Delhi High Court
Ashish Uppal @ Ashu vs State Govt. Of Nct Of Delhi on 10 July, 2017
$~ IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 24 th March, 2017
Judgment pronounced on: 10 July, 2017
+ CRL.A. 58/2011
ASHISH UPPAL @ ASHU ..... Appellant
Through : Mr.Subiksh Vasudev, Adv.
Versus
STATE GOVT. OF NCT OF DELHI ..... Respondent
Through : Ms.Aashaa Tiwari, APP for the State.
+ CRL.A. 1240/2011
SANDEEP PARMAR @ SANDY @ BUNTY ..... Appellant
Through : Mr.Vijay Pal Sharma, Adv.
Versus
STATE ..... Respondent
Through : Ms.Aashaa Tiwari, APP for the State.
+ CRL.A. 27/2011
SANDEEP SINGH @ GUDDU ..... Appellant
Through : Mr. K. Singhal, Adv.
Versus
STATE ..... Respondent
Through : Ms.Aashaa Tiwari, APP for the State.
Crl.A. 58/2011, 1240/2011, 27/2011, 1422/2010, 1384/2013 & 890/2012 Page 1 of 45
+ CRL.A. 1422/2010
MANOJ KUMAR ..... Appellant
Through : Mr. Vikaram Panwar, Adv.
Versus
STATE ..... Respondent
Through : Ms.Aashaa Tiwari, APP for the State.
+ CRL.A. 1384/2013
SAURABH SHARMA ..... Appellant
Through : Mr.Deepak Vohra, Adv.
Versus
STATE (GOVT. OF NCT) OF DELHI ..... Respondent
Through : Ms.Aashaa Tiwari, APP for the State.
+ CRL.A. 890/2012
GOVT. OF NCT OF DELHI ..... Appellant
Through : Ms.Aashaa Tiwari, APP for the State.
versus
MUKUL YADAV ..... Respondent
Through : Mr.Sanjeev Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
Crl.A. 58/2011, 1240/2011, 27/2011, 1422/2010, 1384/2013 & 890/2012 Page 2 of 45
G. S. SISTANI, J.
1. All the present six appeals are set down together for final hearing and
disposal. The aforesaid five appeals filed by the appellants convicted
by the trial Court and one appeal filed by the State against the
acquittal of the respondent Mukul Yadav, were heard together, as they
arise out of a common judgment and hence, are being disposed of by a
common judgment.
2. Present five appeals being Crl.A.No.1422/2010, 27/2011, 58/2011,
1240/2011 and 1384/2013 have been filed under Section 374 of the
Code of Criminal Procedure by the appellants and are directed against
the judgment dated 20.10.2010 and order on sentence dated
27.10.2010 passed by the Additional Sessions Judge in Sessions Case
No. 79/2008 convicting the appellants under Section 120-B and
Section 364-A of the Indian Penal Code read with Section 34 of the
Indian Penal Code and sentenced them to imprisonment for life and to
pay a fine of Rs. 25,000/- for each offence and in default of payment
of fine the appellants shall further undergo simple imprisonment for a
period of six months. It was further ordered that the sentence of
imprisonment imposed herein above shall run concurrently.
3. The facts, as noticed by the trial Court, which are necessary for the
disposal of the present appeals are as under:
"1. On 27.06.2007, an information was received by the
crime branch, Delhi, from Inspector Tarun Barot, District
Crime Branch, Gaikwad Haveli, Ahmadabad, that one Raju
Bhai Malvi, came to Delhi from Ahemedabad, via air flight,
was abducted from Delhi airport and that the brother of
Raju Bhai Malvi received ransom calls, on his mobile
phone, from the mobile phone of his abducted brother Raju
Bhai. This case, thus, relates to 3 for ransom.
2. On 03.07.2007, SI Sanjeev Kumar was present at
Gurgaon. HC Ajmer reached there and handed over Zero
FIR of District Crime Branch, Ahmadabad, Gujarat, to SI
Sanjeev Kumar. The said zero FIR was registered on the
statement of complainant Shyam Bhai Malvi. Thereupon, SI
Sanjeev Kumar made his endorsement and sent HC Rajeev
to PS Palam Airport for registration of the case u/s 364-A,
368 and 120-B IPC.
3. Case of the prosecution is that Raju Bhai Malvi, who
looks after the business of H.K Malvi Industries at Odhav,
went to Delhi for business purpose in the night of
25.06.2007, from Ahmadabad Airport.
4. That on 26.06.2007, at about 3 pm, one person, namely,
Asgar Ali telephoned the complainant Shyam Bhai at his
mobile phone from his brother Raju‟s mobile No.
9825440732 and told that his brother had been kidnapped
as he had got „supari‟ for his brother. That the kidnapper
further told him to immediately rush to Ahmadabad and that
he may telephone him between 8 am to 8:30 am.
5. That thereafter, complainant Shyam Lal reached
Ahmadabad and reported the matter to the police. That on
27.06.2007, at about 4 am, the complainant received a
phone call from Asgar Ali who made call from his brother‟s
mobile and asked the complainant to bring ransom of Rs.
1.5 crores. On which, complainant said that he was unable
to arrange so much money as they were not such big
people, but, the brother of the complainant was told by the
caller to bring whatever they want otherwise, they would
kill the brother by next morning.
6. That Asgar Ali then took the phone from Raju Malvi and
asked the complainant to bring Rs 1 crore to Delhi
otherwise, his brother would be killed and then
disconnected the phone.
7. The complainant, in the meanwhile, suspected Sandeep
Parmar @ Sandy @ Bunty, who was later on apprehended
from Gurgaon and who disclosed that he alongwith his
friends conspired and executed abduction of Raju Bhai
Malvi and that they kept Raju Bhai Malvi blind folded in a
rented flat at U-5/45, DLF-III, Gurgaon, Haryana and two
of his associates Sandeep Singh @ Guddu and Ashish
Uppal were guarding him.
8. That a raid was conducted at U-5/45, DLF-III, Gurgaon,
Accused Ashish Uppal @ Ashu and Sandeep Singh @
Guddu were found guarding the captive Raju Bhai. Raju
Bhai Malvi was later rescued by the police.
9. During further enquiry, the aforesaid three accused
persons disclosed that their other two associates were
present at their another rented flat at F-19-D , Royal
Residency, Sushant Lok-II, Gurgaon, Haryana, who were
also involved in the crime. Raid was conducted on the said
premises and the accused Saurabh Sharma and Mukul
Yadav were apprehended from there.
10. That all these accused persons further disclosed that
they conspired the plot of abduction with one Manoj Kumar
who was living nearby, in a rented flat. That all the accused
were apprehended and then arrested. Further investigation
followed."
4. After completion of the investigation, charge sheet for the offence
punishable under Sections 120-B, 364-A read with Section 34 of the
Indian Penal Code was filed against Ashish Uppal @ Ashu, Sandeep
Parmar @ Sandy @ Bunty, Sandeep Singh @ Guddu, Manoj Kumar,
Saurabh Sharma (hereinafter referred to as the appellants) and against
Mukul Yadav (hereinafter referred to as the respondent in State
appeal). The prosecution has relied upon the testimonies of 34
witnesses, besides the exhibited documents tendered during the trial.
The statements of the appellants and the respondent in the State appeal
were recorded under Section 313 of the Code of Criminal Procedure
wherein they denied all the incriminating circumstances appearing in
evidence against them and claimed to be falsely implicated. The
appellants and respondent in the State appeal examined 6 witnesses in
their defence. During the course of hearing of the appeals, at the
request of learned Additional Public Prosecutor for the State,
supplementary statements of the appellants and the respondent in the
State appeal were recorded under Section 313 of the Code of Criminal
Procedure wherein they reiterated their innocence.
5. After appreciating and considering the rival contentions of the parties,
scrutinizing the evidence, the trial Court concluded that the appellants
were guilty for the offence punishable under Section 120-B, 364-A
read with Section 34 of the Indian Penal Code. However, the trial
Court acquitted the respondent Mukul Yadav in the State appeal.
