 p.m.
one Zen Maruti Car bearing registration No. DL-3C-1348 was found
roaming there in suspicious circumstances. Accused Jitender Singh
@ Jitu was driving the vehicle and accused Ajit was sitting by his
side in that car. The car was stopped and both the accused persons
were overpowered. Both the accused were taken in police custody
and interrogated. They disclosed that Amit Gogia was detained in
premises No. B-49, Gharoli Dairy Farm and they could point out that
premises. He passed on this information to other members of the
team on wireless set. It was decided that they will meet at Kondli
turn. All the members of the police party reached at Kondli turn
alongwith both the accused. Accused Jitender Singh @ Jitu was
made to sit in a vehicle with tinted glasses and was taken towards
premises No.B-49, Gharoli Dairy Farm. He pointed out the house
and then he was brought back at kondli turn. Thereafter the police
party were divided into two groups, one was to reach the premises at
B-49, Gharoli Dairy Farm and the other was to cordon that house.
ACP Ishwar Singh, ACP HPS Cheema, Inspector Rajinder Bakshi,
Inspector K.P. Singh, SI Arvind Kumar, HC Jasbir Singh, ASI Abdul
Kadir, Ct. Ajeet and he were to reach at the premises where victim
Amit Gogia was detained and other police officers were to cordon the
house in question. They boarded their vehicles and reached near B-
49, Gharoli Dairy Farm. They climbed the stairs and found an iron
gate located on the first floor premises, bolted from inside. He pulled
the door and it opened. The opening of the door made some noise
and firing started from inside. He administered warning to the
occupants of the premises, detailing that they were the officers of the
Crime Branch of Delhi Police and had reached there to rescue Amit
Gogia and asked the offenders to surrender but despite it, the firing
continued. He fired in the gallery of the house in retaliation. He
alongwith Inspector Rajinder Bakshi entered into the gallery of the
house while firing from their respective service weapons. Inspector
Rajinder Bakshi and he tried to push the door of the front room and
he pushed the door of the side room. When he and Inspector Bakshi
pushed the door, at that juncture two shots were fired from inside
which hit the upper portion of the door. At that time ACP HPS
Cheema and HC Jasbir went inside the room for his help. ASI Abdul
Kadir also reached there. Braham Pradhan who was injured at that
time was overpowered. One .30 bore pistol was lying by his side.
Accused Ashok Pahwa was overpowered by ACP HPS Cheema and
one .30 bore pistol was recovered from his possession. Brahm
Pradhan and Ashok Pahwa were injured at that time. In the
meanwhile he was told by Inspector Rajinder Bakshi that in another
room two offenders were injured in the police firing and victim Amit
Gogia was successfully rescued.
54. Police Control Room was informed. PCR van reached there
and all the four injured persons were sent to hospital. The weapons
and cartridges recovered from the spot were seized. Rukka
Ex.PW42/C was prepared by him and same was sent to police station
for registration of the case.
55. Other witnesses of the Anti-Extortion Cell, Crime Branch i.e.
PW14 SI Abdul Qadir, PW-15 SI Suresh Kumar, PW-29 ACP HPS
Cheema, PW-31 Inspector Rajinder Bakshi, PW-32 Inspector Ishwar
Singh and PW-43 Inspector Arvind Kumar deposed almost on the
similar lines as deposed by PW-42 Inspector Ishwar Singh.
56. Further investigation was carried out by PW-34 Inspector
Virender Kumar who reached the spot after the rescue operation of
victim Amit Gogia was completed and all the accused persons were
apprehended. At the spot Inspector Ishwar Singh, ACP Cheema,
ACP Ishwar Singh and other police officials met him. Injured had
already been shifted to Hospital. Crime Team officers also reached
the spot. He seized weapons of eight police officials which were used
to nab the culprits, prepared site plan at the instance of Inspector
Ishwar Singh, lifted blood samples, earth control, seized bullet pieces
lying at different places. Three plates of bone china and a bisleri
bottle lying at the spot was seized. Besides that, he also seized a
mobile phone, Sim Card, charger, and police uniform. One Maruti
Zen car bearing No. DL-4CN-1438 and one motorcycle No. DL 5 SA
6316 found at the spot were also taken into possession. He arrested
accused Jagminder Singh @ Happy, Subhash, Jitender Singh and
Ajit. After the arrest of accused Bijender by ASI Naresh Kumar, on
the basis of his disclosure statement, Santro Car No. DL 4CN 5073
belonging to victim Amit Gogia was recovered from the parking of
Safdarjung Hospital. On the directions of ballistic expert, the door of
the toilet where bullet pieces were found inserted, was cut and taken
into possession. Father of the victim Sh. Sunil Gogia produced two
cassettes which were taken into possession and its transcription was
prepared. On 16.8.01 he moved an application to get the voice test of
the accused persons done but accused Subhash Pahwa refused for his
voice test. On 13.9.01 he obtained sanction of the DCP for
prosecution of accused for the offences punishable u/s 25 of the Arms
Act as provided by section 39 of the Arms Act. The complaint as
contemplated u/s 195 Cr.P.C. was filed by DCP, Crime and Railways
Sh. Mukand Upadhyay. Data of mobile phones used by accused
Subhash Pahwa, Jagminder, Sandeep etc. were collected from Airtel
Company. Data of mobile used by Sunil Gogia was also collected
from Airtel Company and it revealed that accused persons were in
constant touch with the phone used by Sunil Gogia from 18.6.01 to
22.6.01.
57. It is the submission of learned counsels for the accused persons
that the police wanted to kill Braham Pradhan who was a notorious
criminal and was shot dead by them, however, the operation was
staged. All the accused were already in the custody of the police and
to cover up their illegal act of killing Braham Pradhan, Crime Branch
has concocted this false story. This submission was rightly not
believed by the learned Trial Court keeping in view the circumstantial
evidence brought on record by the prosecution to prove genuineness
of the rescue operation.
58. Site plan Ex.PW2/A was prepared by PW2 SI Mahesh Kumar,
Draftsman, Crime Branch showing various bullet marks on wall and
doors of the premises which goes to prove that heavy exchange of fire
took place between the accused persons and the police party.
59. At the time of conducting raid, police officials were armed with
weapon. According to PW34, eight weapons of the police officials
were seized. Out of eight police officials ACP HPS Cheema, ACP
Ishwar Singh and Inspector Ishwar Singh were carrying service pistol
of 9 mm. All the other five police officials who participated in the
raid were having revolvers of .38 bore. After the rescue operation,
weapons were recovered from Braham Pradhan and other accused
persons. Vide recovery memos Ex.PW14/C, PW14/D, Ex.PW31/C,
Ex.PW31/D, Ex.PW42/B, PW42/A, PW31/E, .30 bore pistol with two
live cartridges lying near Braham Pradhan, .30 bore pistol from
accused Subhash Pahwa, 9mm pistol from accused Sandeep, .30 bore
pistol from accused Jagminder, 10 fired cartridges from left hand side
of the room, 3 fired cartridges from the gallery of the first floor, 4
fired cartridges from the front room were seized respectively.
60. During the course of investigation, all these weapons were sent
to Forensic Science Laboratory. The same were examined by Sh.
K.C. Varshney, Sr. Scientific Officer (Ballistic) who gave his report
Ex. PW25/A which proves that service weapon of the police officials
and weapons recovered from the possession of the accused
Jagminder, Subhash and Sandeep were used. It was also reported
that the recovered fired cartridges were fired through seized pistols.
61. PW19 Satbir Singh is the resident of B-52/53, Gharoli Dairy
Farm. He has deposed that on 22nd June, 2001 at about 4:15 PM, he
heard the noise of firing and went near House No. B-49, Gharoli
Dairy Farm and came to know that one person was released by the
police from the custody of miscreants. He is an independent witness
and supports the prosecution version to the extent that police party
actually conducted raid at house No.B-49, Gharoli Dairy Farm and an
exchange of fire took place between the police and the miscreants and
one person also got released.
62. PW10 Amit Gogia was rescued by the police party from B-49,
Gharoli Dairy Farm. Although, this witness has neither identified the
persons who kidnapped him from Pankha Road nor the persons who
kept him captive at B-49, Gharoli Dairy Farm and, as such, was
declared hostile by the prosecution but in his cross-examination, he
has deposed that at about 2:00-3:00 PM, he heard the voice of police
officials who had given the warnings that they had surrounded them
from all sides and they should come out. Thereafter bullet firing
continued for 2-3 minutes. He also heard some hue and cry.
Thereafter police officials came and removed the cloth tied on his
eyes. As such, he has supported the prosecution version that raid was
conducted by the police officials and exchange of fire took place at
the premises from where ultimately he was rescued.
63. The fact that Amit Gogia was detained and rescued from B-49,
Gharoli Dairy Farm is also established from the fact that his finger
prints were also taken and as per report Ex.P-A2 of Director, Finger
Print Bureau, chance prints marked as Q2 and Q3 (on Bisleri bottle
and Chinese clay plate-I) were inter-se identical and further identical
with right middle finger marked as S2, chance print marked as Q4 (on
Chinese clay plate-II) is identical with right Index finger marked as
S3 and chance prints marked as Q5 and Q6 are inter-se identical and
further identical with right thumb marked as S4 on the finger
impression slip of Amit Gogia (inmate).
64. It also stands proved from the testimony of the police officials
that police uniforms, identity cards, mobile phones were also
recovered from the spot. Under the circumstances, factum of
kidnapping, recovery of the victim and demand of ransom stand fully
established from the evidence led by the prosecution.
65. It was submitted by learned counsel for the accused that
following material contradictions have appeared in the statement of
the police officials regarding the manner in which rescue operation
was conducted at House No. B-49, Gharoli, Dairy Farm, which raises
serious doubt regarding the authenticity of the version of incident as
deposed by them:
(i) PW42 Inspector Ishwar Singh has deposed that while
entering into the premises he asked the offenders to
surrender but they fired upon him. He along with PW31
Inspector Rajinder Bakshi entered the gallery of the
house while firing from their respective service weapons.
He and Inspector Bakshi pushed the door and at that time
two shots were fired from inside. PW29 ACP HPS
Cheema, HC Jasbir and PW14 ASI Abdul Kadir also
reached there. Braham Pradhan was overpowered and
was injured. Accused Subhash Pahwa was overpowered
by ACP HPS Cheema and one .30 bore pistol was
recovered from his possession. He was informed by
PW31 that in other room two offenders were injured in
police firing and Amit Gogia was successfully rescued.
This witness did not depose about the presence of
accused Prabhat or his apprehension.
(ii) However, PW31 Inspector Rajinder Bakshi deposed that
PW42 Inspector Ishwar Singh pushed the door and the
bolt got broken and accused Jagminder started firing
from inside the house. PW29 and PW42 entered the left
side room returning the fire. He along with PW42
Inspector Ishwar Singh, ASI Braham Prakash, HC Satish
and PW43 SI Arvind Kumar entered the front room from
the gallery by breaking the door. Accused Jagminder
and Prabhat were having weapons in their hands and
were firing at the police party. They also returned the
fire and apprehended accused Jagminder, Prabhat and
Sandeep. According to PW31, PW42 Inspector Ishwar
Singh simultaneously entered both the rooms which is
quite impossible. According to PW42, he and PW31
pushed the door whereas according to PW31 it was only
PW42 who pushed the door.
(iii) PW14 ASI Abdul Kadir and PW15 ASI Suresh Kumar
who were members of the raiding party have not
disclosed anything about the manner in which raid was
conducted.
(iv) PW29 ACP Cheema has deposed that as soon as they
entered the premises they found themselves in a gallery.
There was one room at one side and other room on front
of it. As soon as they took their positions fire was
opened at them from front room. Inspector Ishwar Singh
administered warning informing the occupants of the
house that they are from Crime Branch. Fire also came
from room. PW32 Inspector Ishwar Singh and PW31
Inspector Rajender Bakshi pushed the door of the front
room with great force. He, PW42 Inspector K.P. Singh,
and PW14 entered the side room. He overpowered
accused Subhash Pahwa. Accused Braham Pradhan tried
to snatch revolver from possession of HC Jasbir and at
that juncture exchange of fire took place and Braham
Pradhan sustained injuries. The testimony of PW42
Inspector Ishwar Singh and other police officials who
raided the premises is silent to the effect that Braham
Pradhan tried to snatch revolver from possession of HC
Jasbir and sustained injuries in exchange of fire in that
juncture.
(v) Reference was also made to some contradictions
appearing in the statement of PW32 ACP Ishwar Singh
and PW42 Inspector Ishwar Singh regarding the details
of the raid conducted by the police team. As per PW32,
when they entered the gallery accused Jagminder fired a
shot at PW42 from the pistol kept in his right hand
whereas PW42 has no where stated if any fire was aimed
at him by accused Jagminder. He has only stated that
shots were fired during the incident.
66. The prosecution evidence no doubt suffers from inconsistencies
here and discrepancies there, but that is a short coming from which no
criminal case is free. The main thing to be seen is whether those
inconsistencies, etc., go to the root of the matter or pertain to
insignificant aspects thereof. In the former case, the defence may be
justified in seeking advantage of the incongruities obtaining in the
evidence. In the latter, however, no such benefit may be available to
it. That is a salutary method of appreciation of evidence in criminal
cases.
67. Hon‟ble Supreme Court in Gangabhavani v. Rayapati Venkat
Reddy and Ors. 2013(11) SCALE 132 held:
"9. In State of U.P. v. Naresh, (2011) 4 SCC 324, this Court after
considering a large number of its earlier judgments held:
In all criminal cases, normal discrepancies are bound to occur in
the depositions of witnesses due to normal errors of observation,
namely, errors of memory due to lapse of time or due to mental
disposition such as shock and horror at the time of occurrence.
Where the omissions amount to a contradiction, creating a
serious doubt about the truthfulness of the witness and other
witnesses also make material improvement while deposing in
the court, such evidence cannot be safe to rely upon. However,
minor contradictions, inconsistencies, embellishments or
improvements on trivial matters which do not affect the core of
the prosecution case, should not be made a ground on which the
evidence can be rejected in its entirety. The court has to form its
opinion about the credibility of the witness and record a finding
as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it
can be one of the factors to test credibility of the prosecution
version, when the entire evidence is put in a crucible for being
tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of a
witness cannot be dubbed as improvements as the same may be
elaborations of the statement made by the witness earlier. The
omissions which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial or core of
the prosecution's case, render the testimony of the witness liable
to be discredited.
A similar view has been reiterated by this Court in Tehsildar
Singh and Anr. v. State of U.P. AIR 1959 SC 1012; Pudhu Raja
and Anr. v. State, Rep. by Inspector of Police JT 2012 (9) SC 252;
and Lal Bahadur v. State (NCT of Delhi) (2013) 4 SCC 557)."
10. Thus, it is evident that in case there are minor contradictions in the
depositions of the witnesses the same are bound to be ignored as the
same cannot be dubbed as improvements and it is likely to be so as the
statement in the court is recorded after an inordinate delay. In case the
contradictions are so material that the same go to the root of the case,
materially affect the trial or core of the prosecution case, the court has
to form its opinion about the credibility of the witnesses and find out as
to whether their depositions inspire confidence."
68. In Kurai and Anr. v. State of Rajasthan, (2012) 10 SCC 433, it
was observed as under:
"This Court has repeatedly taken the view that the discrepancies or
improvements which do not materially affect the case of the prosecution
and are insignificant cannot be made the basis for doubting the case of
the prosecution. The courts may not concentrate too much on such
discrepancies or improvements. The purpose is to primarily and clearly
sift the chaff from the grain and find out the truth from the testimony of
the witnesses. Where it does not affect the core of the prosecution case,
such discrepancy should not be attached undue significance. The normal
course of human conduct would be that while narrating a particular
incident, there may occur minor discrepancy. Such discrepancies may
even in law render credential to the depositions."
69. Jagmohan Reddy, J. speaking for Hon‟ble Supreme Court in
Sohrab v. State of Madhya Pradesh, 1972 Crl.L.J 1302 at p.1305:
AIR 1972 SC 2020 at p.2024 observed:
"Hon'ble Supreme Court has held that "falsus in uno falsus in omnibus" is
not a sound rule for the reason that hardly one comes across a witness
whose evidence does not contain a grain of untruth or at any rate
exaggeration, embroideries or embellishments. In most cases, the
witnesses when asked about details venture to give some answer, not
necessarily true or relevant for fear that their evidence may not be
accepted in respect of the main incident which they have witnessed but
that is not to say that their evidence as to the salient features of the case
after cautious scrutiny cannot be considered."
70. Substantially similar view was taken by Hon‟ble Apex Court in
Krishna Mochi & Ors. vs. State of Bihar, (2002) 6 SCC 81 wherein
it was observed as under:
"If a whole body of the testimony is to be rejected because the witness
was evidently speaking an untruth in some aspect, it is to be feared that
administration of criminal justice would come to a dead stop. Witnesses
just cannot help in giving embroidery to a story, however true in the
main. Therefore, it has to be appraised in each case as to what extent
the evidence is worthy of acceptance, and merely because in some
respects the Court considers the same to be insufficient for placing
reliance on the testimony of a witness, it does not necessarily follow as a
matter of law that it must be disregarded in all respect as well. The
evidence has to be satisfied with care. One hardly comes across a
witness, whose evidence does not contain a grain of untruth or at any
rate exaggeration, embroidery or embellishments. An attempt has to be
made to separate the grain from the chaff."
71. The principle that can be culled out from the aforesaid
decisions are that minor discrepancies and inconsistencies cannot be
given undue importance. The Court has to see whether
inconsistencies go to the root of the matter and affect the truthfulness
of the witnesses, while keeping in view that discrepancies are
inevitable in the statement of witnesses who speak them after long
lapse of time.
72. Although, it is true that certain discrepancies have appeared in
the testimony of the police officials, but it is to be kept in mind that
the premises in question where the raid was conducted was a very
small house on the first floor. About eight police officials had raided
the premises and the entire operation must have lasted for few
minutes only. That being so, it is not possible for the police official
who is a member of the team to tell with precision as to what role was
played by which of the police officials or the offenders. Moreover,
the witnesses have come to depose after a lapse of about 4-5 years of
the incident and as such it is not expected from them to give minute
details of the raid. The minor contradictions cannot be given undue
importance. Regarding apprehension of the accused persons, the
testimony of these witnesses are consistent to the effect that accused
Subhash Pahwa and Braham Pradhan were in one room while accused
Jagminder, Sandeep and Prabhat were in other room. As regards
gunning down of Braham Pradhan and apprehension of accused
Jagminder, Subhash Pahwa, Sandeep and Prabhat, testimony of the
police officials are consistent and corroborate each other. Although
PW42 has given the name of accused Subhash Pahwa as Ashok
Pahwa but same is insignificant as he correctly identified accused
Subhash Pahwa during his deposition in Court.
73. Now, coming to the role played by each of the accused, we
shall be taking up their case on individual basis.