Common arguments raised by the appellants and the respondent in the
State appeal
6. Assailing the impugned judgment, learned counsel for the appellants
contended that the impugned judgment passed by the learned
Additional Sessions Judge was perfunctory in nature, full of
conjectures and surmises and therefore liable to be set aside. Learned
counsel further contended that the impugned judgment was a glaring
case of legal defects resulting in grave failure of justice.
7. Learned Counsel for the appellants further contended that the charge
of criminal conspiracy had not been proved beyond reasonable doubt
and there was absence of conclusive evidence of an agreement prior to
25.06.2007 between the appellants for commission of the offence
under Section 364-A of the Indian Penal Code. They argued that on
the basis of irregularities or defects in connection
with investigation the prosecution case should be viewed with
suspicion.
8. Learned counsel for the appellants further contended that no
recoveries were made at the instance of the appellants and also the
victim failed to identify the appellants correctly in the Court.
9. It was further contended by the counsel for the appellants that the
victim who was examined as PW4, was a tutored witness as his
deposition about being beaten, tortured and injured for 3 days from
25.06.2007 onwards was totally contradictory to the MLC report
which showed that no injury was sustained by him.
10. It was vehemently urged by the counsel for the appellants that the trial
Court failed to appreciate that there were material contradictions in the
statements of PW1, PW4, PW6 and PW7. It was further urged that the
testimony of the sole eyewitness PW4 was not reliable and benefit of
doubt should have been passed on to the appellants.
11. Learned counsel for the appellants contended that the trial Court failed
to appreciate that it was the prime stand of the prosecution t hat the
appellants were caught with the help of electronic surveillance
however, no such electronic evidence has been brought on record or
proved in accordance with the provision of Section 65B of the Indian
Evidence Act. It was also contended that no documentary evidence
was proved such as travel ticket from Ahmedabad to Delhi by Go Air
Airlines, mobile call details, contents of the CD which could have
proved the ransom and abduction of the victim. To substantiate their
arguments, learned counsel on behalf of the appellants have placed
reliance upon the judgments passed by the Apex Court in Anvar P.V.
vs P.K. Basheer and others: 2015 AIR SC 180, Nilesh Dinkar
Paradhkar vs. State of Maharashtra: 2011 4 SCC 143, Sanjay Singh
Ram Rao Chavan vs Dattatray Guabrao Phalke and others : (2015)
3 SCC 123 and Ram Singh & ors. Vs Col. Ram Singh: 1985 Supp
SCC 611. In Ram Singh & Ors. (Supra), the Hon‟ble Apex Court
held as under:
"1. Thus, so far as this Court is concerned the conditions
for admissibility of a tape recorded statement may be
stated as follows:
1) The voice of the speaker must be duly identified by the
maker of the record or by others who recognise his voice.
In other words, it manifestly follows as a logical corollary
that the first condition for the admissibility of such a
statement is to identify the voice of the speaker. Where the
voice has been denied by the maker it will require very
strict proof to determine whether or not it was really the
voice of the speaker.
2) The accuracy of the tape-recorded statement has to be
proved by the maker of the record by satisfactory evidence
- direct or circumstantial.
3) Every possibility of tampering with or erasure of a part
of a tape-recorded statement must be ruled out otherwise it
may render the said statement out of context and,
therefore, inadmissible.
4) The statement must be relevant according to the rules of
Evidence Act.
5) The recorded cassette must be carefully sealed and kept
in safe or official custody.
6) The voice of the speaker should be clearly audible and
not lost or distorted by other sounds or disturbances."
12. Learned counsel for the appellants urged that the trial Court failed to
appreciate that in the entire investigation all the articles recovered
were sealed with the seal of „MKS‟ but PW34 SI Sanjeev Kumar,
Investigating Officer during his cross examination admitted that the
said seal „MKS‟ was not of his but was of SI Mukesh Kumar who was
neither cited nor examined as a witness in this case and therefore, this
shows that the story of the prosecution was fabricated.
Additional arguments on behalf of the appellant Ashish Uppal @ Ashu
13. Mr. Subhiksh Vasudev, learned counsel for the appellant contended
that Exhibit PW6/A i.e. seizure memo of the „Indigo Car‟ which is an
evidence against the appellant has not been proved as per law and
there are suspicious circumstances surrounding the preparation of the
seizure memo. Therefore, the aforesaid exhibit is manipulative and a
fabricated document and could not connect the appellant with the
alleged crime.
14. Learned counsel for the appellant further contended that the possibility
of PW6 and PW7 being planted witnesses cannot be ruled out as the
ownership of the Indigo car was not proved and there is no conclusive
evidence to prove that the recovered Indigo car was the same car
which was allegedly used in the commission of the offence. Learned
counsel further contended that trial Court erred in relying upon the
testimony of PW7 Tejpal, inasmuch as he neither stated in his
statement under Section 161 before the police officials nor in his
examination-in-chief that the appellant Ashish Uppal took him to any
guest house. He rather deposed that the appellant took him to a room
in Mahipalpur, Delhi. The counsel also challenged the arrest of the
appellant.
Additional arguments on behalf of the appellant Sandeep Parmar @ Sandy
15. Mr. Vijay Pal Sharma, learned counsel for the appellant Sandeep
Parmar @ Sandy @ Bunty contended that the appellant herein was
falsely implicated and further stated that the victim was a relative of
the appellant and due to some differences over the issue of salary he
left the workplace of the victim because of which the victim and his
brother suspected him to be involved in the present case. The counsel
further relied upon the contradictions in the mode of arrest of the
appellant and also the contradictions in the testimonies of PW1, PW2,
PW3, PW4, PW15 to prove that he was not involved in the present
case.
Additional arguments on behalf of the appellant Sandeep Singh @ Guddu
16. Mr. K. Singhal, learned counsel for the appellant contended that the
prosecution has failed to establish the call detail records in terms of
Section 65B of the Evidence Act. Learned counsel for the appellant
further contended that trial Court failed to take notice of the fact that
no documents were produced by the prosecution to prove zero FIR
registered on 27.06.2007 in District Crime Branch, Ahmedabad,
Gujarat.
17. Learned counsel for the appellant further contended that there are
material contradictions in the testimonies of PW1 and PW4 in relation
to actual travel of the victim and no travel documents were produced
by the prosecution to establish its case.
Additional arguments on behalf of the appellant Manoj Kumar
18. Mr. Vikaram Panwar, learned counsel for the appellant submitted that
the present appellant had surrendered before learned Magistrate and he
was arrested on 06.12.2007 with the permission of the Court and laid
stress on the testimony of PW4 wherein the victim had admitted in his
cross examination that during the entire period of his captivity he was
blindfolded and he had seen the present appellant for the first time in
Court and had identified him on the basis of his voice. To substantiate
his arguments, learned counsel had relied upon the judgments of the
Apex Court i.e. Hem Singh alias Hemu vs. State of Haryana reported
in 2009 (6) SCC 748, Mukhtiar Ahmed Ansari v. State 2005 reported
in (5) SCC 258, Prahlad Singh v. State of Madhya Pradesh reported
in AIR 1997 SC 3442, State of M.P vs. Badri Yadav and Another
reported in 2006 (9) SCC 549 and Ashraf Ali vs. State of Assam
reported in 2008 (10) SCALE 278.
19. Learned counsel for the appellant further contended that the trial Court
erred in taking the abscondence of the present appellant after the
recovery of the abductee till he surrendered as a circumstance against
him for convicting him which was completely illegal and unwarranted.
To substantiate his argument on this aspect, learned counsel has relied
on the judgement of Apex Court Matru versus State of U.P. reported
in AIR 1971 SC 1050.
Additional arguments on behalf of the appellant Saurabh Sharma
20. Mr. Deepak Vohra, learned counsel for the appellant contended that
the trial Court had erred in not relying upon the testimony of DW5 i.e.
Stamp vendor who had categorically deposed that the stamp paper
used for the alleged lease deed bearing serial no. 2235 was sold to Ms.