Jitender @ Jeetu and Ajit Singh
74. Both these accused persons are similarly placed as far as the
case of the prosecution against them is concerned. As per PW-42
Inspector Ishwar Singh he along with PW-15 SI Suresh Kumar and
other two police officials were deputed near B-135, Sector-6, Noida,
U.P., where Braham Pradhan and his associates were expected to
come for collection of ransom amount. At about 3.30 or 4:00 p.m.
one Zen Maruti Car having Registration No. DL-3C-1348 was found
roaming there in suspicious circumstances. Accused Jitender Singh
@ Jeetu was driving the vehicle. He was made to stop the car and
was over powered. Accused Ajeet was sitting in the car by his side.
They were taken in police custody and interrogated. They disclosed
that Amit Gogia was detained in premises No. B-49, Gharoli Dairy
Farm and pointed out that premises.
75. PW-15 SI Suresh Kumar corroborated the testimony of PW42
Inspector Ishwar Singh that he was along with inspector Ishwar Singh
and other police official was present in the area of Sector 6, Noida
nearby Factory No. B-135. At about 3:45 PM, one Maruti Zen white
colour bearing No. DL 4CN 1438 was found roaming in suspected
position. On stopping the car, Jitender Singh @ Jeetu and Ajit Singh
were found in the car and they disclosed that the kidnapped person
Amit Gogia was kept confined at B-49, Gharoli on first floor of the
house. Ajit was kept in his custody in Maruti Zen while Jitender was
taken to B-49, Gharoli. Statements of both these witnesses are
consistent except minor variation in the car number mentioned by
them. Both has been cross-examined by the accused persons but
nothing has come on record either to discredit these witnesses or to
create doubt about their movement at that relevant time in Sector -6,
Noida near factory premises No. B-135.
76. The defence taken by accused Jitender during his statement u/s
313 Cr.P.C. is that he was lifted from his house on 22.6.01 and taken
to Crime Branch Office and was framed in this case. Almost similar
is the defence taken by accused Ajeet Singh stating that he was lifted
from the premises No. K-106, Krishna Park, Tilak Nagar and was
framed in this case. In defence evidence both these accused has
examined DW 5 Sh. Sanjay Kishore Sharma. This witness has
deposed that Jitender is his neighbourer and accused Ajeet is his
driver. He used to go to his office at K-106, Krishna Park Extension,
Tilak Nagar at 9.30 AM daily. On 22.6.01 at about 10 AM, he
noticed that two police officials in uniform and four in civil dress
came and both these accused persons were taken by them. On asking
accused Jitender told him that he was being taken for interrogation.
Accused persons were taken in two Maruti Zens and next day he
came to know through newspaper about the kidnapping case. During
cross-examination DW-5 has stated that he did not lodge any
complaint to any authority concerning lifting of the accused persons
by the police in his presence.
77. It is the submission of learned counsel for the appellant that
before going to Noida, no prior permission was obtained nor any
intimation was sent to any authority in writing about their
surveillance raid in Noida. On the other hand, learned Additional
Public Prosecutor appearing for the State has placed reliance on
Section 48 of the Code of Criminal Procedure, 1973 for submitting
that the police officers are authorised to arrest a person involved in
commission of crime and, as such, by virtue of Section 48 of the Code
of Criminal Procedure, 1973 they could pursue any such person into
any place in India.
78. The submission of learned Additional Public Prosecutor has
force, inasmuch as, Section 48 of the Code of Criminal Procedure,
1973 reads as under:-
"48. Pursuit of offenders into other jurisdictions.
A police officer may, for the purpose of arresting without warrant any
person whom he is authorised to arrest, pursue such person into any
place in India."
79. This Section empowers a police officer to arrest any person
whom he is authorised to arrest in any place in India. Moreover,
Section 166 of the Code lays down the procedure to be followed by
an officer in charge of a police station where search is to be made
outside the limits of the police station concerned.
80. This Section so far is material for the present purpose is
reproduced as under:-
"166. When officer in charge of police station may require another to
issue search warrant. - (1) An officer in charge of a police station or a
police officer not being below the rank of sub- inspector making an
investigation may require an officer in charge of another police station,
whether in the same or a different district, to cause a search to be made
in any place, in any case in which, the former officer might cause such
search to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed according to the
provisions of section 165, and shall forward the thing found, if any, to the
officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by
requiring an officer in charge of another police station to cause a search
to be made under sub- section (1) might result in evidence of the
commission of an offence being concealed or destroyed, it shall be lawful
for an officer in charge of a police station or a police officer making any
investigation under this Chapter to search, or cause to be searched, any
place in the limits of another police station in accordance with the
provisions of section 165, as if such place were within the limits of his
own police station.
(4) Any officer conducting a search under sub- section (3) shall forthwith
send notice of the search to the officer in charge of the police station
within the limits of which such place is situate, and shall also send with
such notice a copy of the list (if any) prepared under section 100, and
shall also send to the nearest Magistrate empowered to take cognizance
of the offence, copies of the records referred to in sub-sections (1) and (3)
of section 165."
81. In the instant case, admittedly, Inspector Ishwar Singh did not
give any prior information to Police Station Noida within whose
jurisdiction the raid was conducted. Similarly, after apprehension of
accused Jitender Singh @ Jitu and Ajeet Singh no information was
given to concerned Police Station or any Magistrate at Noida. The
question, therefore, to be considered is whether non-compliance of
Section 166 Cr.P.C. is fatal to the prosecution case? To our mind, it
is not. Similar question arose in Narender, Usha, Satish Kumar and
Navin v. State, 2009 Cri LJ 3613 where it was observed by this Court
as under:-
"38. The failure to comply with the provisions regulating searches may
cast doubt upon bona fides of the officers conducting the searches.
However, when once the evidence has been believed, it is obviously no
defence to say that the evidence was obtained in an irregular manner.
There is no provision in law which makes such evidence inadmissible.
However, contraventions of the provisions of the Section only cast duty
on the court dealing with the case to examine the matter closely and also
to see if the accused has been prejudiced as a result of the deviation from
the prescribed procedure. Once the recovery or discovery of a thing is
otherwise proved, the manner in which it is made becomes immaterial.
Therefore, failure to comply with the provisions of Section 166 Cr.P.C.
does not in any manner vitiate the trial or conviction especially when the
failure to comply with the said provisions is bona fides and not mala
fides."
82. Reliance was placed on Radha Kishan v. State of Uttar
Pradesh, AIR 1963 SC 822 wherein it was observed as under:-
"(5) We will deal with the last four points first. So far as the alleged
illegality of the search is concerned it is sufficient to say that even
assuming that the search was illegal the seizure of the articles is not
vitiated. It may be that where the provisions of Sections 103 and 165,
Code of Criminal Procedure are contravened the search could be resisted
by the person whose premises are sought to be searched. It may also be
that because of the illegality of the search the Court may be inclined to
examine carefully the evidence regarding the seizure. But beyond these
two consequences no further consequence ensues...."
83. In view of the same, failure to comply with the provisions, on
the part of Investigating Officer cannot vitiate the trial or conviction,
especially when, the failure to comply with the said provision cannot
be said to be mala fide.
84. As regards the next limb of argument that no reliance can be
placed on the disclosure statement of the appellant-Jitender @ Jitu
Ex.PW34/Q5 as the same is dated 23rd June, 2001 i.e. after the
incident has taken place on 22nd June, 2001 and even when the
accused was not arrested as the arrest memo is dated 23 rd June, 2001.
As such, the disclosure statement is not protected under Section 27 of
the Evidence Act, 1872. This submission is again bereft of merit,
inasmuch as, it is the consistent case of the prosecution that when
accused Jitender Singh and Ajit Singh were apprehended in Maruti
Zen bearing registration No. DL-4CN-1438 which was found roaming
near B-135, Sector-6 Noida, U.P. in suspicious circumstances, both
the accused were taken in police custody and were interrogated. It is a
different matter that all the writing work including arrest memo was
prepared on 23rd June, 2001, but it does not mean that the accused
were not in custody. Similar question arose in Dharam Deo Yadav
(supra). In that case also after the accused was apprehended, he
confessed to have committed murder of one D and got recovered her
skeleton. Thereafter he was arrested. Similar contention was raised
that statement of the accused was inadmissible u/s 27 of the Evidence
Act since accused was not in the custody of police. After referring to
Section 27 of the Evidence Act, Hon‟ble Supreme Court observed as
under:
"The expression 'custody' which appears in Section 27 did not mean
formal custody, which includes any kind of surveillance, restriction or
restraint by the police. Even if the accused was not formally arrested at
the time when the accused gave the information, the accused was for all
practical purpose, in the custody of the police."
85. Reliance was placed on State of A.P. v. Gangula Satya
Murthy,, (1997) 1 SCC 272 where it was held that if the accused is
within the ken of surveillance of the police during which his moments
were restricted then it can be recorded as custodial surveillance.
Consequently, so much information given by the accused in
„custody‟, in consequence of which a fact is discovered, is admissible
in evidence, whether such information amounts to a confession or not.
86. In view of this legal position, the mere fact that the arrest
memo is dated 23rd June, 2001 does not mean that the accused were
not in custody when they gave the information and pointed out the
premises where the victim was kept. As such, so much of the
information given by the accused in custody in consequence of which
a fact (the place where the victim was kept in captivity) is discovered
is admissible in evidence under Section 27 of the Evidence Act. In
fact, it was rightly submitted by learned Additional Public Prosecutor
appearing for the State that the entire case was cracked at the instance
of both these accused who were having exclusive knowledge as to
where the victim was kept. It was only on their pointing out that the
victim could be rescued, after the rescue operation.