Sarita and therefore, the lease deed is a forged document which was
prepared afterwards to deliberately link the appellant with the crime. It
is further urged that PW4 did not have the occasion to identify the
appellant and the alleged recovery of HDFC card had been planted
upon the appellant.
Arguments on behalf of Mukul Yadav, respondent in the State appeal
21. Mr. Sanjeev Singh, learned counsel for the respondent in the State
appeal i.e Mukul Yadav submitted that the trial Court has rightly
acquitted Mukul Yadav for the offence punishable under Sections
120B and Section 364A of the Indian Penal Code read with Section 34
of the Indian Penal Code as the victim himself failed to identify the
respondent in Court and contended that it was settled law that naming
or identifying an accused for the first time in Court, without any TIP
having been carried out, is a farcical exercise. To substantiate this
argument, the counsel has relied upon the judgment of Mohanlal
Gangaram Gehani Vs. State of Maharashtra reported at AIR 1982
SC 839.
22. The counsel further submitted that the CD relied by the prosecution
originally claimed to be prepared by using a digital camera and laptop
could not be proved in Court as it was in a broken condition and
therefore the trial Court had correctly disregarded this evidence.
Counsel for the respondent further relied upon the judgments of Gopal
Singh and Ors. vs State of M.P: 2010 (6) SCC 407, Chandrappa and
Ors.Vs. State of Karnataka :2007 (4) SCC 415 wherein the Apex
Court held that there is a double presumption favouring the respondent
in an appeal against acquittal.
Arguments on behalf of State against the appellants
23. Per contra, Ms. Aashaa Tiwari learned APP for the State contended
that the evidence produced on record established the guilt of the
appellants beyond any shadow of doubt and the trial Court has rightly
convicted the appellants for the offence punishable under Section
120B and Section 364A of the Indian Penal Code read with Section 34
of the Indian Penal Code and hence the findings warrant no
interference, accordingly the appeals are liable to be dismissed.
24. Learned APP for the State further contended that the victim had no
ulterior motive to name all the accused for Kidnapping the victim for
ransom. The victim attributed specific roles to each of the accused
persons before the trial Court in the offence of Kidnapping. It was
further stated that in the instant case, the testimonies of the PW1 and
PW4 are corroborated in material particulars by other public and
police witnesses.
25. Learned counsel for the State submitted that there were no material
defects in investigation and stated that as per the settled position of
law, the defects of investigation do not come to the benefit of the
accused, if the case of the prosecution is proved on record by reliable,
cogent and trustworthy evidence as present in the instant case.
Arguments on behalf of State against Mukul Yadav
26. Learned counsel for the State further contended that as against Mukul
Yadav there was cogent evidence on record to show that he was
involved in the commission of the crime but the trial Court has
wrongly given him the benefit of doubt and acquitted him.
27. Learned counsel for the State further contended that the trial Court had
erred in holding that the prosecution was not able to prove recoveries
against Mukul Yadav and also erred in holding the arrest of Mukul
Yadav as doubtful.
28. We have heard learned counsel for all the parties and considered their
rival submissions, carefully examined the testimonies of the witnesses
on record and the impugned judgment rendered by the Trial Court.
29. The first question which comes up for consideration is as to whether a
case under Section 364A of the Indian Penal Code is made out against
the appellants and the respondent in State appeal or not. Section 364A
of the Indian Penal Code reads as under:
"364A: 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 foreign State or international inter-governmental
organisation 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."
30. A plain reading of Section 364A of the Indian Penal Code would show
that the necessary ingredients of this Section are as under:
i. That kidnapping or abduction of a person is
caused; or „such kidnapped or abducted person‟ is
kept under detention;
ii. That the accused threatened to cause death or hurt,
to „such person‟ or gave rise to a reasonable
apprehension that death or hurt may be caused to
„such person‟, or death or hurt is actually caused;
iii. The above said is done to compel another person to
do or abstain from doing any act or to pay a
ransom.
31. In Vishwanath Gupta Versus State of Uttarakhand: 2007 (11) SCC
633, the Supreme Court observed that to prove the offence under
Section 364A, three facts are required to be established. The Supreme
Court held as under:
"9. The important ingredient of Section 364-A 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 met then the victim is likely to be put to
death and in the event death is caused, the offence of
Section 364-A 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 met, then causing death. If
the three ingredients are available, that will constitute the
offence under Section 364-A of the Penal Code...."
32. In this context, we deem it appropriate to examine the testimonies of
two important witnesses i.e. PW1 Shyam Bhai Malvi (brother of the
victim) and the victim PW4 Raju Himmat Bhai Malvi. PW1 Shyam
Bhai Malvi, brother of the victim is one of the material witnesses who
deposed in his examination-in-chief as under:
"I live in Ahmadabad. In between 10th June 2007 to 15 th
June 2007, I received phone call from Manish bhai who
called me at Delhi for purchase of our machine to be
installed at Delhi. We manufacture dye and machinery
which are used in jewellery. Manish told me that his
owner/Boss is coming from Dubai so I should reach Delhi
for this purpose.
During this period my uncle expired at Rajasthan, so I
could not come to Delhi. I again receive a call after 2-3
days at Rajasthan on my mobile phone the caller Manish
bhai and I inform him that I was still in Rajasthan and
would not be able to come to Delhi. I suggested him to
contact my younger brother Raju bhai on his mobile
phone by giving him his mobile number 9825440732.
They contacted Raju bhai, my brother and sent him PNR
of air ticket so my brother reached Delhi on 25.6.07 in the
evening at airport, Delhi.
On 27.6.07 I was in Rajasthan, I again receive telephone
call from one Asgar Ali that he has abducted my brother
Raju bhai and he asked me to go to Ahmadabad and then
he would tell me the future programme. Thereafter, I went
to Ahmadabad by car and took advice of my friends. In the
night at about 12 or 1 am, I received another call from the
mobile phone of my brother Raju bhai. He threatened me
that if I love my brother Raju bhai then I should arrange a
sum of Rs.1.5 crore for release of my abducted brother
Raju bhai. He also advised me not to report the matter to
police. I informed him that I am not in a capacity to pay
this huge amount, as I am not that rich person. Then they
got my brother talk to me on telephone in Hindi. My
brother was weeping and requested me to get him
released and arranged the money to save him or else he
would be killed. Thereafter, I was frightened and we
decided that the matter should be reported to the police.
We went to crime branch of Ahmadabad police and I
made complaint to the police. The complaint was written
by my friend as I was not in senses and the complaint Ex
PW1/A is signed by me at point A. We were informed by
the crime branch of Ahmadabad after hearing out story
and recording of the zero FIR that since the incident had
taken place in Delhi so the Delhi police has jurisdiction to
investigate the matter.
xxx xxx xxxx
In the night we displayed the said video CD in the office of
Crime Branch of Delhi Police. In the said video CD we
saw Raju Bhai was chained in a room but I do not
remember whether he was sitting or standing. There was
a message in video CD in Rajasthani Marwari Language
that I should give the money or else they would kill my
brother and something like that was in the said video
CD...."
33. PW1 Shyam Bhai Malvi in his cross-examination stated as under:
"....It is correct that on 26.6.07 at about 02:45 pm I
received a telephone call who identified himself as Asgar
Ali and told me that how much I love my brother and my
children. He further told me that he has full plan of my
house. He further told me that he has received „Supari‟ of
my brother and my brother was abducted...
xxx xxxx xxx
It is correct that on 3.7.07 I was present in my hotel and
that I received a call from Vinod @ Pintu that he had
identified Sandeep Parmar @ Bunty son of Rattan Lal
Parmar and that police had apprehended him and that he
had told the police regarding the place of confinement of
Raju Bhai. It is correct that he had also disclosed to the
police about the other kidnappers. It is correct that earlier
also Sandeep Parmar had threatened to some of my family
members when he was at Mumbai. It is correct that we
have suspected Sandeep Parmar in this case. It is correct
that after release of Raju Bhai he told me that accused
Sandeep Parmar @ Bunty along with his friends Saurav
Sharma, Mukul Yadav, Sandeep @ Guddu, Ashish Uppal
@ Ashu and Manoj conspired with each other were
kidnapping him. It is correct that he further told him that
Saurav Sharma impersonated himself as Asgar Ali and
also Manish and telephoned to them. It is correct that he
further told me that accused persons had snatched away
his HDFC debit card, Motorola mobile, cloth‟s bag and
watch and that he was confined in a room. It is incorrect
that I told to the IO that my brother that sardar of team
was Manoj who had been identified by him. (Vol my
brother told me that there was one other person who was
the leader of the gang). It is correct that due to lapse of
time I could not depose the facts systematically. It is
correct that all the accused are present in the court...."