87. As regards the submission that the prosecution has not proved
beyond reasonable doubt that the appellant was in possession of
Maruti Zen car bearing No. DL-4CN-1438 which as per the testimony
of PW4 Anil belonged to Hari Chand who has not been examined by
the prosecution, and therefore, adverse inference has to be drawn
under Section 114 of the Evidence Act, same again is devoid of merit,
inasmuch as, the record reveals that after the seizure of this car, it was
Hari Chand who had taken the vehicle on superdari. He was cited as
a prosecution witness, but could not be examined due to his non-
availability. Therefore, no adverse inference is required to be drawn
against the prosecution on that account. Moreover, all the
prosecution witnesses have deposed that both, Jitender @ Jeetu and
Ajit Singh were found in this Maruti Zen car and despite cross-
examination nothing could be elicited to discredit their testimony. It
was for the accused persons to explain as to how they came in
possession of this car which they have failed to explain.
88. The submission that six police officers were allegedly present
when appellant Jitender and Ajit were apprehended at Noida, but only
two were examined as prosecution witness, deserves out-right
rejection as the appellant himself has relied upon Munshi Prasad
(supra) where a plea was taken that except the interested witnesses
none else from the nearby residential areas were examined. Repelling
the submission it was held by Hon‟ble Supreme Court that it is the
quality of the evidence and not the quantity, which is required. The
crux of the issue being has the prosecution been able to bring home
the charges with the evidence available on record - if the evidence on
record is otherwise satisfactory in nature and can be ascribed to be
trustworthy, an increase in number of witnesses cannot be termed to
be a requirement for the case. It is the totality of the evidence, which
matters and if the same creates a confidence of acceptability of such
an evidence, question of rejection on being ascribed as interested
witness would not be justifiable.
89. In Namdeo v. State of Maharashtra, (2007) 14 SCC 150
Hon‟ble Apex Court re-iterated the view observing that it is the
quality and not the quantity of evidence which is necessary for
proving or disproving a fact. The legal system has laid emphasis on
value, weight and quality of evidence rather than on quantity,
multiplicity or plurality of witnesses. It is, therefore, open to a
competent court to fully and completely rely on a solitary witness and
record conviction. Conversely, it may acquit the accused in spite of
testimony of several witnesses if it is not satisfied about the quality of
evidence. As such, the mere fact that out of six police officials only
two were examined as prosecution witness is not sufficient to discard
their testimony which otherwise inspires confidence.
90. It is further the submission of both the appellants that there is
no material or evidence supporting the allegations that they were part
of criminal conspiracy. Mere knowledge of any fact on the part of
appellant is not sufficient to convict the appellant for charge of
criminal conspiracy. Learned counsel for Ajit Singh placed reliance
on the observations made by Hon‟ble Supreme Court of India in
Nalini‟s case on the issue of conspiracy while counsel for Jitender @
Jitu placed reliance on Suman Sood (supra) Baldev Singh v. State of
Punjab, (2009) 6 SCC 564, Philips Fadrick D'Souza and Ravinder
@ Balu Pandurang Kambra v. State of Maharashtra and Inspector
of Police, 2009 Cr.LJ 89.
91. Chapter 5-A of Penal Code speaks about criminal conspiracy.
Section 120A defines criminal conspiracy as under:
"120-A. Definition of criminal conspiracy- When two or more persons
agree to do, or cause to be done-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence
shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in
pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate
object of such agreement, or is merely incidental to that object."
92. Section 120-B speaks about punishment of criminal conspiracy
which is as under:
"120-B. Punishment of criminal conspiracy.--(1) Whoever is a party to a
criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or
upwards, shall, where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same manner as if
he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both."
93. The above mentioned sections were introduced by the
amendment of 1913. It is important to notice the Objects and Reasons
of the said amendment to understand that the underlying purpose of
introducing Section 120A was to make a mere agreement to do an
illegal act or an act which is not illegal by illegal means, punishable.
The Statement of Objects and Reasons are as follows:
"The sections of the Indian Penal Code which deal directly with the
subject of conspiracy are those contained in Chapter V and Section 121A
of the Code. Under the latter provision, it is an offence to conspire to
commit any of the offences punishable by Section 121 of the Indian Penal
Code or to conspire to deprive the King of sovereignty of British India or
any part thereof or to overawe by means of criminal force or show of
criminal force the Government of India or any Local Government and to
constitute a conspiracy under this Section. It is not necessary that any act
or illegal omission should take place in pursuance thereof. Under Section
107, abetment includes engaging with one or more person or persons in
any conspiracy for the doing of a thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing. In other words, except in respect of the offences particularized in
Section 121A conspiracy per se is not an offence under the Indian Penal
Code.
On the other hand, by the common law of England, if two or more
persons agree together to do anything contrary to law, or to use unlawful
means in the carrying out of an object not otherwise unlawful, the
persons, who so agree, commit the offence of conspiracy. In other words,
conspiracy in England may be defined as an agreement of two or more
persons to do an unlawful act or to do a lawful act by unlawful means,
and the parties to such a conspiracy are liable to indictment.
x x x x x x x x
*
Experience has shown that dangerous conspiracies have entered into
India which have for their object aims other than the commission of the
offences specified in Section 121A of the Indian Penal Code and that the
existing law is inadequate to deal with modern conditions. The present
Bill is designed to assimilate the provisions of the Indian Penal Code to
those of the English law with the additional safeguard that in the case of
a conspiracy other than a conspiracy to commit an offence some overt
act is necessary to bring the conspiracy within the purview of the criminal
law. The Bill makes criminal conspiracy a substantive offence, and when
such a conspiracy is to commit an offence punishable with death, or
rigorous imprisonment for a term of two years or upwards, and no
express provision is made in the Code, provides a punishment of the same
nature as that which might be awarded for the abetment of such an
offence. In all other cases of criminal conspiracy the punishment
contemplated is imprisonment of either description for a term not
exceeding six months or with fine, or with both."
94. Prior to the amendment of the Code and the introduction of
Sections 120A and 120B, the doctrine of agency was applicable to
ascertain the liability of the conspirators, however, conspiracy in itself
was not an offence (except for certain offences). The amendment
made conspiracy a substantive offence and rendered the mere
agreement to commit an offence punishable. Prior to the amendment,
unless an overt act took place in furtherance of the conspiracy it was
not indictable (it would become indictable by virtue of being
abetment).
95. The proposition that the mere agreement constitutes the offence
has been accepted by Hon‟ble Supreme Court in several judgments.
Reference may be made to Major E.G. Barsay v. State of Bombay,
(1962) 2 SCR 195 wherein the Court held that 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. 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. The Court in Barsay (supra) has
held as under:
"31... Section 120-A of the Indian Penal Code defines "criminal
conspiracy" and under that definition.
`When two or more persons agree to do, or cause to be done, an illegal
act, or an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy.'
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 not be liable."
xx xx xx xx xx xx xx xx xx
131. Each conspirator can be attributed each other's actions in a
conspiracy. Theory of agency applies and this rule existed even prior to
the amendment of the Penal Code in India. This is reflected in the rule of
evidence Under Section 10 of the Evidence Act. Conspiracy is punishable
independent of its fruition. The principle of agency as a rule of liability
and not merely a rule of evidence has been accepted both by the Privy
Council as well as by this Court. The following judgments are relevant for
this proposition:
131.1. Babulal Choukhani v. King Emperor, AIR 1938 PC 130, where the
Privy Council held that:
"......if several persons conspire to commit offences, and commit overt
acts in pursuance of the conspiracy (a circumstance which makes the act
of one the act of each and all the conspirators) these acts are committed
in the course of the same transaction, which embraces the conspiracy
and the acts done under it."
131.2. State of A.P. v. Kandimalla Subbaiah, AIR 1961 SC 1241, where
this Court opined that where a number of offences are committed by
several persons in pursuance of a conspiracy it is usual to charge them
with those offences as well as with the offence of conspiracy to commit
those offences, if the alleged offences flow out of the conspiracy, the
appropriate form of charge would be a specific charge in respect of each
of those offences along with the charge of conspiracy.
131.3. State of H.P. v. Krishan Lal Pardhan, (1987) 2 SCC 17 where it was
held that:
"8...... The offence of criminal conspiracy consists of meeting of minds of
two or more persons for agreeing to do or causing to be done an illegal
act or an act by illegal means, and the performance of an act in terms
thereof. If pursuant to the criminal conspiracy the conspirators commit
several offences, then all of them will be liable for the offences even if
some of them had not actively participated in the commission of the
offences."
131.4. In Nalini (supra), this Court explained that conspiracy results in a
joint responsibility and everything said written or done in furtherance of
the common purpose is deemed to have been done by each of them. The
Court held:
"583. Some of the broad principles governing the law of conspiracy may
be summarized though, as the name implies, a summary cannot be
exhaustive of the principles.
(1) Under Section 120-A Indian Penal Code offence of criminal conspiracy
is committed when two or more persons agree to do or cause to be done
an illegal act or legal act by illegal means. When it is a legal act by illegal
means overt act is necessary. Offence of criminal conspiracy is an
exception to the general law where intent alone does not constitute
crime. It is intention to commit crime and joining hands with persons
having the same intention. Not only the intention but there has to be
agreement to carry out the object of the intention, which is an offence.
The question for consideration in a case is did all the accused have the
intention and did they agree that the crime be committed. It would not
be enough for the offence of conspiracy when some of the accused
merely entertained a wish, howsoever horrendous it may be, that offence
be committed.
(2) Acts subsequent to the achieving of the object of conspiracy may tend
to prove that a particular accused was party to the conspiracy. Once the
object of conspiracy has been achieved, any subsequent act, which may
be unlawful, would not make the accused a part of the conspiracy like
giving shelter to an absconder.
(3) Conspiracy is hatched in private or in secrecy. It is rarely possible to
establish a conspiracy by direct evidence. Usually, both the existence of
the conspiracy and its objects have to be inferred from the circumstances
and the conduct of the accused.