34. The victim PW4 Raju Himmat Bhai Malvi in his examination-in-chief
deposed as under:
"We have family business of making Gold Smith machine
at Ahmadabad. My father runs the same business in the
name of H.K.Malvi Industries. I was in Ahemdabad on
25.6.07. Someone namely Manish had contacted my
brother Shyam Lal on his telephone number, i.e. landline
and mobile and asked him that some Sethji is coming from
Dubai and also asked him to reach Delhi to discuss about
purchasing of Gold Coin machine. The person who called
my brother on telephone revealed his name as Manish. As
my brother was busy due to death of my uncle, he told
Manish that he can contact my younger brother Raju Bhai
and he gave my mobile number to him. I received a call
on my mobile between 24.6.07 and 25.6.07, when I was in
Ahmadabad and told me that a Sethji is coming from
Dubai and I am sending ticket for you and he also asked
me to reach Delhi on 25.6.07 immediately under all
circumstances. The called revealed his name as Manish.
And I received flight ticket through PNR SMS. And on the
same day, I had taken flight from Ahmadabad to Delhi at
8.30 pm and reached Delhi at about between 10.00 pm
and 10.30 pm. On reaching Delhi, I received telephone
call from Manish at my mobile number 9825440732 and
he told me that he is not in a position to receive me at the
airport and he told me that he had sent a boy and vehicle
who will meet you at petrol pump at airport. Thereafter, I
reached near petrol pump on foot and kept standing there.
Within 2-3 min., a boy came and asked me whether I am
Raju Bhai from Ahemdabad and I said yes. He told me
that he has been sent by Manish and he revealed his name
as Sandeep Singh. He also told me that a hotel room has
been booked and he brought one Indigo car and asked me
to sit in the same. I sat in the car. There was another
person who was driving the car. His name was revealed
as Mukul. I sat in the back side of the car alongwith
Sandeep, who came to receive me at the airport. After 10-
15 mins., Mukul, who was driving the car stopped the car
on the road near divider and there was one boy standing
on the road, who asked us way to Noida, whose name
revealed Ashish later on. My attention went towards
Ashish. Suddenly, another boy came, whose names was
revealed Saurabh Sharma, hit me on my face with some
object and I also received injuries on my hands. Sandeep
Singh also hit me. After some time, Sandeep Singh and
Saurabh pressed me and put in between the seat.
Thereafter, they tied my hands and put a cloth on my
mouth and threatened me that they will kill me if I tried to
shout. Thereafter, the car started moving and I was taken
to some house after going through the stairs, they had
taken me inside the room and they had taken off my
clothes and they had tied me with chair with iron chains.
There were 5 persons, when they tied me with the chair in
the room. They again beaten me badly in the room. They
have shown sharp edge weapon and threatened me and
tortured me badly in the room. The names of 5 persons
who tortured me in the room are Sandeep Singh, Mukul,
Ashish, Saurabh and Sandeep Parmar. Sandeep Parmar is
my cousin. Therefore, he is known to me. All the accused
persons told me that they have received 70 lakhs supari to
kill me if I want to save my life, ask my brother Shyam
Bhai to pay between 1.5 to 2 crores of rupees. Again they
had beaten me in the room. After some time, they made
me talk to my brother Shyam Bhai on telephone and they
asked me to talk in Hindi as they do not know Marwardi
language. And I was asked to tell my brother not to make
any complaint to Police and make the payment as
demanded by Saurabh Sharma on telephone. Thereafter, I
told my brother on telephone to arrange the money and
give the accused persons as per the demand of Saurabh
Sharma and Sandeep Parmar and I also requested my
brother to release me immediately by fulfilling their
demands on telephone. They continuously tortured me
for about 3 days and they also threatened me that my
entire family alongwith children will be wiped out if I do
not pay the demanded money. In between, they have tied
chain on my neck and prepared video film in the room in
order to send the same to my brother to press to pay the
money. In between they shifted me one-two places and I
was not kept at one place for more than 2 or 3 days..."
35. Law regarding reliability of testimony of a single witness is well
settled by the Apex Court. In Sunil Kumar v. State (Govt. of NCT of
Delhi) reported in (2003) 11 SCC 367, the Hon‟ble Supreme Court
held as under:
"9. .....As a general rule the court can and may act on
the testimony of a single witness provided he is wholly
reliable. There is no legal impediment in convicting a
person on the sole testimony of a single witness. That is
the logic of Section 134 of the Indian Evidence Act, 1872
(in short "the Evidence Act"). But, if there are doubts
about the testimony the courts will insist on
corroboration. It is for the court to act upon the
testimony of witnesses. It is not the number, the quantity,
but the quality that is material. The time-honoured
principle is that evidence has to be weighed and not
counted. On this principle stands the edifice of Section
134 of the Evidence Act. The test is whether the evidence
has a ring of truth, is cogent, credible and trustworthy,
or otherwise."
36. In Sudip Kumar Sen and Ors. Vs. State of West Bengal and Ors.
reported in (2016) 3 SCC 26, it was held as under:
"11. It is well-settled that the court may act on a
testimony of a single witness though uncorroborated,
provided that the testimony of single witness is found
reliable. Trial court which had the opportunity of seeing
and hearing PW-6 found him wholly reliable and
trustworthy and held that evidence of Sandipan
Majumdar-PW6 cannot be doubted as far as the role
attributed to A-1 to A-6 except Jishu Jain is concerned,
which was affirmed by the High Court. We find no
ground to interfere with the concurrent finding recorded
by the Courts below as to the reliability of PW-6 and to
record the conviction.
12. Observing that there is no impediment for recording
conviction based on the testimony of a
single witness provided it is reliable in Prithipal Singh
and Ors. v. State of Punjab and Anr. : (2012) 1 SCC
10, it was observed as under:
49. This Court has consistently held that as a
general rule the court can and may act on the
testimony of a single witness provided he is wholly
reliable. There is no legal impediment in convicting
a person on the sole testimony of a single witness.
That is the logic of Section 134 of the Evidence Act.
But if there are doubts about the testimony, the
court will insist on corroboration. In fact, it is not
the number or the quantity, but the quality that is
material. The time-honoured principle is that
evidence has to be weighed and not counted. The
test is whether the evidence has a ring of truth, is
cogent, credible and trustworthy or otherwise. 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."
37. Perusal of testimonies of PW1 Shyam Bhai Malvi and PW4 Raju
Himmat Bhai Malvi would show that their testimonies support the
case of the prosecution. As the victim PW4 testified as „they made me
talk to my brother Shyam Bhai on telephone and they asked me to talk
in Hindi as they do not know Marwadi language. And I was asked to
tell my brother not to make any complaint to police and make the
payment as demanded by Saurabh Sharma on telephone.‟ PW1
Shyam Bhai Malvi (brother of victim) also deposed on the s imilar
lines and stated as „on 26.6.07 at about 02:45 pm I received a
telephone call who identified himself as Asgar Ali‟. The factum of
second ransom call was also established in the statement of PW1
wherein he deposed as „on 27.6.07 I was in Rajasthan, I again receive
telephone call from one Asgar Ali that he has abducted my brother
Raju bhai and he asked me to go to Ahemdabad and then he would tell
me the future programme‟.