(4) Conspirators may for example, be enrolled in a chain- A enrolling B, B
enrolling C, and so on; and all will be members of a single conspiracy if
they so intend and agree, even though each member knows only the
person who enrolled him and the person whom he enrolls. There may be
a kind of umbrella-spoke enrolment, where a single person at the center
does the enrolling and all the other members are unknown to each other,
though they know that there are to be other members. These are theories
and in practice it may be difficult to tell which conspiracy in a particular
case falls into which category. It may however, even overlap. But then
there has to be present mutual interest. Persons may be members of
single conspiracy even though each is ignorant of the identity of many
others who may have diverse roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree to play the same or an
active role.
(5)When two or more persons agree to commit a crime of conspiracy,
then regardless of making or considering any plans for its commission,
and despite the fact that no step is taken by any such person to carry out
their common purpose, a crime is committed by each and every one who
joins in the agreement. There has thus to be two conspirators and there
may be more than that. To prove the charge of conspiracy it is not
necessary that intended crime was committed or not. If committed it may
further help prosecution to prove the charge of conspiracy.
(6) It is not necessary that all conspirators should agree to the common
purpose at the same time. They may join with other conspirators at any
time before the consummation of the intended objective, and all are
equally responsible. What part each conspirator is to play may not be
known to everyone or the fact as to when a conspirator joined the
conspiracy and when he left.
(7) A charge of conspiracy may prejudice the accused because it forces
them into a joint trial and the court may consider the entire mass of
evidence against every accused. Prosecution has to produce evidence not
only to show that each of the accused has knowledge of the object of
conspiracy but also of the agreement. In the charge of conspiracy the
court has to guard itself against the danger of unfairness to the accused.
Introduction of evidence against some may result in the conviction of all,
which is to be avoided. By means of evidence in conspiracy, which is
otherwise inadmissible in the trial of any other substantive offence
prosecution tries to implicate the accused not only in the conspiracy itself
but also in the substantive crime of the alleged conspirators. There is
always difficulty in tracing the precise contribution of each member of
the conspiracy but then there has to be cogent and convincing evidence
against each one of the accused charged with the offence of conspiracy.
As observed by Judge Learned Hand "this distinction is important today
when many prosecutors seek to sweep within the dragnet of conspiracy
all those who have been associated in any degree whatever with the
main offenders.
(8) As stated above it is the unlawful agreement and not its
accomplishment, which is the gist or essence of the crime of conspiracy.
Offence of criminal conspiracy is complete even though there is no
agreement as to the means by which the purpose is to be accomplished.
It is the unlawful agreement which is the gravamen of the crime of
conspiracy. The unlawful agreement which amounts to a conspiracy need
not be formal or express, but may be inherent in and inferred from the
circumstances, especially declarations, acts and conduct of the
conspirators. The agreement need not be entered into by all the parties
to it at the same time, but may be reached by successive actions
evidencing their joining of the conspiracy.
(9) It has been said that a criminal conspiracy is a partnership in crime,
and that there is in each conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or more persons enter into a
conspiracy, any act done by any of them pursuant to the agreement is, in
contemplation of law, the act of each of them and they are jointly
responsible therefore. This means that everything said, written or done
by any of the conspirators in execution or furtherance of the common
purpose is deemed to have been said, done or written by each of them.
and this joint responsibility extends not only to what is done by any of the
conspirators pursuant to the original agreement but also to collateral
acts incidental to and growing out of the original purpose. A conspirator
is not responsible, however, for acts done by a co-conspirator after
termination of the conspiracy. The joinder of a conspiracy by a new
member does not create a new conspiracy nor does it change the status
of the other conspirators, and the mere fact that conspirators individually
or in groups perform different tasks to a common end does not split up a
conspiracy into several different conspiracies.
(10) A man may join a conspiracy by word or by deed. However, criminal
responsibility for a conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who commits an overt act
with knowledge of the conspiracy is guilty. and one who tacitly consents
to the object of a conspiracy and goes along with other conspirators,
actually standing by while the others put the conspiracy into effect, is
guilty though he intends to take no active part in the crime."
96. After referring to various earlier decisions rendered by the
Court, Hon‟ble Apex Court in Yakub Abdul Razak Memon v. State
of Maharashtra, (2013) 13 SCC 1 held as follows:
"150. The law on the issue emerges to the effect that conspiracy is an
agreement between two or more persons to do an illegal act or an act
which is not illegal by illegal means. The object behind the conspiracy is
to achieve the ultimate aim of conspiracy. In order to achieve the
ultimate object, parties may adopt many means. Such means may
constitute different offences by themselves, but so long as they are
adopted to achieve the ultimate object of the conspiracy, they are also
acts of conspiracy. For an offence of conspiracy, it is not necessary for the
prosecution to prove that conspirators expressly agreed to do an illegal
act, the agreement may be proved by necessary implication. It is also not
necessary that each member of the conspiracy should know all the details
of the conspiracy. Conspiracy is a continuing offence. Thus, if any act or
omission which constitutes an offence is done in India or outside its
territory, the conspirators continue to be the parties to the conspiracy.
The conspiracy may be a general one and a smaller one which may
develop in successive stages. It is an unlawful agreement and not its
accomplishment, which is the gist/essence of the crime of conspiracy. In
order to determine whether the conspiracy was hatched, the court is
required to view the entire agreement and to find out as in fact what the
conspirators intended to do."
97. What can be culled out from the aforesaid legal enunciation is
that it is not necessary that all the conspirators should participate from
the inception to the end of a conspiracy. It is not necessary that all
the conspirators must know each and every detail of the conspiracy as
long as they are co-participators in the main object of the conspiracy.
It is also not necessary that all the conspirators should agree to the
common purpose and at the same time. They may join with other
conspirators at any time before the intended objective, and all are
equally responsible. What part each conspirator has to play may not
be known to everyone or the fact as to when a conspirator joined the
conspiracy and when he left. As such, the statement that mere
knowledge on the part of the appellant is not sufficient to convict
them for charge of criminal conspiracy does not hold good in the facts
and circumstances of the case. Suman Sood (supra) does not help
any of the appellant, inasmuch as, in that case the abductee was kept
by the main accused in his house and the appellant was the wife of the
main accused who was keeping watch over the abductee and used to
provide him food, etc. In the above peculiar circumstances of the case
it was observed that there was no material to show her conspiracy
with others to kidnap for ransom. As such, both the charges under
Section 364A read with Section 120B IPC was dropped against her,
but her sentence recorded by the Trial Court and upheld by the High
Court for offence punishable under Section 365/120B, 343/120B and
346/120B IPC was confirmed.
98. In the instant case, from the statements of PW-9 Sunil Kumar
Gogia, father of Amit Gogia and PW-10 Amit Gogia himself, it is
clear that there was demand of huge ransom amount for release of
Amit Gogia. As per the prosecution case, PW-42 Inspector Ishwar
Singh was having a secret information that a ransom amount will be
paid to Braham Pradhan at factory of victim i.e. B-135, Sector-6,
Noida. As already discussed PW-42 Inspector Ishwar Singh, PW-15
SI Suresh Kumar, both officers of Anti-Extortion Cell, Crime Branch
along with other two police officials had taken position near B-135,
Sector-6, Noida. Both these accused were found roaming in Zen
Maruti Car No. DL-4CN-1438 in suspicious circumstances. From
there they were apprehended, interrogated and they led the police
party to the premises No. B-49, Gharoli Dairy Farm from where the
victim Amit Gogia was rescued after the rescue operation.
99. As regards the submission that at the time of recording of
statement of accused under Section 313 Cr.P.C. not a single question
was put to the appellant that he conspired with other co-accused to
commit offence of kidnapping for ransom and unlawful confinement,
therefore, in the absence of the same the conviction of the appellant is
bad in law, again is without substance.
100. So far as Section 313 of the Code of Criminal Procedure is
concerned, undoubtedly, the attention of the Accused must
specifically be brought to inculpable pieces of evidence to give him
an opportunity to offer an explanation if he chooses to do so. A three-
Judge Bench of the Supreme Court in Wasim Khan v. The State of
Uttar Pradesh, AIR 1956 SC 400 and Bhoor Singh and Anr. v. State
of Punjab, AIR 1974 SC 1256 held that every error or omission in
compliance of the provisions of Section 342 of the old Code of
Criminal Procedure does not necessarily vitiate trial. The Accused
must show that some prejudice has been caused or was likely to have
been caused to him.
101. In Asraf Ali v. State of Assam, (2008) 16 SCC 328, a similar
view has been reiterated by the Supreme Court observing that all
material circumstances appearing in the evidence against the Accused
are required to be put to him specifically and failure to do so amounts
to serious irregularity vitiating trial, if it is shown that the accused
was prejudiced.
102. In Shivaji Sahebrao Bobade and Anr. v. State of
Maharashtra,AIR 1973 SC 2622, a three-Judge Bench of the
Supreme Court held that "basic fairness of a criminal trial may
gravely imperil the validity of the trial itself, if consequential
miscarriage of justice has flowed." However, where such an omission
has occurred it does not ipso facto vitiate the proceedings and
prejudice occasioned by such defect, must be established by the
Accused.
103. In Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR
2011 SC 200, after considering large number of cases on the issue,
the Supreme Court held as under:
"Thus, it is evident from the above that the provisions of Section 313 Code of
Criminal Procedure make it obligatory for the court to question the Accused
on the evidence and circumstances against him so as to offer the Accused an
opportunity to explain the same. But, it would not be enough for the
Accused to show that he has not been questioned or examined on a
particular circumstance, instead he must show that such non-examination
has actually and materially prejudiced him and has resulted in the failure
of justice. In other words, in the event of an inadvertent omission on the
part of the court to question the Accused on any incriminating circumstance
cannot ipso facto vitiate the trial unless it is shown that some material
prejudice was caused to the Accused by the omission of the court."