38. On careful analysis of the testimonies of these above witnesses, it
stands established that the victim PW4 was kidnapped, kept under
detention, a demand for rupees 1.5 crore was made and was threatened
to death in case of non-payment of ransom. Thus, all the ingredients of
Section 364A are satisfied in the present case.
39. To delve upon the aspect of Criminal Conspiracy, it is necessary to see
whether the appellants and respondent in the State appeal entered into
a criminal conspiracy to commit the crime. On perusal of documents,
testimonies of witnesses and submissions of learned counsel, we are of
the view that one of the main charge against the appellants and the
respondent in the State appeal is for entering into a criminal
conspiracy to abduct victim PW4 for ransom. At the outset, it is
pertinent to examine Section 120A and 120B of the Indian Penal Code
which reads as under:
"120A. 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.
120B. 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. "
40. A careful reading of the above provisions would show that the
following ingredients are necessary to prove a case under Section
120B which read as under:
a) There must be an agreement between the persons who are alleged to
conspire;
b) The agreement must be for an illegal activity;
c) The common intention of the accused persons must also be proved;
d) All the accused persons must have played their part in the act for
achieving the common purpose for their common benefits.
41. As per Section 120A and 120B of the Indian Penal Code, Criminal
Conspiracy is a substantive offence, which renders a mere agreement
to commit an offence punishable. The punishment for conspiracy is
the same as if the conspirators have abetted the offence. The
punishment varies according to the commission of offence. If the
offence has been committed in consequence of the conspiracy, the
accused would be punished under Section 109 of the Indian Penal
Code.
42. Section 109 of the Indian Penal Code reads as under:
"Punishment of abetment if the act abetted is committed
in consequence and where no express provision is made
for its punishment:
Whoever abets any offence shall, if the act abetted is
committed in consequence of the abetment, and no express
provision is made by this Code for the punishment of such
abetment, be punished with the punishment provided for
the offence.
Explanation--An act or offence is said to be committed in
consequence of abetment, when it is committed in
consequence of the instigation, or in pursuance of the
conspiracy, or with the aid which constitutes the
abetment."
43. Now the next crucial question which arises for our consideration is as
to whether the appellants and the respondent in State appeal were
involved in the commission of crime under Section 364A of the Indian
Penal Code and the role played by all the appellants in furtherance of
it?
44. Learned counsel for the appellants contended that the story of the
prosecution was a concocted story as the MLC does not support the
case of the prosecution. In this regard, it is relevant to analyse the
medical report received in this case. The victim PW4 was taken to Dr.
Ram Manohar Lohia Hospital, New Delhi on 03.07.2007 and Dr.
Vipin Goel conducted the medical examination vide MLC No.
E/54965/07 which is Ex PW 28/A which reads as under:
"Burning sensation in the eyes. No fresh External Injury marks
seen.
Bandage and dynaplast on scalp removed alongwith
some hair, densely adherent."
45. PW28 Dr. Vipin Goel, SR, RML Hospital, Delhi entered into the
witness box and stated in his cross-examination as under:
"Dynaplast is adhesive tape which is used to fix
bandage. It can be used on any part of the body to
avoid any slipness on the dressing. It is a very strong
adhesive which keeps the bandage in place. It can be
removed by any of the person easily except on whose
person the same is pasted hand tied. I do not remember
whether hands of the victim Raju Bhai were tied when
he was examined by me. There were no ligature marks
observed by me on his hands and legs as in case I
would have observed the same. I might have mentioned
it in my report/MLC."
46. The victim PW4 in his examination in chief, in relation to torture and
brutality, deposed as „they have tied chain on my neck and prepared
video film in the room in order to send the same to my brother to press
to pay the money‟. He further deposed as „I had received injuries after
receiving beatings by the said persons on my nose, on my thumb, on
my jaws, head‟.
47. On a careful examination of the MLC, Ex PW 28/A, it is apparent that
there were no fresh injuries on the body parts of the victim. PW4
however deposed that there was bandage and dynaplast on his scalp.
The examining Doctor in his cross examination admitted as
„Dynaplast is adhesive tape which is used to fix bandage. It can be
used on any part of the body to avoid any slipness on the dressing. It is
a very strong adhesive which keeps the bandage in place.‟ Doctor
further admitted as „there were no ligature marks observed by me on
his hands and legs as in case I would have observed the same. I might
have mentioned it in my report/MLC‟. From above, the allegations of
the victim that he had received beatings on the various body parts such
as nose, thumb, jaws, head and hands did not corroborate as the
chains, rope etc. would have left the mark or abrasions on the hands of
the victim PW4, however there was nothing in the MLC, which
supports the case of the prosecution. Therefore, the MLC report does
not corroborate the prosecution‟s case.
48. The next plank of submission made by the learned counsel for the
appellants that no Test Identification Parade (hereinafter referred to as
„TIP‟) was held and that the appellants were identified in Court for the
first time and as such no reliance should have been placed upon such
identification.
49. In this context, the law in relation to TIP is well settled. In Dana
Yadav @ Dahu and Ors. Vs. State of Bihar reported in 2002 (7) SCC
295 wherein the Apex Court held as under:
"6. It is also well settled that failure to hold test
identification parade, which should be held with
reasonable despatch, does not make the evidence of
identification in court inadmissible rather the same is very
much admissible in law. Question is what is its probative
value? Ordinarily identification of an accused for the
first time in court by a witness should not be relied upon,
the same being from its very nature, inherently of a weak
character, unless it is corroborated by his previous
identification in the test identification parade or any
other evidence. The purpose of test identification parade
is to test the observation, grasp, memory, capacity to
recapitulate what a witness has seen earlier, strength or
trustworthiness of the evidence of identification of an
accused and to ascertain if it can be used as reliable
corroborative evidence of the witness identifying the
accused at his trial in court. If a witness identifies the
accused in court for the first time, the probative value of
such uncorroborated evidence becomes minimal so
much so that it becomes, as a rule of prudence and not
law, unsafe to rely on such a piece of evidence. We are
fortified in our view by catena of decisions of this Court in
the cases of Budhsen (supra), State of Maharashtra
v. Sukhdev Singh and Anr. 1992 Cri LJ 3454, Ronny alias
Ronald James Alwaris (supra).
7. Apart from the ordinary rule laid down in the
aforesaid decisions, certain exceptions to the same have
been carved out where identification of an accused for
the first time in court without there being any
corroboration whatsoever can form the sole basis for his
conviction. In the case of Budhsen (supra) it was
observed:-
"They may, however, be exceptions to this general
rule, when for example, the court is impressed by a
particular witness, on whose testimony it can safely
rely, without such or other corroboration."
8. In the case of State of Maharashtra (supra), it was
laid down that if a witness had any particular reason to
remember about the identity of an accused, in that event,
the case can be brought under the exception and upon
solitary evidence of identification of an accused in court
for the first time, conviction can be based. In the case of
Ronny alias Ronald James Alwaris and others (supra), it
has been laid down that where the witness had a chance
to interact with the accused or that in a case where the
witness had an opportunity to notice the distinctive
features of the accused which lends assurance to his
testimony in court, the evidence of identification in court
for the first time by such a witness cannot be thrown
away merely because no test identification parade was
held..."
(Emphasis supplied)
50. The view taken by the Hon‟ble Supreme Court in Mahabir vs. State of
Delhi reported in (2008) 16 SCC 481, which was further reiterated in
a recent judgment Hem Singh @ Hemu vs. State of Haryana reported
in (2009) 6 SCC 748. The relevant para 20 reads as under:
"20. In Mahabir v. State of Delhi (2008) 16 SCC 481,
this Court held:
"10. As was observed by this Court
in Matru v. State of U.P. (1971) 2 SCC 75,
identification tests do not constitute substantive
evidence. They are primarily meant for the purpose
of helping the investigating agency with an
assurance that their progress with the investigation
into the offence is proceeding on the right lines. The
identification can only be used as corroborative of
the statement in court. (See Santokh Singh v. Izhar
Hussain (1973) 2 SCC 406) The necessity for
holding an identification parade can arise only
when the accused are not previously known to the
witnesses. The whole idea of a test identification
parade is that witnesses who claim to have seen the
culprits at the time of occurrence are to identify
them from the midst of other persons without any aid
or any other source. The test is done to check upon
their veracity. In other words, the main object of
holding an identification parade, during the
investigation stage, is to test the memory of the
witnesses based upon first impression and also to
enable the prosecution to decide whether all or any
of them could be cited as eyewitnesses of the crime.
The identification proceedings are in the nature of
tests and significantly, therefore, there is no
provision for it in the Code and the Evidence Act,
1872 (in short „the Evidence Act‟). It is desirable
that a test identification parade should be
conducted as soon as possible after the arrest of the
accused. This becomes necessary to eliminate the
possibility of the accused being shown to the
witnesses prior to the test identification parade.
This is a very common plea of the accused and,
therefore, the prosecution has to be cautious to
ensure that there is no scope for making such
allegation. If, however, circumstances are beyond
control and there is some delay, it cannot be said to
be fatal to the prosecution.
11. It is trite to say that the substantive evidence is
the evidence of identification in court. Apart from
the clear provisions of Section 9 of the Evidence
Act, the position in law is well settled by a catena of
decisions of this Court. The facts, which establish
the identity of the accused persons, are relevant
under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the
statement made in court. The evidence of mere
identification of the accused person at the trial for
the first time is from its very nature inherently of a
weak character."
(Emphasis supplied)
51. In view of the above settled position of law, the necessity for holding
an identification parade arises only when the accused persons are not
previously known to the witnesses, in the instant case, the victim PW4
deposed in his examination-in-chief as „During my captive, I have
seen the faces of the accused persons, I have seen Sandeep Parmar,
who was my cousin but due to fear, I did not recognise him.‟ PW4 also
deposed as „I did not know other accused persons except Sandeep
Parmar prior to the date of occurrence. I do not remember as to how
the names of the other accused persons came to be mentioned by me in
my statement, i.e. whether at the instance of the Police or during the
course of investigation. IO had shown the articles for the first time to
me in the Police Station when he was preparing the said memos as the
articles having been recovered from the accused persons. It is wrong
to suggest that I am deposing falsely.‟
52. Undoubtedly, the main object of holding an identification parade,
during the investigation stage, is to test the memory of the witnesses
based upon first impression and also to enable the prosecution to
decide whether all or any of them could be cited as eyewitnesses of
the crime. In view of the aforesaid dictum, ordinarily, identification of
an accused for the first time in Court by a witness should not be relied
upon, being inherently of a weak character, unless it is corroborated
by his previous identification in the test identification parade or any
other evidence as held by the Hon‟ble Supreme Court. It is desirable
that a test identification parade should be conducted as soon as
possible after the arrest of the accused persons. The object being to
eliminate the possibility of the accused being shown to the witnesses
prior to the test identification parade. However, if a witness identifies
the accused in Court for the first time, the probative value of such
uncorroborated evidence becomes minimal so much so that it
becomes, as a rule of prudence and not law, unsafe to rely on such a
piece of evidence.
53. Applying the broad guidelines laid down by the Hon‟ble Supreme
Court and in view of the factual background discussed above, we are
of the view that it would be highly unsafe to convict the appellants on
the solitary evidence of identification by the victim PW4 in Court.
54. As far as arguments of learned counsel for the appellants and
respondent in the State appeal in relation to non production of
electronic evidence to prove recovery of victim in accordance to
provision of Section 65B of the Indian Evidence Act, non production
of any documentary evidence in relation to travel ticket from
Ahmedabad to Delhi, non production of documents in support of
contents of CD and also that all recovered articles were under the seal
of MKS instead of seal of PW34 SI Sanjeev Kumar is concerned. It
has emerged from the evidence on record that there were certain
lapses and irregularities that had manifested during trial. PW34 SI
Sanjeev Kumar (Investigating Officer) admitted in his testimony that
he did not collect any payment receipt, PNR details with respect to the
purchase of air ticket. He deposed that there would have been no
difficulty to collect the supporting documentary evidence. It is
difficult to understand as to what prevented the IO to collect the said
documentary evidence. Despite the fact that the documentary evidence
as mentioned was not collected. We are of the view that the appellants
cannot gain any advantage for the reason that law is well settled that
defective investigation by itself cannot be a ground for acquittal, more
particularly when other evidence on record is reliable and trustworthy.
Our view is fortified by the following judgments.
55. In the case of C. Muniappan v. State of T.N. reported at (2010) 9 SCC
567, it has been held by the Hon‟ble Supreme Court as under:
"55. There may be highly defective investigation in a
case. However, it is to be examined as to whether there is
any lapse by the IO and whether due to such lapse any
benefit should be given to the accused. The law on this
issue is well settled that the defect in the investigation by
itself cannot be a ground for acquittal. If primacy is given
to such designed or negligent investigations or to the
omissions or lapses by perfunctory investigation, the faith
and confidence of the people in the criminal justice
administration would be eroded. Where there has been
negligence on the part of the investigating agency or
omissions, etc. which resulted in defective investigation,
there is a legal obligation on the part of the court to
examine the prosecution evidence dehors such lapses,
carefully, to find out whether the said evidence is reliable
or not and to what extent it is reliable and as to whether
such lapses affected the object of finding out the truth.
Therefore, the investigation is not the solitary area for
judicial scrutiny in a criminal trial. The conclusion of the
trial in the case cannot be allowed to depend solely on the
probity of investigation."
56. Similar view was taken by the Apex Court in the case of Sunil Kundu
v. State of Jharkhand reported at (2013) 4 SCC 422, wherein it was
held as under:
"29...It is true that acquitting the accused merely on the
ground of lapses or irregularities in the investigation of a
case would amount to putting premium on the depreciable
conduct of an incompetent investigating agency at the cost
of the victims which may lead to encouraging perpetrators
of crimes. This Court has laid down that the lapses or
irregularities in the investigation could be ignored subject
to a rider. They can be ignored only if despite their
existence, the evidence on record bears out the case of the
prosecution and the evidence is of sterling quality. If the
lapses or irregularities do not go to the root of the matter,
if they do not dislodge the substratum of the prosecution
case, they can be ignored...."
57. In addition to the evidence which has been examined, we shall take
into consideration the role played by each of the appellants taking up
their case on individual basis.
Appellant Sandeep Parmar @ Bunty @ Sandy
58. As far as the role and evidence against the appellant Sandeep Parmar
@ Bunty is concerned, it may be noted that during the inquiry PW1
Shyam Bhai Malvi (brother of the victim) had a suspicion on his
relative namely Sandeep Parmar for kidnapping of his brother. Mobile
phone of victim was put on electronic surveillance and the raiding
team went to Sector 56 Gurgaon. The fact that raiding team went to
Gurgaon has been established from the testimony of PW3 Vinod
Narain Lal Malvi who accompanied the raiding team and testified as
„at the square (chouraha) of Sector-56, I identified accused Sandeep
Parmar standing there in suspicious condition‟. Furthermore, PW34
SI Sanjeev Kumar, Investigating Officer and one of the members of
the raiding team proved this aspect and deposed as „while we were
present near crossing Sector-56, Gurgaon, Sushant Lok, Vinod
pointed out towards the person who present near the street on the
motorbike as Sandeep Parmar‟. Consequently, the appellant Sandeep
Parmar was interrogated and pursuant to his disclosure and pointing
out of the appellant Sandeep Parmar a raid was conducted at U5/45
DLF, Phase-III, Gurgaon where the victim was held captive and after
reaching the spot they got open the bolted door and found the victim
with a bandage on his eyes. Further, pursuant to disclosure of the
appellants a raid was conducted at F-19-D, Sushant Lok, Gurgaon and
two more associates who were involved in the commission of crime
were found present and were arrested. Again, this fact stands
established from the testimonies of PW3, PW4, PW15 Insp. Tarun A
Barot, PW20 ASI Rajbir and PW34 SI Sanjeev Kumar (Investigating
Officer).