This view was reiterated in Gian Chand and Others v. State of
Haryana 2013 UOI VIII AD (SC) 92.
104. In the instant case the issue relating to non-compliance of the
provisions of Section 313 Cr.P.C. has not been raised before the Trial
Court, and it is raised for the first time before this Court. Learned
Counsel for the appellants could not point out what prejudice has
been caused to them if the fact of "conspiracy" has not been put to
them which even otherwise was to be deduced from the evidence led
by the prosecution.
105. Learned counsel for Ajit Singh laid emphasis on Section 142 of
the Indian Evidence Act for submitting that prosecution witness,
namely, PW5 to PW13, PW16 and PW20 did not support the
prosecution case in examination-in-chief, as such, learned Prosecutor
sought leave of the Court to put question to the said witnesses and put
leading question with a view to put forth the prosecution case.
Leading question does not fall under the category specified in the
Section and as such the permission granted to the learned Additional
Public Prosecutor to ask leading question is an illegality which is not
curable. Reliance was placed on Varkey Joseph v. State of Karela,
AIR 1993 SC 1892.
106. Chapter X of the Indian Evidence Act, 1872 deals with
examination of witness. The relevant sections are Sections 137, 138,
141, 142, 145 and 154 which reads as under:-
"137. Examination-in-chief.--The examination of a witness by the
party who calls him shall be called his examination-in-chief.
Cross-examination.--The examination of a witness by the adverse
party shall be called his cross-examination.
Re-examination.--The examination of a witness, subsequent to the
cross-examination by the party who called him, shall be called his re-
examination.
138. Order of examinations.--Witnesses shall be first examined-in-
chief, then (if the adverse party so desires) cross-examined, then (if the
party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts,
but the cross-examination need not be confined to the facts to which
the witness testified on his examination-in-chief.
Direction of re-examination.--The re-examination shall be directed to
the explanation of matters referred to in cross-examination; and, if
new matter is, by permission of the Court, introduced in re-
examination, the adverse party may further cross-examine upon that
matter.
141. Leading questions.--Any question suggesting the answer which
the person putting it wishes or expects to receive, is called a leading
question.
142. When they must not be asked.--Leading questions must not, if
objected to by the adverse party, be asked in an examination-in-chief,
or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are
introductory or undisputed, or which have, in its opinion, been already
sufficiently proved.
145. Cross-examination as to previous statements in writing.--A
witness may be cross-examined as to previous statements made by
him in writing or reduced into writing, and relevant to matters in
question, without such writing being shown to him, or being proved;
but, if it is intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to those parts of it
which are to be used for the purpose of contradicting him.
154. Question by party to his own witness:
(1) The Court may, in its discretion, permit the person who calls a
witness to put any question to him which might be put in cross-
examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted
under sub-section (1), to rely on any part of the evidence of such
witness."
107. A bare reading of the aforesaid sections goes to show that
Section 138 lays down the manner of examining a particular witness
and creates three distinct rights, viz., examination-in-chief, cross-
examination and re-examination. Section 141 defines leading
questions. By virtue of Section 142 of the Act leading questions are
not permitted to be asked in examination-in-chief or in re-
examination, if objected to by the adverse party, except by the
permission of a Court.
108. Section 145 of the Evidence Act enables the examiner to use any
former statement of the witness but it cautions that if it is intended to
contradict the witness, the examiner is to comply with the formality
prescribed therein. Section 162 of the Code also permits the
examiner to use the previous statement of the witness recorded under
Section 161 of the Code for the limited purpose i.e. to contradict the
witness. Section 154 of the Act permits the person who calls a
witness to put any question to him which might be put in cross-
examination by the adverse party.
109. Adverting to the case at hand, a perusal of the record reveals that
the witnesses referred to by learned counsel for the appellant-Ajit
Singh did not support the case of prosecution on certain aspect of the
matter, therefore, after taking permission from the Court they were
cross-examined by learned Additional Public Prosecutor for the State
in order to confront them with their earlier statement recorded under
Section 161 Cr.P.C. While doing so it cannot be said that prosecutor
was putting any leading question to the witness which was barred by
Section 142 of the Evidence Act. Varkey Joseph (supra) relied upon
by learned counsel for the appellant does not help him in any manner,
inasmuch as, in that case various leading questions were put to the
witnesses while recording their examination-in-chief itself without
treating any of the witness hostile. After referring to Sections 141,
142, 143, 145 of the Evidence Act, it was observed by Hon‟ble
Supreme Court that leading question is one which indicates to the
witnesses the real or supposed fact which the prosecutor expects and
desires to have confirmed by the answer. The attention of the witness
cannot be directed in Chief examination to the subject of the
enquiry/trial. The Court may permit leading question to draw the
attention of the witness which cannot otherwise be called to the
matter under enquiry, trial or investigation. The prosecutor is not
allowed to frame his questions in such a manner that the witness by
answering merely "yes" or "no" will give the evidence which the
prosecutor wishes to elicit. Sections 145 and 154 of the Evidence Act
is intended to provide for cases to contradict the previous statement of
the witnesses called by the prosecution. These Sections provide the
right to cross-examine the witness by the adverse party even by
leading questions. In that case in the examination-in-chief itself the
Prosecutor had put leading question to the witness which was
impermissible in law. Things are entirely different in the instant case
as after the witnesses did not support the prosecution case in regard to
some of the facts then after taking permission of the Court they were
cross-examined by learned Public Prosecutor and in cross-
examination their attention was drawn to certain part of the
statements made by them in their earlier statement under Section 161
Cr.P.C. which was permissible in law.
110. Coming to next limb of the argument that PW16 Brij Bhushan
and PW19 Satbir Singh, whose houses were near B-49, Gharoli,
Dairy Farm where the encounter took place have not supported the
case of prosecution and have denied that on 22 nd June, 2001 they
heard the noise of firing, as such, a serious doubt is created in the
prosecution story. It is worthwhile to note that i t is common experience
that public persons are generally reluctant to join police proceedings.
There is generally apathy and indifference on the part of public to join
such proceedings. This position of law was reiterated in Aslam &
Ors. Vs. State, 2010 III AD (Delhi) 133 where it was observed by this
Court that reluctance of the citizens to join police proceedings is well
known and needs to be recognized. It cannot be disregarded that
public does not want to get dragged in police and criminal cases and
wants to avoid them because of long drawn trials and unnecessary
harassment.
111. Hon‟ble Supreme Court in Krishna Mochi vs. State of Bihar,
(2002) 6 SCC 81 in this regard observed:
"It is matter of common experience that in recent times there has been
sharp decline of ethical values in public life even in developed countries
much less developing one, like ours, where the ratio of decline is higher.
Even in ordinary cases, witnesses are not inclined to depose or their
evidence is not found to be credible by courts for manifold reasons. One
of the reasons may be that they do not have courage to depose against
an accused because of threats to their life, more so when the offenders
are habitual criminals or high-ups in the Government or close to powers,
which may be political, economic or other powers including muscle
power. A witness may not stand the test of cross-examination which may
sometimes be because he is a bucolic person and is not able to
understand the question put to him by the skilful cross-examiner and at
times under the stress of cross-examination, certain answers are
snatched from him. When a rustic or illiterate witness faces an astute
lawyer, there is bound to be imbalance and, therefore, minor
discrepancies have to be ignored. These days it is not difficult to gain over
a witness by money power or giving him any other allurence or giving out
threats to his life and/or property at the instance of persons, in/or close
to powers and muscle men or their associates. Such instances are also
not uncommon where a witness is not inclined to depose because in the
prevailing social structure he wants to remain indifferent."
112. Apathy and indifference is reflective from the fact that although
both these witnesses are living in the neighbourhood of house No. B-
49, Gharoli Dairy Farm, yet both of them chose not to support the
case of prosecution. However, so far PW19 Satbir Singh is
concerned, at least, he admitted that police came to house No. B-49,
Gharoli Dairy Farm and he came to know that one person was
released by the police from the custody of miscreants.
113. Learned counsel for accused relied upon Munshi Prasad (supra)
and Dudh Nath Pandey v. State of Uttar Pradesh (1981) 2 SCC 166
for submitting that defence witnesses are entitled to equal treatment
as that of the prosecution witnesses. As regards this legal proposition
is concerned, there is no dispute, however, DW5 Sanjay Kishore
admitted in his cross-examination that he did not lodge any complaint
to any authority concerning lifting of accused persons by the police in
his presence. None of the accused persons have alleged any
animosity against any of the police officials for which reason they
would be lifted from their houses and then falsely implicated in this
case. On the other hand, presence of accused around B-135, Sector-6
Noida, U.P. in suspicious circumstances, their disclosure and pointing
out of No. B-49, Gharoli Dairy Farm from where victim Amit Gogia
was recovered after exchange of fire between the accused persons is
sufficient evidence to establish that both these accused were part and
parcel of the criminal conspiracy under which accused Amit Gogia
was kidnapped for ransom and was held captive at No. B-49, Gharoli
Dairy Farm. Since father of the victim Sh. Sunil Gogia was expected
to give ransom money to the accused persons, as such, both these
accused were found roaming around B-135, Sector-6 Noida, U.P.
Under the circumstances, it was rightly observed by learned Trial
Court that prosecution had established beyond reasonable doubt that
both these accused were under criminal conspiracy with other accused
persons in kidnapping Amit Gogia on 17th June, 2001 and held him
captive at No. B-49, Gharoli Dairy Farm.
JAGMINDER @ Happy
114. As regards the role assigned to this appellant, PW14-ASI Abdul
Kadir has deposed that this accused was apprehended from the spot.
PW29-ACP HPS Cheema deposed that this accused along with
Subhash and Prabhat was apprehended from the other room. PW31 -
Inspector Rajinder Bakshi deposed that this appellant was having
weapon in his hand and was firing on the police party. They also
returned firing and apprehended this appellant along with Prabhat and
Sandeep. One loaded pistol of .30 bore and a live cartridge of the
same bore was recovered from him. He identified the pistol Ex.P2 and
cartridge Ex.P3 recovered from this accused. PW32-ACP Ishwar
Singh also deposed that when they entered the gallery, this accused
opened fire on Inspector Ishwar Singh. He tried to run and was
overpowered with one .30 bore pistol. ACP Ishwar Singh deposed
that this accused along with Sandeep was trying to escape through
another door by jumping from the balcony. Inspector Ishwar Singh
fired three shots to immobilize them. He as well as SI Arvind Kumar
also fired one shot each from their service weapons. This accused was
overpowered with one .30 bore pistol with one live cartridge. PW43-
Inspector Arvind Kumar also corroborated these witnesses by
deposing that accused was having arm in his hand. One pistol was
recovered from him. Since the accused sustained injuries while he
was trying to escape by jumping from the balcony as such he was
taken to GTB Hospital, Shahdara, Delhi where his MLC Ex.PA was
prepared which also proves that he had sustained gun shot injuries.
The factum of sustaining injuries and preparation of his MLC at GTB
Hospital is not even disputed by the appellant.
115. All the prosecution witnesses were cross examined at length by
the accused. However, except for minor contradictions, nothing
material could be elicited to discredit their testimonies. The presence
of the accused at B-49, Gharoli Dairy Farm, Delhi where the raid was
conducted by the police officers and the victim was rescued stands
proved.
116. The stand taken by accused Jagminder @Happy was that he was
doing a job of sale and purchase of old cars in Delhi since 1997. He
left the job in the year 1999. During this period, he came in touch
with Subhash Pahwa who was in the same trade. In the year 2000, he
purchased Tata Shera vehicle. In June, 2001, he came to Delhi to sell
that car. On 21st June, 2001, he had gone to workshop of Sh. Pahwa
to get the vehicle repaired. Some persons came, who were later on
found to be police officials, and started beating Subhash Pahwa. He
intervened and started defending Subhash Pahwa. He along with
Subhash was lifted from there and detained in a house somewhere.
On 22nd June, 2001, they were taken to Mayur Vihar Phase III and
thereafter he as well as Subhash Pahwa were arrested in this case.
117. He has examined DW3 Dr. Sanjay Kumar Bansal who has
deposed that on 19th or 20th June, 2001, he was getting the AC of his
car repaired at Kailash Workshop, near Baresarai in front of Central
School where some altercation took place between two police
officials and accused Subhash and Jagminder. The police officials
took Subhash and Jagminder in police gypsy. DW4 Satnam Singh
has deposed to the same effect as DW3.
118. The incident in question has taken place on 22.06.2001.
However, as per the defence taken by the accused he was taken by the
police officials on 21.06.2001 and DW3-Dr. Sanjay Kumar Bansal
has give the date of alleged incident as 19/20.06.2001. As such there
is a contradiction regarding date of alleged incident in the statement
of accused recorded under section 313 Cr.PC and the statement of
DW3. On the other hand there is clinching evidence regarding the
presence of the accused at B-49, Gharoli Dairy Farm, Delhi from
where he was apprehended and was found in possession of a pistol.
He sustained gunshot injuries in the encounter for which he was
medically examined. Instead of giving any explanation as to how he
sustained injuries, his case was one of denial simplicitor in his
statement recorded u/s 313 Cr. P.C. As such, it was rightly observed
by the learned trial court that the prosecution had succeeded in
establishing beyond reasonable doubt that this accused had entered
into a criminal conspiracy with other co-accused and in pursuance
thereof kidnapped Amit Gogia for ransom on 17.06.2001 and held
him captive at B-49, Gharoli Dairy Farm, Delhi from where he was
rescued by the police on 22.06.2001. It was also established that he
was found in possession of illicit arm Ex.PW31/D which was used by
him against the police party which had come there to get the victim
Amit Gogia rescued in discharge of their duties. It was also proved
that the accused armed with illicit weapons fired at the police party
with the intention or knowledge that the firing may prove fatal for any
of the police official. As such, the prosecution has succeeded in
establishing the guilt of this accused. The finding does not call for any
interference.
Sandeep Ahlawat:
119. As per the case of prosecution, as deposed by PW31, this
accused was apprehended along with co-accused Jagminder and
Prabhat. The pistol and cartridge Ex.P4 and Ex.PW5/1 to PW5/2 were
recovered from this accused. PW32-ACP Ishwar Singh, PW42
Inspector Ishwar Singh, PW43-Inspector Arvind Kumar have also
deposed regarding the apprehension of this accused from the spot and
recovery of pistol and cartridge from his possession. It has also come
in evidence that this accused along with accused Jagminder had tried
to escape from the balcony of the other room. As such, in order to
immobilize him, the police officials fired a shot at his leg and he
sustained injuries. He was also taken to GTB Hospital where his
MLC Ex.A1 was prepared which proves that he had sustained gun-
shot injuries. Further, during the course of investigation Inspector
Virender Kumar seized three bone China plates and one Bisleri bottle
lying at the spot vide seizure memo Ex.PW34/G. The chance prints
were taken from the same. The finger prints of the accused were also
taken and the same were sent for comparison. As per the report Ex.P-
A2, the chance prints Ex. Q10 to Q12 on Chinese clay plate was
found to be identical with the print of this accused.
120. In his statement recorded under Section 313 Cr.P.C., accused
pleaded that on 22nd June, 2001, at about 10:00 or 11:00 AM, two
policemen came to his house in civil dress on a bullet motorcycle. He
was taken by them to PS, New Ashok Nagar where they inquired
about Braham Pradhan from him. However, he replied in negative.
His signatures were obtained on blank papers. Thereafter he was
falsely implicated in this case. He had also examined DW6-
Satyabhan Singh who has deposed that it was 6th or 7th month of
2001. He was sitting at the house of accused Sandeep at village
Bindapur, Uttam Nagar, two persons came and took Sandeep with
them on motorcycle on the ground that they had to make some
inquiry from him and they were taking him to PP Uttam Nagar. After
some time, he and his brother went to PP Uttam Nagar where they
came to know that no police officer from PP Uttam Nagar had come
to take Sandeep for interrogation. On the following day, telephonic
information was received in the neighbourhood of Sandeep from Dev
Nagar Crime Branch that Sandeep was detained there. He went to the
Crime Branch, Delhi where he found Sandeep detained there. Firstly,
it may be mentioned that this witness has not given any specific date
in his deposition as to when, according to him, the accused was taken
by the police officials. Moreover, no explanation has been given by
him as to why no complaint was made by him with Police Station
Uttam Nagar if accused was illegally taken away by the police
officials. Additionally, it can also be held that once the prosecution
had succeeded in establishing the presence of accused in the premises
in question, his sustaining bullet injuries in the course of escaping
from the balcony and his finger prints appearing on bone china plates
seized from the spot, the accused had to establish how he sustained
bullet injuries and how his finger prints appeared on bone chine plates
seized from the spot as these facts were within his special knowledge
and therefore, the case falls within the ambit of the provisions of
Section 106 of the Evidence Act, 1872.
121. State of West Bengal v. Mir Mohammad Omar and Ors.etc.,
AIR 2000 SC 2988, the Supreme Court held that if the fact is
specifically in the knowledge of any person, then the burden of
proving that fact is upon him. It is impossible for the prosecution to
prove certain facts particularly within the knowledge of Accused.
Section 106 is not intended to relieve the prosecution of its burden to
prove the guilt of the Accused beyond reasonable doubt. But the
Section would apply to cases where the prosecution has succeeded in
proving facts from which a reasonable inference can be drawn
regarding the existence of certain other facts, unless the Accused by
virtue of his special knowledge regarding such facts, failed to offer
any explanation which might drive the Court to draw a different
inference. Section 106 of the Evidence Act is designed to meet
certain exceptional cases, in which, it would be impossible for the
prosecution to establish certain facts which are particularly
within the knowledge of the Accused.
122. In view of the above, it was for the accused to explain as to
how and where he sustained injuries as appeared in his MLC and how
his finger prints have appeared on bone China plates seized from the
spot which he has failed to explain. In fact, when the incriminating
fact of sustaining bullet injury was put to him in his statement u/s 313
Cr. P.C., he replied "It is incorrect", however, during the course of
trial he did not dispute his MLC Ex.A1 which reflected that accused
sustained gunshot injuries. Under these circumstances, the plea taken
by the accused does not appeal to reason. On the other hand, he has
not alleged any animosity, ill-will or grudge against any of the police
officials for which reason he would be taken from his house and then
falsely implicated in this case.
123. The learned trial court rightly observed that the prosecution had
succeeded in establishing beyond reasonable doubt that in pursuance
of the criminal conspiracy hatched by him with other co-accused, he
kidnapped Amit Gogia for ransom on 17.06.2001 and held him
captive at B-49, Gharoli Dairy Farm, Delhi from where he was
rescued by the police on 22.06.2001. He was also found in possession
of illicit arm Ex.PW31/C which was used by him against the police
party who had come to get the victim rescued in discharge of their
duties. The accused fired on the police party knowing fully-well that
his act may prove fatal to any of the police officers. As such, his guilt
was rightly held to be proved.