Appellant Saurabh Sharma
59. With regard to the conviction of the appellant Saurabh Sharma, the
prosecution relied on the fact that the premises where the victim PW4
was found and rescued from was leased to the appellant Saurabh
Sharma. Moreover, the prosecution also relied on the recovery of a
Debit card and produced the seizure memo in support of it. The trial
court has taken into account the voice samples of all the appellants
which were sent to CFSL, Chandigarh and in the expert‟s report, it
was found that the voice of only appellant Saurabh Sharma had
matched with the voice of the caller demanding ransom, which was
recorded by the complainant PW1 Shyam Bhai.
60. In our view, the role of Saurabh Sharma becomes more significant as
the house where the victim was held captive and finally rescued was
leased to Saurabh Sharma and also the matching of the voice samples
Ex.PW34/D is the most important fatal circumstance against the
appellant Saurabh Sharma. The results of CFSL report reads as under:
"Result of examination:
The auditory analysis of recorded speech samples of
speakers marked „Exh-Q2‟ and „Exh-S2‟ and subsequent
acoustic analysis of the recorded speech samples of the
speakers marked „Exh-Q2' and „Exh-S2' by using
Computerized Speech Lab (CSL), revealed that voice
exhibits of speakers marked 'Exh-Q2' are similar to the
voice exhibits of speaker marked 'Exh-S2' in respect of
their acoustic cues and other linguistic and phonetic
features. Hence, the voice samples of speakers marked
'Exh-Q2' and 'Exh-S2' are probable voice of the same
person (Sh. Saurabh Sharma)"
61. A conjoint reading of CFSL report and the recovery of a Debit card
from the appellant Saurabh Sharma which belonged to the victim the
offence of kidnapping for abduction stands proved against him.
Appellant Ashish Uppal @ Ashu
62. As regards the role assigned to this appellant, the prosecution's
allegations against him are that he was keeping guard over the victim
PW4 along with the appellant Sandeep Singh and was caught while
guarding the victim PW4 at U-5/45 Phase III, Gurgaon. The trial court
while convicting the appellant Ashish Uppal held that as he hired an
„Indigo Car‟ which was used by him to kidnap the victim PW4 and
booked a room in the hotel where the driver of the said „Indigo Car‟
was made to stay abandoned during commission of the offence of
kidnapping. It was further held by the trial court that the appellant was
correctly and distinctly identified by the victim PW4. In this regard, It
was contended by the learned counsel for the appellant that the
ownership of the alleged „Indigo Car‟ was not proved and there is no
conclusive evidence to prove that the recovered „Indigo Car‟ was the
same which was allegedly used in the commission of the offence.
63. To determine the role of the appellant Ashish Uppal @ Ashu, apart
from the evidence of the victim PW1 and PW4 Shyam Bhai, it is
relevant to discuss the testimony of other material witnesses produced
by the prosecution in this case. The „Indigo Car‟ which was seized by
the Investigating Officer pursuant to pointing out of the appellants was
a vital piece of evidence. In order to prove that the seized vehicle was
used in the commission of crime, the prosecution examined the owner
and driver of the alleged vehicle. PW6 Tikka Ram, owner of seized
„Indigo Car‟ which was used in commission of the crime deposed in
his examination-in-chief as under:
"I am Numberdaar of my village. I am the owner of TATA
Indigo bearing no. DL 4CP 9941 which I have bought
from Anil s/o Sh. Jile Singh. I have employed Tejpal as
driver to drive the same. I was paying him Rs.4000/- as
salary. I had employed this vehicle on contract with
Kamal Taxi Service, Gurgaon. Police had called me near
Kamal Taxi Stand. Police had come in a Scorpio vehicle
with accused persons. Police had brought the vehicle to
Chankyapuri. Police did obtain my signatures on some
papers. Seizure memo Ex.PW6/A bears my signatures at
pt.A."
64. However, PW6 Tikka Ram, in his cross-examination stated as under:
"My statement was recorded by the police at the Taxi
Stand itself. I had stated to the police that I am Pradhan.
I have not stated that I am not Numberdaar. Conf. with
statement mark A where he is described as Sarpanch. It
is correct that I quite often visit the Courts. It is correct
that the Numberdaar furnishes surety bond and are
quoted as witnesses. I have not given any document of
ownership to the police regarding the vehicle mentioned
above. I have not brought the same today also...."
(Emphasis supplied)
65. PW7 Tejpal, driver of the seized indigo car, which was used in
commission of the crime deposed in his examination-in-chief as
under:
"I am working with Tika Ram as driver. I used to drive
TATA indigo bearing no. DL 4CP 9941. On 25/06/2007,
Ashu @ Ashish whom I knew three months before, came to
me for a taxi. I accompanied him upto Airport in a Taxi as
he said that he will be having a party with his friends to
the Airport. He took me upto Mahipalpur and said that
here in a room we will sit and enjoy and he kept me
waiting there and came at about 3 am. He did not come
with his friends to enjoy party as he said that I have
already enjoyed there very well. Then he asked me to drop
him back. I came back to the Taxi Stand. When he had
gone to his friends, he had taken the vehicle with him."
66. PW7 Tejpal in his cross examination stated as under:
"No entry is made for the taxi which is booked. It is
incorrect to suggest that no such entry was made as the
accused Ashu has not hired any taxi. The accused had left
me in Guest House East-West at Mahipalpur, before he
went away with the hired taxi. I had stated about the
East West guests house to the police in my statement.
Conf. with statement mark B where it is not so
mentioned. At the time the accused persons came to the
Taxi stand to hire the Taxi, 3-4 persons were present."
67. A reading of the testimony of PW7 would show that PW7 knew
appellant Ashish Uppal three months prior to the incident, PW7 was
working with Tikka Ram (PW6) as a driver and used to drive Tata
Indigo car bearing registration No. DL 4 CP 9941. On the fateful day,
the appellant Ashish Uppal took him upto Mahipalpur in a Taxi as the
appellant told him that he would be having a party with his friends at
the Airport. PW7 next deposed that the appellant Ashish Uppal said
that there in a room they would sit and enjoy and he kept him waiting
there till about 3 am. However, PW7 in his cross-examination stated
the name of the guest house and further stated that the appellant
Ashish Uppal had left him in a Guest House East-West at Mahipalpur
before he went away with the hired taxi. PW7 had further stated that
he already told about the East West Guest House in his statement to
the police, but to the contrary he had not stated the same. After perusal
of the aforementioned testimonies, we are of the considered view that
the testimony of PW6 coupled with PW7 remain uncontroverted and
inspire confidence of this Court. The recovery of TATA indigo car
used in the kidnapping of the abductee along with the testimony of
PW7 Tejpal is sufficient to prove the guilt of the appellant Ashish
Uppal.
Appellant Sandeep Singh @ Guddu
68. As far as the appellant Sandeep Singh @ Guddu is concerned, the
prosecution's allegations against him are that he was keeping guard
over the victim PW4 at the place where he was rescued from. It is the
case of the prosecution that the appellant Sandeep Singh was caught
red handed together with Ashish Uppal while guarding the victim Raju
Himmat Bhai at U-5/45 Phase III, Gurgaon. The trial Court while
convicting the appellant Sandeep Singh held that as he was correctly
and distinctly identified by the victim in the Court and from the facts
of the case it has been proved that he also accompanied other
appellants to the Palam Airport where from they all kidnapped the
victim PW4.
69. Having regard to the evidence of the victim PW4 who not only
identified appellant Sandeep Singh @ Guddu but also deposed that he
was present in the car, he had beaten him and pushed him between the
seats, confined him in a room and tortured him and also the fact that
the appellant was caught red-handed while guarding the victim, in our
view, the appellant has been rightly convicted by the Trial Court for
the offence of kidnapping for ransom as there is ample evidence on
record which show his involvement.
70. It stands established that the appellants Sandeep Parmar @ Bunty,
Saurabh Sharma, Ashish Uppal and Sandeep Singh @ Guddu were
involved in the commission of Kidnapping for ransom. Direct
evidence of common intention is seldom available. Such common
intention of the accused can only be inferred from the evidence, facts
and circumstances of the case. It has been proved that the appellants
Sandeep Parmar @ Bunty, Saurabh Sharma, Ashish Uppal and
Sandeep Singh @ Guddu were party to a Criminal Conspiracy and had
been persuading PW1 to pay the ransom amount for the release of the
victim PW4. The object and purpose of the conspiracy was clear and
the manner of organizing and planning the activities to achieve the
ultimate objective i.e kidnapping for ransom has been amply
established against both the appellants.
71. Since the offence of kidnapping for ransom has been committed and
the prosecution has successfully proved against the appellants Sandeep
Parmar @ Bunty, Saurabh Sharma, Ashish Uppal and Sandeep Singh
@ Guddu, hence, they are entitled to the same punishment for the
offence under Section 120B which is provided for the original offence
i.e. under Section 364A of the Indian Penal Code.
Appellant Manoj Kumar
72. As far as appellant Manoj Kumar is concerned, the only role attributed
by PW4 Raju Himmat Bhai was that he used to finance the other
appellants and visited the place of kidnapping 2-3 times during his
captivity. In this regard, it is relevant to discuss the cross-examination
of the victim PW4 wherein he stated as „It is correct I was blind folded
when I was in alleged custody/confinement. I saw accused Manoj for
the first time in court. It is correct that on the basis of hearsay I
pointed out to accused Manoj in the court.‟ So far as the recovery of
wrist watch from the appellant Manoj is concerned, the relevant part
of the cross-examination of the victim PW4 wherein he categorically
stated as „I was wearing only one watch. There was no other watch in
my bag. Recovery of watch from Manoj was not done in my presence.
I had stated in my statement u/s 161 that the said watch was recovered
from Manoj. (Confronted with Ex.PW4/DA where it is not so
recorded).‟ The trial Court had found the recovery of the wrist watch
of the abductee from the appellant Manoj, pursuant to his disclosure,
to be untrustworthy and disbelieved the same. On this aspect, we
concur with the view of trial Court and find no infirmity in it.
However, the trial Court considered the abscondence of the appellant
Manoj after the recovery of the abductee till he surrendered as a
circumstance against him for convicting him. In this regard, it would
be fruitful to peruse the view taken by the Hon‟ble Supreme Court in
Matru versus State of U.P. reported in AIR 1971 SC 1050 wherein
para 19, it was held as under:
"19. The appellant's conduct in absconding was also
relied upon. Now, mere absconding by itself does not
necessarily lead to a firm conclusion of guilty mind.
Even an innocent man may feel panicky and try to evade
arrest when wrongly suspected of a grave crime such is
the instinct of self-preservation. The act of absconding is
no doubt relevant piece of evidence to be considered
along with other evidence but its value would always
depend on the circumstances of each case. Normally the
courts are disinclined to attach much importance to the
act of absconding, treating it as a very small item in the
evidence for sustaining conviction. It can scarcely be
held as a determining link in completing the chain of
circumstantial evidence which must admit of no other
reasonable hypothesis than that of the guilt of the
accused. In the present case the appellant was with Ram
Chandra till the FIR was lodged. If thereafter he felt that
he was being wrongly suspected and he tried to keep out
of the way we do not think this circumstance can be
considered to be necessarily evidence of a guilty mind
attempting to evade justice. It is not inconsistent with his
innocence."
(Emphasis supplied)
73. From above it is apparent that the victim PW4 categorically stated that
during the entire period of his captivity he was blindfolded and he had
seen the appellant Manoj for the first time in Court and had identified
him in the Court on the basis of hearsay. From the evidence on
record, there is nothing to link the appellant with the present offence.
Therefore, merely because the victim had identified the appellant in
Court. It would be highly unsafe to convict the appellant Manoj
Kumar on the basis of it. We differ with the view taken by the trial
Court with respect to the appellant Manoj Kumar. In the light of
Matru's judgment (supra) coupled with the uncorroborated testimony
of the victim PW4 we extend benefit of doubt against the appellant
Manoj Kumar.
Respondent Mukul Yadav
74. As far as role of Mukul Yadav, the respondent in the State appeal is
concerned, learned counsel for Mukul Yadav vehemently argued that
the recovery was against Mukul Yadav were not proved and also in
the arrest memo his place of arrest was mentioned as U-5/45, Phase-
III, D.L.F., Gurgaon which is contrary to the case of prosecution
wherein they have asserted that Mukul Yadav was arrested from F-
19D, Royal Residency, Sushant Lok, Gurgaon, guarding the victim.
75. The prosecution has made out a case against Mukul Yadav that he was
the person who drove the „Indigo Car‟ in which the victim was
abducted and was fully involved in the commission of the crime. The
prosecution further fortifies their case against Mukul Yadav that he
was named by the victim being one of the person involved in
commission of the crime.
76. We find from the record that PW4 in his examination-in-chief
distinctly named Mukul Yadav as one of the persons who tortured him
in the room alongwith the appellants. However, in Court PW4
identified all the appellants correctly except Mukul Yadav. Moreover,
on perusal of Ex. PW15/14 arrest memo of Mukul Yadav we found
that the place of arrest of this appellant is shown as U-5/45, Phase-
III, D.L.F., Gurgaon which dents the case of the prosecution in
relation to arrest of Mukul Yadav. Further the recoveries made at the
instance of Mukul Yadav are also doubtful as the prosecution was not
able to connect the motorcycle allegedly recovered in the present case
with Mukul Yadav. Also, the laptop and digital camera recovered in
this case was claimed by PW4, but to the contrary, record reveals that
PW4 at the initial stage, has reported snatching of mobile phone, wrist
watch, driving licence, clothes, debit card, documents by the
appellants and the respondent Mukul Yadav and there was no mention
of laptop and digital camera. As per PW34 SI Sanjeev Kumar,
Investigating Officer, laptop and digital camera belonged to Mukul
Yadav and the same were used for making of alleged CD.
77. In view of the above, we find that the non-identification of Mukul
Yadav by the victim and also the fact that the prosecution has failed to
prove recoveries against him weakens the case of the prosecution
against Mukul Yadav and he is entitled to be given benefit of doubt.
Accordingly, we sustain the order of acquittal passed by the learned
trial Court in relation to Mukul Yadav.
Conclusion:
78. In the light of the above discussion, we find no merit in the appeals
preferred by the appellants Sandeep Parmar, Saurabh Sharma, Ashish
Uppal and Sandeep Singh @ Guddu and maintain their conviction. We
also do not find any merit in the appeal preferred by the State. The
prosecution has failed to adduce cogent, reliable, and clinching
evidence against the appellant Manoj Kumar and the respondent
Mukul Yadav for committing the crime in conspiracy with the
appellants Sandeep Parmar, Saurabh Sharma, Ashish Uppal and
Sandeep Singh @ Guddu. As no incriminating material was proved
from their possession or at their instance. They did not make any
ransom call to PW1, brother of the victim; no article of the deceased
was recovered from their possession. Keeping in view the aforesaid
facts, we feel that the prosecution has not been able to prove and
establish the case against the appellant Manoj Kumar and the
respondent Mukul Yadav. The evidence against them is very scanty to
record their conviction under the offence of Kidnapping for ransom
under Section 364A of the Indian Penal Code. Hence, they deserve
benefit of doubt and are acquitted.
79. Criminal Appeal 1422/2010 is accordingly allowed. The appellant
Manoj Kumar be released forthwith if not required to be detained in
other case. Appeals are disposed of accordingly.
80. Copy of this order be sent to Jail Superintendent, Tihar Jail, Delhi.
81. Trial Court Record be returned.
82. In Crl.A.890/2012 personal bond is cancelled and surety stands
discharged.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
JULY 10th , 2017
//