Subhash Pahwa:
124. An important role was played by this accused in the criminal
conspiracy hatched amongst the accused persons to kidnap Amit
Gogia for ransom. Premise No. B-49, Gharoli Dairy Farm, Delhi
belonged to PW8 - Rajiv Sondhi. He had asked PW7 Parmod Kumar
who was working as a property dealer to give his house on rent. PW7
Pramod Kumar has deposed that on 17.06.2001 Mukesh and Subhash
came to him for taking accommodation on rent. He had shown them
one Janta Flat in D-1 Pocket, Gharoli, but the same was rejected by
them. Again on 19.06.2001 they came to his office and he showed
them two room flat in Gharoli Dairy Farm. The landlord Rajiv Sondhi
was also called and after discussions, the rent was settled between the
parties at Rs.2500 per month and security amount was agreed to a
sum of Rs.5,000/-. On the same day, the key of the rented
accommodation was handed over to them. Although Mukesh and
Subhash were told that unless all the formalities are completed, the
keys of the flat could not be handed over to them, but they were in a
hurry and wanted to clean the flat first before shifting in the flat. As
such, the key was handed over to them, but they were asked not to
bring the household articles. Both the persons were asked to complete
the formalities on 20.06.2001, 21.06.2001, 22.06.2001 and ultimately
a rent agreement was got prepared on 22.06.2001 during noon time.
PW8 - Rajiv Sondhi, owner of B-49, Gharoli Dairy Farm has also
deposed to the same effect and he also identified the accused Subhash
to be the person who had taken the premises on rent. It is pertinent to
note that his testimony of giving the premises on rent to Subhash has
not been challenged as he was not subjected to any cross examination.
125. PW14- ASI Abdul Kadir, PW29 - ACP H.P.S. Cheema, PW32
- ACP Ishwar Singh, PW34 Inspector Virender Kuamr have deposed
that this accused was overpowered from B-49, Gharoli Dairy Farm,
Delhi when rescue operation was conducted by the police officials.
PW34 - Inspector Virender Kumar has further deposed that he
produced this accused before the Court for the purpose of taking his
voice sample, but he declined the same. It has further come in
evidence that this accused was overpowered and one .30 bore pistol
was recovered from his possession. Moreover, chance prints were
lifted from car bearing No. DL 4C N 5073 Santro belonging to Amit
Gogia which was recovered from the parking of Safdarjung hospital
chance print Q2 (on car) was found identical with left thumb mark on
the finger impression slip of this accused. All these witnesses were
subjected to cross examination by the accused. However, except for
minor contradictions, nothing could be elicited to discredit their
testimonies.
126. In his statement recorded under Section 313 Cr.PC he has taken
a plea that he was having his office in Safdarjung Development Area,
where he used to deal in sale purchase of old cars. His workshop was
in village Baresarai. Inspector Ishwar Singh used to send his vehicle
for repair at his workshop but never paid repair charges. On 20th
June, 2001, Maruti Zen of Inspector Ishwar Singh came to his
workshop for repair of AC. He repaired the same and its bill came to
Rs.9000/-. When the constable came for delivery of the vehicle, he
demanded repair charges from him. He abused him and took away
the vehicle. During evening hours, Inspector Ishwar Singh came to
his shop and started abusing him as to why he demanded money for
repair of the vehicle. He narrated these facts before Inspector
Rajinder Bakshi and also told that he would lodge a complaint against
Inspector Ishwar Singh. On 21st June, 2001, Inspector Ishwar Singh
gave a telephonic call and asked him to reach Crime Branch Cell,
R.K. Puram. However, he did not comply with these directions. At
about 3:00 PM, when he was going to his workshop from his office,
two constables met him at the red light of village Jiya Sarai and told
him that he was called by Inspector Ishwar Singh. He told them that
he was getting late as he had to go to his workshop to deliver the car
to one of the customer. In the meantime, Inspector Ishwar Singh
came and enquired as to why he did not reach the office of Crime
Branch, R.K. Puram. He was assaulted by the constable. Jagminder
@ Happy was sitting at his workshop at that time and questioned
them as to why they were assaulting him. Thereupon, Jagminder was
also assaulted. An altercation took place between Jagminder and
constables. He as well as Jagminder were taken in police gypsy to
R.K. Puram, thereafter, they were taken to PS New Ashok Nagar
where they were beaten. One constable assaulted him with a helmet
on his head. Thereafter, he was taken to hospital. After medical
examination, he was brought back to police station and was framed in
this case. He has also examined DW3 Dr. Sanjay Kumar Bansal as
well as DW4 - Satnam Singh who have deposed that this accused
along with Jagminder was taken by the police officials from his
workshop.
127. According to this accused, on account of demanding the repair
charges of AC of Maruti Zen car of Inspector Ishwar Singh, he was
taken by the police officials and thereafter was framed in this case.
However, the only suggestion given to Inspector Ishwar Singh was
that he was lifted from his workshop at Gia Sarai, New Delhi. The
other part of the statement as set up in his statement recorded under
Section 313 Cr.PC and by DW3 and DW4 was not suggested to the
witness during his cross examination and as such he had no
opportunity to explain the allegations made against him by this
accused. Under the circumstances, the defence taken by the accused
seems to be an afterthought. On the other hand, as discussed above,
clinching evidence was led by the prosecution to show that it was this
accused who along with Mukesh had taken the premises bearing
number B-49, Gharoli Dairy Farm, Delhi on rent from Rajeev Sondhi
where after kidnapping Amit Gogia was kept and from this premises
only he was rescued by the police on 22.06.2001. His finger prints
tallied with the chance print taken from the car belonging to victim.
He was also found in possession of illicit arm Ex.PW14/D which was
used by him against the police party who had come to get the victim
rescued and the fire was opened by him with the knowledge that the
same may prove fatal for any of the police officials. As such, guilt of
the accused was established.
Prabhat:
128. It is the case of the prosecution that this accused was
apprehended along with his co-accused during rescue operation. In
his statement recorded under Section 313 Cr.PC, this accused has
alleged that he was lifted from the house of his father‟s sister (bua)
located at Moti Bagh on 22nd June, 2001 at about 11:00 AM and was
enquired about Mukesh who is son-in-law of his father‟s sister (bua).
He was taken away by the police and was framed in this case. He
has examined DW Amit who has deposed that on 22nd June, 2001,
accused Prabhat had come to his house at about 8:00 PM, two persons
came in civil dress and enquired about Prabhat. They took him with
them by saying that they had come from special staff, Dev Nagar
Delhi. On the following day, he came to know that Prabhat was
implicated in this case. At the outset, it may be mentioned that no
reliance can be placed on the testimony of DW1 Amit inasmuch as
according to him accused Prabhat was his cousin. If the accused was taken
by the police officials without any rhyme or reason from his house, why
did he not lodge any complaint regarding the same. Moreover, according
to this accused, he was lifted from the house of his father‟s sister at
about 11 am whereas according to this witness the accused was lifted
from his house by the police officials at 8 pm. On the other hand,
ample evidence has come on record to prove apprehension of the
appellant Prabhat from B-49, Gharoli Dairy Farm, Delhi. Except for
certain minor contradictions, PW31, PW32, PW42, PW43 and PW29
all have deposed regarding apprehension of accused Prabhat from the
spot. Moreover, this accused has sustained minor injuries for which
he was taken to the hospital where his MLC Ex.PW38/B was
prepared. He was brought to the hospital by HC Ram Niwas with
alleged history of "apprehended by the police after rescue operation".
On examination, three injuries were found on the person of this accused.
The accused has not offered any explanation as to how he sustained the
injuries. Moreover, ASI Chetram lifted the chance prints from Bisleri bottle
and three Chinese clay plates. The finger prints of this accused was also
taken and the same were sent to Finger Print Bureau. As per the report
Ex.P-A2, the chance prints Marked Q1 (Bisleri Bottle) and Q7
(Chinese clay plates) were found identical with left thumb and right
thumb mark on the finger impression slip of Prabhat Singh. This also
proves presence of the accused at the spot.
129. Much emphasis was laid by the learned counsel for the accused
for submitting that Amit Gogia has not identified this accused. He
was cross examined by the prosecution and a specific suggestion was
given by the prosecutor that this accused used to bring and serve food
to the victim to which he denied. Relying upon Suman Sood (supra),
it was submitted that the appellant cannot be held guilty of offence
under Section 120B read with Section 364A of the Indian Penal Code.
The accused cannot take benefit from Suman Sood's case (supra)
inasmuch as, as discussed above, in that case, Suman Sood was the
wife of the main conspirator who had kept the abductee at his house
where Suman Sood was providing him food etc and kept a watch over
his activities. Under those circumstances, it was observed that she
was not part of conspiracy to abduct him for ransom, but for other
offences, she was convicted. Things are entirely different in the
instant case inasmuch as it is not the case of the accused that he was
unaware about the conspiracy or was present in the house only for
providing food etc to the victim. He cannot draw any benefit from a
suggestion given by the prosecution to the victim. On the other hand,
his presence at the spot stands established in view of the
circumstances narrated above. The finding of learned Trial Court
regarding his involvement in the crime cannot be faulted with.
130. In view of the above, the appeals do not present special features
warranting any interference by this Court. The appeals are devoid of
any merit and are, accordingly, dismissed.
131. Copy of this judgment be sent to the Superintendent, Jail for
information of the appellants. Trial Court Record be sent back along
with copy of the judgment.
132. Appellant Jagminder @ Happy has absconded, as such, State is
directed to take necessary steps to get him arrested for serving the
remainder of the sentence.
(SUNITA GUPTA)
JUDGE
(KAILASH GAMBHIR)
JUDGE
JULY 08, 2014
rs/rd
